MIAN MUHAMMAD AJMAL, J.---The petitioners herein, through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have sought declaration that the order passed by respondents Nos.1 to 4 be declared to be illegal, without jurisdiction, without lawful authority and of no legal effect.
2. As per assertions made in the writ petition, the predecessor-in-interest of the petitioners and respondents 12 to 15 was the allottee of the disputed land bearing Khasra Nos. 452/2/1 and 448/1 measuring one Kanal and 19 Marlas situated in Village Oghi, District Mansehra, which was allotted to him in the year 1948 and since then he was tenant in the said land. After the enforcement of West Pakistan Land Reforms Regulation, 1959 (M.L.R, No.64) certain land was resumed from Khan Badiuz Zaman, which also included the land in dispute and was mutated in favour of Provincial Government vide Mutation No.1594, which was then allotted to Sultan Muhammad Khan predecessor-in-interest of the petitioner and respondents 12 to 15 vide Mutation No.1600 attested on 8-7-1967 on the basis of decision of Additional Land Commissioner, Peshawar dated 28-2-1967, where they have constructed a Plaza. In the year 1984, respondents Nos.5 to 11 applied for cancellation of Mutation Nos.1594 and 1600, which was allowed by respondent No.4 and thereafter the appeal and revision of the petitioner also failed, which have been impugned herein.
3. Learned counsel for the petitioner contended that after resumption of the disputed land it was firstly mutated in favour of Provincial Government and thereafter in the name of the predecessor- in-interest, of the petitioners, being in possession thereof. He submitted that prior to the transfer of land in dispute in favour of the predecessor-in-interest of the petitioners protracted litigation took place between Khan Badiuz Zaman Khan and petitioner's predecessor-in-interest and on the basis of judgment/order of the Land Commissioner, Peshawar dated 28-2-1967, the land in dispute was mutated in favour of Provincial Government vide Mutation No.1594 attested on 8-7-1967 and thereafter the same was entered in the name of the petitioner's father vide Mutation No.1600 attested on 8-7-1967. After about 17 years respondents 5 to 11 applied for cancellation of aforesaid mutations which was granted and the order was maintained up to the highest forum. Learned counsel urged that revision petition was filed by the respondents 5 to 11 against the order of Land Commissioner dated 28-2-1967 whereupon the mutation was based, but the same was dismissed by the Chief Land Commissioner as time-barred vide order dated 31-7-1967, therefore, it had attained finality and could not be reopened at a later stage.
4. On the other hand, learned counsel for respondents 5 to 11 submitted that the estate of Khan of Agror was attached under Agror Valley Regulation, 1891 and its management and control was given to the Court of Wards wherefrom petitioner's father got the property on rent. After the imposition of Land Reforms Regulation (M.L.R. 64) of 1959, Khan of Agror submitted his choice. In the first round of litigation Mr. I.U. Khan, Member, Board of Revenue vide his order dated 5;3-1965 dismissed amendment in LC II with regard to 5 Kanals 16 Marlas of land situated near his houses but was allowed to amend LC II to include 11 Marlas of land under water mill. It was also observed that area under `Abadi' could not be resumed under M.L.R. 64 and if any such area has been resumed it has to be taken out of resumption. Consequently Deputy Land Commissioner after detailed scrutiny allowed the declarant to retain 1288.305 acres constituting 36000 units inclusive of two units under water mill. The declarant was also allowed to gift 650 acres constituting 18000 units to his heirs and 27.897 acres constituting 195.284 units were ordered to be taken out of the resumed pool. The remaining area measuring 9397.798 constituting 144262.581 units was resumed vide order of Deputy Land Commissioner, Hazara dated 19-6-1965. The petitioner's father and others appealed against this order before the Land Commissioner, who vide his order dated 28-2- 1967 observed that the `Abadi Deh' on which no land revenue was assessed were to be exempted from the operation of Land Reforms Regulation and only such `Abadis' should have removed from the resumed pool. In consequence to this order the disputed Mutations Nos.1594 to 1600 were entered and attested in the name of Provincial Government and the predecessor-in-interest of the petitioners respectively. This .Order was suo moto reviewed by the Chief Settlement Commissioner vide his order dated 17-10-1968.
5. We have heard the learned counsel for the parties at length and have gone through the record of the case minutely.
6. This case has a variegated history of litigation but for the disposal of this case the order of the Land Commissioner dated 28-2-1967 and subsequent orders would be relevant. Badiuz Zaman Khan filed revision petition against the aforesaid order of the Land Commissioner before the Chief Land Commissioner, West Pakistan who vide his order dated 31-7-1967 dismissed the same being time-barred but observed that it is a fit case to be examined on the administrative side for any suo motu action. The Land Commission Secretariat examined the case and opined that the Deputy Land Commissioner and Land Commissioner have not followed the order dated 3-5-1965 of the Chief Land Commissioner, therefore, it was necessary to rehear all the parties and as such suo motu review of order dated 31-7-1967 was taken up. The Chief Land Commissioner after allowing the opportunities of hearing to all the interested parties modified the order of his predecessor, dated 3-5-1965, his own order dated 31-7-1967 and that of the Land Commissioner's Order dated 28-2-1967, holding as under vide order dated 17-10-1968: "In view of the statement prepared by the Deputy Land Commissioner, which has not been rebutted by any counter-evidence, I find no reason to order for its resumption. In my opinion it will be in the interest of justice and fair play to allow respondent No.1 to retain this land within his ceiling and the proportionate area, if necessary, should be resumed from his remaining holdings. Obviously it is not conceivable that respondent No.1 had surrendered this area although it was a building site and much more valuable than the agriculture land."
