MUHAMMAD HANIF vs REFU and others
This matter originated as a petition for leave to appeal against a High Court judgment that dismissed a writ petition concerning a consolidation dispute. The petitioner challenged the restoration of specific land to the respondent, arguing that the land was incorrectly classified as urban and that the petitioner had planted a garden on the property, which the Board of Revenue had allegedly overlooked. The core legal question was whether the High Court erred in upholding the Board of Revenue's decision to restore the land to the respondent, who had owned and possessed it prior to consolidation. The Supreme Court held that the High Court's decision was unexceptionable. It reasoned that the land's urban status was irrelevant given the respondent's prior ownership and possession, and that the petitioner's claim regarding the garden was not raised before the Board of Revenue. Furthermore, the Court affirmed that a plea not raised before the lower forum cannot be entertained for the first time in constitutional jurisdiction, particularly when it requires factual inquiry. Leave to appeal was consequently refused.
- Can a petitioner raise a new plea in a writ petition that was not urged before the lower forum?
- Does the urban or rural classification of land affect the restoration of land in consolidation proceedings where prior ownership is established?
- Is the High Court justified in refusing to entertain a plea requiring factual inquiry that was not presented to the Board of Revenue?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought against the dismissal by High Court of a Writ Petition filed by the petitioner. It had arisen out of his grievance in a consolidation matter.
2. ' The point which arose before the High Court was noted and dealt with as follows:- "Learned counsel for the petitioner contended that the observation of the learned Member (Consolidation) Board of Revenue that the land in dispute is situated in the urban area of Town Committee, Sambrial is factually wrong. He, however, could not controvert the fact that the land in dispute restored in favour of Rafu respondent No,1 was owned and possessed by the respondent prior to consolidation. Learned counsel also stated that the petitioner has planted a garden over the land in dispute and this fact has also escaped notice of the learned Member, Board of Revenue.
3. I have considered the contention raised by learned counsel for the petitioner but find not persuaded to interfere in the impugned order. Undoubtedly the land in dispute belonged to the respondent and was under his possession prior to consolidation. The restoration whereof to him was in accordance with the principles of consolidation. The question that the land in dispute is situated in the urban area or not has no bearing on the decision of the case particularly when the petitioner cannot lay valid claim to the land in dispute. The other contention of the learned counsel that the petitioner has planted a garden over the disputed property is of no force because this plea was neither mentioned in the grounds of revision before the learned Member (Consolidation)
4. Board of Revenue nor addressed at the Bar before him. No injustice appears to have been done to the petitioner if the land in dispute owned and possessed by Rafu respondent has been restored to him."
5. Learned counsel has confidently asserted that another ground which was urged before the High Court was not notice in the impugned judgment. It is, that the original order was based on the consent of the respondents side. When questioned whether this last point was urged before the Board of Revenue in the same form as is being presented before this Court, the learned counsel answered in the negative. This by itself could be proper ground for the High Court not to entertain a plea which needed inquiry. The approach of the High Court in regard to the vital points involved in the case is unexceptionable. We do not consider it a proper case to grant leave to appeal. The same, therefore, is refused.