Find a Lawyer

Constitutional Petition No. D‑748 of 1978, decided on 9th May, 1984.

‑‑‑Para. 25‑‑Sind Tenancy Act (XX of 1950), S.28‑‑Constitution of Pakistan (1973), Art.199‑‑Sind Land Commission (Pre‑emption) Rules, 1974, R.3‑‑Haris‑‑Right of pre‑emption‑‑ Apart from fact that prima facie right of pre‑emption could not have been granted to Haris who were not parties, Authorities granted right of pre‑emption even in respect of survey number for which no right was claimed‑‑Orders of Authorities, held, was passed without lawful authority and of no legal effect‑‑Case remanded to Collector to decide afresh in circumstances.

M.G. Dastgir for Petitioners.

Ahsan Ali T. Khawaja (absent) for Respondents.

Dates of hearing: 8th and 9th May, 1984.

.‑‑This petition is directed against the order dated 12‑1‑1978, passed by respondent No.5, allowing respondents Nos.1 and 2's application for pre‑emption in respect of the survey numbers mentioned in the impugned order.

2. The brief facts leading to the filing of the above petition are that respondent No.1 filed application under section 28 of the Sind Tenancy Act and paragraph 25 of M.L.R. 115, R.W. Rule 3 of Sind Land Commission (Pre‑emption) Rules, 1974, in respect of Surveys Nos. 128, 131, 132 and 550, situated in Deh Murid Haji, Taluka Mirwah, District Khairpur, on or about 8‑1‑1975, before respondent No.3. The respondent No.2 filed identical application in respect of Survey Nos.128, 126, 124 and 129 of Deh Murid Haji, Taluka Mirwah, District Khairpur. The respondent No.3 allowed the above two applications by his order dated 31‑4‑1975. The petitioner and the respondents Nos.1 and 2 filed appeals against the above order which were taken up by respondent No.4 and disposed of by his order dated 27‑1‑1976, whereby the case was remanded to respondent No.3. The petitioners being aggrieved by the above' order filed revision, which was disposed of by the impugned order dated 12‑1‑1978. The petitioners being aggrieved by the above order have filed the present petition.

3. In support of the above petition Mr. M.G. Dastgir the learned counsel for the petitioners has urged as follows:‑‑

(i) Thai respondent No.5 could not have allowed pre‑emption applications in respect of the entire survey numbers as there we‑a some other co‑owners in the above survey numbers, who were not impleaded as parties to the above two, applications.

(ii) That the pre‑emption could not have been allowed' in favour of the Haris, who had not filed any application for claiming the right of pre‑emption within the time prescribed by law.

(iii) That pre‑emption has been granted even in respect of the land which was purchased subsequently from the date of the filing of the above two applications.

(iv) That S. No. 125 was not claimed by either of two private respondents and, therefore, pre‑emption right could not have been allowed in respect thereof.

(v) That in respect of Survey No.132 the right of pre‑emption did not exist.

4. The private respondents were represented by an Advocate Mr. Ahsan Ali P. Khawaja but for the reasons known to him he has not attended this case for the last several hearings. The case was adjourned on the list date of hearing, namely, on 17‑4‑1984 for the reason that the learned counsel for the above private respondents had not turned up. He had again not turned up yesterday and even today nobody is present for the respondents Nos.1 and 2. Apart from the fact that prima facie the right of pre‑emption could not have been granted to Haris who were not parties before respondents Nos.3 and 5, there are other points which require consideration, inter alia whether factually the right of pre‑emption was claimed in respect of Survey No. 125. It may be observed that from the two applications referred to hereinabove filed by respondents Nos.1 and 2, it seems that Survey No.125 was not mentioned but in respondent No. 3's order this survey number was mentioned. In our view, it will be just and proper to remand the case to respondent No.5 as it will provide an opportunity to respondents Nos. 1 and 2 to contest their right. The impugned order is, therefore, declared to be as without lawful authority and of no legal effect but the case is remanded to respondent No.5 with the direction to decide afresh the revision after notice to the parties. The petitioners and the respondents Nos.1 and 2 shall be at liberty to agitate whatever factual; or legal pleas are available to them. There will be no order as too costs.

H . B . T Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.