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Writ Petition No. 1082-R of 1977, decided on 17th December, 1985.
--Art. 199--Constitutional jurisdiction--Technical objection to--Effect- Giving effect to purely technical objection to constitutional jurisdiction of High Court raised at belated stage, held, would amount to making fetish of technicality and would deprive petitioners of any relief, especially when order impugned in petition was found to have been passed without lawful authority and could not be maintained on any valid, legal or equitable ground.
Abdur Rashid Khan for Petitioners.
Ch. Mushtaq Masood for Respondent No. 2.
Date of hearing: 17th December, 1985.
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question order, dated 23-6-1976 passed by the learned Assistant Commissioner/ Collector II-Grade, Lahore.
2. The facts briefly stated are that Fields Nos. 3505 and 3519 measuring 16 Kanals and 18 Marlas situated in village Bath Tehsil and District, Lahore, were owned by the petitioners.
3. That the Assistant Commissioner/ Collector, Lahore vide order, dated 23-6-1976 transferred the above mentioned land in favour of Suleman respondent No. 2 purporting to be acting in compliance with the order of this Court, dated 3-12-1975 passed in Writ Petition No. 1275-B of 1969. This order was passed at the back of the petitioners the petitioners feeling aggrieved there from have come up in the present Constitutional petition.
4. The learned counsel for the petitioners contended that the learned Assistant Commissioner/ Collector, Lahore proceeded to pass the impugned order on fully erroneous assumption that the order in the writ petition aforementioned directed the transfer of the land to respondent No. 2.
5. The learned counsel also admitted that respondent No. 2 was not a party even in the earlier Writ Petition and the question of a direction for transfer of the land in dispute to him could never arise.
6. It was also contended by the learned counsel for the petitioners that report submitted by the Department in the writ petition conceded that the contents of this petition are correct and that the petitioners as well as respondents were never a party in the writ petition aforementioned and were not given an opportunity of being heard when the impugned order was passed.
7. The learned counsel for the contesting respondent on the other hand submitted that the order impugned in the present petition is one of sanctioning of mutation against which other remedies were available to the petitioners but they did not avail the same and have directly filed the present constitutional petition, which in this view of the matter is liable to be dismissed. He, however, conceded that neither the petitioners nor respondent No. 2 were a party in the earlier Writ Petition and that there is no specific direction either in the judgment of my learned brother Mr. Justice Ghulam Mujaddid Mirza, dated 5-12-1975 passed in Writ Petition No. 1275-R of 1969 wherefrom it could be inferred that the land in dispute be allocated to respondent No. 2.
8. I am afraid the purely technical objection of the learned' counsel for the contesting respondent raised at this belated stage, viz. after about 9 years of the filing of the present Writ Petition and that too without a written statement having been filed in this regard cannot be given any consideration. Giving effect to such an objection so as to deprive the petitioners of any relief will be making a fettiah of a technicality especially when the order impugned in this petition is one which has been passed without lawful authority and cannot be maintained on any valid, legal or equitable ground of sanctioning of mutation against which other remedies were available to the petitioners but they did not avail the same and have directly filed the present constitutional petition, which in this view of the matter is liable to be dismissed. He, however, conceded that neither the petitioners nor respondent No. 2 were a party in the earlier Writ Petition and that there is no specific direction either in the judgment of my learned brother Mr. Justice Ghulam Mujaddid Mirza, dated 5-12-1975 passed in Writ Petition No. 1275-R of 1969 wherefrom it could be inferred that the land in dispute be allocated to respondent No. 2.
8. I am afraid the purely technical objection of the learned counsel for the contesting respondent raised at this belated stage, viz. after about 9 years of the filing of the present Writ Petition and that too without a written statement having been filed in this regard cannot be given any consideration. Giving effect to such an objection so as to deprive the petitioners of any relief will be making a fettish of a technicality especially when the order impugned in this petition is one which has been passed without lawful authority and cannot be maintained on any valid, legal or equitable ground.
8. Adverting now to the merits of the case, the position having been conceded to by the Department that the impugned order has no valid basis and the contention of the learned counsel for the petitioners also having not been successfully rebutted on behalf of the contesting respondent, the only equitable and lawful course would be to allow this petition and quash the impugned order, dated 23-6-1976 passed by the Assistant Commissioner/ Collector II-Grade, Lahore, respondent No. 1.
10. Resultantly this petition is allowed and the impugned order, dated 23-6-1976 is set aside.
There will, however, be no order as to costs.
H . B . T . Petition allowed.
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