1. This writ petition is addressed under Section-44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. Brief facts, giving rise to the instant writ petition are that petitioners (herein) moved an application against Respondent No, 4 Muhammad Zaman in the Court of Revenue Assistant Mirpur under Section 175-A of the Land 'Revenue Act for his ejectment from the land comprising Survey No, 252
(new) measuring 9 marlas, out of land measuring 3 Kanal 17 marlas, situated in village Raian, Tehsil & District Mirpur. After hearing the parties the Revenue Assistant Mirpur dismissed the application and on appeal and revision to lower forums, the matter lastly came before the Member Board of Revenue, who decided the matter finally vide his order dated 26.10.2000 holding that all the illegal occupants from the crown land in village may be ejected from the land reserved for public purposes including Muhammad Zaman Respondent No,
4. The Member Board of Revenue formulated five points and observed that such proceedings be initiated, which are transparent and visible and necessary proceedings be taken against all the residents of village, who have illegally occupied the crown land. Ghulam Abbas and others feeling aggrieved by the orders of Member Board of Revenue dated 26.10.2000 and 07.02.2001, filed a writ petition before this court praying therein, that the said orders are illegal and without lawful authority and liable to be set-aside.
3. This writ petition was admitted by this Court vide order 10.10.2001 for regular hearing. Feeling aggrieved by the admission order passed be this Court on 10.10.2001, Respondent No, 4 challenged the same before the Apex Court. The Apex Court after hearing the appeal, the order of admission of writ for regular hearing dated 10.10.2001 was set-aside on 24.05.2002. The review petition was filed before Apex Court by Ghulam Abbas & others seeking reversal of judgment titled Muhammad Zaman and others Vrs. Ghulam Abbas & others decided on 24.05.2002. The review petition was accepted and the judgment under review dated 24.05.2002 was set-aside and case was remanded to this Court for resolution of the points, which were formulated by this Court at the time of admission of the writ petition. The point formulated by this Court was that whether the impugned orders are illegal and without lawful authority? Now this point shall be resolved through this judgment. On the direction of the Court written statement on behalf of Muhammad Zaman Respondent No, 4 was submitted in which the allegations in writ were negated and alleged that petitioners have also filed a civil suit for perpetual injunction and dispossession, in the Court of Civil Judge Mirpur on 19.10.2001 and the same is subjudice before the Court of competent jurisdiction. In presence of civil suit pending between the parties for its final disposal in respect of the land in dispute the writ was not maintainable. It was further alleged that the impugned orders were passed in exercise of valid jurisdiction. In order to determine the controversy between the parties there are two points involved.
(1) Whether the writ petition can lie against the remand order?
(2) Whether the writ petition can lie in presence of civil litigation between the parties in respect of same land?
4. The learned counsel for the petitioners reiterated the grounds of writ petition and further argued that civil suit on the file as "RA/1" is not hindrance in the way of petitioners to get relief through writ.
5. He further argued that impugned orders of Respondent No, 1 dated 26.10.2000 and 07.02.2001 respectively are illegal orders and without lawful authority and liable to be quashed. Ch. Muhammad Afzal also submitted written arguments on behalf of petitioners. The case law referred in written argument is as follows:- [PLD 1968 Lah-57], [PLD 1989 SC-31], [PLD 1997 Lah-46], [1992 SCMR-1310], [1991 SCMR 2436], [1999 M LD 1676], [2004 SCR-23,104 & 378], [PLD 1978 SC AJ&K-37], [PLD 1980 Lah-338], [1993 SCR-341], [1998 SCR-168], [2000 SCR-79] & [2001 SCR-577].
6. The learned counsel for Respondent No, 4 reiterated the grounds of written statement and further argued that Member Board of Revenue has not decided the matter finally, he remanded the case for fresh decision after hearing the parties and writ cannot lie against remand order. He further argued that civil litigation is pending between the parties on the same cause of action and writ jurisdiction cannot be invoked in these circumstances. He relied on case law [2001 SCR-437-438] caption (a).
7. I have heard the learned counsel for the parties and gone through the record of the case carefully.
8. It is admitted on the record that Member Board of Revenue remanded the case after formulating five points and observed that proceedings be made transparent and visible and necessary proceedings be taken against all the residents of the village who have illegally occupied the crown land of the village, which is reserved for the public purposes. The order passed by the learned Member Board of Revenue was an order of remand by which the rights of the parties had not been ultimately decided. The learned Member Board of Revenue remanded the case for decision on merits, after hearing the claim of both the parties. Due to this reason I am of the view that writ cannot lie against remand order.
9. While dealing with the other point that whether writ can lie in presence of civil litigation between the parties? This fact is admitted by both the parties that the petitioners have invoked the jurisdiction of Senior Civil Judge Mirpur by filing civil suit in respect of the same land, same facts, same cause of action and almost with similar prayer and without disclosing the fact of pendency of writ petition before this Court.
10. Keeping in view the circumstances of case, proceedings before this Court by way of writ petition are not maintainable. The conduct of petitioners disentitled them to the grant of any relief in exercise of extraordinary jurisdiction of this Court, which is discretionary in nature. The writ is, therefore, not maintainable on this count too. In case reported in [2001 SCR 437-438] titled Jan Muhammad Vrs. Muhammad Ismail and others it was held as under:--
(a) AJ&K Interim Constitution Act, 1974.
11. "S.44--Findings by the Courts--Relief in writ is discretionary--If a civil suit is pending between parties, none of the parties competent to file writ--High Court was not competent to give any finding in exercise of writ jurisdiction when the civil suit was pending between the parties."
12. This view gets support from the case law reported in [1986 CLC 1193 caption (n) titled Haji Dossa Limited & others Vrs. Federal Government of Pakistan & others, it was held as under:-- "(n) Constitution of Pakistan (1973) Art. 199--Constitutional jurisdiction, exercise of--Civil suit pending in respect of matter referred to in constitutional petition--Effect--Where suit in respect of same cause of action as referred to in constitutional petition, was pending, High Court, held, would not take up such matter in constitutional jurisdiction."
13. In case law reported in [2008 CLC-200] caption (c) titled Noor Avenue Cooperative Housing Society Hanjarwal Lahore Vrs. Lahore Development Authority & others, it was held as under: "(c) Constitution of Pakistan 1973--Art. 199--Civil Procedure Code (V of 1908) S.9-Constitutional petition during pendency of civil suit--Not maintainable--Principles.
14. Law regarding competency of constitutional petition pending civil suit is firmly settled to the effect that it will not be maintainable to pre-empt the jurisdiction of a competent forum or to suit in appeal against the decision rendered by the Civil Court in collateral proceedings. "
15. In view of above, this writ petition is hereby dismissed. There is no need to discuss the other points, which are involved in the writ. The case law cited by the learned counsels for the petitioners is not helpful.