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Constitutional Petition No. 427 of 1976, decided on 24th February, 1982.

‑‑‑‑ R. I1‑A‑Additional Chief Land Commissioner, held, could not exercise suo motu review powers without case being transferred to him by Chief Land Commissioner.

‑‑ Rr. 10 & I I‑A and Constitution of Pakistan (1973), Art. 199 Appeal‑Adjudication upon petitioner's claim for concession of tube‑well/tractor, held, constitutes fresh order‑Remedy against such order lay in filing of appeal and cannot be challenged in cons titutional petition ‑‑[Appeal (civil)].

Azhar Ali Siddiqui for Petitioner.

Muhammad Ibrahim Memon, Addi. A.‑G. for Respondents.

Dates of hearing : 23rd and 24th February, 1982.

AJMAL MIAN, T.‑This petition is directed against order dated 501 October, 1974 passed by respondent No. 2 and also order dated 10th May, 1976 passed by respondent No. 3.

The brief facts leading to the filing of this petition are that the petitioner who is a displaced person filed claim in respect of the ancestral agricultural lands inherited by him from his mother. In pursuance of the verified claim, he was allotted 292.14 acres in Taluka Hyderabad and Tando Allahyar. It seems that out of the above lanes the petitioner sold 61.17 acres on the various dates. After promulgation of M. L. R. 115 (hereinafter referred to as the M.L.R.) the petitioner filed the declaration which was scrutinized by the Deputy Land Com missioner, who allowed the petitioner to retain 100 acres of land under order dated 16th October, 1971. The petitioner being aggrieved by the above order filed an appeal, which was dismissed by the Land Commis sioner, Sind, Hyderabad by his order dated 8th January, 1973. It further seems that the petitioner being aggrieved by the above two orders filed a revision, which was allowed by the learned Chief Land Commissioner‑, Sind, Hyderabad by his order dated 13th August, 1973 and the petitioner was allowed to retain 183.12 acres. It was also observed by the Chief Land Commissioner in his above order that if the petitioner wanted to avail the concession of tube‑well/tractor, he should file Form IR‑4 which the D.L.C. who would decide on merits. It also seems that after the issuance of Notification dated 2nd October, 1973 which provided that 3 Government servant could retain 100 acres, the Additional Chief Law Commissioner, Sind, Hyderabad in purported exercise of suo mote review power passed the impugned order, dated 5th October, 1974 holding that the petitioner was entitled try retain only 100 acres and thereby modiur the earlier order of the Chief Land Commissioner dated 13th August, 1973. It further seems that in pursuance of the aforesaid order of the Additional Chief Land Commissioner, the Deputy Land Commissioner initiated the proceedings for determining the petitioner's holding and also adjudicating upon the petitioner's application for concession on account of tractor/tube‑well. It will suffice to observe that the Deputy Land Commissioner, Hyderabad, declined to grant the concession applied for apart from implementing the order of Chief Laud Commissioner. The petitioner aggrieved by the above order has filed the above petition.

3. In support of this petition, Mr. Azhar Ali Siddiqui has made the following submission That the Additional Chief Land Commissioner, Sind had no power to review the order cr)f the Chief Land Commissioner, Sind which had acquired finality. In support of the above contention, he has referred to rules 10 and I 1‑A of the Sind Land Reforms Rules. Rule 10 provides that the Chief Land Commissioner, a Land Commissioner, a Deputy Land Commis sioner or an Assistant Land 'Commissioner may of his own at any time or on an application of any party interested made to him in that behalf within twenty days from the date of the order or if the order is appeal able within twenty days of the expiry of the date of appeal, review and on so reviewing modify, reverse or confirm, any order passed by him. self or by his predecessors in office on the following grounds :‑

(a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time when the order was made ; or

(b) on account of some mistaken or error apparent on the face of the record; or

(c) for any other sufficient reason.

Whereas rule 11‑A provides that the Additional Chief Land Com missioner shall dispose of such appeals and revisions as may be trans ferred to him by the Chief Land Commissioner and for that purpose he shall exercise the powers of the Chief Land Commissioner. It has been contended by Mr. Azhar Ali Siddiqui that rule 10 does not refer to Additional Chief Land Commissioner and, therefore, the Additional Chief Land Commissioner could on4y dispose of these appeals and revisions which might have been transferred to him by the Chief Land Com missioner.

4. Mr. Ibrahim Memon, learned Additional Advocate‑General has not been able to cite any other rule or notification of the Commission; for delegating the power to the Additional Chief Land Commissioner. In this view of the matter the .Additional Chief Land Commissioner could; not exercise suo motu review power without the case being transferred; by the Chief Land Commissioner under rule 11‑A. The impugned order therefore cannot be sustained.,5. Reverting to the order of the Deputy Land Commissioner, Hyderabad dated 10th May, 1976, it may be observed that the contention of Mr. Ibrahim Memon that this order to the extent of adjudicating upon the petitioner's claim for concession of tube‑well/tractor constitute fresh order and, therefore, the petitioner should have filed an appro priate appeal. We may observe that this contention seems to be correct. The Chief Land Commissioner, Sind in his order dated 13th August, 197 as observed hereinabove, had given the petitioner option to file requisite form before the Deputy Land Commissioner for availing of the conces sion on account of tube‑well/tractor, which the petitioner did and, therefore, the Deputy Land Commissioner was competent to adjudicata upon the above issue. We therefore, maintain the order of the Deputy Land Commissioner to the extent of adjudicating upon the petitioner's application for concession on account of tube‑well/tractor. The appro priate remedy for the petitioner is to file a regular appeal.

6. For the aforesaid reasons, we declare the impugned order dated 5th October, 1974 passed by the Additional Chief Land Commissioner and also the order dated 10th May, 1976 except the portion relating to the adjudication upon the petitioner's application for concession on account of tube‑well/tractor as being without lawful authority and of no legal effect. The respondents are restrained from acting thereupon. There will be no order as to cost. The effect of this order is to restore the order dated 13th August, 1973 except the portion relating to the filing of application for availing the concession on account of tube‑well/tractor.

M‑ Y. N. Order accordingly.

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