' MUHAMMAD ALI MAZHAR, J.---This constitution petition has been brought to challenge the order dated 17- 11-2009 passed by the Member (Reforms Wings and Special Cell), Board of Revenue Sindh, Hyderabad (Respondent No,2).
2. Succinctly, the facts of the present petition are that the petitioners are in possession of agricultural land in capacity of Hari for the last 30/40 years and their names are also mentioned in the record of revenue as Haries and they are paying land -revenue to the Government. In the year, 1956, one Mahmood Ahsan was granted land in Deh Berth and Deh Junas under the scheme of "Grow More Food" by the then Government of West Pakistan. Subsequently, Government announced policy to grant land permanently on Tube well Scheme at the rate of highest auction price. Said Mahmood Ahsan was not granted land as he failed to pay initial deposit in respect of said land. Late Mahmood Ahsan filed Constitutional Petition No, 498 of 1976 in this Court at principal seat and challenged the condition of highest auction price. The petition was heard on 26-8-1986 and dismissed on the ground that nothing was available on record that land in question was leased out to the petitioner Mahmood Ahsan. Learned Division Bench in the same order further went on to hold that the learned counsel for the petitioner has not been able to point out any document from which entitlement of the petitioner to the land in question could be established. It was further mentioned in the same order that learned counsel referred to a notice issued in respect of land but this notice was issued to Haji Mahmoodul Hassan and according to learned counsel, the petitioner, namely, Haji Mahmood Ahsan was the same person as Haji Mahmoodul Hassan but except mere oral assertion of the learned counsel, such clarification has not been made in the petition or any affidavit. Consequently, petition was dismissed. With the observation that the impugned decision of the respondent No,1 does not relate to the property in which petitioner has interest. He is not an aggrieved party, therefore, not entitled to challenge the order of the respondents Nos.1 and 2. It was further mentioned that he has come with unclean hands by making a claim on the basis of ownership of tube-well.
3. Being aggrieved by the aforesaid decision, said late Mahmood Ahsan filed special leave to appeal in the Hon'ble Supreme Court of Pakistan which was also dismissed vide order dated 26-11-1986. While dismissing the appeal, the Hon'ble Supreme. Court again reproduced the arguments of learned counsel for the petitioners who stated before Hon'ble Supreme Court that Haji Mahmood Ahsan is the same person as Haji Mahmood Hassan and Haji Mahmoodul Hassan and High Court had erred in reaching the conclusion to the contrary. This statement was not accepted by the Hon'ble Supreme Court and order passed by this Court in Constitutional Petition No, 498 of 1976 was affirmed. After dismissal of special leave to appeal late Mahmood Ahsan had not filed any other legal proceedings and died in the year 1994 and the land was resumed by the Government of Sindh for disposal according to land grant policy. In the year 1997, legal heirs of late Mahmood Ahsan filed another Constitution Petition No, 423 of 1997 in this Court. However, vide order dated 30-4-1997, the said petition was withdrawn.
4. It is further contended by the petitioners that that the respondents Nos.9 to 31 had managed a letter dated 7- 5-1997 addressed to Mukhtiarkar, Pano Akil for the mutation of land in their names. Mukhtiarkar, Pano Akil dispatched copy of letter to the Assistant Registrar of this Court for verification, thereafter, an enquiry was held and as a result thereof, letter was declared to be managed and forged and matter was placed in the Court, whereby vide order dated 25-9-2001, this Court in Constitution Petition No,423 of 1997 in view of the enquiry directed Mukhtiarkar to file complaint/F.I.R. Against the persons who produced forged letter in his office.
5. Again respondent No,3 Asadullah had filed F.C. Suit No, 133 of 1997 in the Court of 2nd Senior Civil Judge, Sukkur for declaration and permanent injunction. However, said suit was also withdrawn vide order dated 21-10- 1998 in view of the order passed by the Secretary (Land Utilization) Board of Revenue Sindh, Hyderabad on the petition of Moulvi Hamadullah, brother of the plaintiff. The record further shows that respondent No,13 Asadullah again filed F.C. Suit No,80 of 1999 against Government of Sindh for declaration and permanent injunction in the court of 2nd Senior Civil Judge, Sukkur in which the present petitioners were impleaded as defendants Nos.5 to 13 by filing an application under Order I Rule 10 C.P.C. However, vide order dated 22-9-2003, suit filed by Asadullah was dismissed. Thereafter, Asadullah filed a Civil Appeal No,72 of 2003 in the Court of District Judge, Sukkur, but on 12-6-2004, appeal was dismissed in non-prosecution.
