Constt: Petition No.D- 2436  of 2010.

Constt: Petition No.D-  250 of 2011.

 

                        Before:-         Mr.Justice Ahmed Ali M.Shaikh,  &

                                                Mr.Justice Sallahuddin Panhwar, JJ.

 

Petitioner       :           Kali Khan in Constitution Petition No.D- 2436 of 2010

                                    Through Mr.Sarfraz A.Akhund, Advocate.

 

Respondents:             Bodlo & others through Mr.Nisar Ahmed Bhanbhro, Advocate.

 

 

Petitioners                 Faiz Muhammad & others in Constitution Petition No.D- 250 of 2011, through Mr.Nisar Ahmed Bhanbhro, Advocate.

 

 

Respondents:             Province of Sindh & others, through

Mr.Zulfiqar Ali Sangi, State Counsel.

                                   

 

Date of hearing   07th. November, 2012

 

O R D E R

 

 

SALAHUDDIN PANHWAR, J:-   The writ petitions captioned above, pertains to same subject-matter, between same parties, on counter claim, therefore we  decide the same by this common order.

 

02.                   Succinctly, the facts setout in the Constitution Petition No.D-2436 of 2010, are that petitioner being a landless hari(peasant), was granted 16 Acres agricultural land from U.A.No.576, situated in Deh Janauji, Taluka Rohri, District Sukkur in the year 1979/80; the granted land was surveyed and revised numbers were assigned as Survey No(s). 1092, 1093, 1094 & 1095 (18-09 Acres); same was transferred in the name of the petitioner by Transfer Order dated 09.12.1999; mutation was affected in the record of rights , subsequently after about 30 years the respondents No.1 & 2 challenged the grant of  petitioner by way of filing an appeal U/s 161 of Land Revenue Act, 1967, before the Executive District Officer (Revenue), Sukkur (Respondent No.5); the petitioner claims that revenue authorities have no jurisdiction to entertain the appeal, thus, pendency of such appeal before the Respondent No.5 is “Corum-Non- Judice”

 

02A.    In another  Constitution Petition No.D- 250 of 2011, petitioners have contended that sixteen acres agricultural land from U.A.No.576-A situated in Deh Janooji, Taluka Rohri, District Sukkur, was granted to Bodlo the father of petitioners  by the Colonization Officer (Respondent No.3) in the year, 1987/88, on harap conditions, such A-Form was issued; land was surveyed,  new numbers were assigned as Survey No(s). 1092, 1093, 1094 and 1095 (18-00) Acres, T.O Form was issued in favour of Bodlo, mutation in record of rights was affected in his favour; during  lifetime the father of petitioners sold out  the subject matter land to the petitioners through registered sale deed dated 04.11.2003 and an area of 04 acres to Zakir Hussain through registered sale deed in the year, 2002; grant in favour of Respondent No.6 Kalli Khan is illegal, same is duplicate, hence, same is liable to be cancelled.

 

03.                   Mr.Sarfraz A.Akhund, learned counsel for petitioner Kalli Khan, has inter-alia contended that allotment in favour of Respondent Bodlo is illegal, as the same land was not available for second allotment; propriety rights were established in favour of petitioner thus board of revenue has no powers to cancel the same; since Section 30 of Colonization Government Lands Act, 1912 is no more on statute book as same has been repealed; allotment in favour of Bodlo  is illegal. He has relied upon the case of Ghulam Muhammad & 08 others Vs. Sijawal & 07 others reported in  1990 MLD 2412; case of Mitho Khan Vs. Member Board of Revenue Sindh, and others reported in PLD 1997 K  294.

 

04.                   Conversely, Mr.Nisar Ahmed Bhanbhro, Counsel for petitioners            (legal heirs of Bodlo) has maintained that the subject-matter land is in possession of petitioners; such land was validly granted to the father of petitioners as he was landless hari, father of petitioner has sold out land through registered sale               deed, admeasuring 12 acres in favour of petitioners and  04 acres have been transferred to one Zakir Hussain through registered sale deed;  petition is not maintainable under the law; allotment made in favour of Kali Khan is illegal.

 

 

05.                   What comes out, from the pleadings of both the petitions and arguments, as advanced by respective sides, it is patent that subject-matter                 i.e  agricultural land in both the petitions is same; there are two claimants of              subject-matter land, one is Kalli Khan and another is Bodlo Khan; both are             claiming the property as legally allotted to them on harap basis and after completion of all the formalities and that ownership was changed in their favour and legal-heirs of Bodlo has challenged the grant of land in favour of Kalli Khan, before revenue authorities and registered sale deed No.573 dated 25.11.2002 in favour of Zakir Hussain is also in existence.

 

 

06.                   Learned counsel of Kali Khan has emphasized that Section 30 of Colonization Act, if any, stood repealed, hence not existing in the field, therefore, the revenue authorities have no jurisdiction to cancel the allotment made in his favour. To understand such legal proposition, it will be conducive to reproduce the relevant Section:-

 

Section 30 [b] - If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud  or misrepresentation or was not eligible to have such rights from any reason whatsoever then notwithstanding  the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice  to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such persons a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit.]”

