2008 PLP 280 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Syed Muhammad Rashid Ahmed Shah and his wife Mst. Sahibzadi seek leave to appeal against judgment, dated 9-5-2003 rendered by a learned Division Bench of Lahore High Court whereby the writ petition of the petitioners was dismissed.

2. Briefly, the petitioners owned some land in Mauza Toba Qalandar Shah Tehsil and District Bahawalnagar. Through Mutations Nos.183 and 184, dated 15-12-1970 he gifted the land measuring 1323 Kanals in favour of Mst. Farzana, his sister's daughter and Mst. Sahibzadi (petitioner No.2) who, by that time was a minor girl but subsequently got married to the petitioner No. 1.

3. On the promulgation of Land Reforms Regulation/Martial Law Regulation 115, the petitioner filed his declaration mentioning therein the aforesaid two alienations as well. The Deputy Land Commissioner, Bahawalnagar referred these mutations to the Land Commissioner, Bahawalpur for validation but the latter, on 10-6-1972 refused such validation. According to him, Mst. Farzana, the beneficiary of one of the two mutations was not the legal heir of declarant and Mst. Sahibzadi, the beneficiary of second mutation in whose favour the property was shown to have been gifted, was held not valid because at the relevant time in year 1970 both the donor and the donee were minors and there was no proof that any Nikah had taken place between them.

4. Against the aforesaid order petitioner No.1 filed appeal before the Chief Land Commissioner, Punjab. On 15-5-1973, Deputy Land Commissioner, Bahawalpur resumed excess land equivalent to 6618 produce index units subject to the decision of the Chief Land Commissioner on 'the appeal filed by petitioner No.1 against the order aforesaid. However, the appeal filed by the petitioner before the Chief Land Commissioner against the order, dated 10-6-1972 was dismissed on 2-7-1973.

5. Thereafter, the petitioner did not pursue the matter by challenging the order, dated 2-7-1973 and instead asked the Deputy Land Commissioner to grant him permission to make an exchange with the lands of his family members. The permission was granted on 5-7-1973 but through another order dated 29-8-1973, the concession of exchange extended to the petitioner, was withdrawn. An appeal filed before the Federal Land Commissioner was accepted on 16-1-1975 with the conditions that exchange would operate on the basis of tenanted and non-tenanted land. The said order along with orders dated 8-7-1973 and 29-8-1973 were challenged through Writ Petition No.113 of 1976/BWP.

6. While deciding the writ petition, the High Court permitted the exchange of the property and referred the matter back to the Deputy Land Commissioner for determination afresh. It is noteworthy that in Writ Petition No.113 aforesaid, the order invalidating the mutations in question determining excess Produce Index Units and the resumption thereof were not set aside. The exchange however, was restored by the Deputy Land Commissioner on 9-2-1999. As many as 25/26 years after resumption, petitioner No.1 filed revision before Federal Land Commissioner against the order of resumption dated 2-7-1973. It was dismissed on 14-1-1999 and so another writ petition before the High Court which was dismissed through the impugned order. Hence this petition.

7. It is but obvious that the factum of gifts though challenged in Writ Petition No.113 of 1976/BWP yet were not validated. The petitioner having not gone to seek further remedy, the chapter thereof is closed forever.

8. The last order, dated 2-7-1973 of resumption against which the appeal had failed, could have been challenged in revision under para.29(b) of Martial Law Regulation 115, but no such revision was ever filed. The petitioner had altogether ignored the factum of resumption and throughout had remained interested in permission to exchange the property. It appears' that when exchange became permissible, he suddenly thought of challenging the original resumption which by then had become final for a period of over 25 years. The Federal Land Commission in para.10 of its judgment has categorically held the matter to be hopelessly barred by time. It was in these circumstances that the High Court through the impugned order dismissed the writ petition, and rightly so. There being no force and merit in the instant petition, it is hereby dismissed and leave to appeal refused. S.A.K./M-161/SC Leave refused.