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Constitutional Petition No.21 of 1983, decided on‑ 24th December, 1985.
‑‑S 161‑‑Provisional Constitution Order (1 of 1981), Art. 9‑ Mutation‑‑Constitutional jurisdiction‑‑Question of title of petitioner in issue before Collector/ Settlement Officer in an appeal filed by him under section 161, Land Revenue Act 1967, against mutation entry in revenue record in favour of Government‑‑High Court declined to 'dilate upon question of title.
‑‑Art.9‑‑Constitutional jurisdiction‑‑Question of fact‑‑Constitutional jurisdiction, generally, held, was not designed to probe into complicated disputed questions of facts for which proper forum was a civil Court or any other regular forum provided by any special law‑‑High Court in fit cases, however, might probe into a question of fact in a constitutional petition if it did not require a detailed inquiry and if dictates of justice demanded doing so.
Siddiqan and others v. Kh. Mahmood Sadiq and others P L D 1979 Note 46 at .p. 31; Leemon v. Mst. Kazbano and 2 others P L D 1982 Kar. 449; M.Ghani v. M.A.Mullick & Brothers and 3 others 1973 SCMR 90; Begum Saeed Afzal v. The Government of galuchistan through the Chief Secretary, Government of Baluchistan Quetta and another PLD 1977 Quetta 1 and Hazar Khan alias Hazara v. Allah Dina and 3 others C.P.No.7/77 ref.
‑‑‑Art. 9‑‑West Pakistan Land Revenue Act (XVII of 1967), 5.161‑‑Mutation‑‑Constitutional petition‑‑Possession of land‑‑Fact, that petitioner was dispossessed by official respondents illegally, established by record‑‑Action of official respondents found to be without jurisdiction‑‑No probe, held, required into any complicated question of fact and petitioner could not be denied constitutional relief merely on ground that he could file a regular suit‑‑Official respondents directed to restore possession of land to petitioner.
‑‑‑Art. 9‑‑Constitutional petition‑‑Relief of appropriate writ, held, could not be refused to a petitioner, on ground that there was alternate remedy available in cases where order was patently without jurisdiction.
Syed Ali Abbas and others v. Vishan Singh and others P L D 1967 S C 294; Abdul Rehman and 5 others v. The State and 3 others PLD 1971 Pesh. 61; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan,. Works Division and 2 others P L D 1972 S C 279; Muhammad Nazir Khan v. Dr. Mubashar Hasan and another P L D 1974 Lah. 49; Allah Wasaya and 7 others v. Tehsildar/A.C. 1st Grade, Khanpur etc. 1981 C L C 1202 and Mst. Zahida Begum v. Wing Commander Ziauddin Ahmed and 5 others 1983 CLC 187 rel.
Iftikhar Muhammad for Petitioner.
Amirul Mulk Mengal, Advocate‑General for Respondents.
Date of hearing: 1st, 2nd and 15th December, 1985.
The petitioner through this petition has prayed for the following reliefs;‑
"It is, therefore, prayed that on the grounds stated above, the action of the respondents in dispossessing the petitioner from the land in dispute may be declared as without lawful authority, jurisdiction and of no legal consequence. Further direction be made to respondents for handing over the possession of the land in question to the petitioner. Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be passed in favour of the petitioner and cost of the petition may also be allowed.
