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Civil Petition No. 52‑P of 1978, decided on 8th July 1978.

(On appeal from the judgment and order dated 4th April 1978 of the Peshawar High Court at Peshawar in Writ Petition No. 583 of 1977).

Constitution of Pakistan (1973)‑‑

‑‑ Art. 199‑Writ jurisdiction‑Authority concerned passing impugned order on basis of unassailable evidence on record and such fact verified by High Court also for its satisfaction‑Allotment on basis of facts found ab initio without jurisdiction and void Case, held, rightly found by High Court to be not fit for interference in exercise of writ jurisdiction.

Abdul Samad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th July 1978.

J.‑Writ Petition No. 583 of 1977 filed by the petitioner herein against the respondents under Article 199 of the late Constitution of the Islamic Republic of Pakistan 1973 was dismissed in limine by a Division Bench of the Peshawar High Court on the 4th of April i978. This is a petition for special leave from the judgment.

This dispute relates to a plot of land measuring one kanal bearing Khasra No. 1286/1 situated in the estate of Parkho Dheri, Tehsil and District Mardan. It originally belonged to Nawab Muhammad Akbar Khan of Hoti and was resumed from his name under Martial Law Regulation No. 64. Afterwards on the 13th of June 1959, it was provisionally allotted to one Shahab‑ud‑Din who was shown to be in possession thereof on the basis of the entries in the Khasra Girdawari for the year Kharif 1958‑Rabi 1959. Subsequently, on, the 13th of August 1969, it was permanently allotted by the A. L. C. Mardan to Qutubuddin son of Shahabuddin as in "Hisadari possession" since 1956 according to Khasra Girdawari. The petitioner here claims to be a successor‑in‑title of the land from the said allottee.

It appears however, that one Malik Saifur Rehman of the village applied against this transfer to the authorities on the ground that or the plot in dispute a primary school was being run since 1926. This led to a suo moto revision and the impugned order passed by the Land Commissioner, Peshawar Division, Peshawar, on the 15th of October 1977 canceling the land from the name of the predecessor‑in‑title of the petitioner herein. On enquiry he was satisfied from the authentic record of the Education Department that a school existed at the site since long. The validity of the order was challenged by the petitioner in writ petition, which was, as already stated above, dismissed by a Division Bench of the High Court on the 4th of April 1978. The High Court also perused the log book of the school to conclude that it was in existence at the site since at least 1929 and ,was therefore, satisfied that the very resumption of this property from the name of its original owner was without jurisdiction and its allotment to the predecessor of the petitioner herein was ab initio illegal and had been procured by manipulation with the connivance of the revenue staff who had deliberately concealed the fact that the plot in dispute did not constitute the land within the meaning of Martial Law Regulation No. 64.

We find that there wag unassailable evidence on the record before they Land Commissioner, Peshawar Division, Peshawar, in support of the impugned order dated 15th of October, 1977 passed by him. This was even verified by the learned Judges of the Division Bench of the High Court also for their satisfaction. Indeed, it was not denied that there was in fact a school in existence at the site since about 1926. But the learned counsel maintained that as such, the very resumption of the property from the name of its original owner was ab initio without jurisdiction and at any rate the same could not have been allotted to the Education Department after its cancellation by the Land Commissioner. Be that as it may, on the basis of the facts found the allotment of the land in the name of the predecessor in‑title of the petitioner was ab initio without jurisdiction and void and he had therefore no legal title to retain the land. The High Court was justified in observing that at any rate this was not a fit case for interference with the impugned order of the Land Commissioner in the exercise of the writ jurisdiction. The order thus passed was eminently just and equitable and we see no good ground for interference with it.

For the foregoing reasons we have declined to interfere and this petition is accordingly dismissed.

Petition dismissed.

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