Mira Jan VS Deputy Land Commissioner

2012 Y L R 557

[Peshawar]

Before Miftah-ud-Din Khan and Mazhar Alam Khan Miankhel, JJ

MIRA JAN and 32 others---Petitioners

Versus

DEPUTY LAND COMMISSOINER, MARDAN and others---Respondents

Writ Petition No.273 of 2002, and Writ Petition No.1511 of 2004, decided on 8th September,

(a)Land Reforms Act (II of 1977)--

----Ss. 3, 7, 18 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Order of Federal Land Commission directing resumption of excess land of declarant and its allotment to deserving tenants---Order of Deputy Land Commissioner passed after remand in favour of declarant in his constitutional petition directing exclusion of such land from his holding for being owned by his sister and wrongly included in his holding---Constitutional petition seeking implementation of such order of Federal Land Commission----Maintainability---Petitioner had filed constitutional petition without challenging such order of Deputy Land Commissioner through an appeal or revision before proper forum---Remedy of appeal or revision available to a party under law must be availed before approaching High Court in its extraordinary constitutional jurisdiction especially in absence of any explanation or justification therefor--- High Court could not sit as an executing court of orders of Federal Land Commission---High Court dismissed constitutional petition for being not maintainable in circumstances.

(b)Land Reforms Act (II of 1977)--

----Ss. 7, 18 & 22---Constitution of Pakistan, Art. 199---Resumption of excess land of declarant-- -Passing of status quo order by Federal Land Commission in revision filed against resumption order---Order of Land Commission suspending operation of its status quo order on application of respondent without notice to declarant---Subsequent dismissal of revision by Commission for non-appearance of declarant---Constitutional petition by declarant challenging order of Commission vacating status quo order, but suppressing dismissal of his revision in default of appearance---Maintainability---Person seeking equity must do equity and come to court with clean hands---Suppression of material fact by a party alone would be sufficient for refusal of discretionary relief---Petitioner had availed proper remedy available under law by filing revision, but had suppressed its dismissal in default while filing constitutional petition---Party once having challenged an order by availing proper and statutory remedy could not be allowed to challenge same before High Court in constitutional jurisdiction---High Court dismissed constitutional petition for being not maintainable, in circumstances.

(c)Equity---

----Person seeking equity must do equity and come to court with clean hands---Suppression of material fact by a party alone would be sufficient for refusal of discretionary relief.

(d)Discretion---

----Relief, refusal of---Scope---Suppression of material fact by a party alone would be sufficient for refusal of discretionary relief.

(e)Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Party having challenged an order by availing a proper and statutory remedy could not be allowed to challenge the same

before High Court in its constitutional juris-diction.

Mian M. Younas Shah for Petitioner.

Muhammad Iqbal Khan Mohmand D.A.-G. and Ghulam Mahy-ud-din Malik for Respondents.

Date of hearing: 8th September, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment, we intend to dispose of Writ Petition No. 273 of 2002 and Writ Petition No. 1511 of 2004 having the common questions of law and same subject matter. The landed property of one Mst. Gohar Taja Bibi, respondent in Writ Petition No.273 of 2002 was 6 once resumed under MLR 64 and thereafter MLR 115 of 1972. Vide order dated 8-4-2000, the Member Federal Land Commission Islamabad passed yet another order by directing the Land Commission to resume further property of the respondent equal to 4764 P.I.Us. under the Land Reforms Act II of 1977 and be allotted to the deserving tenants in accordance with law and policy.

2.Thereafter, the Deputy Land Commissioner, Mardan vide order dated 8-3-2001 resumed the land equivalent to 4764 P.I.Us. under the Act of 1977. The order of Deputy Land Commissioner was challenged through an appeal before the Land Commission who vide its order dated 17-4-2001 allowed the same and by setting aside the order of Deputy Land Commissioner remanded the case back to Deputy Land Commissioner with the direction to decide the case afresh by re-evaluating the schedule of the property as some excess land measuring 1148 Kanal 17 Marla equivalent to 5681 P.I.Us. owned by Mst. Sultan Parwara, the sister of respondent, was wrongly included/added to the schedule of the property of the respondent.