2. The brief facts as averred in the petition are that the petitioner alongwith his sons and daughters is the owner of agricultural land (hereinafter referred to as the "Land" situated at Khuzdar on the basis of registered and unregistered sale‑deeds executed during the period from 1965 to 1971 (Annexures A‑I to A‑9 to the petition). It has been averred that in 1966, five Acres of land was illegally occupied by the Kalat Scouts (hereinafter, referred to as the 'Scouts'). Thereupon, the petitioner filed a suit for possession and for payment of damages as provided by Dasturul Amal Diwani Kalat. It is the case of the petitioner that while the above suit was pending, he was given the possession of the suit land in 1975 by the Scouts. Thereafter, he prosecuted his claim only for compensation for a sum of Rs.23,985 which was decreed in August, 1981, which amount was paid by' the Scouts. It is also the case of the petitioner that in the year 1982, the revised survey of Khuzdar area including the land was carried out and the same was shown as owned by the Provincial Government through the Scouts, but in the column of 'bazar' the petitioner was shown as unauthorised occupant. The petitioner being aggrieved by the above survey entry filed an appeal under section 161 of the West Pakistan Land Revenue Act, 1967 before the Collector/ Settlement Officer, Kalat for the correction of entry, which is still pending for adjudication. In the above appeal, a stay application was also filed and the stay not to dispossess the petitioner was granted upto 20th December, 1982. It is further the case of the petitioner that on 21st December, 1982 at 3‑00 p.m., the respondents Nos.3 and 4 at the instance of respondent No.2 forcibly took the possession of the land when one Muhammad Aslam son of Amir Bux, the 'bazgar' of the petitioner was present. The above mat ter was reported to the police, but no action was taken. The petitioner has, therefore, filed the present petition for himself and on behalf of his sons and daughters for the above relief.
3. The respondent No.l, Government of Pakistan has not filed any comments or counter‑affidavit but the other official respondents, who are the officials of the Scouts had submitted the comments in pursuance of an order of this Court on 24th April, 1983 and had also filed a counter‑affidavit on 4th November, 1985 after the admission of the above petition for regular hearing. In the above comments as well as in the counter‑affidavit, it has been averred that the land belonged to the Government of Baluchistan. It has also been averred that it was meant for establishment of Corps Headquarter of first Mahsud Scouts and that the petitioner was first contingent Commandar of the forces posted at Khuzdar and was thus entrusted with the job of procuring lands for that purposes. It has also been averred that even the revenue record indicates that the land belargs to the Government. It has also been averred that the possession of the land has all along been within the control of the Scouts.
4. However, during the arguments, Mr. Amirul Mulik Mengal, learned Advocate‑General had produced a copy of declaration allegedly executed by Amir Bux on 21st June, 1982 stating therein, that he had voluntarily handed over the possession of the land to the Scouts and a receipt for the payment of Rs.5,000 as compensation. We had directed the respondents to file the. above documents and other documents, if any alongwith an affidavit. In pursuance thereof, an affidavit of respondent No.3 alongwith the above documents and other documents bearing Annexures R‑3/A to R‑3/N have been filed. The petitioner has also filed a rejoinder to the above affidavit alongwith certain documents bearing Annexures HH, JJ, KK, LL in addition to filing of an affidavit of one Lt.‑Col. (Retd.) Muhammad Hussain denying the allegation of the official respondents that the petitioner was required to acquire the land for the Scouts while he was the Commandant.
5. In support of the above petition, Mr. Iftikhar Muhammad, learned counsel for the petitioner has vehemently urged that on the basis of the material available on record, it is evident that the Scouts officials had forcibly taken over the possession of the land on 21st December, 1982 and, therefore, this Court should order the restoration of the same.
On the other hand, Mr. Amirul Mulk Mengal, learned Advocate General appearing for the official respondents has vehemently contended that even' on the basis of the alleged sale deeds filed with the petition, it is evident that the land belongs to the Government of Baluchistan and that the petitioner had merely purchased the tenancy rights. It has been further urged by him that the petition involves, disputed questions of facts as to the possession and alleged dispossession, which cannot be adjudicated upon in a Constitutional Petition.
6. At the outset, it may be observed that since the question of title is in issue before the Collector/ Settlement Officer, Kalat in appeal filed by the petitioner under section 161 of the West Pakistan Land Revenue Act, 1967 against the aforesaid mutation entry in the revenue record in favour of the Government of Baluchistan, it is not necessary for us to dilate upon the question of title. The only question in issue before us is, as to whether the petitioner was illegally dispossessed on 21st December, 1982 as averred by the petitioner in the petition or whether the petitioner's 'bazgar' Amir Bux and voluntarily handed over the possession of the land to the Scouts on 21st June, 1982 on receipt of compensation of Rs.5,000. It will not be out of context to point out again that the initial stand taken by the official respondents was that they had all along been in possession of the land and that the possession was not handed over to the petitioner in 1975 during the pendency of the above suit for recovery of possession and damages, but this stand was not adhered to during the arguments as pointed out hereinabove and a new plea was taken that the possession was handed over by Amir Bux voluntarily.
