1979 PLP 475 (SCMR)

(b) Constitution of Pakistan (1973)‑

Art. 185 (31‑Leave to appeal to Supreme Court‑Precise conten tion as raised before Supreme Court never advanced by petitioners before any of competent authorities or even in High Court‑Supreme Court, in circumstances, held, not called upon to express any opinion on such new contention. Ch. Qatnar‑ud‑Din ‑Khan Meo, Advocate Supreme Court and Meraj‑ud Din Chaudhry, Advocate‑on‑Record for Petitioner. Ch. Noor Elahi, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Respondents. Date of hearing : 21st May 1979. MUHAMMAD AKRAM, J.‑The three petitioners are displaced persons from District Meerut (U. P. India). On the 21st of November 1960, land measuring 1 kanal 8 marlas comprised in Khasra No. 5420/1, situated in the urban area of Montgomery (now Sahiwal) was proposed in their names and allotted on the 3rd of May 1961 at Khata R. L. It No.

153. Likewise, another piece of land measuring 2 kanals 14 marlas 6 sarsahis comprised in Khasra No. 11014/1 situated in the same urban area was proposed in their names on the 27th of February 1963 and then confirmed afterwards on the 6th of March 1963 at Khata RL‑11 No.

197. Afterwards however, respondent No. 3, filed a mukhbari applications against the petitioners alleging that they had fraudulently obtained these lands situated in the urban area against their rural claim without any entitlement. On this after the necessary enquiry on the 30th of May 1964, the Revenue Assistant/Deputy Settlement Com missioner (Land) Montgomery, found that these lands situated in the urban area could not have been confirmed against the verified claim of the petitioners for the rural lands abandoned by them in India. In his opinion however, the petitioners had remained in possession of the land measuring 1 kanal 8 marlas comprised in Khata No. 5420/1 for more than five years as its temporary allottees and it could not therefore be cancelled from their names on this ground. However, as to the 'and in dispute measuring 2 kanalas 14 marlas 6 sarsahis comprised in Khasra No. 11014/1 he found that it was in the temporary allotment of one Muffti Zia ul Haq who had remained in its possession according to the entries in the Khasra Girdawari and as such the petitioners were not entitled to retain the same. Therefore, the learned D. S. C. (Lands) while is missing the mukhbari application with respect to the land measuring 1 kanal 8 marlas comprised in Khasra No. 11014/ 1, accepted the same in respect of the land in dispute measuring 2 kanals 11 marlas 6 sarsauris comprised in Khasra No. 11004/1, and directed that the same may be considered for allotment to the eligible sitting allottees alongwith the informants in accordance with law. The two contesting parties filed their separate appeals against this order and it was set aside by a consolidated order passed by the Additional Settlement Commissioner (Land) on the 20th of March, 1965 on the short ground that the Revenue Assistant exercising the powers of the Deputy Settlement Commissioner "Montgemery had no jurisdiction to dispose of the mukhbari application under section 10 of the Displaced Persons (Land Settlement) Act. He therefore, remanded the case to the competent authority for a fresh decision. After the remand on the 1st of September 1965, the Deputy Commissioner with powers of the Additional Settlement Commissioner (Land) for similar reasons adduced above, while cancelling the land in dispute measuring 2 kanals 14 marlas 6 sarsa his comprised in Khasra No. 11014/1 from the name of the petitioner allowed the other piece of land measuring 1 kanal 8 marl‑is comprised in Khasra No. 5420/1/to be retained by them on the ground that they had remained in possession of the same for more than five years. He therefore, ordered that the cancelled land in dispute stay he confirmed in favour of the informants against their entitlement. The petitioners then filed the Writ Petition No. 1236‑8 of 1965 against the order in the High Court at Lahore, which was however, withdrawn by them on the 31st of January 1965 with permission to file a fresh one. Their Second Writ Petition No. 365‑R of 1966 was also dismissed by a learned Judge of the Lahore High Court at Lahore on the 30th of March 1966. They then filed a Letters Patent Appeal No. 756 of 1966 against the judgment which was dismissed by a Division Bench both as barred by time and also on the merits. In considering the merits the learned Division Bench observed that it was conceded before them by ‑the counsel for the petitioners at the Bar that their claim was not verified for urban units and as such they had no right to the allotment of the land in dispute comprised in Khasra No. 11014/1 situated in the urban area. The petitioners then filed two successive review petitions against the judgment which were also dismissed on the 25th of May, 1976 and 7th of July, 1976. In these circumstances the petitioners have filed this petition for special leave from the judgment dated 6th of May, 1976 dismissing their Letters Patent Appeal and the two successive orders dated 25th of May, 1976 and 7th of July 1976 dismissing their review applications. We have heard the learned counsel for the petitioners and also gone through the record. Admittedly, the petitioners had no entitlement for the urban land in dispute; and they had their verified claim in respect of the rural land abandoned in India. As such, they were not eligible for the allotment of the land in dispute measuring 2 kanals, 14 murrlas, 6 sarsahis comprised in Khasra No. 11014/1 situated within the urban area of Montgomery (Sahiwal). The petitioners have failed to establish to the satisfaction of the competent authorities that the urban area in dispute was included in their temporary allotment and that it had remained in their possession as such form More than five years. They could at best retain urban land to the extent of their temporary allotment measuring 1 kanal, 8 marlas comprised in Khasra No. 5420/1 already allowed to be retained by them. In these circumstances in accordance with proviso to para. 24 of the Supplementary Scheme No. II read with the Circular Memo. No. 2586‑63/4258‑R (L), dated 26th of June 1963 from the Deputy Secretary (Rural) to the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, addressed to all the Deputy Commissioners, Deputy Settlement Commissioner (Land) etc. (vide Annexure 1) the petitioners had no entitlement for and right to retain the land in dispute. The learned counsel next attempted to argue before us that at an rate, the petitioners were entitled to purchase the excess land in dispute resumed from their names under Martial Law Regulation 84/89. But we find that this precise contention was never advanced by the petitioners at before any of the competent authorities or even in the High Court. In these circumstances we are n6t called upon to express any opinion on this new contention for the first time raised in this Court in these proceedings. For the foregoing reasons we find no force in this petition which is dismissed. Petition dismissed.