GHULAM MUHAMMAD vs MEMBER (COLONIES), BOARD OF REVENUE AND 2
This petition for leave to appeal was filed against a judgment of the Lahore High Court, which had upheld the cancellation of the petitioner's land allotment. Before the Supreme Court, the petitioner argued for the first time that, despite his illicit possession of the disputed area following the cancellation of his previous allotment, he was entitled to purchase proprietary rights under Colony Notification No. 3215-79/3973-C-II, dated 3rd September, 1979. The petitioner contended that he met the eligibility criteria for landless persons or owners of less than a subsistence holding in continuous cultivating possession since before Kharif 1977. The Supreme Court observed that this specific legal argument regarding the notification had not been raised before the revenue authorities or the High Court, and thus those forums could not be faulted for failing to consider it. Consequently, the Court declined to interfere with the impugned judgment but granted the petitioner liberty to approach the relevant authorities with an application under the notification, directing those authorities to dispose of such an application in accordance with the law.
- Can a petitioner raise a new legal argument before the Supreme Court that was not presented before the lower courts or revenue authorities?
- Does the failure of lower forums to consider an argument not raised before them constitute a legal error?
ORDER
1. NASIM HASAN SHAH, J.-Mr. Shahid Hussain Qadri, learned counsel for the petitioner in support of this petition, which is directed against the judg--ment dated 4-10-1981 passed by a learned Single Judge of the Lahore High Court in Writ Petition No. 4522 of 1980, has submitted that even if the petitioner was in illicit possession of the area in dispute which was, at one time, allotted to him but, subsequently, on 25-10-1967, the said allotment was cancelled, he was nevertheless entitled to the purchase of the proprietary rights in the land in question under Colony Notification No. 3215- 79/3973-C-II, dated 3rd September, 1979. In this connection, he relies on paragraph 3 thereof which is as under:- "3. Eligibility.-Any person holding State land-on temporary cultivation lease who is either landless or owner of less than a subsistence holding and has been in continuous cultivating possession of the leased land since before Kharif 1977 may be eligible for the purchase of proprietary rights in such land-
(i) in the case of a lessee who is landless up to a subsistence holding; and
(ii) in the case of a lessee who is owner of less than a subsistence holding up to that are by which he falls short of a subsistence holding."
2. It is submitted at this aspect of the case has escaped the notice of the revenue authorities, as well as the High Court.
3. We observe, however, that this aspect of the case was not raised before the revenue authorities or even before the High Court and, therefore, they cannot be blamed for not considering it.
4. The petitioner may, if so advised, if he satisfies the conditions of eligibility laid down in the notification aforementioned, apply to the relevant authorities in this connection and we have no doubt that they will dispose of his application in this behalf in accordance with law.
5. This petition, with these observations, stands disposed of.