6. The litigation did not end here as the record further shows that respondents Nos.9 to 13 again filed Constitutional Petition No,15 of 2000 in this Court and during pendency of this petition, petitioners moved an application for impleading them as party. However, the Order dated 7-9-2004 shows that on the basis of statement made by learned AAG that Member Board of Revenue will provide hearing to the petitioners and on the basis of said statement, learned counsel for the petitioners did not press the petition. So far as the interveners' application is concerned, same was dismissed with the observation that in case any party feels aggrieved they are at liberty to move an application before the concerned authorities/forum which need to be decided on merits in accordance with law.
7. It is further stated in the petition that an application was moved before the Member Board of Revenue for joining the petitioners in the matter which was allowed and after hearing parties, the Member Board of Revenue passed an order and issued directions to the District Officer (Revenue), Sukkur to dispose of land in question in an open Katchehri in accordance with the policy. However, respondents Nos.9 to 13 were also allowed to contest/ participate if they establish their eligibility before the competent authority and when the Katcheri is held.
Respondents Nos. 9 to 13 filed another Constitution Petition No,160 of 2005 before this Court challenging the validity of order passed by the Member Board of Revenue on 27-4-2005, in which it was observed that chapter of restoration of original grant in favour of the petitioners under "Grow More Food" scheme is closed for all the times to come in view of the decision of the apex court and civil suit.
8. The grievance of the present petitioners is that while filing the Constitutional Petition No,160 of 2005, they were not arrayed as party. It is further stated that in the said petition, an application under Order I Rule 10, C.P.C. Was moved but on 20-5-2009, application was dismissed for non-prosecution and after hearing the learned counsel for the petitioners, order dated 24-4-2005 and 27-4-2005 were set aside and case was remanded to the Member Board of Revenue to decide the case in accordance with law. After remanding the matter by this court in Constitution Petition No, 160 of 2005, the present petitioners had moved an application but the petitioners were not allowed to join as party in the matter, therefore, the petitioners had filed Constitution Petition No, 1186 of 2009 in this Court for redress of their grievance and notices were issued and on 17-11- 2009, petition was fixed in this Court, but learned counsel for the petitioners was busy in some urgent matter at principal seat and the petition could not be heard but on the very same day, the Member (Reforms Wing and Special Cell) Board of Revenue Sindh passed the impugned order.
9. The respondent No,9 for self and being attorney of respondents Nos.10 to 31 filed para wise comments in this petition in which they have totally denied the assertions of the petitioners and it has been stated inter alia that the petitioners have no right and authority to challenge the vested rights of the petitioners and it is further stated that impugned order dated 17-11-2009 was 'rightly and validly passed by the respondent No,2 and there is no lawful justification to interfere with the findings recorded by the respondent No,2 in the above order. It has been further averred that the predecessor of the answering respondents deposited the installments in favour of the Revenue Department, but due to mistake on the part of Barrage Office Guddu at Sukkur, name was mentioned as Mahmoodul Hassan instead of Mahmood Ahsan, resulting the predecessor of the respondents as well as Mahmoodul Hassan indulged into the litigation for correction of the name which ended up to the Hon'ble Supreme Court but no decision to the extent of correction of the name could be passed nor said grant of land was changed or cancelled. Thereafter, they moved an application to the Member Board of Revenue for restoration of the said grant in the name of their predecessor, namely, Mahmood Ahsan but due to mistake of name, Member Board of Revenue passed an order to dispose of above land afresh in an open Katchehri.
10. We have heard the learned counsel for the parties and also perused the record. Learned counsel for the petitioners argued that the impugned order has been passed in violation of order passed by this Court and the Hon'ble Supreme Court of Pakistan. Learned counsel further argued that vide order dated 3-11-2009, Member Board of Revenue refused to join the petitioners in the proceedings and in spite of numerous efforts and payment of cost copy of order dated 3-11-2009 was not supplied to him but it is quite strange that in the impugned order Member Board of Revenue shown the presence of one of the petitioners with his counsel but as a matter of fact, nobody was present from the petitioners' side at the time of alleged hearing or passing the impugned order which smacks and smear mala fide on the part of the respondent No,2. The learned counsel further argued that the petitioners have vested rights to be heard after providing ample opportunity to prove their entitlement but in the impugned order it is wrongly observed that the petitioners had failed to produce any document to substantiate their entitlement. In fact, the learned counsel argued that in the order dated 17-11- 2009, respondent No,2 has reproduced the order dated 3-11-2009, whereby interveners were disallowed to join the proceedings.
11. Conversely, the learned counsel appearing for the respondents Nos.9 to 31 argued that the petitioners have no right to assert against the grant of land. The Colonization Officer. Guddu Barrage, Sukkur granted 239 Acres land in Deh Berth and Deh Junas Taluka Pano Akil, District Sukkur under tube-well scheme of the Government w,e,f, 1959-1969, thereafter said grant was converted into permanent tenure in the name of predecessor of the petitioners, namely, Mahmood Ahsan. Learned counsel further argued that in view of order dated 17-11-2009, respondents Nos.9 to 31 have already paid entire Government dues. He finally argued that the petition is not maintainable and is liable to be dismissed with costs.
