IN THE HIGH COURT OF SINDH AT KARACHI

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-1464 of 2010

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Date Order with signature of Judge

1.For hearing of Main Case.

2.For hearing of CMA No. 5875/2010.

Present:Mr. Justice Syed Hasan Azhar Rizvi.

Mr. Justice Muhammad Faisal Kamal Alam.

Date of hearing: 17.11.2015

Mr. Zulfiqar Ali Domki, Advocate for the Petitioner.

Mr. Miran Mohammad Shah, learned A.A.G., Sindh.

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SYED HASAN AZHAR RIZVI, J:- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan has been filed by the petitioner with the following prayers:-

(a) To direct the official respondents to implement the decisions taken by the Hon'ble Supreme Court of Pakistan, as referred to above, by which the order dated 03.02.1992 taken by the Member (Judicial), Board of Revenue, Sindh, was virtually maintained.

(b) Restrain the respondents not to allot/grant Survey Nos.12, 13 and 14, Deh Jamshoro, to any other person, except the petitioner, who are legally entitled to be granted such survey numbers according to the existing Land Grant Policy.

(c) to grant any other relief(s), which this Hon'ble Court may deem fit, appropriate and proper under the circumstance of the case.

d) costs of the petition to be bore by the respondents.”

2. Brief facts of the case are that All Pakistan Rajputana Federation (hereinafter referred to as Federation) was initially granted an area of 371-16 acres for the purpose of construction of a charitable hospital, hostel, college, etc. at concessional rate of Rs.250/- per acre vide Office Order dated 21.2.1961. Upon payment of full occupancy value of the land on 01.4.1968, its possession was handed over to the Federation by Barrage Mukhtiarkar Hyderabad on 06.4.1968 while mutation in the revenue record was effected on 17.5.1968, but the said area was subsequently reduced to 303-02 acres vide letter dated 13.11.1976 and such mutation was effected in the relevant record, according to which Survey Nos:12, 13 and 14 in possession of the predecessor-in-interest of the petitioner were also shown in the record as part and parcel of the said grant of the Federation. The Federation in violation of terms and condition of such grant sold 25-0 acres to some private party, as such the Additional Commissioner Hyderabad vide his order dated 10.7.1989 resumed 248.39 acres of land of the Federation and also forfeited the malkano paid by the Federation. The Federation challenged the said order before the Senior Member Board of Revenue Sindh Hyderabad who set-aside the said order of the Additional Commissioner, Hyderabad and insofar as the claim of the petitioner’s late father was concerned, the Senior Member held that he already owns Survey No.13, while Survey No.12 (1-20 acres under cultivation) and Survey No.14 (6 acres under cultivation) are in cultivating possession of Baradi son of Uris Channa and held that he would continue to cultivate the land till the Federation construct hostel/college or Hospital annexe. One Karan son of Mohammad Bux Shoro challenged the said order through his attorney Noor Mohammad Shoro before the Member (Judicial) Board of Revenue Sindh, who modified the said order vide order dated 03.2.1992 wherein it was held that Federation was entitled to the land measuring 42-12 acres already utilized by it where Rajputana Hospital, Mosque and a Park had been constructed and the rest of the land, it was held that the Federation had no legal character or title to retain the same. After the passage of this order Karan and others applied to the Revenue Minister in Land Utilization Department for allotment of a portion of land, of which they were deprived on account of the order of Senior Member (Judicial), Board of Revenue, Sindh. This application was subsequently entertained by Secretary to the Government of Sindh, LU Department vide order dated 20.2.1992, who directed that such land be allotted in favour of Karan and others for agricultural purposes. This allotment was challenged by the Federation before the Sindh High Court in C.P. No.D-176 to 181 of 1992, those petitions were hotly contested and allowed on the main ground that the order dated 3.2.1992 passed by Senior Member (Judicial) Board of Revenue reviewing the order of his predecessor was without jurisdiction and void on the premise that review petitions was hopelessly barred by time and the Senior Member had no jurisdiction to enlarge the time or condone the delay. Consequently, all orders passed subsequent to the above said order were held to be without lawful authority and of no legal effect vide judgment dated 20.9.1994. This judgment was assailed by Karan and others through petition for leave to appeal in which leave to appeal was granted resulting in Civil Appeals No.1731 to 1737 of 1996 and these appeals were disposed of by consent of the learned counsel for the parties in the following manners:-

“The respondent No.1 concedes that the land other than area being 42-12 acres utilized for the purpose of Hospital and Mosque be retained by respondent No.1 and remaining land be given to lawful owners.”

