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-- Grow More Food Scheme-Alternate land available to Grow More Food allottees only in two eventualities-Failure by allottee to cultivate State land leading to forfeiture of allotment-Held, alternate land could not be granted in such cases.

(b) Constitution of Pakistan (1973)--

Art. 199-Writ-Order impugned found to have been passed without jurisdiction--Exercise of writ jurisdiction amounting to exercise in futility or in alternative entailing perpetuation of an illegality-Held, constitutional jurisdiction not appropriate one in such case-Petition dismissed.

,Muhammad Ashraf Wallah for Petitioner.

Nemo for Respondent No. 1.

Ch. Muhammad Anwar Buttar for Respondents Nos. 2 and 3.

Date of hearing : 22nd October 1977.

This petition is directed against the order of Mr. S. M. Nasim, dated 17-1-1975, whereby the entitlement of the petitioner to receive alternate land was negatived.

2. The grounds taken up for challenging the order are firstly that as held by this Court, Mr. S. M. Nasim, could not exercise the powers of Member, Board of Revenue, and hence his order is coram non judice. Secondly, it is stated that the reason given for disentitling the petitioner is not factually correct.

3. Admittedly, the petitioner was a grantee of State land under Grow More Food Scheme. However, it was resumed from him on the ground that he failed to fulfil the conditions with regard to the cultivation of the land. Notwithstanding this the petitioner applied and obtained alternate land. It was contested by the respondents who ultimately succeeded before the Member, Board of Revenue. Mr. S. M. Nasim held that the petitioner had not obtained possession of the land as such was entitled to obtain alternate land. He also directed that the eligibility of the respondents should be examined.

4. The fate of this petition turns not so much on the question of jutisdiction of Mr. S. M. Nasim to dispose of the revision petition as on the factual foundation of the case of the petitioner. Alternate land was available to Grow More Food allottees only in two eventualities. The first category was of those was had been made such a grant and th

land happened to be located within the prohibited limits of the local bodyl and on that account they could not be conferred proprietary rights in the' same. The second category was of those grantees whose leases had been terminated and they bad been dispossessed or found ineligible to acquire proprietary rights on the sole ground that their leases did not expire with the end Rabi of 1962. Both these situations were by subsequent instructions issued by the Board of Revenue provided for and provision was made for grant of alternate land and continuity of the conditions of the grant held by them. The petitioner, it appears, under a mistaken impression that he was affected by the prohibited zone Circular, was given alternate land in 1973. The Board of Revenue recorded a finding of fact that the possession under the earlier grant had not been given but now the position taken is that in fact it was a case which fell in none of these two categories and the petitioner was not entitled to alternate land at all. His failure to cultivate the land was such as could lead to forfeiture and had in fact led to forfeiture and such a forfeiture order had not at all been challenged. In the circumstances, there could be no case for the grant of alternate land and if a grant has been made, it could not be restored after Member, Board of Revenue had interfered with it.

5. Notwithstanding the fact that I myself held that Mr. S. M. Nasim could not act a Member, Board of Revenue or decide these cases as such, I find that on the facts of this particular case it would not be proper to exercise Constitutional jurisdiction as the factual basis is not in dispute. It will be an exercise in futility or in the alternative perpetuation of an illegality for which the Constitutional jurisdiction is not an appropriate one. Therefore, I find no merit in the petition, which is hereby dismissed. No order is, however, made with regard to costs.

S. Q. Petition dismissed.

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