IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Constitutional Petition No.D-152 of 2018
Before:
Mr. Justice Muhammad Iqbal Kalhoro
Mr. Justice Irshad Ali Shah
Petitioner: Himat Ali son of Ali Gohar Khoso, through Mr.Khadim Hussain Khoso, Advocate
Date of hearing: 26.02.2018.
Date of Order: 26.02.2018.
O R D E R
IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant Constitutional Petition are that Zohaib by way of an application which he filed before Deputy Commissioner Qamber-Shahdadkot sought for cancellation/correction of Khata with possession of Survey No.90, 91 & 169, total area measuring (10-09) Acres, Deh Karam Ali Gopang, Taluka Miro Khan. The said application was disposed of by Deputy Commissioner, Qamber-Shahdadkot on 28.04.2017, by cancelling the mutation entry No.89, dated 30.06.1994, with an advice to the applicant to seek possession of the above said survey numbers by filing a complaint under provisions of Illegal Dispossession Act before Sessions Judge, Qamber-Shahdadkot. The petitioner being aggrieved of above said order of the Deputy Commissioner, Qamber-Shahdadkot, filed a Revenue Appeal before Additional Commissioner-I, Larkana. It was disposed of by Additional Commissioner-I Larkana on 12.09.2017, with an observation that the matter in question is already pending adjudication before the Honourable High Court of Sindh, Circuit Court, Larkana. The petitioner being aggrieved of the above orders of Deputy Commissioner Qamber-Shahdadkot and Additional Commissioner-I, Larkana, has filed the instant petition before this Court praying therein as under;-
a). To declare that Order dated 28.04.2017, passed by Respondent No.3 cancelling Revenue Entry No.89, dated 30.06.1994, in the name of petitioner’s grandfather, is illegal, arbitrary, unlawful, the same has been passed behind the back of the petitioner without notice and affording an opportunity of hearing to the petitioner and without adopting the legal procedure, as such the order is nullity in the eye of law and liable to be set-aside.
b). To declare that the Respondent No.3 has exceeded his power, jurisdiction and authority, by giving observation in the Order dated 28.04.2017 advising the Respondent No.10 to file proceedings under the Illegal Dispossession Ac.
c). To declare that Respondent No.2 has arbitrarily and without application of judicious mind dismissed Revenue Appeal No.KBR-18/2017, filed by the Petitioner against the Order dated 28.04.2017, passed by Respondent No.3, as the said appeal has nothing to do with the pendency of C.P.No.404/2017 before this Honourable Court and to set-aside the Order dated 12.09.2017, passed by Respondent No.2 in Revenue Appeal No.KBR-1/2017.
d). To direct the Respondent No.2 to re-hear the Revenue Appeal No.KBR-18/2017 and decide the said Appeal after giving proper and adequate opportunity of hearing to the Petitioner party and decide the said appeal on its merits in accordance with law.
e). To direct the Respondent No.9/SHO P.S Miro Khan not to harass the Petitioner at the behest of Respondents No.10 and further direct Respondents No.7 & 8 to provide protection to the life, liberty and property of the petitioner and his family.
f). Any other relief(s) which this Honourable Court may deem fit and appropriate under the circumstances of the case may also be granted.
2. On query of the court, As to why the petitioner has not exhausted the remedy, which is available to him in shape of filing a revision application before the Board of Revenue and/or in shape of Civil Suit before Civil Court having jurisdiction? It was stated by learned counsel for the petitioner that it is not necessary for the petitioner to exhaust such remedies, as the orders impugned by the petitioner before this Court by way of instant constitutional petition are patently illegal, as such those could be examined by this Court in exercise of its constitutional jurisdiction, which is efficacious remedy. In support of his contentions, he relied upon case of Mst.Hayat Khatoon vs. Allah Dino and another, which is reported at 1985 C.L.C-1343, 2). Case of Syed Ghulam Ali Shah vs. Deputy Commissioner & incharge Settle Cell and others, which is reported at 1984 C.L.C-1729, 3). Case of Vincent and others vs. Karachi Development Authority and others, which is reported at 1992 C.L.C-518, 4). Case of Syed Allah Dost vs. Haji Muhammad Alam and others, which is reported at P.L.D 1987 Quetta-235, and 5). Case of Pervez Iqbal and others vs. Provincial Transport Authority Sindh and another, which is reported at 1996 C.L.C-182.
3. We have considered the above arguments and perused the record, which is made available by the petitioner before us.
4. Apparently, an alternate remedy is available to the petitioner to exhaust either before Board of Revenue Sindh by way of filing a revision application or before a Civil Court having jurisdiction by way of filing a civil suit. Such remedy, the petitioner is not intending to exhaust, as according to his learned counsel, the orders which have been passed against the petitioner by Deputy Commissioner Qamber-Shahdadkot and Additional Commissioner-I, Larkana are patently illegally. Illegality or legality of the orders so passed could not be examined by this Court in its constitutional jurisdiction under the pretext that it is the efficacious remedy ignoring the fact that the very claim of the petitioner that he is grandson of Shah Muhammad the alleged purchaser of the land under dispute being issue of fact is calling for its determination by way of evidence. In that situation, it would be very hard for this Court to examine the impugned orders by extending its constitutional jurisdiction under the pretext that it is efficacious remedy available for the petitioner.
5. The case law which is relied upon by learned counsel for the petitioner is on distinguishable facts and circumstances.
6. In case of Mst.Hayat Khatoon, the issue of Guardianship was involved. It was resolved by a Civil Judge instead of Guardian Judge. In that context, it was held by the Honourable High Court of Sindh that order impugned before it is illegal. In the instant matter, no issue of guardianship is involved.
7. In case of Syed Ghulam Ali Shah, the entries in record of rights made in the favour of petitioner, on the basis of clearance certificate were cancelled by the Revenue Officer without notice to him. In that context, it was held by Honourable High Court of Sindh that order impugned before it is illegal as it is passed without issuance of notice. In the instant matter, it was the appeal which was dismissed by Additional Commissioner-I, Larkana.
8. In case of Vincent and others, the premise in occupation of the petitioner was found to be dangerous without putting the petitioner on notice before inspection of site. In that context, it was held the Honourable High Court of Sindh that inspection of site is illegal. In the instant matter, no issue of site inspection without notice is involved.
9. In case of Allah Dost, an application for partition of the property was dismissed by the Assistant Commissioner, Pashin, without notice to the petitioner or anyone else or recording proceedings whereof. In that context, it was held by the Honourable Quetta High Court that the order is illegal as it is passed without hearing to anyone or recording any proceedings. In the instant matter, no issue of partition is involved. It was an appeal, which was dismissed by Additional Commissioner-I, Larkana, after issuance of notices to the parties.
10. In case of Pervez Iqbal and others, the owner of contract carriage was permitted to pick-up individual passengers at the stop of Stage Carriage. In that context, such order was declared to be illegal by the Honourable High Court of Sindh by making a conclusion that such permission is pirate upon the right of Stage Carriage owners. In the instant matter, no issue of contract Carriage or Stage Carriage is involved. It was an appeal, which was dismissed by Additional Commissioner-I, Larkana, after notices to all the concerned.
11. Based upon above discussion, it could be concluded safely that the impugned orders could not be examined by this Court in exercise of its constitutional jurisdiction by way of instant petition; the same being misconceived is dismissed in limine alongwith listed applications.
J U D G E
Ashfaq.S/**.