1989 PLP 2521 (MLD)

Abdul Hafeez Lakho and Abdul Qadir Halepota for Respondents. Date of hearing: 15th February, 1989. This petition is directed against an order dated 6-8-1980 passed by the respondent No.l. The brief facts leading to the filing of the above petition are that the petitioner was granted survey No.592, measuring 5.19 acres and survey No.593, measuring 7.10 acres, situated in Deh Jalbani Taluka Warah, District Larkana at full rate condition through in 1960. It appears that the petitioner had failed to pay instalments after 10-12-1966. According to the petitioner he had paid six instalments out of ten. Be that as it may, the petitioner was served with a notice calling upon him to pay balance amount by 31st December, 1967. Upon his failure to pay the balance amount the grant was cancelled on 27-4-1968. It seems that after the above cancellation survey No.592 was restored to the petitioner as contended by the learned counsel for the petitioner whereas the present petition relates to the dispute pertaining the survey No.593 only. It appears that above survery No. 593 was allotted to one Shaflullah. Against the above grant the respondent No.2 filed an appeal before the Additional Commissioner. While the above appeal was pending the petitioner's brother Fazal Mohammad had come forward and made an application to become a party. His request was granted. After hearing the parties the Additional Commissioner by his order dated 21-9-1978 granted the above survey number to respondent No.2. Though the petitioner was not party to the appeal but he filed a Revision before the Board of Revenue, which was allowed by an order dated 11-3-1979, whereby the case was remanded to the Colonization Officer, Sukkur with the direction to dispose of the land afresh. It appears that while the matter was agitated before the judicial forums the petitioner also made efforts on the administrative side and made a representation to the Government, which was rejected on 9-1-1980 on the ground that the matter was pending on the judicial side. After that Colonization Officer by his order dated 9-3-1980 dialated upon the controversy but did not decide the matter on merits by observing that it would be interference from the administrative side. It further seems that the petitioners was able to obtain order dated 28-5-1980 from the Land Utilization Officer on administrative side for restoring the above survey number against which the present petitioner filed a representation which was allowed by the impugned order dated 6-8-1980 in the following terms: "Land may be put up afresh in open Katchehri." In support of the above petition the learned counsel for the petitioner has vehemently urged that respondent No.l was not justified in cancelling the regrant of the above survey number in favour of the petitioner as admittedly he had paid six instalments by the time the grant was cancelled on 27-4-1968 and thereafter he paid the balance upon regrant. He has further submitted that in any case Shafiullah was granted only 4 acres of land out of the above survey number and that the respondent No.2 had challenged the above grant to the extent of 4 acres and therefore the balance area of 3.10 acres is not in dispute as it already stands restored. On the other hand, the learned counsel for the respondent No.2 has submitted that once the above survey number was included in the schedule the petitioner had ceased to have any right in respect of the above land and that the respondent No.2 was claiming the entire survey number before the Additional Commissioner and not only the portion which was illegally allotted to Shafiullah. It has been further submitted that while the matter was pending adjudication on the judicial side before the Board of Revenue the Land Utilization Department was not competent in law to have restored the above survey number particularly when similar request was rejected earlier on 9-1-1980. The learned Advocate-?General, Sind appearing for the official respondent supports the submission of the learned counsel for the respondent No.l. We are inclined to hold that since the grant was cancelled after serving due notice for the payment of the balance amount and the land was included in the schedule, thereafter the petitioner had ceased to have any interest in the above survey number. We are further inclined to hold that since the matter was pending on the judicial side before the Board of Revenue the Utilization Department, Government of Sind, was not competent in law to have restored the grant of the above survey number in favour of the petitioner particularly after, having rejected similar request on 9-1-1980. On merits the order seems to be harmless as the petitioner as well as the respondent No.2, and other persons would be entitled to participate in the open Katchehri for the purpose of grant of survey number in question. The petition has no merits and, therefore. is dismissed. H.B.T./G-124/K Petition dismissed.