7. Before proceeding further in the matter, it may be observed that the petitioner filed the suit on or about 27th July, 1970 against the Scouts and the Federal Government, in which, he had prayed for the possession of the land and compensation. The amended plaint was filed on or about 20th May, 1976 impleading the Government of Baluchistan as a party. No amendment was made as to the relief. The third amended plaint was filed on or about 27th November, 1976, in which, the prayer for possession was deleted and the suit was proceeded with for the amount of compensation, which was decreed in favour of the petitioner as observed hereinabove in August, 1981, for a sum of Rs.23,985 which amount was* admittedly paid by the Scouts. The petitioner has relied upon the statement of one Major Mahmood Ahmed, dated 20th June, 1978 made before the Qazi 'Khuzdar Jhalawan stating therein, that the possession of the land was given by the Scouts to the petitioner in 1975 (Annexure‑V at page 241). On the basis of the above statement, it was vehemently urged by Mr. Iftikhar Muhammad that factually the possession was given by the Scouts as stated in the above statement and, therefore, the relief for possession was not pressed in the said suit.
On the other hand, Mr. Amirul Mulk Mengal, learned Advocate General has vehemently contended that if factually the petitioner had received the possession of the land in 1975, he would not have retained the relief for possession in his amended plaint, dated 20th May, 1976. The explanation given by the learned counsel for the petitioner as to non‑omission of the relief for possession in the above amended plaint dated 20th May, 1976 was that permission to amend the plaint was allowed to the extent of impleading the Government of Baluchistan. Be that as it may, it will suffice to observe that the above controversy is no longer relevant as according to the official respondents, they had obtained the possession from Amir Bux on 21st June, 1982 on payment of Rs.5,000. In view of the above stand, it is not necessary to go into the question as to the manner and as to the time when the petitioner had obtained the possession of the land from the Scouts.
8. Adverting to the question, whether factually the petitioner was forcibly dispossessed on 21st December, 1982 or whether the petitioner's 'bazgar' Amir Bux had voluntarily handed over the possession on 21st June, 1982, it may be observed that the petitioner has filed, inter alia the following documents in support of his above contention to demonstrate that even after 21st June, 1982, the petitioner continued to remain in possession: ‑
(i) A photostat copy of an extract from 'Khatooni' prepared after the above survey in 1982 mutating the name of Government of Baluchistan. In the column of cultivator, the following words appear:
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(Annexure 'F' to the petition)
(ii) A copy of the Headquarter Kalat Scouts Letter No.301‑9/353/Q, dated 28th July, 1982 addressed to the Deputy Commissioner, Khuzdar stating therein that in the final attestation of settlement, the Gazgi land has been declared the property of Kalat Scouts and that the Tehsildar be directed to recover the Paidawar share from the present tenant. (Annexure 'KK' to the petition).
(iii) Deputy Commissioner's reply No.5447/14‑Land/RB, dated 5th August, 1982 informing the Commandant Kalat Scouts that he should move the competent Court of law for the recovery of their share. (Annexure 'LL' to the petition).
(iv) Petitioner's stay application, dated 11th November, 1982 filed by him before the Collector/ Settlement Officer, Kalat Division in appeal against the attestation /mutation made in 1982 seeking adinterim injunction against the official respondents from dis possessing him. (Annexure 'G‑I' to the petition).
(v) Injunction order passed by the Collector/ Settlement Officer dated 24th November, 1982 restraining the official respondents from ejecting the petitioner upto the date of 20th December, 1982 though apparently by mistake mentioned as 20‑11‑1982 (Annexre 'H' to the petition).
