Full Judgment Text & Judicial Ruling

1991 S C M R 1489

1991 S C M R 1489

Present: Muhammad Haleem, CJ., Abdul Kadir Shaikh and Zaffar Hussain Mirza, JJ

SALAHUDDIN and others‑‑‑Petitioners

versus

MEMBER, BOARD OF REVENUE‑II and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.3‑Q of 1988, decided on 22nd May, 1989.

(From the judgment/order of Balochistan High Court, Quetta, dated 24th November, 1987 in Civil Petition No.10 of 1987).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑Points raised by petitioner before Supreme Court, had already been adequately dealt with and rejected by High Court for cogent and proper reasons‑‑‑High Court in refusing to interfere in its Constitutional jurisdiction having not committed any error of law or violated any principle of law, there was no scope for interference in case by Supreme Court‑‑‑Petition for leave to appeal was dismissed in circumstances.

Basharatullah, Advocate Supreme Court and S.A.M. Quadri, Advocate- on‑Record for Petitioners.

Raja M. Afsar, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd May, 1989,

ORDER

ABDUL KADIR SHAIKH, J.‑‑Facts leading to the filing of this petition for leave to appeal from the judgment of the Balochistan High Court, dated 24th November, 1987 briefly stated are as under:‑‑

A piece of land measuring 876 square feet situated on Habib Nallah in Quetta was initially leased out to Sher Bahadur Khan, predecessor‑in‑interest of the petitioners on 1st March, 1966 for a period of one year by the Chief Engineer, Irrigation. The Municipal Corporation, Quetta contested this lease and in the circumstances the lessee filed a suit for declaration and injunction in the Court of Civil Judge, Quetta, which was however dismissed on 21st February, 1968. Appeal filed by the plaintiff before the District Judge, Quetta, was also dismissed on 17th April, 1968, but, in revision, Balochistan High Court remanded the case to the trial Court for decision afresh by the judgment dated 24th August, 1970. However, before the suit‑proceedings could be finalized, petitioner succeeded in getting a new lease of the said property for 99 years from July, 1966 and hence they withdrew the suit. The Municipal Corporation and respondents 2 to 11 filed a revision petition before the Member, Board of Revenue (M.B.R.) who decline to interfere and in the circumstances Municipal Corporation filed a Constitutional Petition No.57 of 1976 in the High Court which was however later on withdrawn and was dismissed. It seems that on 22nd December, 1977 Martial Law Administrator, Zone‑D, Quetta, promulgated Martial Law Order No.16 whereby allotment of the State lands made from 1st January, 1972 to 4th July, 1977 were to be scrutinized by M.B.R. and were to be cancelled, if they have been found to have been made:

(i) which was not covered by any regular scheme issued under scheme 10 of the Colonisation of Government Lands Act of 1912,

(ii) or which had been obtained by using official position, or political influence,

(iii) or by means of fraud and misrepresentation of facts,

(iv) violation of law, rule, condition, policy, instructions or order."

Learned Member, Board of Revenue issued notice to the petitioners under these provisions of the Martial Law Regulation and respondents 2 to 19 also filed an application for being impleaded as parties. Their request was, however, refused. Subsequently, on 14th November, 1978, notices issued to the petitioners were withdrawn by the M.B.R. and they were given option to purchase the land at a price fixed in the year 1975. Respondents 2 to 19 challenged this action of M.B.R. before the Martial Law Administrator, but, their application was rejected on 30th November, 1979. However subsequently the M.B.R. on 10th April, 1982 modified the earlier decision and respondents Nos. 2 to 19 to purchase the land under their occupation and the remaining area was to be purchased by the petitioners. The petitioners as well as the respondents filed Constitutional Petitions Nos. &g and 224 of 1982 respectively in the High Court which succeeded, in that, the case was remanded to M.B.R. for fresh decision as under:

(i) that order, dated 14‑11‑1978 (Annexure `H') and order, dated 19‑4‑1982 (Annexure (P) are made without lawful authority;

(ii) that the ease is remanded to the Member, Board of Revenue; the respondent No.1 for the purpose of examining the legality of grant dated 22‑3‑1975 (Annexure `E') in terms of Martial Law Order No.16, reconstituted by MLO 46;

(iii) that Horse Rehra Union may be heard by the Member, Board of Revenue; the respondent No.1, but it will be open to the petitioners herein to urge that Horse Rehra Union had no locus‑standi in the matter."

On remand, Member, Board of Revenue decided the question as follows:

"A simple perusal of the above table would show that the land in question is situated in the Quetta Municipal limits and practically in the heart of the city. The Board of Revenue had full powers to lease it out but as it involved the erection of a building so it was beyond the powers of the Board of Revenue to grant any lease whatsoever. The order of the grant of fresh lease dated 22‑3‑1975 by the Member, Board of Revenue, therefore, was a void order, ab initio and a nullity in law. As such it has created no rights for the petitioners."

Being aggrieved by this order petitioners filed a Constitutional Petition in the High Court which was, however, dismissed by the judgment, dated 24th November, 1987 and it is in these circumstances that the petitioners have filed this petition for leave to appeal.

We have heard the learned counsel for the petitioners in support of the petition and gone through the record. We find that all the points raised before us have already been adequately dealt with and rejected by the High Court for cogent and proper reasons. The High Court in refusing to interfere in its Constitutional jurisdiction has not committed any error of law or violated any principle of law, there is, therefore, no scope for interference by this Court. The petition is dismissed.

H.B.T./S‑584/S Petition dismissed.

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