However, the aforesaid order was set aside by the Member, Federal Land Commission and order of Mr. I.U. Khan, Chief Land Commissioner dated 5-3-1965 was restored, vide order dated 12-6-197(). In consequence thereto Deputy Land Commissioner vide his order dated 14-2-1978 ordered to allot the area measuring 5 Kanals 15 Marlas to the occupants. The respondents 5 to 11 assailed both these orders through Writ Petition No.3W of 1978, which was accepted on 30-6-1987 by this Court holding as under: "In the result while accepting this writ petition, we declare the order dated 12-6-1976 made by the learned Member, Federal Land Commission and the order dated 14-2-1978 made by the Deputy Land Commissioner, Mansehra and all consequential actions taken in pursuance thereof as being without lawful authority and of no legal consequence. Consequently the order made on 17-10-1968 by Mr. Abu Nasar, the then Chief Land Commissioner, would stand restored and remain in field and shall be implemented by the Land Commission Authorities. We may further observe that in so far as the rights of the tenants respecting improvements and cost of construction are concerned, those shall be determined by the Court having jurisdiction in the matter and this order shall not prejudice the rights of either party in that regard. We shall make no order as to costs."
This order was appealed against before the Supreme Court of Pakistan in Civil Appeal No.572 of 1988, which was dismissed by the august Supreme Court on 22-10-1991. During the pendency of aforesaid litigation, Fakharuz Zaman Khan alongwith his brother filed an- application dated 19-7- 1984 for the cancellation of Mutation Nos.1594 and 1600 both attested on 8-7-1967, before the Deputy Commissioner/Deputy Land Commissioner, Mansehra, who vide his order dated 27-2-1990 accepted the same on the ground that since the order of the Additional Land Commissioner dated 28-2-1967, on the basis of which the aforesaid mutations were attested, does not hold the field as it was modified by the Chief Land Commissioner exercising suo mote jurisdiction vide order dated 17- 10-1968 as such the said mutations had no basis to stand upon. The petitioners' appeal before the Land Commissioner, revision before the Chief Land Commissioner/Member Board of Revenue and application/revision under para. 18/27 of Land Reforms Act, 1977, before the Federal Land Commissioner, were dismissed by orders dated 20-9-1990, 6-8-1991 and LS-9-1991 respectively.
Learned counsel for the petitioners attempted to reagitate the conclusively determined question regarding suo motu review powers of the Chief Land Commissioner whereby the order of the Land Commissioner dated 28-2-1967 was modified, on which he was basing his claim. In Writ Petition No.380 of 1978, in an elaborate judgment of this Court dated 30-6-1987, the learned Court declared the order dated 12-6-1976 of the Member, Federal Land Commission and the order dated 4-2-1978 of the Deputy Land Commissioner and all consequential action taken in pursuance thereto to be without lawful authority and of no legal consequence. Resultantly order of the Chief Land Commissioner dated 17-10-1968 stood restored and was to be implemented by the Land Commission Authorities. The appeal of Mian Rasool Shah and others against the order of this Court before the Supreme I Court of Pakistan also failed, meaning thereby that the order of the Chief Land Commissioner dated 17-10-1968 was upheld and maintained which attained finality. Since the order of the Land Commissioner dated 28-2-1967 did not remain in the field, hence the whole superstructure built thereupon had to fall on the ground, as such Mutations 1594 and 1600 which came into existence on the basis of the said order had to die with the death of their creative order.
Learned counsel for the petitioners could not offer any plausible answer to the query as to how and in what manner the orders of respondents Nos.1 to 4 are without lawful authority or without jurisdiction. The respondents' 1 to 4 had the jurisdiction to entertain the matter and adjudicate upon it in order to rectify the wrong, in view of the orders as mentioned above. The High Court in its Constitutional jurisdiction does not act as an ordinary appellate Court to judicially review the conclusions of the competent forums/authorities drawn after taking into account the material before them, and as such this Court cannot take exception thereto in exercise of its writ jurisdiction.
The petitioner's case even otherwise does not seem to be based on bona fides as they have been litigating since long and this writ petition also appears to be designed to gain time by further prolonging the matter. In such circumstances they are not entitled to the discretionary relief, consequently this writ petition is dismissed with costs.