' KHALIL-UR-REHMAN KHAN, J.---The facts giving rise to this appeal by leave of the Court, briefly stated, are that Karim-ur-Rehman Khan Sherwani, statedly the predecessor-in-interest of the appellants secured land equal to 3000 PIUs in village Dholan Hethar, Tehsil Kasur. On promulgation of Martial Law Regulation 89 of 1961 he surrendered surplus land measuring 121 Kanals, 6 Marlas equal to 1085 PIUs and retained the balance equal to 2000 PIUs. It is claimed that Karim-ur- Rehman Khan Sherwani had submitted an application on 3-2-1962 expressing his option to purchase the land so surrendered by him and that as no action was taken on the said application, he filed seven different applications on different dates from 6-1-1964 to 24-1-1969 and again pursuant to some pressnote issued, whereby further facilities to allottees to purchase the land surrendered by them were extended, six revised applications were submitted from 2-6-1970 to. 22- 3-1976 to different authorities including the Provincial Minister Revenue complaining non-action on previous applications and seeking purchase of the surrendered land. Learned counsel also relied on the memorandum dated 27-5-1975 of the Deputy Commissioner confirming the factum of submission of option to purchase the land surrendered by Karim-ur-Rehman Khan Sherwani. Still no action was taken and then an application, dated 23-1-1973 was made seeking lease of the land pursuant to the scheme of leasing the surrendered land to the owners issued by the Government of West Pakistan vide memorandum, dated 9-8-1972. It is claimed that this application was granted as the appellants were granted lease of the surrendered land on 19-2-1973. The respondents/tenants challenged this order granting lease but the appeal was dismissed by the Additional Commissioner (Revenue), Lahore vide order, dated 25-8-1973. The Review Petition filed by the respondents/tenants was dismissed by the Additional Commissioner (Revenue) on 19-11- 1973 holding that the land belongs to the category which is to be given on one year's lease to the discretion of the DC/Collector, Lahore and that the mere possession does not solve the matter. The possession has to be legal and authorized one and the possession of the respondents was held basically that of a trespasser.
2. Revision petition was then taken before the learned Member (Colonies), Board of Revenue, Punjab who accepted the same vide order, dated 29-6-1978 observing that since the respondents herein/tenants have been in cultivating possession of the land in dispute as tenants since before 1962, they are entitled to get the benefit of the instructions quoted in the order. Learned Member, Board of Revenue, in paragraph 5 of his order recorded the finding with regard to claim of the appellants as under:-- ' "The respondent (present appellants) admits that the land was surrendered under MLR 89/91, and states that the original allottee had opted to purchase the same within the stipulated time but no final decision was taken on it. He has, however, not been able to produce any evidence to show that any option was actually exercised by the original allottee. The record produced in this behalf is also silent about the exercise of any such option by the original allottee. On the contrary the Khasra Girdawari produced by the Patwari shows that this land was in cultivating possession of the petitioners in 1962 and also at the time of granting lease to the respondent."
3. Karim-ur-Rehman Khan Sherwani, the predecessor-in-interest of the present appellants filed Review Petition which was, however, dismissed by the learned Member, Board of Revenue, on 24-8- 1978, observing, inter alia, as under:-- ' "Mazahar-ur-Rehman Sherwani through whom Karim-ur-Rehman Khan Sherwani has filed this review petition, is his son. He was respondent in R.O.R. No,260 of 1973-74 in which order sought to be reviewed was passed. His plea that the revision petition was decided without impleading him as a party is therefore incorrect. No other point worth consideration has been urged. There is hardly any merit in review petition which is hereby rejected."
4. These orders of the learned Member, Board of Revenue were challenged by filing a Constitutional Petition (Writ Petition No,5999 of 1978) in the Lahore High Court, Lahore, which was dismissed by a learned Single Judge on 29-6-1994 recording the finding that the petition must fail for the obvious reason that the writ petitioners were given option to pay the price in 1962 but they failed to do so and thereafter themselves agreed to obtain lease of disputed land for one year and now after several years, they cannot claim this area particularly when the same has been allotted to the tenants in cultivating possession and they cannot be uprooted from their permanent settlement.
5. This led to the filing of petition, for leave to appeal wherein for the first time copies of fifteen applications statedly filed before various authorities since after the surrender of the land from the years 1962 to 1976, were placed on record to advance the plea that Karim-ur-Rehman Khan Sherwani, the original allottee had exercised the option to purchase the land under the relevant scheme promulgated vide notification, dated 28-12-1961. Leave to appeal was granted to consider the pleas that in accordance with the instructions with regard to the lease of the surrendered land to its owners, the tenants were not -entitled to the transfer of the land in dispute and that an option was given to them to purchase the land as far back as 1962 but no notice for the payment of price was served upon them.
