2001 PLP 115 (CLC)

Brief facts out of which the present I.C.A. arises are that predecessor‑in‑interest of appellant No.5 Diwan and others were given temporary allotment of urban agricultural land in Bhakkar District Mianwali. Subsequently, it was allotted to predecessor‑in‑ interest of respondents Nos.3 to 11 namely Taj Muhammad Khan and Masood Ali Khan his brother in lieu of their urban claim. Predecessor‑in‑interest of respondent No.5 and others being aggrieved filed an appeal and revision petition before the higher authority under the provisions of the Settlement Laws but the same were dismissed. Thereafter, predecessor‑in‑interest of appellant No.5 and others preferred an application before the Assistant Collector with the prayer for the restoration of their temporary allotment which was dismissed with the observations that the land was confirmed in the name of Taj Muhammad Khan predecessor‑in‑interest of respondents on 9‑2‑1960. Predecessor‑in-interest of appellant No. 5 and others filed Writ Petition No. 1159/R of 1965 which was dismissed by this Court vide order, dated 3‑3‑1976. Predecessor -in‑interest of the appellant No.5 filed C.P.S.L.A‑ No.826 of 1976 before the Honourable Supreme Court` which was also dismissed as time‑barred vide order, dated 6‑4‑1980. The present appellants filed an application before the Notified Officer, Bhakkar for grant of the proprietory rights on 2‑JO‑1990 on the ground that appellants are in possession of the disputed land prior to 1971 and as such are entitled for its proprietory rights under Act, XIV of 1975. The Notified Officer did not decided the same Maqsood Ali Khan Durrani filed Writ Petition No. 160/R of 1984 against Settlement Commissioner and Mst. Inayat Begum and legal heirs of late Taj Muhammad Khan also filed Writ Petition No. 159/R of 1984. Both writ petitions were disposed of by one consolidated judgment, dated 6‑5‑1990 and remanded the case to the Notified Officer. The Notified Officer after the remand by this Court after providing personal hearing to all the concerned rejected the claim of the present appellants vide order, dated 2‑2‑1993. Appellants being aggrieved filed Writ Petition No. 149/R of 1996 which was dismissed by the learned Single Judge vide impugned judgment, dated 21‑4‑1999. Hence the present appeal.

2. Learned counsel for the appellants submits that the learned Single Judge non‑suited the appellants that possession of the appellants were unauthorised which is in violation of the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, XIV of 1975 as the appellants being in possession during the crucial harvests the appellants were entitled to get the proprietary rights. He further submits that the application filed by the appellants for grant of proprietary rights was pending before the Member Board of Revenue. Therefore, case of the appellant was within the parameters of the aforesaid (Repeal) Act. He further submits that the land in question had never been surrendered by the respondents and it was resumption land and it is settled principle of law that once the land was resumed from the name of the respondents then no protection under Martial Law Regulation No.89 of 1991 could have been extended to the respondents but the learned Single Judge was erred in law to non‑suited the appellants without considering this aspect of the case. He further submits that even if it was a land surrendered under the Martial Law Regulation No.89 of 1991 then option to purchase should have been given within the prescribed limit whereafter it become a Colony Land. The possession of the land in question admitted with the appellants. Therefore, appellants were entitled to the grant of proprietary rights under the aforesaid (Repeal) Act as well as various notifications issued by the competent authority.

3. Learned counsel for the respondents submits that the matter has been finally decided in the settlement side as well as up to the level of Honourable Supreme Court. Therefore, appellants have no right to claim the proprietary rights on the basis of possession on the well‑known principle of waiver and estoppel. He further submits that Notified Officer has given finding of fact against the appellants after appreciation of evidence and the learned Single Judge was justified to dismiss the writ petition. He further submits that Notified Officer finally decided the matter on 2‑2‑1993 and the writ petition was filed on 9th September, 1996. Therefore, learned single Judge was justified to dismiss the Constitutional petition on the well‑known principle of laches. He further submits that the disputed land have already been permanently settled against claim of the respondents only residual property could be claimed by lawful occupants in Act XIV of 1975.

4. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. It is admitted fact that Notified Officer finally decided the case vide order, dated 2‑2‑1993 and the writ petition was filed on 9th September, 1996. Therefore, learned Single Judge was justified to dismiss the same on the well‑known principle of laches, as per principle laid down by the Honourable Supreme Court in Khiali Khan's case PLD 1997 SC

304. It is also admitted fact that Notified Officer after proper appreciation of evidence have given finding of fact that predecessor -in‑interest of the respondents Taj Muhammad Khan had paid the price of the impugned land. It is pertinent to mention here that this fact is duly supported by the judgment of this Court in Writ Petition No. 1159/R of 1965 which was decided on 3‑3‑1976 and observed as under:‑‑ "the allotment in favour of the respondent No. l has subsequently been regulated under the Martial Law Regulations Nos.89 and 91 and the respondent No. l has purchased the area in question and paid price thereof. The acts and orders of the relevant authorities in this behalf are not liable to be interfered with in the circumstances of the case by this Court." It is pertinent to mention here in Writ Petition No.1159/R of 1965 respondent No. l was Taj. Muhammad Khan predecessor‑in‑interest of respondents Nos.3 to

11. It is settled proposition of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the tribunal below in a Constitutional jurisdiction as per principle laid down by the Division Bench of this Court in Mussaduq's case PLD 1973 Lah.

600. Therefore, learned Single Judge was justified to uphold the finding of the Notified Officer. Learned Single Judge has given finding of fact that the appellants' possession over the disputed land was unauthorised. Relief through extraordinary Constitutional jurisdiction was to be granted to an aggrieved person. An unauthorised occupant was not an aggrieved person in case the said property was allotted by the competent authority to a person held entitled to the same. Reliance is placed on Abdul Saitar and others v. Assistant Commissioner, Gujranwala and others 1988 MLD 1321. It is settled proposition of law that the appellants could only get the land if they were held entitled to the same under the scheme of disposal of residual property by administrator thereof. In the present case predecessor‑in‑interest of respondents Nos.3 to 11 was allotted the said land by the competent authority of the settlement side which was upheld by this Court in Writ Petition No. 1159/R of 1965. The disputed land as such was not available land under section 3 of Evacuee Displaced Persons Laws (Repeal) Act, 1975, and therefore, could not be disposed of as residual property as held in Abdul Sattar's case referred (supra). Reliance is also placed on Allah Ditta and others 1983 CLC 219 (Lah.). The property already stands transferred by the Settlement Department as is evident from the order of this Court, dated 3‑3‑1976 passed in Writ Petition No. 1159/R of 1965 and purchased by Taj Muhammad Khan predecessor‑in‑interest of respondents Nos.3 to

11. Therefore, Notified Officer as well as the learned Single Judge was justified to non‑suited the appellants. In arriving to this conclusion we are fortified by the law laid down by the Honourable Supreme Court in Muhammad Din's case PLD 1991 SC

1. The learned Single Judge refused to exercise discretion in favour of the appellants as the appellants are unauthorised occupants on the well‑known principle he who seeks equity must come with clean hands. The appellants did not approach this Court with clean hands as is observed by the learned Single Judge. Therefore, learned single Judge was justified to refuse to exercise his discretion in favour of the appellants as per principle laid down by the Honourable Supreme Court in Nawabzada Ronaq Ali's case PLD 1973 SC

236. Learned counsel for the appellants failed to point out any illegality or irregularity committed by learned Single Judge. In view of what has been discussed above, this I.C.A. has no merits and the same is dismissed. Q.M.H./M.A.K./G‑39/L Appeal dismissed.