On 23rd December, 1972 land in dispute was allotted to Nanoo by the Border Area Committee, Assistant Commissioner, Choonian, however, purported to cancel the same on 30-6-1977, which order was assailed by Nanoo through Writ Petition. No. 1046-R of 1977, which was accepted by this Court vide judgment dated 20-2-1979 taking the view that the Assistant Commissioner had no jurisdiction in the matter and it was the Border Area Committee only which could deal with the matter, it was thus observed that "it will be for the Border Area Committee to "take any action in the matter as they deem fit in the circumstances of the case". It may be observed that the Border Area Committee was party to that writ petition. Admittedly the judgment in that case was not challenged any further by any one as a consequence, the Border Area Committee took up the matter and confirmed and upheld the allotment of Nanoo vide its order dated 25-4-1982. The petitioner herein claims to be vendee from Nanoo, vide sale-deed dated 5-4-1990, which transaction, according to him was also given effect to in the Revenue Record. It is order dated 26- 6-2000 passed by the Border Area Committee whereby the allotment of Nanoo has been cancelled, which has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan; 1973.
2. It is contended by the learned counsel that after the matter had already been scrutinized and examined by the Border Area Committee on 25-4-1982, it had become functus officio, it was a matter past and closed, which had become final for all intents and purposes and could not be re- opened on the application of respondent No.2, made in the year 1997. It is contended that the principle of res judicata was also attracted to the matter. The learned counsel for the Border Area Committee, however, contends that since the allotment claimed by Nanoo was made after the target date i.e. 24-12-1952, it was illegal and could be set aside at any time. It is further contended that the Committee is vested with the jurisdiction to scrutinize any allotment within the border belt at any time under para.. 9 of Martial Law Regulation, 9, 1959.
3. The respective contentions of the learned counsel for the parties have been considered and record available has been gone through.
4. The undisputed fact on the record is that the matter had earlier been also before this Court in Writ Petition No. 1046/R of 1977, which petition was filed by Nanoo, to which the Border Area Committee was also a party. That petition was accepted on 20-2-1979, as a consequence whereof the allotment of Nanoo was examined and scrutinized by the Border Area Committee and the same was affirmed and upheld and intimation to that effect was also sent to the Assistant Commissioner, Choonian for necessary entries in the Revenue Record. The said adjudication made by the Committee itself became final and was not agitated any further -by any of the parties. It was after 15 years that some application was moved before the Border Area Committee by one Shahid Mehmood alleging fraud and illegalities upon which the matter was reopened by the Border Area Committee, which proceeded to cancer the allotment of Nanoo, for the reason that the proposal of allotment made on 23-12-1972 was never confirmed nor any such allotment could be made. It was essentially the same allotment which had been scrutinized by the Border Area Committee and upheld by it vide order, dated 25-4-1982, it was no more open for the Border Area Committee to have reviewed its earlier adjudication or nullify the legal efficacy I thereof. Mere existence of power to scrutinize did not authorize the Committee to make repeated scrutinize leaving the matter oil allotment all the time open for scrutiny anal leaving the sword hanging on the head of an allottee. There has to be a finality at some stage. An unending scope for litigation is neither envisaged nor warranted by law. Though the doctrine of res judicata may not I apply directly, yet the principle underlying the same is appropriately attracted in such--like matters.
Reference may be made to Bashir Ahmed v. Kamaluddin and others 1981 SCM R 1180; Mardan Khan v. Mst. Bushri and others 1989 SCM R 452 and Hussain Bibi and others v. Settlement Commissioner and others 1988 CLC 2289. In Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 effect of an order inter partes, not challenged and becoming final and the application of principle of res judicata was considered, which aptly is applicable to this case. In Chahat v. Border Allotment Committee 1987 CLC 2378 a Division Bench of this Court also examined the extent of powers and jurisdiction of Border Area Committee and did not approve repeated and successive scrutinies of allotment. Similar view was taken in Nazir Ahmad and others v. Border Area Committee 1988 CLC 2277. It was thus not open to the Border Area Committee to have ordered the cancellation of allotment of Nanoo. Order qua him, therefore, is not sustainable in law and is declared so.
5. There is an application (C.M. No. 1 of 2001) by Majeed and Mst. Zahoor Bibi for being impleaded as party to the petition. They claim to be successors of Nanoo deceased. Such an assertion about their relationship with Nanoo deceased is vehemently contested and controverted by the learned counsel for the petitioner. It is however, pointed out that there is a civil suit pending before the Civil Court in which parties are arrayed against each other. In- the -circumstances, I do not consider it appropriate to deal with this aspect of the matter or make any observation, which may prejudice the claim of either of the parties, except to observe that the Court of competent jurisdiction will be free to take its own view of the matter on the basis of evidence that may be produced before it in accordance with law. The application is disposed of accordingly.
As a result of the above the petition is accepted, declaring the order of respondent No. 1 as of no legal efficacy qua the allotment of Nanoo. No order as to costs.