1983 PLP 2159 (CLC)

‑‑ Para. 30‑Constitution of Pakistan (1973), Art. 199 and Provi sional Constitution Order (I of 1981), Art. 9‑Constitutional jurisdiction ‑ Restoration of possession ‑ Petitioner without availing remedy available by way of revision before Additional Commissioner straightaway approaching High Court‑‑Exercise of constitutional jurisdiction declined. M. M. Afzal for Petitioners. Date of hearing: 12th June, 1982. This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Shahmand and Muhammad petitioners want this Court to declare that orders dated 31st August, 1981 and 25th April, 1982 passed by Additional Commissioner and Assistant Commissioner/Collector, respondent No. 2, respectively to be without lawful authority and of no legal effect.

1. The facts leading up to this petition in brief, as stated by learned counsel are that the petitioners and Nazar Muhammad respondent No. 1 jointly own land measuring 92 Kanals and 16 Marlas in village Mastpur ,Teh. Kabirwala, to the extent of equal share. On I ith August. 1979, Nazar Muhammad respondent moved application before Tehsildar/Assistant Collector under Para, 30 of Martial Law Regulation No. 115 of 1972 for the restoration of his possession over 46 Kanals and 8 Marlas from where he was allegedly dispossessed forcibly by the petitioners. This application was rejected on 30th October, 1979. Nazar Muhammad respondent challenged the same before A. C./Collector in appeal which was dismissed on 25th March, 1980. Aggrieved by that Nazar Muhammad filed revision which was accepted on 20th September, 1980, and the case was remanded to Collector, respondent No. 2 for fresh decision, On remand, the Collector vide order dated 27th November, 1980, rejected the application for restoration of possession on the ground that the same was barred by time. Nazar Muhammad respondent challenged the order before the Additional Commissioner, who, vide his order dated 31st August, 1981 accepted the revision and once again remanded the case to A. C./Collector for decision on merits, whereupon, the A. C. respondent No. 2 vide order dated 25th April, 1982, accepted the petition and ordered that the possession of the disputed land be restored to Nazar Muhammad, hence this petition.

3. After hearing the learned counsel, I find that as for the order dated 31st August, 1981, the same was not challenged by the petitioners before the Member, Board‑ of Revenue, or before the High Court through writ petition immediately after the .same was passed. The petitioners. rather participated in proceedings which followed the remand order dated 31st August, 1981 and as such virtually accepted the same. It would, therefore, not lie in their mouth to challenge the same after the lap of 8 months. As for the order dated 25th April, 1982, I find that the same can be challenged through revision before the Additional Commis sioner but without having exhausted the normal remedy which was available to them, the petitioners straightaway approached this Court. I further find that the petitioners have filed a civil suit titled 'Muhammad, Shahmand v. Nazar Hussain', a suit for perpetual injunction in which they have obtained some stay order. When confronted with this situation. I am not inclined to exercise the constitutional jurisdiction in favour the petitioners. It would however, be open to the petitioners to challenge the ultimate order passed, id, revision against order dated 25th April, 1982 of Collector through writ petition as and when necessary. M.Y.H Petition dismissed.