This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. The succinct facts forming the background of the instant writ petition as stated in it are, that land measuring four Kanals and one Marla comprising Survey No,578/550 situated in Village Rangoli, Tehsil Dhirkot District Bagh was "Khalsa" land. Its allotment was sanctioned in favour of non- petitioner's No,5 and 6 on July 1st 1990, by the Collector of District Bagh. Subsequently, a mutation to this effect was sanctioned in their favour on September 24th 1990. The petitioner filed an appeal against the said order in the Court of learned Commissioner on November 17th, 1999. This appeal was entrusted to the learned Additional Commissioner for hearing and disposal, who dismissed the same being time-barred, vide order, dated June 6th 2000. Feeling aggrieved from the said judgment, the petitioner (herein) filed a revision petition before the Board of Revenue, which was also dismissed. Hence, the instant writ petition.
3. This writ petition was admitted for regular hearing. Notices were issued to the non-petitioners who have filed their respective written statements etc. Arguments have been heard.
4. The learned counsel for the petitioner Mr. M. Tabassum Aftab Alvi, argue that the learned Commissioner has wrongly held that the petitioner (herein) obtained the copy of the impugned order on September 8th 1996. He submitted that the petitioner never obtained the said copy on the aforesaid date, rather it was obtained by some other person. In this respect, the record was summoned from the Court of learned Commissioner. It clearly contained that no copy was obtained by the present petitioner on the said date. It was next maintained by him, that the petitioner gained knowledge about the impugned order on November 15th 1999 and filed the appeal on November i7th 1999, without spoiling any further time, therefore, the appeal was well within time. He argued that the learned Commissioner and Board of Revenue have erroneously dismissed the appeal being time-barred.
5. He further submitted that the land in dispute was reserved for grazing of cattle and it was "Chrand-Ghair-Mumkin" which could not be allotted to any person under any law, as such the basic order of allotment was void and it was the duty of the learned Commissioner to exercise the "suo motu" revisional jurisdiction and set aside the allotment order, but unfortunately this aspect of the case was not considered by him as well as by the Board of Revenue.
6. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioners argued that the petitioner was not an aggrieved person. He submitted that the writ petition did not disclose as to how the petitioner has been aggrieved from the impugned order. He further contended that there is nothing on the record, on the basis of which, it could be said that the petitioner was the owner in the Village, therefore, he could not be termed as an aggrieved person.
7. It was next submitted by him, that the land in question was sanctioned in favour of the non- petitioners on July 1st 1990 and the first appeal was filed on November 17th, 1999 after a span of about nine years. It was hopelessly time-barred. It was further contended by him, that section 162 of the West Pakistan Land Revenue Act, contained that limitation shall run from the date of the order and not from the date of knowledge. It was further contended by him, that the learned Commissioner had no jurisdiction to condone the limitation, because the powers under section 5 of the Limitation Act, were not available to him. He referred section 29 of the Limitation Act whereby the application of section 5 of the said Act was excluded. He referred PLD 1978 (Rev) 28 in support of his contentions.
8. I have taken into consideration the respective submissions of the learned counsel for the parties and perused the record made available alongwith the writ petition.
9. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act 1974, all the writ petitions, except the writs of habeas corpus and quo warranto, can be filed by an aggrieved person. While the writ of habeas corpus and quo warranto can be filed by any person. This view finds support from PLD 1990 Karachi 9 relevant page (73), which reads as under:-- "I may also observe that under Article 199 except a writ of habeas corpus petition and a writ of quo warranto, which can be invoked by any person, the other writs can be prayed for by an aggrieved party".
