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Civil Appeal No. 250 of 1976, decided on 7th May, 1985.
(On appeal from the judgment, dated 30‑7‑1976 of the Lahore High Court, Lahore in Writ Petition No. 203‑R of 1972).
‑‑‑Art. 185(3)‑‑Martial Law Regulation, 1959 [C. M. L. As.] No.9, First Schedule, item I‑‑Leave to appeal granted to consider questions; whether allotment made within Border Belt could be made only by Border Area Allotment Committee; whether urban land within border area came within ambit of Martial Law Regulation No. 9 of 1459; and whether Settlement Department was competent after promulgation of Martial Law Regulation No. 9 of 1959 to allot land to any person other than a claimant as defined in Item (1) of First Schedule to Martial Law Regulation No 9.
‑‑‑Art. 183(3)‑‑Martial Law Regulation No.9 of 1959, First Schedule, item I‑‑Allotment‑‑Border Area‑‑High Court after thorough scrutiny of original record coming to conclusion that allotment and confirmation of land in favour of appellant was a fictitious and fraudulent transaction and procured by him for his own benefit; that he had already obtained fifty Acres of land in border area and could not obtain any further area in Border Belt through allotment and that name of other person had been used by him merely to bolster his own land holding in border area‑‑Order granting leave to appeal recalled.
‑‑‑Arts. 185(3) & 199‑‑Constitutional jurisdiction‑‑Highly discretionary jurisdiction.
Najmul Hassan Kazmi, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record for Appellant.
Malik Muhammad Qayyum, Dy. A.‑G. for Respondents Nos. 1 and 2.
Ch. Fazal‑i‑Hussain, Advocate‑on‑Record ('absent) for Respondent No. 3.
Sh. Abdul Manan, Advocate Supreme Court and Rana M.A. Qadri, Advocate‑on‑Record for Respondent No.4.
Date of hearing: 7th May, 1985.
‑The facts, which form the background, are that an area measuring 52 Kanals 17 Marlas of land situated within the Municipal Limits of Kasur bearing Khasra Nos. 6533 to 6544 and 6551 was confirmed in the name of Qadir Bakhsh, respondent No.2, a refugee from Muradabad (India) by order, dated 19‑4‑1965 passed by the Deputy Settlement and Land Rehabilitation Commissioner, Kasur under the Displaced Persons (Land Settlement) Act, 1958. On 3‑6‑1965 the petitioner herein, Lt.‑Col. Shah Dad, purchased the entire land from Qadir Bakhsh respondent No. 2 herein through a registered sale‑deed for a sum of Rs.13,131. It appears that during scrutiny the Border Area Allotment Committee observed that the allotment in favour of Qadir Bakhsh, respondent No.2, was illegal; hence after issuance of notices to all the concerned it cancelled the said allotment, by its order, dated 4‑10‑1971.
The petitioner being the vendee of the area felt aggrieved and filed a writ petition in the Lahore High Court. A learned Single Judge of the said Court summoned the original file and carefully scrutinised the entire case and came to the conclusion that the allotment in favour of Qadir Bakhsh, respondent No.2, was a set up affair and manoeuvred by Lt.‑Col. Shah Dad himself. He also observed that Lt.‑Col. Shah Dad was already an allottee of 50 Acres of land in village Man, Tehsil Kasur, District Lahore and had secured the present land in dispute through private sale from Qadir Bakhsh allotee, who was the allottee, in fact, in name only and the de facto allottee was the appellant himself and, therefore, he had no equity in his favour. On the legal aspect it was held that as the area was situated within five miles of the Border Belt, the allotment in this area could only have been made by the Border Area Allotment Committee and not by the Settlement and Rehabilitation Authorities. He, accordingly, dismissed the writ petition.
The appellant, therefore, moved this Court for special leave to appeal which was granted in order to consider the legal questions firstly, whether the allotment made within the Border Belt could be made only by the Border Area Allotment Committee; and secondly, whether the urban land within the border area came within the ambit of Martial Law Regulation No. 9 of 1959; and thirdly, whether the Settlement Department was competent after the promulgation of Martial Law Regulation No.9 of 1959 to allot the land to any person other than a claimant as defined in Item (I) of the First Schedule to Martial Law Regulation No.9.
After hearing learned counsel for the parties we do not think this is a fit case in which this Court ought to have granted special leave to appeal. The writ jurisdiction is a highly discretionary jurisdiction and the High Court in this case, after thorough scrutiny of the original record, had come to the conclusion that the allotment and confirmation of the disputed land in favour of Qadir Bakhsh, respondent No. 2, was a fictitious and fraudulent transaction and, procured by the appellant (Lt.‑Col. Shah Dad Khan) for his own benefit ; that he had already obtained 50 Acres of land in village Man, Tehsil Kasur, District Lahore and could not obtain any further area in the Border Belt through allotment and, that Qadir Bakhsh had been used merely to bolster his own land holding in the border area.
We would, accordingly, recall the order of leave granted on 23‑11‑1976 with the result that the petition filed by the appellant herein) shall stand dismissed.
This appeal stands disposed of accordingly.
The parties are left to bear their own costs.
M . Y . H Petition dismissed.
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