1988 PLP 1993 (CLC)

W.P.NO. Total holding Area resumed Area left with the petitioner. Acres Ghonta Acre Ghontas Acres Ghonta 2390/78 247,‑4 130‑18 116‑26 2391/78 243‑0 126‑00 116‑26 Under the two identical orders passed by the Deputy Land Commis sioner, Sukkur (Annexure B/3); the petitioners' right to retain the area mentioned in column * 3 above, inclusive of area allowed for tube‑well was recognised and rest of their holding stood resumed. The petitioners then went in' revision but their revision petitions were dismissed by. the Chief Land Commissioner, Sind, Hyderabad on 25‑$‑1973 vide order Annexure B/4. The petitioners did not go further in . second revision under paragraph 29 of the Regulation. They, however, alongwith three others jointly moved a petition dated 18‑8‑1977 (Annexure 'A') before the Chief Martial Law Administrator praying that paragraph 10 of the Regulation be abrogated and the resumed land restored to them. According to the .petitioners' learned counsel, this petition was ignored. The two writ petitions were filed on 10‑5‑1978 challenging the constitutionality of 'paragraph 10 ibid and for a direction to ‑the Federation of Pakistan to' restore the land in question to the petitioners and in the alternate to pay them compensation therefore, on the prevailing market rate.

2. We have heard the learned counsel for the petitioners and the learned Deputy Attorney‑General for the Federation of Pakistan. As pointed out by the learned Deputy Attorney‑General, the writ petitions cannot proceed for more than one reasons. The final order of the Land Commission Authorities, as already stated, is dated 25‑9‑1973 but the writ petitions were brought in May, 1978, after a delay of A five years. When asked to explain this delay, the petitioners' learned counsel submitted that they were civil servants; they could not take up cudgels against the Government; further they had an apprehension. that in case they took any action in the matter they might even lose the land left with them. This explanation can hardly be considered' as plausible and cogent enough to condone the delay. It is discernible from the record that the petitioner in Writ Petition No.2390/7$ retired from service in the year 1971. The other petitioner retired much earlier in the year 1966. Thus, they were not amenable to any service discipline. Even otherwise during this interregnum the 1972 Constitution and then 1973 Constitution remained in force. The petitioners, therefore, could have sought the remedy soon after rejection of their case by the Sind Provincial Land Commission Authorities, if they so desired. Both the writ petitions suffer from laches.

3. There is another weighty ground which dissuades us to entertain the writ petitions. The Deputy Land Commissioner and the Chief Land Commissioner, who passed orders Annexure B/3 and Annexure B/4, were functionaries of the Government of Sind and functioned at Sukkur and Hyderabad respectively. They have not been impleaded as parties to the writ petitions. Even if they are arrayed as respondents now, the jurisdictional issue shall remain subsisting, for B under Article 199, writ can be issued only against the persons performing functions within the territorial jurisdiction of this Court.

4. It is, however, urged that the petitioners have' thrown challenge only to the vires of paragraph 10 and not to the orders of the Land Commission Authorities and thus, it was not necessary for them to implead the two public functionaries as party to the writ petitions.

5. This argument does not improve the petitioners' case, rather it highlights their lapse. Paragraph 10 cannot be challenged in vacuum. The petitioners must seek the removal of the precise orders of the Land Commission Authorities, whereby the land was resumed and their claim for its restoration turned down. For all these reasons, without going into the merits of the case, both the writ petitions are dismissed leaving the parties to bear their own costs. M . Y. H . /S‑238/ L Petitions dismissed.