1983 PLP 151 (SCMR)

MUHAMMAD HALEEM, J.‑‑The petitioners seek special leave to appeal against the judgment of the High Court of Baluchistan, Quetta, dated 5th of November, 1980, by which Constitutional Petition No. 158 of 1980 was dismissed. The petitioners claimed to be the purchasers of the disputed land from Sardar Qadirdad Khan under an agreement of sale dated 3rd of March, 1970. Earlier to this agreement, they pleaded that they were in cultivation posses sion of toe land, and on the promulgation of Martial Law Regulation No. 117, the disputed land, situate under the command of Pat Feeder Canal, was resumed on 20th of June, 1972. The petitioners averred that they bled applications under paragraph 6 of the Regulation for the allotment of this land on the basis that they were its tenants. However, in the enquiry held under Para. 6 (1) (b) of the Regulation, respondents 2 to 12 were found to be in cultivating possession of the land before the commencement of the Regulation and were, accordingly, granted this land. It may be here relevant to mention that no application was filed by the petitioners for the grant of the land under Para. 7 of the Regulation on the basis that they held it as owners. Further, as held by the Member, Board of Revenue, Baluchistan, in appeal No. 1489/BR/MLR/117, the application for the grant of the land under Para. 6 was only made by Began who is not one of the petitioners, and the names of Jafar and Sumandar were subsequently manipulated ; and not only the appeal of Began was dismissed but it was also held that the other two had no right of appeal as they had not filed the required applications. The grievance of the learned counsel for the petitioners is that although the petitioners had applied for the transfer of the land yet their request was not considered. In this respect the learned counsel referred‑us to the receipts of the applications filed by Khan Muhammad, the father of petitioner No. 10, Rehmatullah ; and two other petitioners Jafar and Ali Muhammad, but the others whose receipts had been filed are not petitioners before us. As after the resumption of land, the petitioners took forcible possession of it the respon dents 3 to 12, the grantees of the land applied for their ejectment and conse quently, the Tehsildar, Dera Murad Jamali, issued notices dated 17th of June, 1980, to them to vacate the land. The petitioners filed the aforementioned Constitutional Petition to challenge their ejectment pursuant to these notices. The High Court, in para. 7 of the judgment, held that the land in dispute was owned by Sardar Qadirdad Khan and that on the promulga tion of Martial Law Regulation No. 117 on 18th of March, :972, it vested in the government, free from all encumbrances ; and that it stood resumed under Para. 5 of the Regulation. As for the sale agreement, the High Court held that as the original document was not produced in court it was suspicious as to when it was executed and, therefore, its authenticity was doubtful. Even if the date of the execution that is 30th of March, 1970, be taken as correct, nonetheless the petitioners can have no legal right under it as they did not file any application under Paragraph 7 of the Regulation and, therefore, their claim on that basis stood foreclosed. However, in regard to their assertion that they were in cultivating possession of the disputed land, this claim has not been accepted by the Land Reforms Officer who has, on the other hand, accepted the rights of respondents 3 to 12 as to their being in cultivating possession of it at the commencement of the Regula tion. The High Court further held that the petitioners had taken illegal possession of the land and that the ejectment proceedings were in order as under Rule 19, framed under Paragraph 15 (c), they could be served with notices to vacate the land within 30 days ; and that these notices were issued pursuant to a letter of the Secretary, Baluchistan Land Commission, addressed to the Collector, Nasirabad, for taking action in the matter. As a corollary to this finding, the High Court also held that as they were not found to be in cultivating possession of the land before its resumption, they were not even entitled to 80 days' notice under paragraph 5 (2) read with Rule 19 of the Regulation, and in any case, the notices do provide the aforementioned period for the vacation of the land. It was contended on behalf of the petitioners that the notices of ejectment were illegal as after its resumption and subsequent allotment no power was left with any authority under the Regulation for the ejectment of the petitioners. This contention appears to be misconceived for in that even the petitioners should have challenged it before an officer in the high hierarchy anti not having done that the Constitutional Petition was prematurely filed. Even otherwise, as the petitioners failed to establish their right in the Aland as tenants; they had no locus standi to continue in possession of the land and the power to eject is implied in the Regulation as otherwise the grantees would not be able to fulful the terms of the grant‑ as prescribed in Para. 6 (6) and would be liable for ejectment under Para. 15 (c) and the Rules framed thereunder. In Fenton v. Hampton (11 Moo P C C 347) it was held:- "Whenever anything is authorised and especially if, as matter of duty, required to be done by law, and is found impossible to do that thing la unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment." In other words, when any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor and without special mention, every power and every control the denial of which would render the grant itself ineffective. The petitioners cannot, therefore, challenge the legality of their ejectment on this principle of construction as well, even if, there is no express provision in the Regulation. In regard to the grievance of the learned counsel for the petitioners that their applications were not considered by the Land Reforms Officer, it may here be mentioned that if the petitioners had any grievance against it then they should have taken suitable steps before that Officer and in case of refusal they could have approached the appellate forum for the redress of their grievance. Having failed to do so it is not now open to them to raise this objection for their own conduct they have failed to get their rights determined and nothing can turn on it now. Moreover it is not that all the petitioners had applied under Para. 6 of the Regulation. As would appear from the order of the Member, Board of Revenue. Suleman and Jafar had not applied and their names were manipulated in the application filed by Began who is not a petitioner before us. This grievance now only appears to be confined to Ali Muhammad, petitioner No. 5 and Rehmat ullah, Petitioner No. 10, the son of Khan Muhammad, and they would not also stand to gain for the reasons given above. Further, as the rights of the respondents 3 to 12, have been determined and have assumed finality, the grievance on this ground as will has no substance. Lastly, the petitioners had only challenged the legality of the ejectment notices in the High Court on a technical ground which again precludes them from agitating this point. Accordingly, the petition is without any merit and is hereby dismissed. Petition dismissed.