' Anwar Zaheer Jamali, J --Through this civil petition, leave to appeal is sought by the petitioners against the common judgment in Writ Petitions No, 402 & 438 of 2010 dated 22.2.2012, passed by a learned Division Bench of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, whereby the said petitions filed by the private respondents herein were allowed with the following observations: ".... We have no alternative but to allow both the writ petitions and set aside the impugned orders with the directions to the Deputy Land Commissioner to decide the application of the respondents in presence of all the co-owners strictly in accordance with law. The matter in hand being decades old should be given preference and be decided as early as possible but not later than two months after receipt of file/judgment."
2. To cut a long story short, the dispute, subject matter of the two petitions before the High Court, had emanated amongst some of the descendents of (Mian Gul Shehzada Abdul Haq Jehanzeb), one of the successors-in-interest of the Ruler of Swat Mian Gul Abdul Wadood alias Badshah Sahib, who owned huge land holdings and other properties within and outside the Stke of Swat, which was merged into Pakistan on 15.8.1969 alongwith the States of Dir and Chitral, when subsequently such landed property was resumed under the Land Reforms Regulation 1972 (MLR 115 of 1972) and they were allocated their respective Produce Index Units (PIUs) by way of inheritance. Further detailed background, forming basis of such litigation, has been extensively recorded in Paragraph No, 6 of the impugned judgment, thus, for the sake of brevity, need not be repeated here.
3. We have heard the arguments of Mian Iqbal Hussain, learned ASC for the petitioners and Mian Gul Hassan Aurang zeb, learned ASC for Respondents No, 1 to 9 (hereinafter referred to as the "private respondents"), while on behalf of the official respondents Mr. Saadullah Superintendent (Litigation), Board of Revenue, Peshawar and Mr. Saraf Ali, Tehsildar, Land Reform, Swat have appeared in Court. The whole thrust of the arguments of the learned ASC for the petitioners is that in view of the earlier proceedings before the concerned authorities under the Land Reforms Regulation 1972, and clear entitlement of PIUs of all .The legal heirs and descendants of the Wali-a- Stuat through his two sons, there was no justification for the learned Division Bench of the Peshawar High Court to set aside the earlier orders challenged by the private respondents qua the entitlement of the petitioners and to remand the case back to the Deputy Land Commissioner to decide the application of present petitioners afresh in presence of other co-owners strictly in accordance with law. In this context, learned ASC has taken us to the two notices dated 27.9.1986 and 22.12.1986 issued to M/s. Mian Gul Shahzada Abdul Haq Jehanzeb and Mian Gul Shahzada Sultan-e-Rome, by the Deputy Land Commissioner, Swat asking them to exercise their choices within a specific period so that no further delay in finalization of their case in this regard is caused.
He further argued that when there was no dispute as regards PIUs entitlement of the Petitioner No, 1 and she has exercised her option in the year 1996, like many other descendants of the Ruler of Swat, who have also similarly exercised their options of choice in respect of specific khasra numbers, she cannot be singled out at the behest of private respondents to non-suit her from her entitlement after fifteen years. Therefore, in such circumstances the impugned judgment of remand is liable to be set aside. Learned ASC, however, did not controvert that after the impugned judgment of remand passed by the High Court the dispute between the parties to this petition has been already adjudicated before two concerned forums and now a writ petition challenging such decisions filed by the present petitioners is sub-judice before the Peshawar High Court.
