MUHAMMAD AMAN AND 2 OTHERS vs ATTA MUHAMMAD AND Another

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 13-1-1979 whereby a Constitutional petition arising out of a land settlement case was dismissed by a learned Single Judge of the Lahore High Court.

2. The land in dispute which, it is stated, was allotted to one Mst. Moman, predecessor-in-interest of the petitioners, was cancelled on finding of fraud and misrepresentation on 12th January, 1966, in review by a Settlement Authority. The permission to review was obtained on 17-3-1964. The petitioners filed an appeal against .The order dated 12th January 1966, which was dismissed. They filed a revision, but withdrew the same subsequently on the plea that they would file an appeal against the order granting permission to review instead of the review order itself. Such appeal having been filed the Settlement Commissioner remanded the case for reconsideration on merits on 15-9-1970, without affording opportunity of hearing to the con--testing party, i.e. Respondent No. 1, who then sought a review of the remand order. It was accordingly recalled. An attempt was made by the petitioners for the revival of the remand order dated 15-9-1970, but without any success. They then challenged the order dated 28th October 1970, whereby the order, dated 15-9- 1970 was recalled, through a writ petition, which having been dismissed, they have now sought leave to appeal.

3. Learned counsel has raised two contentions firstly, that the petitioners were condemned unheard at the time (17-3-1964) when the direction to review was granted, as also at the time when the original review order (12-1-1966) was passed and, secondly, that the order of remand dated 15-5- 1970 could not havebeen reviewed by order dated 28-10-19')0, because, by that time, the power toreview bad been withdrawn through a statutory amendment.

4. With regard to the first point, the learned Judge in the High Court observed that absence of hearing at the time of grant of permission to review was inconsequential, because it was not the grievance of the petitioners that they were not heard at the time when the original review order dated 12-1- 1966 was passed. If the order of review through which the allotment was cancelled was passed after affording due opportunity to the persons con--cerned, the petitioners cannot now make legitimate grievance that the permission to review was granted in their absence. The first contention o the learned counsel, accordingly, has no force.

5. Regarding the second contention, it needs to be clarified that the order of remand dated 15-9-1970, which purported to reopen the entire case, was passed without affording opportunity of hearing to the either party, therefore, if the said order was recalled, it would not, in reality, amount to a review, See Fateh Muhammad v. Maula Bakhsh PLD 1963 SC 311.

6. We have also noticed that one of the grounds for the dismissal of the petitioners writ petition was, as observed by the learned Single Judge in the; High Court, that the petitioners cannot be permitted "to invoke the Constitutional jurisdiction when the delay, the default and representation was by the petitioners themselves."

7. After hearing the learned counsel we are satisfied that the petitioners, on account of their conduct, were not entitled to any relief in the exercise of writ jurisdiction of the High Court. This petition, accordingly, is dismissed.