MUHAMMAD HANIF vs SABIR AND ANOTHER

ORDER

1. ' MUHAMMAD HALEEM, 3.-The petitioner seeks special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 13th of May 1979, by which Writ Petition No 482/R of 1979 was dismissed in limine.

2. ' The petitioner is the son of Mst. Sanjeerat, sister of Sabir son of Chhott who allegedly died in the disturbances following Partition in 1947.

3. ' As the petitioner was the only belt of Sabir, he submitted a claim form in respect of the land abandoned by Sabir which was accepted and he was allotted 75 kanals and 11 marlas of land in Village Hazrat Kailianwala, Tehsil Wazirabad, which was later confirmed in his name and Mutation No, 16 was, accordingly, sanctioned. On 11th of January, 1962, the first respondent, claiming to be alive, appealed to the Deputy Settlement Commissioner (Land) against the said allotment which, by an ex parte order dated 10th of May, 1962, was cancelled. The petitioner filed a revision against this order which was dismissed on 23rd of November, 1962, and the second revision also failed, He then filed Writ Petition No, 185/R of 1966 which was allowed on 12th of November, 1973, and the case was remanded to the Deputy Settlement Commissioner (Land), Gujranwala, for a fresh decision.

4. ' On remand it was heard by the Assistant Commissioner as a notified officer under the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974. As the first respondent failed to appear before him, despite repeated efforts to serve him, the Assistant Commissioner held that the first respondent was not the son of Chhota ; and that the petitioner was his only surviving heir and directed that the entries in R. L.-II be corrected and Mutation No, 16 be restored by order dated 20th of May, 1976.

5. ' The first respondent subsequently filed an application before the Assistant Commissioner for setting aside the ex parte order dated 20th of May, 1976, but his application was rejected on 22nd of August, 1977. Thereafter, he challenged both these orders in the revision petition filed before the Additional Commissioner (Revenue), Lahore Division, Lahore, who by order dated 12th of April, 1979, remanded the case to the Assistant Commissioner for deciding it afresh. Against the remand order the petitioner filed the aforementioned Writ Petition in which he pleaded that the order of the notified officer namely, the Assistant Commissioner, Wazirabad, was final under subsection (2) of section 2 of Act XIV of 1975 and hence it could not be revised by the Additional Commissioner. The High Court agreed with this proposition but held that equitable relief should not be granted as it was eminently a case where a decision should be given after hearing both the parties. The High Court was further of the view that the Assistant Commissioner, while deciding the issue against the first respondent had not considered the evidence produced by him before the Deputy Settlement Commissioner (Land) which formed the basis of his conclusion, while allowing his appeal by order dated 11th of January, 1962, which caused prejudice to the first respondent. This being so, the High Court held that it would be in the interest of justice to maintain the order of the Additional Commissioner (Revenue), in the facts and circumstances of the case.

6. The learned counsel for the petitioner contended that the High Court fell into an error in not allowing the petition after holding that the order dated 20th of May, 1976, was not revisable. But in the background of the controversy, we feel that the High Court was correct in not extending the equitable relief to the petitioner as it would have perpetrated injustice. This suffices to dispose of the contention.

7. ' The petition has no merit and is hereby dismissed.