ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P.No.D-825 of 2010.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection as Flag ‘A’.

2. For Katcha Peshi.

3. For Hearing of M.A.No.2045/10.

23.1.2013.

Mr. Habibullah G. Ghouri, advocate for petitioner.

Mr. Ghulam Dastgir Shahani, advocate for respondent No.7.

Mr. Azizul Haq Solangi, Asstt. A. G assisted by Mr. Abdul Rasheed Soomro, State Counsel.

-.-.-.-.-.-.-.

By this Constitutional Petition, the petitioner has challenged the impugned order dated 29.4.2010, whereby the Executive District Officer, Revenue, Kamber-Shahdadkot, i.e. respondent No.1 held that in terms of the record as well as report of the Estate Mukhtiarkar, Kamber-Shahdadkot at Kamber and report of Mukhtiarkar, (Revenue) Miro Khan, available on record, in term whereof the suit land was under the possession of the appellant, the same has been granted to respondent No.1, hence impugned order of 1999 – 2000 was set aside with immediate effect. The appeal before the Executive District Officer (Revenue) was allowed with direction to collect the government dues from the appellant namely Mst.Shabiran after completing the legal formalities.

Learned counsel for the petitioner submits that the said order is void ab-initio, illegal, unlawful and malafide. Learned counsel submits that the same Executive District Officer (Revenue) earlier vide order dated 08.4.2010 pursuant to the report of the same Mukhtiarkar, Kamber – Shahdadkot at Kamber and possession certificate issued by the Mukhtiarkar (Revenue) Miro Khan allowed the grant of lease to petitioner Hassan Ali son of Muhammad Murad Gopang. Learned counsel submits that after passing of said order by the Executive District Officer (Revenue), he becomes functous officio, as far as passing of the impugned order in favour of one Mst. Shabiran, respondent No.7 is concerned. Learned counsel in addition submits that applicant was condemned unheard as no notices were served upon him while deciding the fate of the land in terms of the impugned order dated 29.4.2010. Learned counsel submits that the controversy in respect of land in question was ended after a long litigation as initially in the year 2003, one Jalal Khan i.e. respondent No.6, who is father-in-law of respondent No.7 preferred land grant appeal which appeal was rejected on 24.9.2003. The said respondent No.6 filed revision before the Member, Board of Revenue as case No.199/2003 and the order of Executive District Officer (Revenue) was upheld. Subsequently a review petition was preferred, which review petition order is available along with comments filed by the respondent No.7. In terms of the said review, by consent of the parties i.e. Jalal Khan and Hassan Ali, the case was remanded to the learned Executive District Officer (Revenue) Kamber @ Shahdadkot with directions that the Executive District Officer (Revenue Kamber @ Shahdadkot shall hear the parties/case afresh and shall pass appropriate orders as per law/rules. Such order was complied with, which is available as annexure ‘C’ at page 17 to the memo of petition, in terms whereof the Executive District Officer (Revenue) granted lease in favour of the petitioner Hassan Ali son of Mohammad Murad Gopang on 8^th April 2010.

Learned counsel for the petitioner submits that such controversy was set at rest after a long litigation started in the year 2003. Learned counsel submits that although Mst. Shabiran was daughter-in-law of Jalal Khan having knowledge of the alleged litigation, she in order to get away with the findings of the Executive District Officer preferred an appeal under section 161 of Land Revenue Act, 1967 in respect of the same land as front men of respondent No.6 Jalal Khan . Learned counsel submits that without effecting service, the Executive District Officer only after twenty one days of the passing of the earlier order in favour of the petitioner was pleased to grant the land to the appellant Mst. Shabiran after setting aside the earlier lease granted in the year 1999-2000 in favour of petitioner Hassan Ali which was duly confirmed by the same Executive District Officer on 08.4.2010. Learned counsel submits that the lease grant in terms of order dated 08.4.2010 was passed after following the codal formalities in terms of the lease grant policy issued in terms of public notice dated 7^th December 1989. Learned counsel submits that in terms of section 5 of the said policy, the Executive District Officer set the priority and order was passed. Learned counsel submitted that the impugned order dated 29.4.2010 is neither speaking nor a lawful order as it does not decide the fate of the earlier order dated 08.4.2010, nor the said Executive District Officer could sit on its own order as appellate authority thus could not exercise jurisdiction as exercised in the impugned order.

