1989 PLP 1545 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought, against the dismissal by the High Court, of a Writ Petition which had arisen out of implementation of Land Reforms under M.L.R.

115. As stated by the learned counsel one Zafar Ullah Khan having surrendered the land in dispute, the petitioners claimed it as its cultivating tenants under Paragraph 18(1) of the Regulation. The contesting respondents' side however, denied that the petitioners were tenants. Accordingly they claimed the same land under paragraph 18(3). Learned counsel further stated that two inquiries independent of each other were conducted with regard to the afore noticed claim of the petitioners ‑ one initiated by the Patwan cultimated in a report favourable to the petitioners and the other initiated by an Assistant Commissioner resulted in a report against the petitioners. Ultimately none of the two reports has been acted upon and the case now stands remanded for fresh inquiry. The petitioners had challenged the remand order in the High Court in its constitutional jurisdiction. They did, not succeed, therefore, leave to appeal has now been sought. Learned counsel contended that the inquiry held by the Assistant Commissioner was without lawful authority as under the law no such second inquiry could have been initiated. That being so, according to him, the question of remand for fresh inquiry did not arise. The learned Judge in the High Court while concluding the impugned judgment, made the following observations‑‑ "I find little merit in this writ petition. As already pointed out the findings of the Patwari which were endorsed by the senior officers and those of the Assistant Commissioner are at variance. Ordinarily the findings of the Assistant Commissioner should have been given preference to those of the Patwari. However, in order to be fair to the petitioners the Additional Chief Land Commissioner as well as the Senior Member of the Federal Land Commission have given another opportunity to the petitioners to support their claim. I can find no basis for interfering with their orders." It appears that the approach of the learned Judge in the High Court was that "ordinarily the findings of the Assistant Commissioner should have been given preference to those of the Patwari". But in the interest of justice another opportunity having been afforded to the parties, the remand order was not disturbed. There is no reason to differ with the learned Judge in the High Court. The petitioner has been benefitted by the remand order in the sense that if the High Court view regarding the inquiry held by the Assistant Commissioner, had been made the order of the Court the controversy would have been concluded against the petitioners. In the fresh inquiry after the remand order, both the possibilities are now open‑‑of his success or failure. The observation of the High Court which goes against the petitioners on merits, as noticed above, would not influence the course of fresh inquiry. With these observations leave to appeal is refused. M.A.K./A‑501/S Leave refused.