(vi) F.I.R. lodged by the petitioner on 21st December, 1982 against the alleged dispossession with the Police Station, Khuzdar (Annexure 'J' to the petition).
(vii) Petitioner's telegram, dated 21st December, 1982 addressed to the C.M.L.A. Secretariat, Islamabad M.L.A. Zone 'D' Quetta and to the other Government functionaries including to the Deputy Commissioner, Khuzdar, D.M.L.A. Headquarter, Khuzdar pointing out that the official respondents had illegally. dispossessed his 'bazgar;. (Annexure 'Z‑1' to the petition).
(viii) Tehsildar Khuzdar's report, dated 30th December, 1982 submitted to the Deputy Commissioner stating therein, that on the spot inquiry he had found that the official respondents had dis possessed the petitioner on 21st December, 1982 (Annexure 'K' to the petition).
(ix) Declaration of Muhammad Aslam son of Amir Bux, dated 13th January, 1983 averring that the Scouts had taken over the possession illegally on 21st December, 1982 ("Annexure 'L' to the petition).
(x) Declaration of Amir Bux, dated 13th January, 1983 averring therein that he was informed by his son Muhammad Aslam on 21st December, 1982 at 4‑00 p.m., that the Scouts had illegally taken over the possession. (Annexure 'M' to the petition).
On the' other hand, Mr. Amirul Igulk Mengal, learned Advocate General has brought the following documents on record:‑
(i) Amir Bux's declaration, dated 21st June, 1982 stating therein that he had voluntarily given the possession to the Scouts on receipt of Rs.5,000. (Annexure 'R‑3/A' to the Affidavit of respondent No.3).
(ii) Amir Bux receipt for the above amount of Rs.5,000 (Annexure 'R‑3/B' to the Affidavit of respondent No.3.)..
9. The parties have filed a number of other documents which pertain to the title or to the period prior to 21st June, 1982 and, therefore, we have not referred to the same. The question, therefore, which requires consideration is that on the basis of the above material in a Constitutional petition, should we hold that factually the petitioner was dispossessed on 21st December, 1982. It was vehemently urged by Mr. Amirul Mulk Mengal, learned Advocate‑General that this is a disputed question of fact and, therefore, this Court in exercise of constitutional jurisdiction would not probe into such disputed question of fact. Reliance has been placed by him on the following cases:‑
(i) Siddiqan and others v. Kh. Mahmood Sadiq and others, reported in P L D 1979 Note 46 at p.31.In the above case, a learned Single Judge of the Lahore Iligh Court while dealing with a Settlement case held that the question, whether the petitioner was in possession of the disputed shop on a certain disputed date, was a question of fact and could not be inquired into by the High Court in its writ jurisdiction.
(ii) Leemon v. Mst. Kazbano and 2 others reported in P L D 1982 Kar. 449, in which, a learned Single Judge of the Sind High Court has held that the High Court cannot go into factual mass of material for the purpose of determining controversial issues. In the above case, the finding of the Additional District Judge, Jacobabad decreeing the suit filed by the petitioner's wife for dissolution of marriage was in question.
(iii) An unreported judgment, dated 24th March, 1982 in the case of Musani Cooperative Housing Society Limited v. Commanding Officer, Army Proof Ranges, Miani Beach, Lasbella and 2 others C.P. No.152 of 1979, in which, a D.‑B. of this Court declined the relief for possession on the ground that it.. was doubtful whether the petitioners had ever received the possession of the land in pursuance of the sale transaction, of which, they were seeking restoration of the possession and secondly, on the ground that the proper remedy for the petitioners was to .file a regular suit on payment of proper court‑fee.