On the other hand learned counsel for respondent No.7 submits that the earlier order dated 08.4.2010 was passed in absence of respondent No.7, therefore, the same are not binding on the said respondent. Learned counsel submits that the lease grant in favour of respondent No.7 were considered in terms of new policy issued in the year 2008, which are meant for the ladies Haris. Learned counsel submits that though the policy is not available either with Execitove Officer or in the file at present but that policy has been complied with in letter and spirit. Learned counsel has also relied upon the earlier policy dated 7^th December 1989, which was issued in exercise of the powers conferred by sub section (2) of section 10 of the Colonization of Government Lands Act, 1912 and in supersession for grant of arable state land to Haris(peasants), small khatedars and mohagdars in Kotri, Guddu and Sukkur Barrage command areas for which Irrigation Department has made permanent arrangements for water supply. Learned counsel for respondent No.7 submitted that in terms of section 5 of the said policy, the government has set priority for the grant of lease of land to Haris. Such priorities are defined as under :

5. (1) The order of priority in making the allotments of land to haris in these conditions shall be as follows :-

(a) the hari holding Khasmokal lease in respect of land for which applies; provided that he has brought the land or a portion under cultivation for at least two years preceding the allotment

(b) the hari who for not less than ten years has been residing in village near the land applied for;

(d) the hari belonging to adjoining deh (in the Taluka) in which they applied for is situated;

(e) the hari belonging to the same tapa in which the land applied is situated;

(f) the hari belonging to the adjoining tapa in which the land for is situated:

Provided that in the case of haris falling within the purview of clauses (b) to (f), the order of priority shall be as under :

(i) landless haris or haris holding land les than five acres;

(ii) haris holding five acres of land or more but less than ten

(iii) haris holding ten acres of land or more but not more than ten acres.

(2) Where claims of haris are equal, the selection of haris for allotment of land shall be made by drawing lots in open kachery.

(3) Notwithstanding the above provisions, departure from the order priority may be made in the cases of haris who have been ousted from Khasmokal leases due to reservations, if any, made by Government in the land of their lease.

Provided further that area of dis-used Karias, roads or pais in front of a private survey number if less than one acre, shall be offered to Mo (owners of that survey number) but if the area is one acre or more it is to be granted to haris making an independent survey number.

(2) No person shall be allowed to exercise mohag right more than.

(3) Any person who has already exercised mohag, right and has granted land, shall not be entitled to exercise this right again.

(4) Where the allotment of land under these conditions is contested Khasmokal right and mohag right, the holder of Khasmokal right shall be given preference over the mohagdar, provided that the holder of khasmokal right either a hari or small khatedar and claims self-cultivating khasmokal right.

(5) Whenever land is granted from un-assessed number, the pieces of land to be allotted, shall be marked out in sketch which shall be prepared paper of durable and good quality, a copy of which shall be given to the allottee at the time of disposal.

(6) Such sketch shall be prepared with care and caution so that the land allotted becomes identifiable.

(7) The order of the Collector shall be incorporated on the sketch and his signature

13. No land lying within twenty chains of established village or within the limits of the area prohibited by the Collector from time to time shall be allotted.

14. A grant under these conditions shall be subject to all rights of way water and easements, if any, subsisting thereon.

15. A hari who has been granted land under these conditions shall cultivate the land for a period of twenty years by his own exertion or by the exertion of any member of his family referred to in condition No.2 (h).

Provided that he may employ temporarily hired labour to aid him any member of his family in the cultivation of the land.

16. (1) The grantee shall agree to have his land rectangulated when required by the Collector.

(2) The grantee shall use one tenth of the total area for cultivating and establishing farm forestry (hurries).

(3) The grantee shall not use the land or any part thereof granted under these conditions for the purpose unconnected with agriculture.

(4) But he may erect farm building, construct well or tank or make any other improvement for better cultivation of land or its more convenient use for the purpose aforesaid.

Learned counsel submits that even pursuant to aforesaid priorities the petitioner’s case does not fall on better footing than the case of respondent No.7 and as such it was rightly granted in favour of the respondent No.7 by disregarding the earlier order dated 08.4.2010.

Learned State Counsel submits that since there are serious factual controversies involved in this petition, therefore, it would be better, if the parties are directed to approach the Civil Court to avail their remedies in accordance with law. He further on query submits that as far as passing for two contrary orders by respondent No.1 is concerned he has no explanation as to how within the span of twenty one days the two contrary version in the same breath and in terms of common facts and law is given by the respondent No.1.