12. The respondents Nos.3, 4, 7 and 8 have filed brief history of the case in which it is inter alia stated that land was leased on Yaksalo lease on "Grow More ,Food" during the year 1958-59 to 1965-66 as per scheme announced by the Government to Haji Mahmood Ahsan. Subsequently, Government announced policy to grant said land permanently on tube-well scheme at the rate of highest auction price, but said land could not be granted in the name of Haji Mahmood Ahsan as he failed to pay initial deposit in respect to said land. He filed Constitution Petition No, 498 of 1976, but could not prove his title. Therefore, constitutional petition was dismissed on 26-8-1986 as there was mistake in his name. Thus, land in question could not be granted to Haji Mahmood Ahsan during his life and he died in the year 1994. It is further submitted that in compliance of order dated 17-11-2009, legal heirs of Haji Mahmood Ahsan had deposited the amount. Same respondents have also filed their parawise comments in which they have fully supported the impugned order passed by the respondent No,2.
13. After hearing the pros and cons, we have also examined the impugned order in which the respondent No,2 without adverting to the crucial facts of the case simply disposed of the matter on the basis that predecessor of the respondents Nos.9 to 31 namely Mahmood Ahsan was granted Yaksalo lease during the year 1958-59 and thereafter Government announced the policy to grant land permanently on tube well scheme for which a sum of Rs,3080 has already been recovered from the petitioners/respondents Nos.9 to 31, therefore the respondent No,2 in the impugned order held that vested rights have been created and the claim of above respondents predecessor has been established for which they cannot be ousted from , the land. It appears from the impugned order that the respondent No,2 has decided the case simply on the record produced before him by the respondent No,9 to 31 and in order to substantiate or to verify their claim, no record was called Or summoned by the respondent No,2 before passing the order in question. It is also a fact which is clearly demonstrating from the impugned order that the respondent No,2 failed to consider the previous litigation specially judgment passed by this Court in C.P. No,D-498 of 1976 which was filed by Mehmood Ahsan, the predecessor of respondent No,9 to 31 assailing the decision of the Utilization Committee of the Board of Revenue dated 17-6-1970. While deciding the petition the first question before the bench for consideration was whether the petitioner Mahamood Ahsan had any entitlement and was an aggrieved party. Finally, the petition was dismissed on the sole ground that name of tube-well owner is mentioned as Haji Mahmoodul Hassan and not the petitioner. It was further observed that the impugned decision of the respondent No,1 did not relate to the property in which the petitioners had any interest. It is pertinent to point out that the learned counsel who was appearing for Haji Mahmood Ahsan in the above petition argued that the petitioner Haji Mahmood Ahsan is the same person as Haji Mahmoodul Hassan but except mere oral assertion of the learned counsel, such clarification was not made in the petition or affidavit. While in the same order it is further reflected that the counsel who was appearing for respondents Nos.4 and 5 in the said petition. Made statement that Haji Mahmoodul Hassan is the brother of the petitioner and there are several litigations between them in which he is representing Haji Mahmoodul Hassan. After dismissal of this petition, the same Mahmood Ahsan filed a civil petition for leave to appeal in the honourable Supreme Court in which again the learned counsel appearing for the' petitioner argued that "Haji Mahmood Ahsan" is the same person as "Haji Mahmood Ahsan" and "Haji Mahmoodul Hassan" and the High Court had erred in reaching the conclusion to the contrary. This plea was not accepted by apex Court and finally the civil petition for leave to appeal was also dismissed vide order dated 26- 11-1986.
14. We have no hesitation to hold that most crucial aspect has not been considered by the respondent No,2 while passing the impugned order but on remand, the matter has been decided by him in a slipshod mariner without adverting to relevant and critical facet of the case relating to the rights and entitlement of the parties to the land in question. On one hand the present petitioners have alleged that they are in possession of agricultural land which belongs to the Government in the capacity of Harries for the last 30 to 40 years and their names are also mentioned in the record of revenue as Haris and they are also paying the land revenue to the Government. On the contrary, the respondents Nos.9 to 31 are posing and claiming their vested right which they have allegedly inherited from their predecessor late Mahmood Ahsan. The impugned order does not demonstrate or divulge in any manner that the claim of the present petitioners have been examined in the light of documentary evidence. However, attendance of one petitioner is mentioned in the order along with his Advocate but on contrary, the learned counsel for the petitioners vehemently argued that neither any petitioner was present nor their Advocate at the time of passing of the impugned order for the reason that the present petitioners were not allowed to join the proceedings, therefore, they were totally prevented and precluded to produce the relevant documents substantiating their claim over the land in question.
