1992 PLP 1146 (SCMR)

‑‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Land in possession of petitioners having been included in a specific scheme, proprietary rights claimed by petitioners on that land could not be granted to them‑‑‑Record showed that but for introduction of specific scheme, petitioners would have been granted land in question‑‑‑Leave was granted to examine the contention that in such like cases consistent practice of Government was to offer alternative State land to the affected person and this could not be treated as mere bounty by the State and further that relevant notification created right in favour of allottees‑‑‑Petitioners in the meantime, were directed to make applications for grant of some other land‑‑‑Petitioners' failure to make such. applications of in the event of their failure to pursue the same, leave to appeal was to be withdrawn‑‑‑Court's order, however, would not be a bar to the allotment of land in question to a deserving person under the specific scheme. S.M. Tayyab, Advocate Supreme Court with Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on -Record for Petitioners. Muhammad Aslam Chattha, Advocate‑on‑Record for Respondent No.3. Date of hearing: 12th June, 1990. MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑Leave to appeal has been sought; against the dismissal by the High Court, of petitioners' Intra‑Court Appeal in a State land allotment matter. This dismissal of the I.C.A. as admitted by the learned counsel, was mainly on account of the reason that the petitioners had not disclosed in the writ petition the. fact that they had earlier filed suit in respect of the main subject‑matter and had failed. He, however, argued that this question of dismissal of a writ petition on the ground of unclean hands is one of exercise of discretion and further that the learned Single Judge not having exercised discretion in this behalf against petitioners, the learned Judges of the I.CA. should not have denied relief to the petitioners on this ground. Coming to the judgment of the learned Single Judge it proceeded on the basis that the land in possession of the petitioners had been included in the Gujranwala Permanent Scheme, therefore, in accordance with the instructions and Notifications the proprietary rights claimed by the petitioners' side on that land could not have been granted to them. After some arguments it, has been noticed that but for introduction of said permanent scheme the petitioners would have been granted the land in question and further that in such like cases it is the consistent practice of the Government to offer alternative State land to the affected persons. It furthcr argued that this cannot be treated as mere bounty by the State. The relevant Notifications do create rights in favour of the allottees particularly when they become eligible to a further right to obtain proprietary rights. In this case the aforementioned exercise has not been done. Leave to appeal is granted. Security Rs.5,000.

2. In the meanwhile the petitioner shall make an application for grant of some other land. If he fails to file an application or otherwise having filed it does not pursue it, this leave to appeal might then be withdrawn. It is further directed that this order shall not be a bar to the allotment of land in dispute to a deserving person under the aforestated permanent scheme. The possession of the petitioners shall not be disturbed till the said allotment is formally made. From that date onward also the petitioners' physical possession shall not. be disturbed so long as they give the landlord's share in produce to the new allottee. This arrangement shall then continue till the decision of this appeal. A.A./F‑232/S Order accordingly.