Find a Lawyer

Writ Petition No. 1142 of 1976, decided on 3rd February 1977.

--- Read with Punjab Land Commission Notification No. DSL-71/73/ 1007-LC(II), dated 9-3-1973-Restoration of possession to evicted tenants - Procedure - No provision of Regulation authorizes District Magistrate/Deputy Land Commissioner to direct Assistant Commissioner to restore possession of land to tenants summarily especially when land owners not admitting persons affected to be tenants-Provision enabling alleged forcible evictees to get possession back from land owners contained in Notification dated 9-8-73-Comes into play only on application made to Revenue Officer of area concerned asking for restoration of tenancy-No application made by tenants to any Revenue Officer for restoration of their tenancies but some applications sent to higher quarters-District Megistrate's order straightaway directing restoration of possession to respondent without following procedure laid down in Notification, held, without lawful authority in circumstances.

Muhammad Hussain v. Muhammad Khalil and 3 others P L D 1976 Lah. 1374 and Khadim Hussain v. Assistant Collector, Jhang and another P L D 1976 Lah. 194 ref.

Para. 29-Revisional jurisdiction of Federal Government--Delegated to Chairman, Federal Land Commission and otter members of Commission-Order under para. 29 of Regulation, however, to be passed only after hearing parties concerned and not in their absence-Federal Land Commission or its Chairman never hearing petitioner-Order of Federal Land Commission or its Chairman directing restoration of possession to alleged tenants, hold, without lawful authority.

Sh. Nasim Hassan for Petitioners.

M. S. M. Akram for Respondent No. 1.

Khalil Ramdey, A. A: G. for Respondents Nos. 2 to 7.

Hassan Ahmed Khan Kanwar for Respondents Nos. 8 to 31.

Dates of hearing : 21st, 24th, 26th, 27th, 28th January and 3^rd February 1977.

.-There exists a dispute between Syed Iqbal Hussain etc. (hereinafter called the land owners) on the one side and respondents 8 to 30 (hereinafter called the tenants) on the other side. regarding some alleged forcible ejectment of the aforesaid tenants by the land owners. It appears that the matter came to the notice of the Federal Land Commission, who, on 7th April, 1976, conveyed its decision to the Chief Land Commis sioner, Punjab Land Commission, Lahore, by means of a letter dated 7-4-1976. This letter reads as follows :-

No, F. 10 (167)/FLC/76 t Dated the 7th April, 1976

From Ch. Rohmat Ullah, Deputy Secretary

To The Chief Land Commissioner, Punjab Land Commission,

Board of Revenue, Lahore

Subject : Complaint of Talib, Nur Muhammad etc., of Village Musawal,

Tehsil Depalpur, against their ejectment by their landlords

Sir,

I am directed to refer to your Summary for the Chairman, F. L. C. on the above subject and to state that it has been perused by him and he was pleased to observe that it is a fact that residential houses of the petitioners were demolished and also the tenants had left their tenancies 1 that the statement of the landlords that the tenants had left their houses and land of their own free will, is not convincing ; that even the order of D. L. C. in favour of the landlords did not give them any licence to forcibly eject the tenants ; that in view of the circumstances of the case, priors facie, it is a case of forcible ejectment and that. therefore, the offender landlords should be prosecuted and let them prove their innocence in the Court of law. It is, therefore, requested that penal action under paragraph 30 of M. L. R. 115 may kindly be taken against the offenders under intimation to this Secretariat.

Your obedient servant

(Sd.) Rehmat Ullah,

Deputy Secretary."

This letter was acted upon by the Punjab Land Commission, who, on its own part issued the following direction, as contained in its letter dated 19th April, 1976, which reads as follows :-

"No. LH/I11-159/76/1703-LC,

Punjab Land Commission, Lahore, dated the 19th April, 1976

From

Mr. Amir Ahmed Siddiqi,

Secretary, Punjab Land Commission

To

Mr. G. M. Piracha,

Deputy Commissioner, Sahiwal

Subject : Complaint of Talib, Nur Mohammed etc. of village Musawal,

Tehsil Depalpur, against their ejectment by their landlords.

Mr. Zahur Azhar. Chief Land Commissioner, Punjab

Sir,

I am directed to invite attention to your memorandum No. 701/HVC, dated the 18th March, 1976 on tire above subject and to enclose a copy of Federal Land Commission's letter No. F. 10(167)/FLC/76, dated the 7th April, 1976 for strict compliance of the directive contained in it and for taking immediate necessary action under the law.

I am further to request that the action taken should be reported for the information of the Federal Land Commission.

Your obedient servant,

(Sd.) Secretary,

Punjab Land Commission.