On the other hand, Mr. Iftikhar Muhammad, learned counsel for the petitioner has referred to the following cases:‑
(i) M. Ghani v. M.A. Mullick & Brothers and 3 others reported in 1973 SCMR 90, in which, the Honourable Supreme Court of Pakistan while declining leave against a judgment of the Lahore High Court held that a tenant unless and until ejected in due process of law, has right to remain on premises and no one can dispossess him. It has been further held that any one sealing premises and handing over possession to a third party acts without lawful authority and the High Court had rightly exercised its writ jurisdiction in declaring the action illegal and ordering the restoration of the possession.
(ii) Begum Saeeda Afzal v. The Government of Baluchistan through the Chief Secretary, Government of Baluchistan, Quetta and another reported in P L D 1977 Quetta 1. In the above case, a D.B. of this Court while setting aside a requisition order passed under the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, held that owner of a furnished house having gone out of station for a short period to see her ailing husband and leaving behind a Chawkidar and a gardener to look after the house, is deemed to be in occupation of the house.
(iii) An unreported judgment, dated 28th September, 1977 delivered by a D . B . of this Court in the case of Hazar Khan alias Hazara v. Allah Dina and 3 others C.P.No.7/77, in which, the Assistant Commissioner, Bhag had forcibly dispossessed the petitioner's uncle, who was looking after his house while he was in Ziarat on the basis of an application filed by the private respondent claiming to be the owner of the house. Writ was allowed and the official respondent was directed to restore the possession.
10. It is a well‑settled proposition of law that generally the Constitutional Writ Jurisdiction is not designed to probe into the complicated l disputed questions of facts. For resolving the disputed questions of facts, the proper forum is a civil Court or any other regular forum provided by any special law, but at the same time, the High Court in a fit case may probe into a question of fact in a writ petition if it does not require a detailed inquiry and if the dictates of justice demand doing so. In the instant case, the original plea raised by the official respondents was that they had all along been in possession of the land and that factually they had not handed over the possession of the land to the petitioner in 1975 while the aforesaid suit was pending in the Court of Qazi Khuzdar, which was decreed for the amount of compensation in favour of the petitioner and which amount was admittedly paid by the official respondents to the petitioner. The above plea as pointed out hereinabove, was given up by the official respondents during the arguments. They had come out with a fresh plea that factually they had received the possession of the land on 21st June, 1982 from 'bazgar' Amir Bux who delivered the same voluntarily on receipt of Rs.5,000 as compensation. The reliance has been placed on the above alleged declaration, dated 21st June, 1982 and the receipt for the amount of Rs.5,000. The above declaration has been attested by an Oath Commissioner. The' original of which was shown to us in the Court, which indicated that there was no endorsement of the Stamp Vendor on the back of the document as to the date of issuance. Amir Bux has disowned this statement in his above declaration, dated 13th January, 1983 and also in the further affidavit dated 5th December, 1985 filed before this Court. It has been stated by him that on 22nd December, 1982 i.e. on the following day of taking over of the possession, the Scouts had taken his son Muhammad Ibraheem and when he went there, he was paid Rs.5,000 by a Major who obtained the signatures on the receipt. The above official record, particularly, the attested copy of 'Khatooni' prepared after the re‑survey of the area in July, 1982 showing the petitioner as unauthorized occupant and the Scouts Headquarter's own letter dated 28th July, 1982, apart from the above stay order passed by the Collector/ Settlement Officer, Kalat in favour of the petitioner in the above appeal upto 20th December, 1982, belie the fact that the Scouts had obtained the possession on 21st June, 1982. It will suffice to reproduce the Scout's above letter, dated 28th July, 1982 and reply thereto, dated 5th August, 1982, which read as follows:‑
IMMEDIATE.
H . Q . Ka at couts
Khuzdar
Tele: Kdr‑452
No.301‑9/353/Q
28 July, 82.
To
The Deputy Commissioner, Khuzdar.
Info: Tehsildar, Khuzdar.
Subject: Gazgi Land.
In the final attestation of Settlement the Gazgi land has been declared the property of Kalat Scouts. It is requested that the Tehsildar Khuzdar may please be directed to recover the Paidawar Share from the tenant presently occupying the said land. The matter may please be treated as most urgent.
