1994CLC871 (PLP)

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Order of remand by Court below for re‑examination and re-decision of case, not being a final order, same could not be interfered with by High Court in exercise of Constitutional jurisdiction. Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another PLD 1963 Lah. 461 and Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others PLD 1973 Lah. 495 ref. Syed Azhar Ali Shah Bokhari for Petitioners. Rana Muhammad Arif, AA. G. (on Court's call). Ch. Hanif Ahmad Dogar for Respondents. Date of hearing: 5th June, 1993. Fact necessary for the disposal of this Constitutional petition, briefly stated, are that Ihata No.154 measuring 11 Marlas and 4 Sarsahis was allotted by CA/Collector to Javaid Ahmad, respondent No.l herein vide order dated 6‑5‑1990. Muhammad Siddique and Allah Ditta (whose names have since been deleted from the array of the respondents at the request of the petitioners) preferred an appeal before the Additional Commissioner who by his order dated 22‑8‑1990 set aside the allotment made in favour of Javaid Ahmad, respondent holding that he "does not merit the allotment of the disputed Ihata". Additional Commissioner further observed that even the appellants before him i.e., Muhammad Siddique and Allah Ditta, too had no rightful claim over the disputed Ihata ‑as they were already having two Ihata sites in the village. View taken by the Additional Commissioner was that none of the parties before him was in genuine need of residential site and they were litigating simply as a matter of prestige.

2. Aggrieved by the order of the Additional Commissioner, Javaid Ahmad, respondent approached the Member, Board of Revenue through an appeal which the learned Member treated as revision petition. It appears that after the Additional Commissioner passed the aforementioned order canceling the allotment of Javaid Ahmad, respondent CA/Collector, Faisalabad by his order dated 27‑9‑1990 allotted the Ihata in dispute to the present petitioners, Anwar‑ul‑Haq, one of the petitioners then made an application before the Member, Board of Revenue for impleading him as a party. His application was allowed and he was impleaded as a respondent in the revision petition. The learned Member, after hearing the parties before him namely Javid Ahmad, respondent and Anwar‑ul‑Haq, petitioner took the view that the case merited re‑examination in the light of the observations made by the Additional Commissioner in his order dated 22‑8‑1990 and remanded the case to the A.C/Collector, Faisalabad for fresh decision. This was vide order dated 15‑10‑1991 which the petitioners have brought under challenge in the present Constitutional petition.

3. I have heard the learned counsel for the parties. Learned counsel for the petitioners has contended that the allotment of Ihata in dispute in favour of the petitioners is intact in so far as it has not been set aside by any authority including the Member, Board of Revenue and that the learned Member also did not set aside the finding of the‑ Additional Commissioner that Javed Ahmad, respondent was not in genuine need of the Ihata and, therefore, did not deserve the allotment of the Ihata in dispute. That being so, the remand of the case for fresh decision without setting aside the petitioner's allotment and/or the aforementioned finding of the Additional Commissioner against the respondent Javed Ahmad was not justified. I am afraid, the contention does not carry much weight. The Ihata in dispute was allotted to the petitioners by the CA/Collector while the limitation period for filing the appeal/revision against the order of the Additional Commissioner had not yet expired and it is on record that respondent No. 1 filed the appeal/revision on 29‑9‑1990/2‑10‑1990 which was well within time. I also find from the order of the CA./Collector dated 27‑9‑1990 that when making the allotment in favour of the petitioners, the officer was quite cognizant of the fact that the order of? the Additional Commissioner dated 22‑8‑1990 was open to appeal/revision and it was for this reason*that he directed the petitioners to deposit the market price of the Ihata within two months of the expiry of the limitation period. In the circumstances, the learned Member rightly remanded the case to the Collector for fresh decision after hearing both the parties and at least the petitioners cannot take any legitimate exception thereto more so for the reason that it has been observed by the learned Member that the case merited re?examination in the light of the observations contained in the order of the Additional Commissioner. Law is also fairly well‑settled that an order of remand not being a final order, it is not appropriate that it should be interfered with in writ jurisdiction. Refer Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another (PLD 1963 Lah. 461) and Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others (PLD 1973 Lah. 495). In view of what has been said above, writ petition has no merit and the same is ‑ccordingly dismissed but with no order as to costs. H.B.T/A‑524/L??????????????????????????????????????????????????????????? ??????????? Petition dismissed.