NEK MUHAMMAD vs A.C., JHELUM And Other

ORDER

1. SHAFIUR RAHMAN, J.--The petitioner, a Mangla Dam oustee, having failed in protecting the purchase made by him against the pre-emption 'claim made by a tenant, seeks leave to appeal against the judgment of the Lahore High Court, dated 25th 9f June, 1980 whereby a constitutional petition filed by him, was dismissed in limine.

2. The petitioner purchased land measuring 11 Kanals 19 Marlas in the revenue estate of Village Kharala, Tehsil and District Jhelum. It was pre-empted by respondent Karim on the ground that he was a tenant of the land. The petitioner contested denying that Karim was a tenant and seeking protection under notification issued under section 8 of the Punjab Pre-emption Act whereby purchases made by the. Mangla Dam oustees who were certified to be so were exempted from pre-emption. The Assistant Commissioner (Collector) negatived both the objections of the petitioner and decree the claim. On appeal the Additional Commissioner maintained order of the Assistant Commissioner. A revision petition was thereupon filed before the Board of Revenue. It was held to be barred by 36 days and the reason given namely, of wrong advice by the counsel with regard to the limitation was found unacceptable. Hence the revision was not entertained. The petitioner thereupon filed a constitutional petition which was dismissed on the ground that even a wrong decision given in such a case could not be said to be without lawful authority and the Member, Board of Revenue was otherwise competent not to entertain such a time-barred revision petition.

3. The learned counsel for the petitioner contended that a subjective assessment had been made of the reasons given for explaining the delay and getting it condoned without adverting to its merits.

4. The other objection is that it has been held that even where the order suffers from jurisdictional defect, it has been held that it is .Not without lawful authority. According to the learned counsel, the jurisdictional aspect of the matter has been dealt with in para. 15 of the decision in Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155 and the view point advanced by him gets ample support from it.

5. We find that it is difficult to overcome the factor of delay in filing the revision petition. In the first place, as held by this Court in the case of Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1966 SC 276, and Saeeduddin Ahmad Naqvi v. Abdul Ghafoor 1977 SCMR 306 refusal to condone delay by the competent authority cannot be challenged by a constitutional petition. Besides, there is a string of decisions of this Court where a mistaken advice as was pleaded by the petitioner before the Member, Board of Revenue, has been considered to be not a good ground for condoning the delay. Reference may be made to the decisions of this Court in Mst.

6. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1981 SCMR 890, Bashir Ahmad v. Government of the Punjab and others 1985 SCM R 333 and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCM R 1003.

7. We would, therefore, reserve the important question of law raised in this case, namely, the extent to which notification under section 8 of the Punjab Pre-emption Act gets affected, if at all, by Land Reforms Regulation of 1972, para. 25 for a decision in a more appropriate case. Leave to appeal is, therefore, refused.