(Sd.)
Major for Commandant
Kalat Scouts
(Farid Jan)
"From:
The Deputy Commissioner, Khuzdar District.
To
The Commandant, Kalat Scouts, H.Q. Khuzdar.
Memorandum No.5447/14‑Land/RB
Dated Khuzdar, the 5th August, 1982
Subject: Gazgi Land.
Reference your letter No301‑9/353‑Q dated 28th July, 1982 on the subject noted above.
A Revenue Officer is not supposed to recover the Paidawar of an owner from the tenants without any authority of a competent Court. You are, requested to please move the Court of law by instituting your case for share of the produce against your tenant and obtain a legal decree which can later on be executed by the Tehsildar if Court concerned so directs.
(Sd.)
Deputy Commissioner Khuzdar District."
11. In our view, the fact that the Scouts had taken over the possession of the land on 21st December, 1982 illegally i.e., the following day from the date of the expiry of the above stay order dated 24th November, 1982 which expired on 20th December, 1982 is established by the official record referred to hereinabove and does not require any probe into complicated question of fact, and, therefore we are inclined to exercise writ jurisdiction. It may be observed that we are not concerned with the fact, whether the petitioner had merely purchased C the tenancy rights. The point in issue is, as to whether the petitioner has been dispossessed in accordance with law. Even if we were to assume that the petitioner had merely purchased the tenancy rights in respect of the land and not the ownership under the sale‑deeds referred to hereinabove, the fact remains that he could not have been dispossessed without having recourse to law.
12. It was also contended by Mr. Amirul Mulk Mengal, learned Advocate‑General that the petitioner had alternate remedy by way of suit and, therefore, he should have filed a suit. Thereupon, Mr. Iftikhar Muhammad, learned counsel for the petitioner has invited our attention to section 9 of the Specific Relief Act, which provides summary trial for claiming possession, if a person has been dispossessed otherwise than in due process of law, but this section expressly provides that a suit cannot be maintained under the above section against the Central Government or any Provincial Government. Mr. Iftikhar 'Muhainmad, learned counsel for the petitioner has also referred to the following cases to submit that a writ cannot be declined in respect of an. action without jurisdiction merely on the ground that some alternate emedy was available:‑
Syed Ali Abbas and others v. Vishan Singh and others reported in P L D 1967 S C 294; Abdur Rehman and 5 others v. The State and 3 others, reported in P L D 1971 Pesh. 61; LThe Murre Brewery . Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others reported in P L D 1972 S C 279; Muhammad Nazir Khan v. Dr. Mubashar Hasan and another reported in p L D 1974 Lah. 49; Allah Wasaya and 7 others v. Tehsildar/A.C. 1st Grade, Khanpur etc. reported in 1981 C L C 1202 and Mst. Zahida Begum v. Wind Commander Ziauddin Ahmed and 5 others, reported in 1983 CLC 187.
The ratio decidendi of the above cases is that a petitioner cannot be refused the relief of an appropriate writ merely on the ground that there was alternate remedy available, in cases where the order is patently without jurisdiction.
13. We are inclined to hold that since the action of the official respondents is patently without jurisdiction, the petitioner cannot be denied the relief merely on the ground that he could file a regular suit. We would, therefore, allow the above petition and declare the impugned action as being without lawful authority and of no legal effect. The official respondents Nos.2 to 4 are directed to restore the possession of the land to the petitioner. However, we stay the operation of the above judgment for a period of sixty (60) days in order to enable the official respondents to file a petition for leave in the Hon'ble Supreme Court of Pakistan, in case, they wish to contest the above judgment.
The petition stands disposed off in the above terms with no orders as to costs. We may clarify that any observation made in the above judgment is not to be taken into consideration in the appeal, which is pending before the Collector/ Settlement Officer, Kalat Division, as we have not' touched upon the question of title of the petitioner as to the land, nor this will prevent the official respondents to take action in accordance with law against the petitioner for possession.
M . Y . H . Petition accepted.
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