1980 PLP 1717 (CLC)

USMAN ALI SHAH, J.-This petition under Article 199 of the Con stitution has-arisen in the following circumstances :- Land measuring 31 kanals and 19 marlas situate in village Deh Bahadur, Tehsil and District Peshawar, which is the- subject-matter of this writ petition, was resumed. and allotted to respondent No. 7 by Deputy Land Commissioner, Peshawar (Respondent No. 5) vide his order dated 8th December 1973. The petitioners preferred an application before the Deputy Land Commissioner pray in that they being the sitting tenants of the land in question the allotment if favour of respondent No. 7 may be cancelled and the land be allotted to them. Vide his older dated 22nd November 1975, respondent No. 5 rejected the application on the authority of Memorandum No. 2329/IC dated 11th November 1975 (Annex. D) from the Secretary, Land Commission, Peshawar, to the Commissioner, Peshawar Division, Peshawar, which for facility of re ference is reproduced below :- "The case of allotment of land measuring 31 kanwls a.xd 19 marlas situate in village Deh Bahadur to Mr. Garan Khan (respondent No. 7) has been examined in the light of your Memo. No. l094Q/FR dated 15th September 1975. In view of the fact that the allotment of land to Mr. Garan Khan in Bahawal nagar has been cancelled on-the written request of the allottee, the land granted to him under the provision of M. L. R. 115 by the Deputy Land Commissioner, may be allowed to stand. He can be granted the land under paragraph 18 (3) of M. L. R. 115f., and rules 3 and 4 (a) and (e) of the Scheme made thereunder." The record would show that after the allotment of the land to respondent No. 7 an Inquiry Officer was appointed to ascertain whether the allotment of lands in favour of respondent No. 7 and other persons was legally valid. He reported that the allotment of resumed lands in favour of respondent No. 7 and other persons was the result of irregu larity and illegality committed by the revenue staff. His report is dated 8th February 1974 (Annex. A). It will be proper to reproduce below para. 9 of this report concerning the resumed land in the present pro ceedings :- "In village Deb. Bahadur Khasra Nos. 1240/1, 1179/1, 1261/2, 1250, 1337/1, 1280/2, 3716/1, 3717, and 1340 measuring 31 kanals, 19 marlas are allotted to one Malik Garan Khan son of Said Azam of Mohallah, New Kakshal, Peshawar City, who is neither in possession of the said land according to Khasra Girdawari nor he lives in the said village. Enquiries made in public gathering reveal that this man has never visited village Deb .Bahadur what to say of his living or cultivating land in the slid village." In view of this report of the inquiry officer, respondent No. 5 asked for according sanction to review the illegal allotments which was granted by the Land Commissioner (respondent No. 4). In spite off this sanction for review, respondent No. 5 refused to cancel the allot ment in favour of respondent No. 7 and retained his previous order dated 22nd November 1975 allotting the land to Respondent No.

7. Against this order the petitioners preferred an application before the Land Com missioner, Peshawar (respondent No. 1) in they assailed the order of Deputy Land Commissioner on the ground that as they were the sitting tenants of the resumed land in question it had to be allotted to them and its allotment in favour of respondent No. 7 was in flagrant violation of the provisions of M. L. R.

115. Respondent No. 7 rejected this application on the ground that he has no jurisdiction to interfere with the order of Respondent No. 5 in view of Memorandum No. 2329/IC dated 11th November 1975 of the September Land Commission, N.-W.F.P. Peshawar, reproduced above, vide his order dated 4th September 1976. The petitioner then went in revision before the Chief. Land Commis sioner, Peshawar, (respondent N6. 3) who rejected the revision appli cation on the same ground that he has no jurisdiction in the matter, vide his order dated 29th January 1977. As a last resort, the petitioners have filed the present writ petition praying that the orders of the Land Commission Authorities be declared as illegal; without jurisdiction and of no legal effect and they be further directed to allot the land to them under the provisions of M. L. R.

115. The learned counsel for respondent No. 7 contended that the Authorities of the Land Commission had the discretionary powers to allot the resumed land 2n the present case and this Court has no jurisdiction to interfere with the order passed 'by them in the exercise of their discre tionary powers. In support of this contention, the learned counsel referred to sub-paragraph (1) of paragraph 26 of M. L. R. 115 which lays down that "No provision of this Regulation or any rules or order made there under shall be called in question in any Court, including the High court and Supreme Court, or before any authority other than an authority appointed under this Regulation and no such Court or authority shah have `jurisdiction in respect of any matter which the Commission ia empowered to determine". Similar contention was also raised before the Supreme Court of Pakistan in the case of Haji Ali Bux Khan and j others v. The Chief Land Commissioner, West Pakistan, Lahore and others (1974 S C M R 98) and the Hon'ble Judges repelled it holding that paragraph 27 01 M. L. R. 64 (from which paragraph 26 of M. L. R. 115 has been copied) should not stand a bar to the High Court in the exercise of its Constitu tional jurisdiction. It may be observed that if an order of the Authorities is found to be perverse or for that matter it defeats the object or scheme of the Regulation, this Court in the exercise of its writ jurisdiction will have the occasion take note of what the Authorities have done. It can not be said that under M, -L. R. 115, the Land Commission Authorities enjoy the unfettered discretionary powers to act whimsically without having regard to the balance of equity in a matter corning before them under the Regulation. Similar law of discretion will be a wild law which cannot be countenanced in a society governed by the Constitution The learned counsel for respondent No. 7 next contended that the question of allotting the land to his client by the Land Commission Authorities being a question of fact, it is not open to challenge before this Court by invoking its writ jurisdiction. We haste not been able to appreciate this contention of the learned counsel. There was never raised a disputed question of fact for determination between the parties before the Land Commission Authorities in the present case, in that there is nothing in the impugned orders of the Authorities to show that upon the facts of the case, respondent No. 7 had the preferential right against them petitioners. The only consideration which weighed with the Authorities was that as the land allotted to respondent No. 7 was cancelled on his own request, the resumed land in tile present case can be allotted to him. Similar view taken by the Authorities of the Land Commission would appear to arbitrary and perverse, because it has deprived the petitioners of a valuable lawful right. It may be observed that if in law a person is entitled to a thing and yet he is deprived of by an arbitrary and perverse act of authorities this court will have no hesitation to undo that act in the exercise of its writ jurisdiction. In the present case, it is clear to us that in law respondent No. 7 had no locus standi to claim the resumed land as against the petitioners who being its sitting tenants were entitled to its allotment under paragraph 18 (3) of M. L.R.

115. There was therefore no justification for the Land Commission Authorities to deprive them of that right. The learned counsel for respondent No. 7 was unable to show any provision in M.L.R. 115 in support of his contention that as his client had abandoned the land in Bahawalnagar, he is entitled to allotment of the resumed land in the present case over and above the heads of the petitioners even if they were its sitting tenants. Now it is a matter of record that as sitting tenants the petitioners were, in cultivating post session of the resumed land in question for Rabi 1971-72. This being the, position, the petitioners were clearly entitled to the allotment of the said land under paragraph 18 (3) of M. L. R. If 5 read with rules 3 and 5 oft .the Scheme made under the said paragraph. We, therefore, accept this writ petition and hold the impugned orders of the land Commission Authorities as being without lawful authority and of no legal effect No. order as to costs. M, A. K. Petition accepted.