No. LH-III-159/76/1704-LC

A copy is forwarded to Ch. Rehmat Ullah, Deputy Secretary, Federal Land Commission, 24-Civil Lines, Rawalpindi for information with reference to his letter No. F. 10(167)FLC/76, dated the 7th April, 1976.

(Sd.) Secretary,

Punjab Land Commission."

In pursuance thereof, the District Magistrate on 1-5-1976 directed the registration of a case as per F. I. R. (Annex. 'B') which is as follows :-

"From Mr. G. M. Piracha, District Collector/Deputy Land Commissioner. Sahiwal. To the Superintendent of Police, Sahiwal. No. 191-HVC dated Sahiwal the 29th April, 1976. Subject Registration of a case under para. 30 of M. L. R. 115 against Syed lqbal Hussain and Shaukat Hussain etc. of village Musewal, 1'. S. Hujra Tehsil Depalpur. Memorandum. Talib. Said, Faiz and others (I 1st attached) residents of Ashiqabad farm (Musawal) P. S. Hujra. Tehsil Depalpur, were working as tenants of Syed Iqbal Hussain in Ashiqabad Farm (Musawal) P. S. Hujra. These tenants were residing In the houses constructed on the private land of the landlords. The Assistant Commissioner, Depalpur transferred these very houses and the land thereunder to the complainants tenants under 5 marlas scheme. Aggrieved by the order the landlords filed an appeal before the then District Collector who vide his order dated 6-8-1975 set aside the order of the Assistant Commissioner. Depalpur holding that the land as well as the constructed houses belonged to the landlords. After this decision the landlords ,demolished those houses by using bulldozer. It is contended by the landlords that they did not eject their tenants and that they left the tenancies and the houses of their own accord. This explanation is, however. not convincing. As a matter of fact it is a case of highhandedness on the part of the landlords as they forcibly ejected the tenants from the tenancies through coercion and demolition of their houses. It is, therefore, requested that a case under para. 30 of M. L. R. 115 should please be immediately registered against the following offenders No. (1) Syed Shaukat Hussain son of Ashiq Hussain, (2) Syed Iqbal Hussain son of Ashiq Hussain, (3) Sardar Sultan Ahmed, Manager, resident of 5/4L, Tehsil Okara, (4) Shamma Manager, (Sd.) G. M. Piracha, District Collector/Deputy Land Commissioner, Sahiwal.

No. 194-B/HVC/STN, dated 29-4-1976. A copy is forwarded to the Assistant Commissioner. Depalpur with the direction that the ejected tenants should please be restored their tenancies immediately and compliance reported. (Sd.) G. M. Piracha, District Collector, Deputy Land Commissioner, Sahiwal. S. H. O. P. S. Hujra for necessary action and registration of case under MLR-115 at P. S. Hujra (Sd.) S. P., Sahiwal 1-5-1970.

The land owners, feeling aggrieved, have filed the present writ petition in this Court against the aforesaid proceedings and orders.

2. The first point argued by the learned counsel for the petitioners (land owners) was that the learned District Magistrate/Deputy Land Commis sioner had no jurisdiction under the law to direct the Assistant Commissioner to restore possession of the land in dispute to the so-called tenants in the manner in which the direction has been issued especially when the status of the tenants as such was even otherwise not being admitted by the petitioners (land owners). We asked Sardar Mohammad Akram, learned counsel for the Federal Land Commission as to under which provision of law such a direction could be given by the learned District Magistrate to the Assistant Land Commissioner. A similar question was posed by us to Mr. Khalil Ramdey, learned Assistant Advocate-General, who appeared for the Punjab Land Commission. Both the learned counsel were unable to support the aforesaid direction of the learned District Magistrate/Deputy Land Commissioner. We ourselves have also gone through the provisions of the Land Reforms Regulation (M. L. R. 115/:972) to find out if any such power vests in the District Magistrate/Deputy Land Commissioner but we have not been able to locate it. The only provision which enables the alleged forcible evictees to &at possession back from the land owners is contained in the Notification No. DSL-71/73/1007-LC (II) dated Q-3-1973 which is contained at page 774 of the 'Land Reforms in the Punjab', Volume I is published by the Punjab Land Commission (June 1976 Edition), where it is written that "a tenant who is or has been ejected or dispossessed from his tenancy in an unauthorised manner after the 19th December 1971, may make an application to a Revenue Officer of the area concerned exercising' the pourer of an Assistant Collector Ist Grade asking for his tenancy to be restored. Such an application shall be made up to the 14th April, 1973, in the case of a tenant who has already been elected, and in the case of other' within thirty days of date of ejectment". Faiz Ahmed, Naib Tehsildar; Assistant Collector of II Grade, was present in person. He submitted that no such application was made by the tenants before the Assistant Collector Ist Grade, though the so-called tenants have been giving some applications) in certain higher quarters. the details of which are not known to hits. In that view of the matter, since there was no competent order under the aforesaid notification, the order of the District Magistrate/Deputy Land Commissioner, straightaway directing restoration of possession to the respondents concerned, without first following the procedure laid down IT, the notification hereinbefore mentioned, obviously was without lawful authority. See Muhammad Hussain v. Muhammad Khalil and 3 others P L D 1976 Lah. 1374 and Khadim Hussain v. Assistant Collector, Jhang and another P L D 1977 Lah. 194 when reference to the relevant notification(s) on the present subject was made and orders passed In violation thereof were set aside by this Court.