 

07.                   Bare perusal of germane provision, referred to above, shows that it relates to the suo-moto powers of Board of Revenue and vests jurisdiction in Board of Revenue that if the Board of Revenue, by any source, takes notices and knowledge that any land is allotted illegally or fraudulently, in that eventuality, the Board of Revenue has the jurisdiction to cancel the same in the revisional jurisdiction in exercise of powers and jurisdiction, vested by said provision. Without prejudice to this, the position in the instant matter is entirely different as Board of Revenue has not exercised it’s suo-moto revisional powers regarding the subject-matter land but the Respondents No.1 to 5 (Petitioners in CP.No.D- 250 of 2011), have challenged such allotment before the Executive District Officer (Revenue) Sukkur, therefore, the plea raised by the counsel regarding applicability of Section 30 and it’s repeal carries no weight.

 

08.                   The counsel for petitioner has relied upon the case of Mitho Khan (Supra) and case of Gul Muhammad and others. First case relates to the jurisdiction of Board of Revenue and its revisional powers. In this case it was held that:-

 

“It is settled position in law that after the land acquired, the status of Qabooli land, land grant authorities became functus officio and could not deal with transfer or grant of such land. At any rate without the cancellation of grant in favour of the petitioner, disputed land could not be lawfully granted in favour of the respondent which on the face of it is illegal and void”

 

 

it is pertinent to say that  in said case the Qabooli land was cancelled by Board of Revenue, in its revisional powers, in result of litigation started before revenue authorities; therefore, this citation is not applicable to these petitions. In the case of Ghulam Muhammad & 8 others (supra)  the Colonization Officer after grant of land had again exercised the powers regarding the same land, therefore, it is held that said Colonization Officer has become functus officio as such was not competent to cancel such order subsequently and  was  held that:

 

“The learned counsel for the appellant also challenged the view taken by the two Courts below that the Civil Court had no jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of Civil Court is not to be presumed or readily admitted. There is plethora of   case-law laying down that despite a clear ouster of jurisdiction of a Civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia PLD 1958 SC 101. it was held in Karim Dad V. Arif Ali etc. PLD 1978  Lahore 679 that section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or  the four corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction.”

 

As in the above referred case, too, the determination was done by the civil court because question of fraud or illegal and malafide exercise of jurisdiction can well be examined and determined by a competent civil court, being the court of ultimate jurisdiction.

 

09.       Apparently petitioners in both petitions are claiming allotment (s) in their favour and subsequent title to be result of legal, valid and lawful process and similarly alleging the title of opposite to be outcome of fraud and illegal exercise of jurisdiction by the authorities concerned and even claiming possession. Since these respective claims and allegations cannot be assumed by this Court in writ jurisdiction, being the question (s) requiring evidence and production of documents hence, the position, being so, takes away the matter out of the jurisdiction under Article 199 of the Constitution, because, factual controversies requiring evidence and inquiry cannot be undertaken in writ jurisdiction.  Besides this, it is also an admitted position that one claimant Bodlo Khan has sold out his whole land by way of registered sale deed, as referred above, which makes it quite obvious that said land (subjection), stood transferred through a registered sale deed which are in existence. The registered sale deeds were executed in favour of petitioners in CP No.D- 250 of 2011, and  Zakir Hussain but Zakir Hussain but it is pertinent that Zakir Hussain is not a party in these petitions. Without prejudice to the legality or otherwise of the registered sale deed it would be sufficient to say that it is now a well settled principle of law that any registered sale deed cannot be challenged or cancelled in writ jurisdiction because such remedy lies Under section 39 of Specific Relief Act by way of filing a declaratory suit. On this point, there are series of precedents’, reliance can safely be made to the case of Amir Jamal and others Vs. Malik Zahoorul Haque and others reported in 2011 SCMR 1023. Moreover, in absence of necessary party, ex parte order cannot be passed, same will be against the basic principle of natural justice “AUDI ALTERM PARTEM” therefore, we have no other alternative, except to hold that both the parties in these petitions have right to approach the civil court and agitate all their grounds before the civil court, which is proper forum to resolve such controversy.

10-      In view of, what has been discussed above, makes us of the clear view that it would be well within jurisdiction and competence of the competent Civil Court to examine the earlier allotment and that of it’s subsequent allotment after considering the material, so brought, on record by respective parties, because, the Civil Court is the court of ultimate jurisdiction and even a clear ouster, would not debar the competent civil court, to examine an illegal, void and malafide exercise of jurisdiction and power by any authorities.

 

11.       Thus, with above observations petitions stands dismissed.

 

            Announced on 29.11.2012.

JUDGE

 

JUDGE

 

 

 

 

 

A.R.BROHI