Mst. DILSHAD AKHTAR vs MEMBER, BOARD OF REVENUE And Another

1. MUHAMMAD AFZAL ZULLAF J.--This appeal through leave of the Court is directed against judgment At dated 12-12-1982 of the Baluchistan High Court; whereby appellant's Constitutional petition arising out of a settlement matter, was dismissed as they were not found entitled to maintain the same.

2. The following brief facts were noted for grant of leave to appeal.

3. The dispute in this appeal relates to the land bearing Khasra No.1062/1059/10 situated on Mauza Karez Ibrahimzai Mehal Sirki Tappa Saddar Kansi, Tehsil Quetta. It was transferred to Muhammad Hashim and Muhammad Qasim by the Deputy Settlement Commissioner, Pishin Quetta on 12-4- 1962 in satisfaction of their claim on 27-2-1964. The appellant No.1 purchased the said land from the said transferees on 14-2-1976 as shown in the mutation entry of the said date. The appellants developed the land for the purpose of setting up a housing colony and advertised the sale of plots through a newspaper whereupon one plot each was purchased by the appellants Nos. 2 to 5. At this stage the Hindu Panchayat Quetta came forward with the claim that the disputed plot belonged to the said Panchayat. The dispute between the parties was ultimately brought to the notice of the first respondent, who took cognizance of the matter and as per order dated February, 1982 held that he was competent to examine the question of the validity of the allotment of land in dispute as he had jurisdiction to do so in his capacity as Chief Settlement Commissioner and the authority appointed under the Evacuee Laws. By the said order, the appellants were also restrained from raising any construction on the land. The said order was challenged by the appellants in the Baluchistan High Court by filing a constitutional petition which was dismissed.

4. Leave to appeal was granted, inter alia, to examine the argument advanced on behalf of the appellants: "that as no proceedings were pending on the date of coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, the first respondent had no jurisdiction to enquire into the matter."

5. It is not denied that the learned Member Board of Revenue has not yet rendered a final decision against the appellants. It was an interim order of assuming the jurisdiction to deal with the case, which was brought under challenge in the constitutional jurisdiction of the High. Court. In the impugned judgment the merits of the case were examined. The discussion on the jurisdiction of the respondent No.1, it seems, was avoided on account of certain weaknesses in the appellants' case, in so far as the merits are concerned.

6. Learned' counsel for the appellants has reiterated argument advanced at-the leave granting stage. We however feel that the case having arisen out of a settlement dispute, it was not proper to bring it to the High Court in its constitutional jurisdiction, prior to the respondent rendering the decision on the merits of the case. That would have afforded an opportunity to the High Court to examine whether the case was fit for exercise of the discretionary writ jurisdiction notwithstanding any defects in the assumption of jurisdiction or the procedure adopted. Same would apply to the present stage. If a Settlement dispute is amicably settled and substantial justice is done this Court might decline interference notwithstanding any legal infirmities. Looked at from whatever angle the Constitutional petition) before the High Court was premature and should in the circumstances of this case have been dismissed accordingly. We, therefore, while maintaining the impugned judgment, dismiss this appeal; but with the observation that nothing observed in the High Court's judgment as also herein shall influence the mind of the learned Member Board of Revenue when deciding the case on merits. There shall be no order as to costs.