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Civil Petition No. 29‑P of 1980, decided on 6th December, 1980.
(On appeal from the judgment dated 3‑12‑1979 of the Peshawar High Court in W. P. No. 123 of 1977).
‑‑ Para. 7‑Exemption‑Declarant claiming exemption in respect of land shown in favour of his wife in lieu of dower‑Wife of declarant not shown to be paying land revenue and other charges in respect of said land nor shown to be receiving rent or batai share from same‑Rejection of claim for exemption upheld.
Mst. Zarin Qaisha v. Arbab Wali Muhammad Khan and 5 others P I, D 1976 Pesh. 128 ref.
---Arts. 185 (3) & 199‑Petition for special leave to appeal‑Point neither raised in writ petition nor argued before High Court‑Held, cannot be allowed to be raised for first time before Supreme Court.
Mian Muhammad Yunas Khan, Advocate Supreme Court and M. Qasim Imam Advocate‑on‑Record for Petitioners.
Sh. Nazir Muhammad, Advocate Supreme Court and Nur Ahmad Khan, Advocate‑on‑Record for Respondents.
Date of hearing : 6th December, 1980.
The petitioner was a declarants of his holding, within the meaning of this term, under the provisions of Martial Law Regulation No. 115 (Land Reforms Regulation, 1972). Herein he claimed a number of exemptions, namely (i) in respect of a Tractor, (if) sale of agricultural land measuring 47 acres one Maria in favour of his father for consideration of Rs. 90,000.00 vide mutation No. 430 and (iii) in respect of' 55 acres of agricultural land in lieu of dower in favour of his wife, namely Mst. Bakht‑ul‑Zuha, Petitioner No. 2, herein. The claims in respect of the first two items have been allowed to the petitioners 1 and 2 herein but his claim with respect to the third item has been refused by the High Court of Peshawar. Hence this petition for leave to appeal.
The clearest order explaining why the claim with respect to the third item has not been accepted is to be found in the order of the Land Commissioner, Peshawar Division, Peshawar dated 20‑7‑1972, the relevant portion whereof may be reproduced below :‑
"The learned counsel for the declarants mentioned that he had alienated 55 acres of land in favour of his wife as dower. This has not been taken into account by the Deputy Land Commissioner. There is mention of this gift in Nikah Nama' of the declarant but this land has not been formally alienated in favour of the wife of the declarant. Neither any mutation has been entered and attested nor is there any entry in the revenue record to show that she is de facto owner of this land. This alienation cannot therefore be considered as genuine at this stage, and the appeal in this respect is disallowed."
Mian Muhammad Yunas Shah, in support of this petition has relied upon a judgment of the Peshawar High Court, Peshawar reported as Mat. Zarin Qaisha v. Arbab Wali Muhammad Khan and 5 others (P L D 1976 Posh. 128). This judgment does support the contention of the learned counsel for the petitioners but after having examined the relevant provisions of the Land Reforms Regulation,
we are inclined to agree that the rejection of the claim by the petitioner 3s pears to be correct. The provision relevant to the matter is contained in para. 7 thereof which lays down
"Certain transfers void.
Explanation (XII) is in the following terms:‑‑
"In determining whether a transaction referred to in clause (b) of para graph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors :‑
Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created ;
(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created ;
(iii) who has been paying the land revenue and other charges in respect of such land ;
(iv) who have been receiving the rent for or Batai share from such land.
The learned counsel has not been able to satisfy us that the management of the land was with the wife, that she was paying land revenue and other charges in respect of the said land and was receiving the rent or batai share from it. Consequently, we are not inclined to interfere with the rejection of the petitioner's claim in regard to this matter.
In the end, the learned counsel for the petitioner submitted that the Chief Land Commissioner in his order dated 23‑8‑1972 had accepted the claim of the petitioner for exemption in respect of all the three items and it was only the Member of the Federal Land Commission on being moved the Inspection Team had suo motu revised the said order in exercise of the powers of the Federal Government conferred by para. 29 and rejected the claim of the petitioner with respect to all the three items. This order was challenged in the High Court of Peshawar which accepted the claim of the petitioner with respect to first two items but rejected it as for the third, in effect restoring the order‑ of the Land Commissioner dated 20‑7‑1972. The submission is that the High Court overlooked the aspect that a single Member could not act on behalf of the Land Commission in exercise of the power of revision vested in the Federal Government. He made a reference to certain decisions wherein this view has been taken.
We may, however, observe that this point was neither raised in the writ petition nor argued before the learned Judges of the High Court at the time of the hearing. We are not inclined to allow this point to be raised before us for the first time in these proceedings.
The result is that this petition must fail and is dismissed hereby.
Petition dismissed.
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