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:
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
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