AMIR JAN Versus STATE

The petitioner, NIst. Amir Jan, has moved this constitutional petition praying therein that the impugned order, dated 14‑10‑1982 and the measures and acts for putting the land in dispute to an o‑en auction, excluding the legal heirs of the deceased allottee may be declared without lawful authority and of no legal consequence.

2. On 21‑3‑1987 the petition was admitted to regular hearing and notices were sent to the respondent and in compliance with the notice issued to him, respondent No. 5 is present and is represented through his learned counsel.

3. Briefly stated the facts of the case are that one Qadeer Khan was allotted a square of land under Horse Breeding Scheme in Chak No. 1 / 1‑R‑A , Tehsil Okara, District Sahiwal (now district Okara). The original allottee, Qadeer Khan, died on 14‑1‑1981 and the District Remount Officer, declared the tenancy open to all. Muhammad Saghir Khan, one of the sons of Qadeer Khan, deceased, submitted an application before the Collector Sahiwal who vide his orders dated 22‑6‑1981 allotted the tenancy in his favour, for one year on experimental basis. The petitioner, Mst. Amir Jan, aggrieved by the above order went in appeal before the learned Commissioner, Multan Division, Multan who vide his order, dated 10‑1‑1982 set aside the order of the Collector and declared the tenancy open and directed that the Collector should proceed in the case to determine the right to tenancy on the basis of the recommendation of the District Remount Officer by inviting fresh claims. It was further ordered that the tenancy be resumed forthwith. The petitioner, Mst. Amir Jan, and Muhammad Saghir Khan, both went in two separate revisions before the learned Member Board of Revenue against the aforesaid order who vide his order, dated 14‑10‑1982 dismissed both the revision petitions. It was observed by the learned Member Board of Revenue that tenancy was open for its allotment. It was also observed that heirs of the deceased, Qadeer Khan, were also eligible to participate in the allotment proceedings. The District Remount Officer vide his order, dated 13‑1‑1986 invited applications for the allotment of the land in question. Thereafter, the said Muhammad Saghir Khan filed a Writ Petition No. 247 of 1986 in the Lahore High Court challenging the vires of the orders, dated 18‑1‑1982, 14‑10‑1982 and 13‑11986. However, the aforesaid writ petition was dismissed by a learned Judge of this Court vide his Lordship's order, dated 21‑1‑1986. It may be noted that Mst. Amir Jan, petitioner, was not a party in the above said writ proceedings. Mst. Amir Jan had filed a separate Writ Petition No. 50 of 1983 which was also dismissed. Thereafter, the District Remount Officer recommended the names of Rahim‑ud‑Din, Muhammad Saghir Khan and Kanwar Ijaz Ali for allotment of the tenancy vide his order, dated 22‑3‑1986. On the recommendation of the District Remount Officer, the learned Collector Okara allotted the land in question to the respondent Rahim‑ud‑Din vide his order, dated 29‑12‑1986. Muhammad Saghir Khan, Kanwar Ijaz Ali and Irshad Ali filed three separate appeals before the Additional Commissioner, Lahore, which appeals were dismissed by him on 3‑3‑1987. It is stated that the above said Muhammad Saghir Khan, Kanwar Ijaz Ali and Irshad Ali filed three revision petitions which are now pending before the learned Member Board of Revenue, Lahore. However, the petitioner, Mst. Amir Jan, did not take any action after the dismissal of the Writ Petition No. 50 of 1983, referred to above. She also did not participate in the proceedings for allotment of the aforesaid land.

4. Learned counsel for the petitioner argued that she is still in possession of the land in question and further that she is entitled to the allotment of the land being the widow of the original allottee alongwith other legal heirs of the deceased. The learned counsel forcefully submitted that in the order, dated 14‑10‑1982 passed by the learned Member (Colonies) Board of Revenue, Lahore, it was observed that the legal heirs of the deceased allottee may be allowed to participate in the allotment proceedings. On the basis of this observation, the petitioner as well as other heirs of the deceased allottee claim the allotment of the land in question.

5. Learned counsel for the respondent submitted that the writ petition filed by the petitioner suffers from laches and delay inasmuch as the impugned order has been challenged by the writ petitioner after the expiry of more than five years and no explanation whatsoever has been given in that behalf. Learned counsel stresses that it is apparent on the record that the petitioner did not pursue her case after 1982 and, therefore, they cannot be permitted to lay .any claim whatsoever for allotment of the land is question. It is submitted that Muhammad Saghir Khan, Ijaz Ali and Irshad Ali have filed separate revision petitions which are still pending adjudication between the parties before the learned Member Board of Revenue, Lahore. Learned counsel stated that they cannot be given any relief in the exercise of the writ jurisdiction of the High Court, inasmuch as the matter is pending adjudication before the competent Revenue Court. Learned counsel submitted that the petitioner has not even made an application before the Board of Revenue to be impleaded as a party in those revision petitions.

6. I have heard the learned counsel for the parties and have perused the record very minutely. I am of the view that there is nothing on the record to show that any effective steps were taken by the petitioner and others after 1982 for securing the allotment of the land in question. After 1982 for the first time, the petitioner has challenged the orders passed earlier by the revenue authorities in the High Court by filing the instant petition. Learned counsel for the petitioner submitted that clear observation was made in 1982 by the learned Member, Board of Revenue that the legal heirs of the deceased allottee can also participate in the allotment proceedings. This is true that some observation was made by the Member, Board of Revenue in 1982 in his order that the legal heirs of the deceased can participate in the allotment proceedings but there is nothing on the record to show that the petitioner and others ever attempted to get the allotment of the land in question on the basis that they were the legal heirs of the deceased, Qadeer Khan the original allottee. It is next contended that the petitioner and his sons are in the cultivating possession of the land in question. However, this contention has been challenged by the other contesting respondent. It is stated by the learned counsel for the respondent that the land is lying on Sapurdari with a third party and, therefore, the petitioner and her sons are not in the cultivating, possession of the land in question. Be that as it may, I do not find any lawful justification at this stage to give any relief to the petitioner or for that matter to her sons who claim the allotment of the land in question on the ground that they are the legal heirs of the original allottee, Qadeer Khan. However, the petitioner, if so advised, may make an application before the Member, Board of Revenue to become a party in the three above referred revision petitions. To this extent learned counsel for the, respondent also made a passing reference that the revisions are pending adjudication before the learned Member, Board of Revenue. Learned counsel for the petitioner as well as sons of the petitioner have agreed to this proposal that they will make the necessary application for being impleaded as a party in the above said revision petitions pending before the Member, Board of Revenue. With this observation. I do not find any substance in the writ petition which is accordingly dismissed leaving the parties to bear their own costs.

H.B.T./A‑285/L Petition dismissed.