ORDER CH. MUHAMMAD TARIQ, J.---This writ petition has been directed against the order dated 18- 12-2007 passed by respondent No.1 about the cancellation of lease of property in the name of deceased father of the petitioners.
2. Learned counsel for the petitioner inter alia contends that the property Measuring 6 kanals, 5 marlas located in Khasra Nos.256, 436 and 506, Mouza Serai Khola, Tehsil Taxila, District Rawalpindi was leased out to predecessor-in-interest of petitioners namely Sheikh Tariq Mehmood (being the highest bidder) through open auction on 30-3-1983 for a period of 30 years, @ Rs. 150 per annum.
The lease was approved by respondent No.1 on 31-10-1983. Further contends that in 2007, the respondent No.3 filed a reference before the respondent No.1 stating therein that it was specifically provided in the advertisement in "The Daily Nawa-i-Waqat" Rawalpindi dated 25-3-1983 that the above mentioned land is agricultural in nature and shall be used for agricultural purpose only and that the land measuring 1 Kanal, 14 Marlas located in Khasra No. 256 shall be utilized for pulley/passage but in violation of terms and conditions of lease, allegedly, the lessee (predecessor-in-interest of present petitioners) has constructed 24 shops on an area measuring 13 Marlas located in Khasra No. 256 abouting on the main road and has also allowed construction of a mosque with two shops built on an area of 8 Marlas. It was prayed in the reference that due to violation of terms and conditions of lease, the lease may be cancelled. Further averred that petitioner No.1 along with his counsel appeared before respondent No.1 at the time of decision of reference and offered the explanation that no violation of the terms and conditions of the lease has been committed and that shops/mosque existed at the spot prior to leasing out the property to deceased father of petitioners. Moreover, other shops have been constructed on the land beyond the lease out property on the personal property of the petitioner which is adjacent to leased property. Further contends that respondent No.1, vide his order dated 18-12-2007, cancelled the lease and ordered respondent No.3 to take over managerial control of the property under reference. Learned counsel for the petitioner further contends that the respondent/department granted lease of the suit land, the period of lease will expire on 2013. The petitioners have been utilizing the lease property located in Khasra No. 256 for passage/pulley and purely for agricultural purposes while they had constructed only two structures within the leased property which are store room and are meant for storing agricultural commodities. The demarcation report is not only an ex parte because before conducting demarcation, the petitioners were not served with any notice.
Further contended that Patwari conducted the so-called demarcation of land which is not sustainable in the eye of law as the Patwari is neither the revenue officer nor he has any authority to cause demarcation. Hence the entire so-called proceedings initiated against the petitioners are void ab initio, therefore, writ petition be accepted, impugned order dated 18-12-2007 be set aside.
3. Conversely, learned counsel for respondents has vehemently opposed this writ petition and has contended that the petitioners have concealed two important facts from this court i.e (i) "that they had already filed a revision petition before the competent court and secondly the writ petition is hit by lathes impugning the order dated 18-12-2007, therefore, writ petition be dismissed.
4. Arguments heard. Record perused.
5. When confronted, learned counsel for respondent/department could not deny this fact that the petitioners were granted lease of the suit land for a period of 30 years which was approved by respondent No.1 on 31-10-1983 and the date of expiry was 30-10-2013. Further learned counsel for respondents could also not deny this fact that the impugned order was passed on the basis of a report of demarcation conducted by Patwari of department and before demarcation neither the petitioners were served with any notice nor they were associated.
6. As per law, it is the exclusive jurisdiction of a revenue officer to cause demarcation with a clear notice to the concerned parties. A Patwari is not authorized to conduct' demarcation because he is only custodian of revenue record and it is his duty to maintain revenue record of a revenue estate.
Rule 67-A of the Land Revenue Rules 1968 prescribes an exhaustive procedure for demarcation of land. There is nothing on record to indicate that requirements of law in Rule 67-A were met. Further before starting, demarcation proceedings service of notice under Rule 4(c) of Rule 76-A of Land Revenue Rules was a mandatory provision which was violated. Further period of lease cannot be reduced if there is no evidence of breach of terms and conditions of lease agreement.
7. So far as the contention of learned counsel for the respondents is concerned that the writ petition is hit by lathes is not sustainable in the -eye of law as very impugned order was void ab initio which was passed on a mere report of patwari who was in no way authorized to conduct demarcation so period of limitation will not come in the way of justice. Laches is no ground to throw out a writ when officer was usurped by a person not entitle to hold the office, relied on the law held in case "Ch. Farman Ali v. Ch. Amin Afzal and others" reported as (2005 CLC 1282), "Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others" (2001 SCM R 1822) and "Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others" (2007 SCM R 262).
Simultaneously, the argument of learned counsel for respondent, that in presence of alternate remedy, writ petition is not proceedable is also misconceived, because when the order is void ab- initio, the availability of alternate remedy would not bar the jurisdiction of High Court to entertain constitutional petition as held by the Hon'ble Supreme Court of Pakistan in case 'Muslimabad Cooperative Housing Society Ltd, through Secretary v. Mrs. Siddiqa Faiz and others" (PLD 2008 SC 135).
8. As a result of above discussion, this writ petition is accepted, impugned order dated 18-12-2007 passed by respondent. No.1 'is set aside being void ab initio..
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