ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.P. No.D-655 of 2020
Petitioner : Qazi Zubair Ahmed Ujjan
Through Mr. Abdul Wahab
Shaikh, Adv
Date of hearing : 15.07.2020
Date of Order : 15.07.2020
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O R D E R
ADNAN-UL-KARIM MEMON, J: Petitioner has mainly prayed
for direction to Mukhtiarkar / Revenue Officer
concerned to issue him Sale Certificate of his land.
2. Mr.
Abdul Wahab Shaikh, learned
Counsel for the petitioner, argued that the Mukhtiarkar
concerned has expressed his reluctance towards issuance of Sale Certificate of
his land without assigning any reason; that he has to exercise the powers for issuance
of Sale Certificate of the land in question, but has failed to perform his
duty; and, that the petitioner moved various applications to the competent
authority and Mukhtiarkar concerned for the aforesaid
purpose under the relevant law and rules but all his efforts went in vein. Learned
Counsel further stated that the official respondents turned deaf ear to the
petitioners’ grievances, compelling him to approach this Court. He lastly
prayed for direction to the Revenue Officer concerned to issue Sale Certificate
of his land in accordance with law.
3. We have heard the learned Counsel at length
on the point of maintainability of the instant petition.
4. The main questions involved in the
present proceedings are whether the official respondents are under legal
obligation to issue Sale Certificate of the land of the petitioner and whether
such exercise can be carried out by this Court in these proceedings.
5. To appreciate the aforesaid proposition,
we have noticed that there is complete mechanism of issuance of sale
certificate as laid down under Rule 41 of the Land Revenue Rules, 1968, which
provides that (i) if an application under of Land Revenue Act, 1967, is made to
the concerned Mukhtiarkar (Revenue), he must take
action on it provided it contains all the relevant particulars as provided
under Land Revenue Rules, 1968 ; (ii) upon satisfaction of the above
requirement, the Mukhtiarkar is required to issue notice
to all the concerned khatedars / owners followed by a
speaking order accepting and/or refusing the same, as the case may be in case of rejection of the application, the
procedure of appeal, revision or review is to be adopted, as provided in the above
Act and Rules.
6. On the legal aspect of the case, we have
noticed that the petitioner has availed the remedy by filling application for issuance
of Sale Certificate of his lands but has not exhausted such remedy as he has approached
this court without waiting for the outcome of his said applications. In case of
refusal or rejection of the application by the Mukhtiarkar
concerned on any ground, the procedure of appeal, revision or review is to be
adopted first before approaching this Court.
7. Article 199 of the Constitution, inter
alia, provides that the High Court may exercise its powers thereunder only “if
it is satisfied that no other adequate remedy is provided by law”. It is
well-settled that if there is any other adequate remedy available to the
aggrieved person, he must avail and exhaust such remedy before invoking the
Constitutional jurisdiction of High Court, whether such remedy suits him or
not. In our view, the doctrine of exhaustion of remedy envisaged in Article 199
prevents unnecessary litigation before the High Court.
8. In our humble opinion, one of the
reasons for introducing the doctrine of alternate remedy was to avoid and
reduce the number of cases that used to be filed directly before this Court,
and at the same time to allow the prescribed lower forum to exercise its
jurisdiction freely under the law. Moreover, if a person moves this Court
without exhausting the remedy available to him under the law at lower forum,
not only would the purpose of establishing that forum be completely defeated,
but such person will also lose the remedy and the right of appeal available to
him under the law. Under Article 10-A of the Constitution of Islamic Republic
of Pakistan, 1973, for the determination of civil rights and obligations or in
any criminal charge against him, every citizen is entitled to a fair trial and
due process. Therefore, it follows that fair trial and due process are possible
only when the Court / forum exercises jurisdiction strictly in accordance with
law. It further follows that this fundamental right of fair trial and due
process in cases before this Court is possible when this Court exercises
jurisdiction only in cases that are to be heard and decided by this Court and
not in such cases where the remedy and jurisdiction lie before some other
forum. If the cases falling under the latter category are allowed to be
entertained by this Court, the valuable fundamental right of fair trial and due
process of the persons / cases falling under the former category will certainly
be jeopardized.
9. Another shocking yet unfortunately
common example of petitions alleging harassment is allegations against
Government officials, such as officials of Revenue Departments. The allegations
in such cases inter alia are, at the instance of private party; Sale
Certificate is not being issued, demarcation of land is not being done or
mutation is not being effected; etc. Such frivolous and ill-advised petitions
are filed directly before this Court despite the fact that the remedies of the
acts complained of lie with the Revenue authorities. There is a misconception
and trend that in any of the situations discussed above Article 199 of the
Constitution can be invoked without availing and exhausting the remedy provided
by law, on the ground of violation of fundamental rights guaranteed by the
Constitution. Thus, these types of petitions are one of the major causes of
delay in the decision of cases and delivering judgments or recording reasons.
10. Prima-facie,
petitioner who has availed but not exhausted the remedy discussed supra in
accordance with law before approaching this Court may exhaust his remedy.
Resultantly, this petition fails and is accordingly dismissed in limine with no
order as to costs.
JUDGE
JUDGE