10. It is the fundamental duty of the petitioner invoking the extra ordinary jurisdiction of the Court to establish a direct or indirect injury caused to him or establish a substantial interest in the subject- matter of the proceeding. When no direct or indirect injury is caused to the petitioner or his no substantial interest is involved in the proceeding, then he could not be termed as an aggrieved person. This view finds support from 1993 CLC 1067 relevant page (1071), which is as under:-- "11. The grievance of the petitioners in substance was that the disputed house could not have been legally transferred to the answering respondents and that, in any case, it could only be legally disposed of by a public auction under the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. This argument, I am afraid, is not tenable, because the petitioners herein are not "aggrieved person" within the contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. If an authority on the point is needed reference can be made to (1), Mst. Noor Jehan Begum v. Doctor Abdul Samad (1987 SCMR 1577) and (2) Mst. Resham Jan v. Assistant Settlement Commissioner Lands (PLD 1979 Pesh 75). In the precedent case of Mst. Noor Jehan Begum, their Lordship of the Supreme Court have held that Doctor Abdul Samad, respondent therein, had no Locus standi to challenge the transfer in favour of the petitioners. Relying on Nisar Ahmed and others v. Additional Secretary, Food and Agriculture (1987 SCMR 389), the final conclusion was expressed in these words:-- "Clearly, it is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject matter of the proceedings. The stand of the petitioners throughout has been that they were tenants paying rent to the Evacuee Trust Board and never claimed the transfer of the property and indeed in law they were not so entitled. The writ petition was, therefore, rightly dismissed by the High Court and no ground for interference exists."
11. Similarly on the basis of possibility or assumption, that a person could obtain the property if it would have not been allotted to other person, does not create a right to him and he could not be termed as an aggrieved person. This view finds support from 1987 SCMR 1577 relevant page (1582), which is as follows:-- "We do not agree. A mere possibility that a person could obtain a property by making the highest bid if an evacuee property is disposed of by public auction does not give any such potential bidder a vested right in the property. The right of a person to bid in an auction is a right shared by him with every other citizen and the mere fact that the property, which is liable to be disposed of through auction is not so disposed of and the potential bidder deprived the opportunity of offering the highest bid at such an auction does not make him an "aggrieved person" so as to give him a right to maintain a Constitution Petition."
12. The words "aggrieved person" do not mean a person who is deprived of a benefit which he might have obtained if some different order had been passed. A person aggrieved must be a person, who had suffered a loss or grievance. A man against whom some judgment has been pronounced, which has wrongly deprived him of something or wrongly refused him something to which he was entitled. This view finds support from 1995 CLC 1123 relevant page (1127), which reads as under:-- "It is well-settled by now that "a person aggrieved must be a person, who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something" (PLD 1965 Dacca 231). In the case under consideration the petitioner has neither suffered a legal grievance nor wrongfully deprived of something nor his title affected as such in our considered view he cannot be declared an aggrieved party and, therefore, has no locus standi to invoke the extraordinary jurisdiction of this Court which is to be exercised with greater circumspection. "
' It further finds support from 1984 CLC 1146 relevant page (1149), which reads as under:-- "The examination of these principles and the relevant case-law cited at bar would make crystal clear that for the proper application of these rules the existence of some legal and vested right in favour of the individual is a condition precedent because an individual cannot be termed as an "aggrieved person" or "affected person" unless the decision or order has wrongfully refused him something, which he had a right to demand."
13. An aggrieved person within the meaning of section 44 of the AJ&K Interim Constitution Act, 1974, did not mean a person having a "stricto sensu" legal right. Even a person who has been deprived of a benefit and privileges by an illegal act or omission can be termed as an aggrieved person. This view finds support from PLD 1978 Lahore 273 relevant page (280), which is as follows:-- "21. Any "aggrieved party" within the meaning of Article 199 of the Constitution does not necessarily mean a person having a stricto sensu legal right. Even a person who is deprived of a benefit privilege etc. By an illegal act or omission can be considered as an aggrieved person. Reliance is placed on Mst. Inayat Bibi etc. v. Assistant Settlement Commissioner etc. PLD 1978 Lah. 252, which reads as under:-- "It is to be observed that the expression "aggrieved party" as occurring in paragraph (a) of clause
(1) of Article 199 of the Constitution has a wide connotation and it would even embrace a person who though suffering from no violation of a legal right, has been deprived of a benefit, privilege, liberty or franchise by an illegal act or omission of a public authority.
