1969 PLP 342 (SCMR)

Nemo for Respondents. Date of hearing : 15th April 1969. HAMOODUR RAHMAN, C. J.‑The petitioner filed a claim form for the allotment of agricultural land in lieu of the land abandoned by her father Allah Bakhsh, son of Hakim in Patiala State, East Punjab. After verification she was given 480 produce index units in Chak No. 145/9‑L, of District Montgomery (Sahiwal). This was confirmed in her favour in 1954. Subsequently it was detected on reverification that one Abdul Aziz had also filed a claim for allotment in Chak No. '257/R‑B, District Lyallpur as an heir of the same Allah Bakhsh. Then by mutation, entered on the 24th October 1956, the petitioner obtained the entire land of her father at Montgomery and also half share with Abdul Aziz in the Land of Lyallpur. This for the total claim of Allah Bakhsh of 480 units she had obtained 480 units in Montgomery and 240 units in Lyallpur. An area equivalent to 199 units which was considered to be in excess of her entitlement was accordingly, cancelled by the Additional Settlement Commissioner (Lands) Montgomery on the 31st May 1966, and this order was upheld by the appeal on the 19th July 1966. The petitioner challenged the validity of this order by a petition under Article 98 of the Constitution but a Division Bench of the High Court dismissed the petition in limine holding that the excess area was lawfully cancelled and she had no right to claim even to purchase the same on market value. The petitioner seeks special leave to appeal and it is contend ed on her behalf that the High Court totally mis-appreciated her case, for, according to her, she had not been given any excess area but the Rehabilitation authorities had made a mistake in the calculation of her Mauroosi lands by giving her only 4/5th of her entitlement in respect of such lands. When this petition first came up for hearing it was pointed out to the learned counsel that there is no reference to this point in the judgment of the High Court nor had any specific ground been taken in the petition for special leave complaining of the failure on the part of the High Court to consider the point alleged to have been argued before it, the learned counsel applied for time to amend his petition and to file an affidavit of the learned counsel who had argued the case in the High Court. The application for amendment has now been filed but it is supported only by an affidavit of the husband of the petitioner. On the examination of the record it transpires that this point was not raised either before the Deputy Rehabilitation Commissioner or the other Rehabilitation authorities. Therefore, the affidavit of the husband of the petitioner to the effect that this point was argued before the High Court cannot be accepted. If this point was not taken before the Settlement authorities, it could not have been raised for the first time in the High Court. This was in any event a disputed question of fact which could not have been examined by the High Court in its writ jurisdiction. The next contention that the High Court was wrong in holding that she obtained any land in Lyallpur with the said Abdul Aziz was also a question which could not be agitated in the writ jurisdiction, for, the departmental report submitted under the directions of the High Court belied her contention. Her petition was, therefore, rightly dismissed, and she can take no legitimate exception to the order of the High Court. This petition is, accordingly, dismissed. Leave refused.