15. The petitioners in paragraph 26 of the petition have pointed out the judgments of this court and the apex Court relating to the wrong description of the owner of the property and in response to Paragraph 26 the respondents Nos.3, 4, 7 and 8 in their comments, stated that the mistake in the name of Haji Mahmoodul Hassan was settled in the Court of . IInd Senior Civil Judge, Sukkur in his favour and after that, the mistake in his name, was corrected, therefore, the disputed land was granted in pursuance of order dated 17-11-2009. Let it be clarified that neither any order of Civil Court is attached with the comments nor in the impugned order any such order was taken into consideration whereby any civil court passed the declaration that Haji Mahmood Ahsan or Haji Mahmoodul Hassan or Mohammad Hassan are the one and the same person. It makes obvious that at the time of deciding C.P.No,160 of 2005, the attention of this court was not invited to earlier judgment passed by this Court in C.P.No,498 of 1976 and order of honourable Supreme Court passed in Civil Petition for Leave to Appeal No,372- K/1986 and on the basis of comments filed by the respondents Nos. 2, 3, 4 and 6, the matter was remanded and orders dated 24-4-2005 and 27-4-2005 were set aside accordingly with the directions to the Member Board of Revenue to decide the matter after considering the material brought by both the parties on record.
16. If the entire previous litigation and the material placed by the parties on record is considered in its true perspective, it is irresistibly comprehensible that the minutiae and factual controversy involved in this matter cannot be thrashed out or resolved in the constitutional jurisdiction. The litigation between the parties cannot be set at naught unless the respondent No,2 properly adjudicates the matter after considering and appreciating the bone of contention of the parties and entire material available on record. It is not so simple to hold that the right of the predecessor of respondents Nos.9 to 31 has been established particularly in the particular scenario when this Court as well as the apex Court had already considered the question of ownership therefore, we hold that the impugned order suffers from legal infirmity as the respondent No,2 has failed to decide the factual controversy and claim of the parties in a proper and lawful manner.
17. Article 199 of the Constitution has been introduced to correct the actions of the Government functionaries which suffer either from the lack of jurisdiction or excess of jurisdiction. If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally or not in accordance with law then Article 199 can always be invoked for redress. When impugned action is without jurisdiction, mala fide, unlawful and passed in disregard of law and the principles of natural justice, the same amount to denial of justice. When any finding of fact is based of no evidence at all or ignoring material evidence or on consideration of inadmissible evidence or exercise of jurisdiction perversely or illegally causing palpable injustice, the jurisdiction of this Court can always be invoked under Article 199 of the Constitution to rectify the wrong and injustice occurred to a party.
18. We are fortified by the dictum laid down by the Supreme Court in its judgment reported in PLD 1997 SC 351 (Province of Punjab v. S.Muhammad Zafar Bukhari), in which, it was held that the object of the superior courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view it may in equity set aside or annul the void judgment. In another judgment reported in 2001 SC 149 (Dilawar Jan v. Gul Rehman), the honourable Supreme Court has held that failure on the part of statutory functionary or a court to make a visible effort with diligent application of mind to adjective assertion or to strive in search of truth for dispensing justice would tantamount to failure to exercise jurisdiction in the eye of law. In the same judgment while considering the wisdom of Article 199 of the Constitution, the honourable Supreme Court went on to hold that it is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. The reason is that beyond a certain point of lack of care and understanding in respect of facts, negligence and misunderstanding became question of law and jurisdiction, because no authority is expected to exercise jurisdiction in such a manner as to make it a farce. High Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where Order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse Of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken.
19. By consent of the learned counsel, this constitution petition was heard on 6-9-2011 at katcha peshi stage for final disposal along with listed applications and after hearing the arguments, the petition was disposed of. The impugned order dated 1'7-11-2009 was set aside and matter was remanded to Member Board of Revenue to decide afresh in the light of observations to be made in the detailed order.
20. In the light of our short order, the Member Board of Revenue is directed to decide the controversy between the parties in the following terms:-
(I) The petitioners are allowed to join the proceedings with the right to produce all the relevant documents before the respondent No,2 relating to their claim and entitlement. The respondent No,2 shall provide ample right of audience to the petitioners and also consider and verify. Their documents if any in support of their claim.
(II) Ample opportunity will also be provided to respondent Nos.9 to 31 (legal heirs of Mahmood Ahsan) to substantiate and prove their entitlement and if any order or any declaration was granted by any competent Court of law whereby it was held that late Mahmood Ahsan or Mahmoodul Hassan was one or the same person, then the respondent No,2 will also consider the court order if any keeping in view the order passed by this Court in C.P.No,498 of 1976 which was affirmed by the honourable Supreme Court in C.P.L.A. No,372-K of 1986.
(III) The respondent No,2 shall decide the matter after due notice to the parties including the present petitioners and after summoning the relevant record and examining the entire material produced by the parties shall pass a speaking order within two months.