The consent order passed by the Hon'ble Apex Court was challenged by the Federation in review vide Civil Review Petition No.339 of 2005, which was dismissed vide order dated 12.04.2007.

3. We have heard the learned counsel for the petitioner, learned AAG Sindh and Advocate for Board of Revenue and perused the available material.

4. Mr. Zulfiqar Ali Domki, learned counsel for the petitioner contended that the principle of finality is attached to the Court decisions and judgments and on the basis of the order passed by the Hon'ble Apex Court the decision taken by the Member (Judicial), Board of Revenue, Sindh by order dated 03.02.1992 attained finality, according to which the request of the petitioner has been accepted to the effect that Baradi Chana and others are the haris and tenants of Survey Nos.12 and others, Deh Jamshoro, but the official respondents are not prepared to implement the decision so taken and unnecessary bottle-necks and hurdles are being created in its implementation. He contended that the petitioner approached the Revenue Forum for implementation of the final decision of the Hon'ble Apex Court by means of written application, but even then no action is being taken by the high-ups in revenue hierarchy. He further contended that after passing the final order the official respondents are legally bound to comply with in its letter and spirit but delaying tactics are being adopted at the end of the official respondents without any justification.

4. On the other hand, Mr. Ahmed Pirzada, learned counsel for the Board of Revenue argued that petitioner has no right or title over the land in question. He has drawn our attention to the observations of Chief Minister Inspection Team at Para-iii and recommendation at Para-D duly approved by the Chief Minister Sindh, which is reproduced below:-

“Para(iii). As per record village Muhammad Bux Shoro stands sanctioned on survey No.12 admeasuring 9-20 acres originally earmarked for Police by the Deputy Commissioner/Collector under the Sindh Gothabad Act. Although the directive was issued by the Senior Member Board of Revenue Sindh to withdraw the sanction order, the order has not been cancelled as yet. Technically, the order holds good. A number of houses and a school are constructed but no ‘Sanad’ to bestow proprietary rights under Sindh Gothabad Act has been issued as reported by the Revenue Authorities. Besides, there is unauthorized village of Pathan’s in S. No.10 over an area of 2-15 acres. Still an area of 41-39 acres out of 50-36 acres acquired for police is lying vacant.

Para-d. The total are of S.No.12 of Deh Jamshoro is 18-20 acres out of which 9-20 acres is under occupation of the villagers and a school. The remaining area is lying vacant. The area under occupation of the villagers may be considered to be given to them in the light of recommendations given in the report while the vacant area 8-21 acres which is in ‘Muhag’ of the villagers declared as amenity area.”

5. Mr. Ahmed Pirzada also argued that the Board of Revenue Sindh has examined the recommendation of the Chief Minister’s Inspection Enquires and Implementations Teams minutely and is of the view that Sindh Gothabad (Housing Scheme) Act 1987 is applicable only in the Rural area of Sindh Province, whereas the villager under the reference is situated with the limits of Urban Area. He further argued that the survey Nos: in question are lying within the Municipal limits and the Land Grant Policy as well as Gothabad Scheme Act is not applied on urban area therefore the petitioner is not entitle or right over the said land.

6. We have given due consideration to the arguments advanced by the learned counsel for the parties and minutely examined the available record, which goes to show that petitioner approached this Court for implementation of the order passed by the Hon'ble Supreme Court of Pakistan. The order of the Hon'ble Supreme Court is simple and very much clear that the land other than area being 42-12 acres utilized for the purpose of Hospital and Mosque be retained by respondent No.1 and remaining land be given to lawful owners. It also appears that petitioner has already filed application to Mukhtiarkar (Revenue) for implementation of the decision of the Hon'ble Supreme Court, which is pending for decision. The Board of Revenue Sindh has examined the recommendation of the Chief Minister’s Inspection Enquires and Implementations Teams minutely and is of the view that Sindh Gothabad (Housing Scheme) Act 1987 is applicable only in the Rural area of Sindh Province, whereas the villager under the reference is situated with the limits of Urban Area. He further argued that the survey Nos: in question are lying within the Municipal limits and the Land Grant Policy as well as Gothabad Scheme Act is not applied on urban area therefore the petitioner is not entitle or right over the said land.

In view of above, we find no substance in this petition and it was dismissed by short order dated 17.11.2015 and above are the reasons for the same.

JUDGE

Dated:07.12.2014.