' Reliance is also placed on Mian Fazal Din v. Lahore Improvement Trust, Lahore etc. PLD 1969 SC 223 which reads as under:-- "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
14. Now the question emerges, whether the petitioner could be termed as an aggrieved person?
There is nothing on the record on the basis of which it could be said that the petitioner was also entitled to the allotment of this Khalsa land and by allotment of this land to the non-petitioners Nos.5 and 6, any right of the petitioner has been violated. There is also nothing on the record on the basis of which it could be said that he has any nexus with the land, which was allotted to the non- petitioners Nos.5 and 6.
15. I have minutely gone through the entire writ petition, nowhere in the writ petition it was pleaded by the petitioner that how he has been aggrieved from the allotment of non-petitioners Nos.5 and
6. While under law, it was incumbent upon him to state in the memo of writ petition, that how he was aggrieved from the impugned order. The writ petition did not disclose, that what kind of loss has been suffered by the petitioner due to the allotment of non-petitioners Nos.5 and 6. No doubt that the land in dispute was a Khalsa land and all the village owners were entitled to it under the AJ&K Grant of Khalsa Waste Land as ShamilatDeh Act, 1966, but it stultifies me that even in the writ petition, it has not been disclosed that the petitioner is an owner in the village or not? There is nothing on the record on the basis of which it could be said that the petitioner was an owner in the village. The petitioner has miserably failed to establish himself as an aggrieved person. The writ petition entails dismissal on this ground.
16. It would not be out of place to mention here that the land was allotted to the non-petitioners Nos. 5 to 6 on 1-7-1990 by the Collector and in this respect a mutation was sanctioned on 24-9- 1990. While the first appeal in the Court of Additional Commissioner was filed on 17-11-1999 after a span of nine years. The period of limitation for an appeal against the decision of Collector was provided in section 162 of the West Pakistan Land Revenue Act, under which, the appeal was to be filed within sixty days before the learned Commissioner. For having proper perception, I would like to reproduce the same, which reads as under:-- "(162) Limitation for appeals.-Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be-
(a) thirty days, where the appeal lies to the Collector;
(b) sixty days, where the appeal lies to the Commissioner;
(c) ninety days, where the appeal lies to the Board of Revenue.
In the instant case, the appeal was not filed as required under section 162(b), but it was filed after nine years of the order, therefore, the learned Commissioner has dismissed the appeal being time- barred. Now, the question emerges whether the learned Commissioner was competent to condone the limitation?
17. In the instant case, the limitation was provided under a special law, which did not contain that whole of the Limitation Act shall apply to the proceedings under such special law. When as such was not provided in the special law, then section 29 of the Limitation Act shall come into play, which reads as under:-- "(29) Savings. [(1) Nothing in this Act shall affect section 25 of the Contract Act 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law---
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.] [(3)] Nothing in this Act shall apply to suits under the Divorce Act.
[(4)] Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend."
18. The aforesaid provisions clearly contain that where any special or local law prescribes a different period of limitation than the period prescribed in the First Schedule, of the Limitation Act, then section 3 of Limitation Act shall apply and for determining the period of limitation sections 4, 9 to 18 and 22 shall apply. The application of section 5 was excluded. While in a time-barred appeal, the limitation could be condoned only under section 5 of the Limitation Act.
19. It would also not be out of place to mention here, that the aforesaid section 29(b) also clearly contained that the remaining provisions of this Act shall not apply, which means that except sections 3, 4, 9 to 18 and 22 of the Limitation Act, the remaining provisions of the said Act were not made applicable to the proceedings under the West Pakistan Land Revenue Act. Thus, section 5 of the Limitation Act was not applicable to the proceedings under the West Pakistan Land Revenue Act. The phrase "the remaining provisions of this Act shall not apply" occurring in 29 (2b) of Limitation Act has restricted the scope of section 5 of the Limitation Act. This view finds support from PLD 1978 Revenue 41 relevant page 50, which is as follows:-- "As regards the point of limitation, it may be observed that there can be no condonation of delay under section 5 of the Limitation Act, where an appeal or application is filed under the provision of Land Revenue Act, 1967 which provides a special period of limitation of its own. Unless therefore, the case is brought under one of the exemptions of Part III of the Limitation Act which deals with computation of a period of limitation, the delay in filing an appeal or application for review cannot be excused by virtue of section 29 of Limitation Act read with section 167 of the Land Revenue Act, 1967."
