1994 PLP 527 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑

This appeal through leave of the Court is directed against the dismissal by the High Court of the appellants/plaintiffs' Civil Revision which had arisen out of the dismissal of a suit instituted against the Province of Punjab. The suit related to a scheme for allotment of 5 Marlas Plot to the non‑proprietors in the rural areas for construction purposes. Leave to appeal was granted as follows:‑‑ "Leave to appeal has been sought with respect to the well‑known 5 Marlas Scheme for providing housing facilities to certain classes of society. The petitioners claim to be the owners of the land in dispute which was acquired for the implementation of the said scheme. They filed a suit. It was dismissed. Their appeal and revision also having been dismissed, they have now sought leave to appeal. It is a case of first impression. Not only this but it also involves questions of general importance, inter alia as to whether the scheme was lawful and also whether all the laws concerned with the acquisition of land were observed in this case, together with the question raised in this petition. They require examination. Leave to appeal is granted." The respondent Government has chosen not to put in appearance. Accordingly, the case is now ex parte against the respondent. Learned counsel for the appellants has vehemently argued that the so called alleged acquisition of appellants' land for purpose of the said scheme which was made the subject‑matter of statutory enactment was without any legal support. His main argument, after bringing to our notice several Statutes relevant in this case, is that some of the mandatory provisions thereof were not complied with by the respondent in acquiring the appellants' land. The Statutes are: Punjab Acquisition of Land (Housing) Act, 1973; Punjab. Housing Facilities for Non‑Proprietors in Rural Areas Act, 1975; Punjab Jinnah Abadis for Non‑Proprietors in Rural Areas Act, 1986; and Jinnah Abadis for Non-Proprietors in Rural Areas Ordinance, 1986. Even if it is assumed for the sake of argument that the appellants have, prima facie, strong case on merits, and that is why leave to appeal was granted in this case, the fact remains that the suit has not been filed against the person/s and/or allottee/s for whose benefit the land was acquired. Essentially the suit should have been filed against such person/s. Even if the Government would not have then defended the suit, as it has done in the present appeal which is being heard ex parte, the said person/s might have been able to successfully non‑suit the appellants. Thus the Provincial Government it seems, were not much interested nor are even now interested in a controversy which in reality is between the two private parties. Learned counsel for the appellants has tried to argue that there is ample evidence that the so‑called allotments in favour of such person/s was fake and flimsy. According to him, it does not even bear the signature and seal of the competent authority. But this by itself is not enough to assume that the suit would necessarily have been decreed against the allottee/s if it would have been filed against them as they might have had raised factual pleas in their defence. For example, the substitution of real allotment with fake order so as to defeat them. Therefore, the suit not having been filed and remedy not having been sought against the right party there is no alternative but to dismiss this appeal on this ground alone. Law point on which leave to appeal was granted, though of considerable importance, might be decided in some other appropriate case. This appeal fails and is dismissed. There shall be no order as to costs. A.A./A‑1085/S Appeal dismissed.