3.The Deputy Land Commissioner, Mardan after the remand vide its order dated 27-12- 2001 directed that the above said excess land owned by the sister of respondent be excluded from the holding of Mst. Gohar Taja Bibi. Needless to mention that after such exclusion from the

holding of Mst. Gohar Taja Bibi, the respondent, her holding comes down to an area equal to 7083 P.I.Us. which is below the ceiling fixed under section 3 of the Act II of 1977.

4.The petitioners in Writ Petition No. 273 of 2002 have sought the implementation of the order of Federal Land Commission Islamabad dated 8-4-2000 and has also sought that the order dated 27-12-2001 of the Deputy Land Commission be declared as nullity in the eye of law being in contravention of the order of the Federal Land Commissioner whereas the petitioner in Writ Petition No.1511 of 2004 has asked for issuance of an appropriate writ declaring the order dated 8-3-2001 to be without jurisdiction and lawful authority having no legal effect and have also asked for restoration of the order of Deputy Land Commissioner Mardan dated 27-12-2001. The second writ petition was filed as the tenants Muhammad Munir and others had again moved an undated application clandestinely before the Deputy Land Commissioner, Mardan for allotment of the land situated in Khazana Dheri owned by the petitioner of second writ petition which he had received through gift from his mother Mst. Gohar Taja Bibi vide different mutations. The Deputy Land Commissioner vide his order dated 10-7-2004 on the said application had directed the resumption of land first to the Provincial Land Commission and then to be allotted to the deserving tenants. This order of the Deputy Land Commissioner was challenged before the Revenue Appellate Court, Mardan who vide its interim order dated 5- 8-2004 ordered that status quo be maintained till the date fixed.

5.Senior Member Board of Revenue, N.-W.F.P. now Khyber Pakhtunkhwa on the application of one Inayatur Rehman suspended the operation of status quo order on 2-8-2004 but without notice to the affected land owners i.e. the petitioners and respondents 54 and 55 in Writ Petition No.1151 of 2004.

6.The perusal of the record would reveal that the order of Deputy Land Commissioner dated 27-12-2001 passed after remand in favour of respondent of first writ petition was not challenged through any appeal/revision in the proper forum and straightaway the present Writ Petition bearing No. 273 of 2002 was filed by seeking implementation of the order dated 8-4- 2000 of Federal Land Commission Islamabad. When a remedy of appeal and revision under the law is available to a party, then that has to be availed first instead of approaching this Court straightaway in its extraordinary constitutional jurisdiction and specially when there is no explanation or justification for the same. This Court cannot act as an executing Court of the orders of Federal Land Commission. Petitioners could have challenged the order of Deputy Land Commission or could have moved the Federal Land Commission for violation of its order but nothing of the sort was done by the petitioners. So, their instant writ petition asking for implementation of orders of Federal Land Commission is not maintainable and is liable to dismissal.

7.As far as the connected writ petition filed by the affected landowners is concerned, that too, would not be maintainable not only on the ground that the petitioners had availed the proper remedy available under the law by filing revision petition before the Federal Land Commission which was dismissed in default vide its order dated 2-10-2004 but suppressed this material aspect of the case while filing instant writ petition by challenging the order dated 2-8-2004 of vacation of status quo passed by Senior Member Board of Revenue. It is settled law of the land that the person seeking equity must do equity and come to the court with clean hands. Suppression of material fact by a party alone would be sufficient for refusal of discretionary relief. Similarly a party once challenging an order by availing a proper and statutory remedy cannot be allowed to challenge the same order before the High Court in constitutional jurisdiction.

8.Accordingly, for what has been discussed above, both the writ petition being meritless are dismissed as such with no order as to costs.

S.A.K./310/P Petition dismissed.