We have heard the learned counsel for the parties and perused the record. There is no cavil to these propositions that after a long litigation the controversies between the petitioner and respondent No.6 were set at rest in terms of order dated 08.4.2010 in terms whereof the contention of the petitioner Hassan Ali was upheld whereby he claimed grant of land of S.No.269/1, 2, 3, 4 deh Karam Ali Gopang taluka Miro Khan on harap condition in the year 1999-2000. There is also no cavil to this proposition that order dated 08.4.2010 was passed on the basis of the report submitted by Estate Mukhtiarkar, Kamber-Shahdadkot at Kamber and possession certificate issued by the Mukhtiarkar (Revenue) Miro Khan. Subsequently on 19.4.2010, Mukhtiarkar (Revenue), taluka Miro Khan issued letter to the Mukhtiarkar Estate Kamber on the request of the petitioner for issuance of transfer order in respect of A-Form pursuant to the land in question of deh Karam Ali taluka Miro Khan. On 29.4.2010, suddenly the Executive District Officer (Revenue) passed the impugned order which too was passed on the report of Estate Mukhtiarkar Kamber and the report of Mukhtiarkar Miro Khan, which are available on record. It was further observed in the impugned order that the land was under the possession of the respondent No.7 and consequently the order of 1999/2000 which apparently seems to have been passed in favour of the petitioner was set aside with immediate effect and the appeal was allowed by the Executive District Officer allowing the respondent No.7 to pay the government dues as per land grant policy. Such was done with a period of 21 days of the passing of earlier order dated 08.4.2010 wherein totally contrary view was taken by the Executive District Officer on the basis of contrary reports by same Mukhtiarkars.

We have minutely observed the said impugned order and it is no where provided that District Officer (Revenue) discussed the earlier order dated 08.4.2010, wherein the contrary version was taken in respect of the same land favouring the petitioner. It seems that respondent No.1 in haste tried to conclude the claim of Mst.Shabiran, respondent No.7, prior to the compliance of order dated 08.4.2010 regarding which request for issuance of T.O Form was made on 19.4.2010. Perusal of the impugned order does not reflect as to all these controversies were taken into consideration while passing order on 29.4.2010. In all fairness the order dated 08.4.2010 could not be brushed aside in terms whereof legitimate rights accrued in favour of the petitioner.

Learned counsel for the respondent with regard to the maintainability of this petition has relied upon the case of Muhammad Aslam versus Member (Colonies), Board of Revenue, Punjab Lahore & others 1988 SCMR 1803, Muhammad Saleh versus Deputy Commissioner, Tharparkar at Mirpurkhas and others PLD 1963 (W.P) Karachi 613 and Hamid Hussain versus Government of West Pakistan and others 1974 SCMR 356. Learned counsel for respondent submits that under the hierarchy of law the petitioner has to approached Member, Board of Revenue for redressal of his grievance and writ petition could not lie in term of the above referred judgments. He further submits that since there are factual controversies involved, therefore, the best forum which is available to petitioner is of Civil Court as held by the Hon’ble Supreme Court in the case of Mian Muhammad Latif versus Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 Supreme Court 180, the petitioner can approach the appropriate forum for redressal of his grievance.

Learned counsel for the petitioner on the other hand has relied upon the case of Muslimabad Co-operative Housing Society Ltd versus Mrs Siddiqa Faiz and others PLD 2008 Supreme Court 135, in terms whereof the Hon’ble Supreme Court has held that the availability of alternate remedy would not bar jurisdiction of High Court to entertain Constitutional Petition and has laid down certain principles. The operative part of the said judgment is reproduced as under:

“…..It has been held therein that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. When a statutory functionally acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. Moreover, learned counsel for the petitioner could not point out any misreading or non reading in the impugned judgment, which is accordingly maintained. The petition being devoid of force is dismissed and leave to appear refused.”

We have prima facie observed that the impugned order was passed in haste without dilating upon the earlier order passed 21 days before by the same Executive District Officer in respect of the same land and it clearly smacks mala fide. Once an order was passed on the basis of certain facts based on reports of two Mukhtiarkars referred above, he practically becomes functus officio and cannot exercise such jurisdiction as exercised in the impugned order. The objection relating to the maintainability of this petition is, therefore, not sustainable and we hold that in view of the present facts and circumstances of the case, the writ petition is maintainable; particularly in the manner in which the impugned order was passed, when we see that there is no deliberation regarding earlier order and that too passed by same officer in the span of 21 days without notice to petitioner. The impugned order is not a speaking order particularly when earlier he has decided the entitlement of land in favour of the petitioner twenty one days before. The case law cited by learned counsel for respondent are distinguishable.

As far as merits of the case is concerned, since the respondent has based his claim on the basis of certain documents and in terms of lease grant policy he asserted that since her claim was not decided or considered in terms of the earlier order dated 08.4.2010, therefore, her entitlement and privileges cannot be disregarded by order dated 08.4.2010 which was passed in favour of the petitioner, we, therefore, by setting aside the impugned order dated 29.4.2010 referred back the case to the concerned Executive District Officer (Revenue), Kamber Shahdadkot, now the Deputy Commissioner under the Sindh Local Government Ordinance as amended to rehear the case of respondent No.7 after due notice to petitioner and decide controversies in the light of entitlement of the petitioner and respondent No.7 after following the policy which governed the subject land. The controversies should be decided within a period of two months. The petition stands disposed of.

Judge

Panhwar/**