4. Conversely, learned ASC for the private respondents has argued that the whole exercise of getting selected khasra numbers of her choice, as detailed in the application dated 4.1.1996, undertaken by the petitioners was behind the back and without any notice to other legal heirs of Mian Gul Shehzada Abdul Haq Jehanzeb one of the descendents of Wali-a-Swat, who had legitimate right to object to the grant of such selected khasra numbers at the instance of the petitioners in lieu of her available PIUs. He further argued that out of total land admeasuring 4882 acres equivalent to 50,869 PIUs the permissible entitlement of the predecessor of the parties (Ruler of Swat), under the Martial Law Regulation No, 115, was determined as 24000 PIUs, which, upon his demise on 1.10.1971, had devolved in equal share of 12000 PIUs to his two sons Mian Gul Shehzada Abdul Haq Jehanzeb and Mian Gul Shehzada Sultan-e-Rome, while subsequently on the demise of Mian Gul Shehzada Abdul Haq Jehanzeb, his share of 12000 PIUs has devolved in the ratio of 14/72 in favour of his four sons, 7/72 in favour of his only daughter and 9/72 in favour of his widow. He further argued that although the. PIUs inherited by the legal heirs of late Mian Gul Shehzada Abdul Haq Jehanzeb have been worked out through their entitlement as per inheritance, which are to be utilized/consumed by each one of them from the available estate of the Wali-a-Swat, Mian Gul Abdul Wadood alias Badshah Sahib in a equitable manner and after due opportunity of hearing to all the concerned parties, including the private respondents, but contrary to it, in a clandestine manner the present petitioners on the basis of her application dated 4.1.1996 got an exparte order dated 25.4.1996 in her favour to get prime valuable land of her choice, to the exclusion of other legal heirs of Mian Gul Shehzada Abdul Haq Jehanzeb, including the private respondents. This arrangement, which had taken place behind the back and without any notice or opportunity of hearing, was, therefore, challenged by the private respondents; firstly, before the Land Commissioner, who vide order dated 27.3.2000 dismissed their appeal and thereafter before the Chief Land Commissioner, KPK, who also dismissed their revision petition, vide his order dated 6.12.2001. The private respondents, having been left with no other option had, therefore, challenged the orders dated 25.4.1996, 27.3.2000 and 6.12.2001 passed by the Deputy Land Commissioner, Land Commissioner and Chief Land Commissioner, KPK respectively through Writ Petitions No, 402 of 2002 and connected Writ Petition No, 438 of 2002. In the above stated facts, the private respondents also questioned the order of Deputy Land Commissioner dated 25.4.1996, whereby he had allowed the application of the petitioners for exercise of her option of choice. To sum-up his submissions, learned ASC for the private respondents stated that since the principle of audi alteram partem, was violated by the Deputy Land Commissioner while granting selected khasra numbers to the Petitioner No, 1 in lieu of her PIUs, therefore, the impugned judgment is most fair and equitable, whereby again the whole dispute has been remanded to the concerned officer with specific observations that all similar orders/decisions which have been made by the officers behind the hack of the private respondents and other co-owners are no orders/decisions in the eyes of law and such orders/decisions in the circumstances would be void ab-initio, so there would be no limitation to challenge the same.
5. We have carefully considered all the submissions mad e before us and also perused the material placed on record. There is no denial of the fact that after the death of Mian Gul Jehanzeb (original declarant) on 14.9.1987, his 12000 PIUs, as well as the right to exercise choice under Paragraph-11 of the MLR 115 devolved on all his legal heirs by way of inheritance, but at no stage any partition had taken place between them about the landed property regarding which any one of them could exercise his/her exclusive choice. It was for this simple reason that right to exercise choice available to all the legal heirs of Mian Gul Jehanzeb was a conjoint right, which could not be exercised in isolation or independently by, any one of them without notice or opportunity of hearing to other legal heirs having equal interest therein. Further, there is no denial of fact that during the proceedings on the application of the Petitioner No, 1 dated 4.1.1996, which initially culminated in passing the order dated 25.4.1996 by the Deputy Land Commissioner, Swat, no notice of such application or opportunity of hearing was afforded to other interested parties, who are legal heirs of deceased Mian Gul Shehzada Abdul Haq Jehanzeb, the predecessor-in-interest of the petitioners as well as the private respondents. The submissions made by the learned ASC for the petitioners in this context with reference to notices dated 27.9.1986 and 22.12.1986, therefore, seem to be entirely misdirected, inasmuch as, these notices issued by the Deputy Land Commissioner had no nexus to the controversy in hand before us. Thus, we find that learned Division. Bench in its impugned judgment rightly upheld the grievance of the private respondents by granting their two petitions on the ground that no opportunity of hearing was afforded to them before such decisive action/step in favour of the petitioners and thus the principle of "audi alteram pattern" was violated. We may add here that in case some other descendants of Mian Gul Shehzada Abdul Haq Jehanzeb have also been able to get some selected khasra numbers of their choice in similar manner without notice or opportunity of hearing to other interested parties, such wrong or any number of similar wrongs could not be made basis to justify the claim of the present petitioners, which has been now adjudicated afresh by the concerned forums in terms of the impugned judgment. In our opinion, not only the impugned judgment as regards the relief granted to the private respondents is well discussed and well reasoned, but even as regards some other similar cases, where other legal heirs/co-owners have succeeded to get selected khasra numbers of their choice behind the hack of their co-owners, in this regard too a clear observation has been made to redress the grievance, if any, of other legal heirs as well.
6. The upshot of the above discussion is that no case for grant of leave to appeal is made out.
Leave to appeal is, therefore refused and this petition is accordingly dismissed.