6. Mr. Naveed Rasool Mirza, Advocate, learned counsel for the appellants submitted that the applications referred to above amply demonstrate that despite exercise of the option in writing no demand notice was issued to either the original allottee or the appellants, his successors-in- interest, and as such the payment of the price through instalments could not be made. He added that the failure to attend these applications cannot be made basis for Folding that the appellants had not exercised the option to purchase the land' and in the circumstances the land in dispute could neither be categorized as the land liable to be leased out nor the same became available to be allotted to sitting tenants. He relied on certain precedents whereby order of transfer of a house or a shop passed in favour of the transferee was set aside on account of failure to dispose of the form seeking transfer of that very shop submitted by an aggrieved party. It was also argued that learned Member, Board of Revenue, went out of the way and exceeded his jurisdiction in going into the question of entitlement to purchase the land by the appellants or to seek permanent settlement of the land by the respondents as sitting tenants as the question before him pertained only to the legality or otherwise of lease of the land in dispute.
7. These submissions are misplaced as the lease of the land to the appellants was under challenge on the basis that the sitting tenants were entitled to the allotment of land permanently under the very scheme as the allottee who had surrendered the land had failed to exercise the option to purchase it. Learned counsel for the respondents pointed out that the learned Member, Board of Revenue, in his impugned order accepting revision petition recorded the finding of fact that no application was submitted by the, allottee exercising option to purchase the land. The said finding was not only based on record but was recorded after hearing the appellants. It was pointed out that even in the comments submitted before the High Court the official respondents' position was that no such application, dated 3-2-1962 was submitted to the Revenue Authorities. It was also pointed out that the appellants cannot be allowed to refer to the other fourteen applications as the same have been mentioned for the first time in the Memorandum of Petition for leave to appeal filed in this Court. These applications were not even referred to in the Writ Petition filed in the High Court. It was pointed out that self-made copies of these applications have been attached with the Memorandum of Petition for leave to appeal. Learned counsel for the respondents also referred to the order of the Additional Commissioner passed in appeal wherein the case set up by the appellants was to the effect that the request for the purchase of surrendered land was allowed by the Board of Revenue. As against the above stand noted in the said order, the contention urged before us was that they had exercised option by submitting the applications to the Additional Deputy Commissioner concerned. The report, dated 27-5-1975 of the Deputy Commissioner and the report, dated 11-7-1975 indicate that some orders must have been passed by the Board of Revenue, which orders have not been placed on record. Again in the year 1975, the Deputy Commissioner made a query whether the allottee had made any application for purchasing the surrendered land within time and if so, same shall be presented before him. Appellants have not taken the Court into confidence as to what had happened to this query made by the learned Deputy Commissioner.
8. The very fact that predecessor-in-interest of the appellants applied for the lease of the land would show that he had not by then exercised the option within time as otherwise he would not have on his own showing continued to seek issuance of a demand notice. It is common knowledge that in such matters instead of seeking issuance of demand notice, an application would have sought issuance of deposit challans for making the deposits had option to purchase been exercised within time and then on refusal to receive the deposit challan such an applicant would have approached the higher authorities. The fact remains that the authorities up to the level of Member, Board of Revenue have recorded a finding of fact that the allottee had not submitted the option in time. This finding of fact was affirmed by the learned Judge of the High Court in Constitutional jurisdiction, which jurisdiction he for another cogent reason i.e,, the tenants cannot be uprooted at this late stage, refused to exercise. Refusal to exercise extraordinary Constitutional jurisdiction which is discretionary jurisdiction is fully justified. In these circumstances, the plea that the application exercising option has remained unattended to is not available.
9. The other plea that the learned Member, Board of Revenue has set aside the order of the lower officers by going beyond the controversy has also no merit as the very entitlement of the respondents to receive the land on permanent basis under the scheme on failure to exercise the option by the allottee who had surrendered the land formed very basis for including the land in the category of land liable to be leased. The period for which the land was to be leased is inconsequential.
10. For the reasons given above, no justifiable exception can be taken to the view which prevailed with the learned Member, Board of Revenue as well as the learned Judge of the High Court. The appeal is without merit and is dismissed leaving the parties to bear their own costs.