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Civil Petition for Special Leave to Appeal No. 702 of 1975, decided on 2nd December, 1980.
(On appeal from the judgment of Lahore High Court, dated 15‑5‑1975 in Writ Petition No. 122‑R of 1970).
‑‑‑Arts. 185(3) a 199‑‑Constitutional jurisdiction Discretionary jurisdiction, exercise of‑‑Impugned order in full accord with equity and justice, held, High Court rightly refused to interfere in exercise of its discretionary jurisdiction‑‑Leave to appeal refused.
Muhammad Arif, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioners.
Sh. Abdul Karim, Advocate‑on‑Record and Ch. Attaullah, Advocate Supreme Court for Respondents.
Date of hearing: 2nd December, 1980.
‑This is a petition for special leave to appeal from the judgment of Lahore High Court, dated 15‑5‑1975 refusing to interfere with the orders passed by the Settlement Commissioner and the Additional Settlement Commissioner, dated 25‑11‑1969 and 7‑12‑1966, respectively. By the order, dated 7‑12‑1966, the Additional Settlement Commissioner allowed the appeal of respondents 1 to 10 and accepted their claim to the allotment of that such portion of the land in dispute which is said to be covered by residential houses in occupation of the respondents since 1947. This order was upheld by the Settlement Commissioner in revision and the High' Court also refused to interfere in the case on a petition moved by the petitioners under Article 199 of the Constitution.
The facts briefly stated are that on 5‑5‑1953 agricultural land in Killas Nos. 5 and 9 of Square No. 16, alongwith some other area, was allotted to Mst. Janat Bibi, who later on transferred her rights in property to her sons, petitioners herein. The respondents 1 to 10 filed an appeal to the Additional Settlement Commissioner, Lyallpur claiming that an area of about 4 Kanals out of the land allotted to Mst. Janat Bibi was covered by residential houses occupied by them since 1947, and that they were the allottees of the estate, and, therefore, the area in question be excluded from the allotment made to Mst. Janat Bibi: The Additional Settlement Commissioner, on examining the record and hearing the parties, accepted the appeal for the reason that there was Ghair Mumkin Abadi even before partition, and since Ghair Mumkin Abadi cannot be allotted to the claimants of agricultural land, the actual area that constitutes Ghair Mumkin Abadi be excluded from the allotment made to Janat Bibi. He further directed that "in order to come to a right conclusion the A . R . C . is directed to visit the spot, and after demarcating the Abadi area should carry out the above direction."
This order, as stated earlier, was upheld, by the Settlement Commissioner and the High Court refused to interfere with these. Mr. Muhammad Arif, learned counsel for the petitioners submits that the order of the Additional Settlement Commissioner is totally without jurisdiction for the reason that the allotment in favour of Mst. Janat Bibi had been finalised more than 13 years earlier and the learned Additional Settlement Commissioner did not even advert to the question of limitation.
Learned counsel further submits that since the entries in the Khasra Girdawari for the relevant year namely 4‑6‑1977 clearly show that the entire area allotted to Mst. Janat Bibi was agricultural land, no part thereof could be available for allotment at a later stage.
The first point raised by the learned counsel is without any substance for the reason that the Additional Settlement Commissioner must be held to be fully conscious for the period of limitation, for he specifically mentioned in the order that "having regard to the facts of the case delay is condoned". The other plea advanced in support of this petition has been fully examined by the High Court with reference to the facts of the case and also the plan prepared by the Patwari which was filed as Annexure R‑I. According to the learned Judge in the High Court who heard the case "a perusal thereof shows that Killa No. 5 and a part of Killa No. 9 now in dispute, fall within the Abadi enclosed by yellow colour line". Learned Single Judge observed in this behalf that "now, if the respondents are living in the houses within four‑corners of the Abadi, it would be unjust to uproot them to allow the allotment of the land underneath to the petitioners. The impugned orders purport not to oust the respondents from their hearths and homes, and, at the same time do not deprive the petitioners of their allotment unnecessarily. Even if these orders were to be not quite right, the constitutional jurisdiction would not be attracted."
As would be noticed from above, the orders impugned before the High Court were passed in full accord with equity and justice, and for that reason the High Court refused to exercise the discretionary jurisdiction under Article 199 of the Constitution. We are clearly of the opinion that, for the same reasons, interference by this Court would not be justified for we are ourselves wholeheartedly in agreement with the views that have prevailed with the High Court.
Leave is, therefore, refused, and the petition is, therefore, dismissed in limine.
M. I. Petition dismissed.
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