' It further finds support from PLD 1978 Revenue 28 relevant page 32, which reads as under:-- "Section 167 of the Land Revenue Act, 1967 makes the provisions of the Limitation Act, 1908 applicable to appeals, reviews, or revisions, in the matter of computation of the period of limitation.
This means that Part III of the Limitation Act which deals with computation of period of limitation shall apply to appeals under the Thal Development (Colonization) (Appeal and Revision) Rules, 1973. Part III, however, does not contain section 5 under which the period of limitation can be extended in certain cases. Apart from that section 29 of the Limitation Act which prescribes as ttt what portion of the Act shall apply to local and special laws in the absence of any directions in those laws themselves also does not extend the application of section 5 to the proceedings under these laws. It, therefore, follows that section 5 is not applicable to computation of a period for appeals under the Land Revenue Act and, a fortiori, under the Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973. The same view has been taken in Nawab Sir Meher Shah v. Lt. Dewan Sahib. Thus in the instant case the benefit of section 5 could not be taken for condonation of delay in filing the appeal before the Commissioner nor any section of Part III of the Limitation Act could be invoked in aid for that purpose. Therefore, the appeals before the Commissioner which were filed after about six years of the impugned orders without showing any ground on which exception from limitation could be claimed were not entertainable and should have been dismissed on the short ground of limitation."
It is to be noted that when the powers under section 5 of the Limitation Act were not available to the learned Commissioner for condonation of delay, then under section 3 of the Limitation Act, he was bound to dismiss the appeal being time-barred. Therefore, he has rightly dismissed the appeal.
20. So far as the contention of the learned counsel for the petitioner is concerned that the land in dispute was "Chrand-Ghair-Mumkin" and it was reserved for the grazing of cattle, therefore, it could not be allotted to any person and it was incumbent upon the learned Commissioner to exercise suo motu revisional jurisdiction, has no substance for the reasons that the learned Commissioner was not duty bound to exercise suo motu jurisdiction. It is entirely the discretion of the learned Commissioner to exercise the suo motu jurisdiction, even otherwise, under any law, he was not legally bound to exercise suo motu jurisdiction. Therefore, it could not be said that he has committed any error of law, by not exercising the suo motu revisional jurisdiction.
21. It is also pertinent to note that the case of the present petitioner before the learned Commissioner was not at all that the land in dispute was "Chrand-Ghair-Mumkin" I myself have gone through the contents of appeal filed before the learned Commissioner. Neither the appeal contained as such nor it was argued before the learned Commissioner. The learned counsel for the petitioner has raised this point before this. Court for the first time. When basically, it was not the case of the petitioner that the land in dispute was "Chrand-Ghair-Mumkin" and it could not be allotted to any person, when now, he cannot raise this point in the extra ordinary jurisdiction of this Court.
22. Even otherwise, I have gone through the copy of Khasragirdawri, which has been appended with the writ petition, it also nowhere contained that the land in dispute was reserved for the purposes of grazing of cattle and it was "Chrand-Ghair-Mumkin", but in the Khasragirdawri, the kind of land has been mentioned as Chrand-GhairMumkin, which does not mean that it was reserved for the grazing of cattle. There are various kinds of land as Mera Awal, Mera Doim, Banjar Qadeem, Thanghar Chrand-Ghair-Mumkin Lipara and Takki etc. The kind of land in dispute was Chrand- Ghair-Mumkin, which does not mean that it was reserved for grazing of cattle, but it was capable for this purpose, but there is nothing on the record that it was reserved for this very purpose, but only its kind was Chrand-Ghair-Mumkin, therefore, this contention of the learned counsel for the petitioner that the land in dispute was reserved for grazing of cattle is without any substance.
In the light of what has been discussed above, finding no force in this writ petition, it is hereby dismissed.