PLJ 2021 Tr.C. (Note) 119
Right of choice--
----Requested choice for same khasra number--Report of revenue officer--Request for choice of Respondent No. 1 was accepted by DLC--Order of DLC was challenged--Choice of shares in a specific land--Challenge to--Both Courts have not addressed core issue whether choice by legal heirs of original declarants can be exercised in isolation or not--There is no provision in Land Reforms Rules, wherein choice can be given when applications are submitted at same time with certain duration--Choice can not be exercised in isolation to detriment of other legal heirs, as it will deprive legal heirs from their choice of share in a specific land because nature and type of land are not similar in various places--Some are valuable in nature and some are less valuable--Additional/Land Commissioner, Malakand has only endorsed remarks of DLC for grant of choice and has not touched merit of case and legal points involved in it--Revision petition accepted. [Para 4] A, B & C
Date of hearing: 2.5.2013.
PLJ 2021 Tr.C. (Note) 119
[SMBR/Chief Land Commissioner Khyber Pakhtunkhwa Peshawar]
Present: Fazli Rehmani, SMBR/Chief Land Commisser KPK.
MIANGUL AURANGZEB etc.--Petitioners
versus
SHAHZADA SULTAN MEHMOOD etc.--Respondents
Case No. 76 of 2011, decided on 2.5.2013.
Order
This order will dispose of the revision petition of the petitioners Miangul Aurangzeb etc. directed against the order of Additional Commissioner/Land Commissioner, Malakand dated 7.4.2011, whereby the order of District Officer (R&E)/Collector/DLC, Swat dated 16.12.2008 was maintained and the appeal of the petitioners Miangul, Aurangzeb etc. was rejected.
The case in brief is that the Respondent No. 1 Shahzada Sultan Mehmood submitted an application to the District Officer (R&E)/Collector/DLC, Swat on 20.9.2008 seeking choice in the subject Khasra Numbers fully described in his application and the same was accepted by the District Officer (R&E)/Collector/DLC, Swat vide order dated 16-12-2008 on the basis of first come first serve. Similarly, the legal heirs of Shahzada Sultan-e-Room and Miangul Aurangzeb etc. the legal heirs of Miangul Abdul Haq declarant also submitted an application before the DLC, Swat and requested choice for the same Khasra Numbers for which Shahzada Sultan-e-Room had requested. The District Officer (R&E)/Collector/DLC Swat sought report from the Revenue, Officer/Tehsildar Babuzai and Naib Tehsildar Land Reforms, Swat. On the receipt of report, ths DLC Swat accepted the request for choice of Respondent No. 1 Shahzada Saltan Mehmood on the ground that he submitted application first and he was given choice in the area/land claimed in the subject Khasra Numbers equivalent to 153.28 PIUs and the same was adjusted to Respondent No. 1 Shahzada Sultan Mehmood in choice. The DLC Swat rejected the plea of Shahzada Aman-e-Room etc. and Miangul Aurangzeb etc. that though they are also the legal heirs of Shahzada Sultan-e-Room and Miangul Abdul Haq Jehanzeb, (Ex-Ruler) of Swat but their request for grant of choice in the same Khasra Numbers at this stage is not maintainable because more land also exists in the name of Provincial Land Commission in other places/Mouzas and Shahzada Aman-e-Room and Miangul Aurangzeb etc. can exercise their right of choice in other land/Mouzas. The petitioners challenged the order of Deputy Land Commissioner, Swat in the Court of Additional Commissioner/Land Commissioner, Malakand which was rejected vide impugned order and hence the present revision petition.
Parties with their counsels present, heard. Record of lower Courts as well as written arguments submitted by both the counsels of the parties thoroughly perused and came to the conclusion that both the Courts have not addressed the core issue whether the choice by the legal heirs of the original declarants can be exercised in isolation or not. The learned DLC Swat has only granted choice to one Shahzada Sultan Mehmood on the sole ground that he has submitted the application for grant of choice first and the petitioners have submitted for the same choice later on. Both the applications for choice were before the DLC Swat and he should have not granted choice on flimsy grounds that who submitted application first or later on. There is no provision in the Land Reforms Rules, wherein choice can be given when the applications are submitted at the same time with certain duration. Choice can not be exercised in isolation to the detriment of other legal heirs, as it will deprive the legal heirs from their choice of share in a specific land because the nature and type of land are not similar in various places. Some are valuable in nature and some are less valuable. The DLC Swat should have equated their choice as asked for and should have given them their share according to their entitlement. Accommodating one at the cost of other is not justified in the eyes of law. The learned Additional/Land Commissioner, Malakand has only endorsed the remarks of the DLC for grant of choice and has not touched the merit of the case and the legal points involved in it. The revision, petition is accordingly accepted and the orders of the Additional Commissioner/Land Commissioner, Malakand and District Officer (R&E)/Collector/DLC, Swat are set aside with the direction to proceed according to law and grant proper choice to both the parties as per Land Reforms Rules. Parties are left to bear their own costs.
(Y.A.) Petition accepted
0 Comments