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Writ Petition No. 86‑R of 1978, heard on 18th February, 1986.

‑‑‑Art. 199‑Border Area Scheme‑‑Constitutional Petition‑‑Cancellation of excess land‑‑Father of petitioner who was also his attorney appearing for petitioner before Border Area Committee and agreeing to surrender excess land in name of petitioner to which petitioner raised no objection‑‑Border Area Committee had examined relevant record and applied its conscious mind to facts and circumstances of case while cancelling land and decided matter quite legally and properly‑ Petitioners, after having surrendered land himself and given his option, held, could not challenge order of cancellation which otherwise did not suffer from any jurisdictional defect‑‑Petition dismissed.

Ch. Muhammad Iqbal for Petitioner.

Ch. Muhammad Rafiq Khan for Respondent No. 1.

Nemo for the Remaining Respondents.

Dates of hearing: 17th and 18th February, 1986.

Through this Constitutional Petition Sepoy Nasrullah Aziz petitioner wants this Court to declare the orders dated 7‑6‑1976 and 11‑12‑1977 of Border Area Committee, respondent No. 2, to be without lawful authority and of no legal effect.

2. The petitioner's case is that he was allotted 334 Kanals and one Maria of land situated in village Basike Kalan which was increased to 369 Kanals and 2 Marlas in consolidation proceedings. Subedar Ali Haider, respondent No. 1 moved application before Border Area Committee, respondent No. 2 on 17‑2‑1976 for alternative land in village Basike Kalan on the ground that the land allotted to him had been eroded by River Ravi. On this the Border Area Committee, respondent No. 2 cancelled 156 Kanals and 6 Marlas of land from the name of the petitioner and allotted it to respondent No. 1 on 7‑4‑1976. Feeling aggrieved of this order, the petitioner moved application before the Border Area Committee for setting aside the order of cancellation from his name but the same was dismissed on 11‑12‑1977, hence this petition.

3. Learned counsel for the petitioner mainly contended that after 1‑7‑1974, the application of Subedar Ali Haider could not hove been entertained because all the Settlement Laws had been repealed from that date; that no notice of the application of respondent No. 1 was given to the petitioner and that the petitioner's allotment was quite legal and proper and there was no excess. The learned counsel for respondent No. 1 has supported the impugned orders. No one has appeared for Border Area Committee, respondent No. 2.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner. I find that the father of petitioner who was also his attorney had appeared for the petitioner before Border Area Committee and was heard. The petitioner did not raise any objection to the appearance of his father before the Border Area Committee on his behalf. The Border Area Committee had examined the relevant record and had applied conscious mind to the facts and circumstances of the case. The Border Area Committee has stated that;

"Sufi Aziz Ahmed, father and attorney of the respondent appeared to contest the case and submitted that the petitioner was allotted only 334 Kanals and 1 Marla of land and the land was increased to 369 Kanals 2 Marlas in the consolidation process and submitted that the allotment should not be taken as 369 Kanals 3 Marlas. He prayed that the land has been developed by him with a lot of expenditure and as such the whole of it be allowed to remain with him. He was apprised of the position that the respondent was only entitled to the allotment of 200 Kanals of land under the provisions of Border Area Act, 1959 and was not entitled to retain excess land. He then requested for adjournment of the case to exercise the option for the surrender of excess land of his choice. Accordingly more than two adjournments were granted, but the respondent did not intimate his option. Today the attorney of the respondent has not turned up but the petitioner has provided certified copy of 'Roznamcha Wakiati' of Patwari according to which report. No. 804 stands recorded at the instance of the respondent whereby the allottee has opted to surrender land to the extent of 156 Kanals 6 Marlas comprising Khasra Nos. 150 to 154, 162 to 165, 101, 146 to 148, 102, 145, 109 to 111, 140 and 141 from the land held by the respondent in village Basike Kalan. Since the respondent has exercised option and has entered the report regarding surrender of excess land, the 156 Kanals 6 Marlas of land is, hereby cancelled from Khata of the respondent and is hereby allotted to the petitioner in exchange for the land held by him in village Chenni Gujran Tehsil Shakargarh which is hereby cancelled."

Learned counsel for the petitioner has not been able to controvert the observations made by the Border Area Committee, respondent No. 2. After having surrendered the land himself and given his option, it does not lie in the mouth of the petitioner to challenge the impugned order which does not suffer from any jurisdictional defect. The Border Area Committee, respondent No. 2 has not flouted the relevant law and has decided the matter quite legally and properly.

5. For what has been stated above, the petition is dismissed leaving the parties to bear their own costs.

M.Y. H. /767/L Petition dismissed.

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