1984 PLP 274 (SCMR)

NAS1M HASAN SHAH, J.‑The case of the petitioners is that they were entitled to the allotment of the land in dispute, as they were cultivating it as sub‑tenants, under para. 13 of the ‑Colony Notification No. 3215‑79/3973 C‑II, dated the 3rd September, 1979. For this purpose, it is further alleged, they had submitted applications to the Collector (respondent No. 2 herein) but no action was taken on the said applications, although a report was called for, on one of the applications, from the subordinate revenue authorities. As no action was being taken on their applications they, therefore, applied to the High Court under its writ jurisdiction for relief. The learned Judge in the High Court called for a report and parawise comments from the Assistant Commissioner/ Collector, Kabirwala (respondent No. 2 herein). In this report it was, inter alia, stated that the disputed land had been allotted to one Muhammad Nawaz in accordance with the instruc tions contained in the notification above‑mentioned. In the light of this information the writ petition was, accordingly, dismissed. Hence this petition for leave to appeal. The learned counsel for the petitioners has argued that the petitioners were entitled to the grant of proprietary rights under sub‑para. 'fourthly' of Para. 13 of the Notification which is in the following terms :‑‑ "

13. Grant of Surrendered/Resumed Land.‑‑All lands which may be surrendered or become available as a result of termination or resump tion of any temporary cultivation lease, be granted tender these conditions, in order of priority : -- firstly ................................................ secondly.......................................... thirdly......................................... fourthly, to those who have been cultivating the land as sub-tenants under such lessees as were held ineligible to purchase proprietary rights under these conditions: provided that no person who has occupied the land without the consent of the lessee and/or the previous permission of the competent authority as required under section 19 of the Act, or has cultivated the land illicitly, or has manipulated any wrong entry in the revenue record regarding his cultivation, shall be entitled to get the land under these conditions." It is, however, evident that the petitioners would be entitled to the transfer of the disputed land, if otherwise qualified only if no one else is eligible to obtain it under sub‑pares. firstly, secondly and thirdly' of the said notification. The petitioner's case is that their applications were pending before the Collector and the High Court had also issued a status quo order in their favour when the allotment of the area in dispute was made to Muhammad Nawaz. Hence the said allotment was illegal. It was illegal also on the further ground that the petitioners were not heard before making the said allotment in favour of Muhammad Nawaz. The question whether Muhammad Nawaz was, indeed, entitled to the allotment or not under the notification of the 3rd September, 1979, involves a factual enquiry and scrutiny of the respective claims of the parties. This scrutiny can be made only by the relevant authorities. The petitioner, if so advised, can file an appeal against the allotment made in favour or Muhammad Nawaz to the competent authority, who will investigate the facts and decide the matter in accordance with law. The petitioners expressed an apprehension that the appeal might not be entertained on the ground of limitation and even though they were prosecuting their remedy with due diligence in the High Court and in this Court and these proceedings were being taken bona fide. This plea can also be raised before the appellate authority, who will undoubtedly give due consideration to it. This petition, with these observations, stands dismissed. S. Q. Leave refused.