3. When confronted with this situation, learned Assistant Advocate. General and Mr. Hassan Ahmed Khan Kanwar, learned counsel for the tenants, argued that the Federal Land Commission would be competent in such cases to pass an order under paragraph 29 of the M. L. R. 115 and if, therefore, any such order was being passed by the District Magistrate/Deputy Land (commissioner, in pursuance of the orders of the Federal Land Com mission or its Chairman, there was nothing wrong in the said order. It is, to be noticed that paragraph 29 deals with the revisional jurisdiction of the Federal Government which, of course, stands delegated to the Chairman, Federal Land Commission and other members of the Commission but order;] under that paragraph are again to be passed after hearing the parties concerned and not in their absence. It is a common ground that Federal Land Commission or its Chairman never heard the petitioners and, therefore, any order given by the' Federal Land Commission or its Chairman directing restoration of possession, from that point of view also, would be without lawful authority. This is apart from the fact that we have not been able' to trace out any order of the Federal Land Commission, or its Chairman, directing straightaway the restoration of possession to the so-called tenants, without going through the procedure laid down in the notification dated 9-3-1973. Looked at from whatever angle, the order of the District Magistrate/ Deputy Land Commissioner directing restoration of possession cannot be upheld.

4. In the preceding paragraph, it has been shown that the F.1. R. in this case was given by the learned District Magistrate/D. L. C. on the assumption that he was required by certain higher quarters to do so. However, when he sent intimation of his having lodged the F. I. R., the Punjab Land Commission issued the following letter to him

No. LM-III-177/76/1912-LC

Punjab Land Commission, Lahore, dated the 5th May, 1976

From

Mr. Amir Ahmad Siddiqi,

Secretary. Punjab Land Commission

To

The Deputy Commissioner, Sahiwal

Subject : Registration of a case under para. 30 of M. L. R: 115 against

Syed Iqbal Hussain and Shaukat Hussain etc., of village Musawal,

P. S. Hujra, Tehsil Dipalpur. District Sahiwal

Sir,

I am directed to refer to your memorandum No. 194/HVC/STN, dated the 29th April, 1976 on the above subject and to invite attention to para. 31 of M. L. R. 115 which runs as follows :-

"31. Cognizance of offences.-No Court shall take cognizance of an offence under this Regulation except on a complaint in writing made by order of, or under authority from, the Commission."

It will be observed that offences under the Regulation are non-cognizable. You should have, therefore, filed a complaint in Court under para. 31 instead of directing the police to register a case.

You are, therefore, requested to file or authorise the filing of a complaint against the offenders in this case as required under para. 31 of Martial Law Regulation No. 115. Of course action against the landlord may also be feasible under the criminal law for some cognizable offence. This, however, has to be decided by you separately in your capacity as District Magistrate. The action taken may please be reported immediately for the information of Chief Land Com missioner.

Your obedient servant,

(Sd.) Secretary,

Punjab Land Commission.

Thereafter the learned Deputy Land Commissioner then lodged a formal complaint with the Illaqa Magistrate on the 6th of June, 1976. Seeing this development, learned counsel for the petitioners who had challenged the lodging of the First Information Report, did not press his point and submitted that now that the case has been initiated against his clients in a formal Court. he will attend to his grievances, if any, before that Court. In that view of the matter, on our part, we are not called upon to examine the validity or otherwise of the earlier action of the learned District Magistrate/D. L. C. in lodging the F. 1. R. against the petitioners, and therefore, that point is left open to be attended to in some appropriate case. To clarify nothing written herein is to be considered as an expression of opinion on that aspect of the matter one way or the other.

5. The upshot of the above discussion is that this writ petition is accepted in part to the extent indicated in para. 2 of this judgment and the order directing restoration of possession of the disputed land to the respondents in the manner above-mentioned is declared as to be without lawful authority and of no legal consequence against the petitioners. There shall be no order as to costs.

S. A. H. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.