' MUHAMMAD IQBAL KALHORO, J.---Petitioners' case is that they are residents of village Muhammad Jaffar Palari, Hatri, District Hyderabad. On 10.04.2014 at about 3:00 a.m. Respondent No,7 namely Syed Fazal Habib Shah, Accountant in the office of D.C.0 Hyderabad came in their village along with police force. They demolished their houses and occupied it. Respondent No,7 in collusion with high- ups of Revenue Office has managed a false khata and is professing his ownership over their village's land. And to consolidate such occupation he has got false FIRs registered against them.
The petitioners further claim that their village is surveyed by HESCO Authorities for supply of electricity; and is also mentioned at S.No,228 of village directory for the purpose of survey to be taken under the Sindh Gothabad Scheme. In addition to seeking protection against harassment and registration of FIRs by the police at the instance of respondent No,7, the petitioners have prayed for mutation of the said village in their names and restoration of its possession.
2. In arguments, learned counsel for petitioners mainly placed reliance on different newspaper clippings to establish possession of the petitioners and their dispossession from the said village by the police force. He also referred to the documents appended with petition, available at page No, 27 to 51 of the file, to strengthen his case.
3. On the other hand, learned counsel for respondent No,7 denied the 'case of the petitioners in toto in his arguments. He contended that respondent No,7 was in possession of the said land in the capacity of its owner. He purchased the said land from respondent No,9/Government of Sindh through a registered lease deed dated 4.8.2011 after paying due consideration. According to learned counsel, such mutation in the record of rights was also effected in favour, of respondent No,7 on 21.9.201. He strongly refuted petitioners' claim of possession of the said land and urged that there was no such village by name Jaffar Palari in the said area. In comments, respondent No,7 has claimed ownership of the land bearing Survey No,286/1 (01-38 acres), 286/2 (2-29 acres), 287/1 (03-07 acres), 287/2 (3-09 acres) and 422 (3-00 acres) total admeasuring 14-13 acres situated in Deh Hatri Taluka Town Hyderabad. He has denied that he is Accountant in the office of D.C.O., Hyderabad, however, states that he was Assistant Director, Sehwan Development Authority and resigned wherefrom on 15.08.2011.
4. Mukhtiarkar Gothabad Hyderabad has filed the statement disclosing that on his direction Tapedar of the area visited the subject land and reported that there was no village by name of Jaffar Palari, about 2/3 years ago some flood affectees had come to reside there and built pacca houses, which were demolished by the police. He further states after verification of relevant record it was reported to him that neither any village by name Jaffar Palari was entered in the village directory published by Sindh Gothabad Board of Revenue Sindh in the year 1991, nor any such ,village was sanctioned/regularized under The Sindh Gothabad (Housing Scheme), Act, 1987, ("1987 Act"). He has clarified that no sanad of the said village has been issued either.
5. The comments of respondent No,4/SSP Hyderabad show that one Rab Dino, Kamdar of respondent No,7, had lodged FIR No,53 of 2014 on 10.5.2014 at PS Hatri under Sections, inter alia, 324, P.P.C. Against the accused including the petitioners, who in retaliation thereto along with 35/40 unknown persons duly aimed with deadly weapons blocked the National Highway. When the police went to disperse them, they resisted such attempt and made indiscriminate firing on the police, therefore, another case at Police station Hatri was also registered against them. Said officer has described the petitioners as encroachers.
6. We have considered above contentions and have perused the material. Admittedly neither the said village is sanctioned or regularized nor is there any material indicating that the said land is entered into the village directory maintained by Sindh Gothabad Board of Revenue Sindh. The documents referred to in his arguments by the leaned counsel are some applications moved by the petitioners for registration of the village and issuance of sands to them. A feasibility report prepared by the HESCO for supplying electricity connection to the said village and a voter list pertaining to the year 2012 showing names of some persons residing in the village namely Muhammad Jaffar Ali Palari. It is thus obvious that the petitioners have utterly failed to establish their right or title over the area which as per their claim is their village. The official respondents in the comments have termed their possession as encroachment.
7. The claim of respondent No,7, however is based on a Lease Agreement Deed dated 15.06.2011 registered on 4.8.2011. A perusal thereof indicates that on behalf of Government of Sindh the District Officer (Revenue) Hyderabad executed the said deed in terms of statement of conditions issued under sub-section (2) of section 10 of the Colonization of Government Land Act, 1912; and Notification No,9/298/03/983/08/S.0-1 dated 21.11.2008. The deed further reveals that respondent No,7 was granted the said land on the basis of leasehold-rights for 99 years by the District Officer (Revenue) Hyderabad vide allotment order No,01-492/03/SO-I/128/11 dated 27.5.2011 and its possession handed over to him after compliance of all the terms and conditions which include payment of occupancy price as well. It is also mentioned therein that the said land has to be used solely for "Incremental Housing Purpose". We have noted that when the subject land was granted to respondent No,7 (dated 27.5.2011), he was government employee, working as Assistant Director Sehwan Development Authority (As he resigned wherefrom on 15.08.2011). What we could not notice however are the circumstances and the qualification of the respondent No,7 that influenced the Government of Sindh to grant him government land. Admittedly the government land is the property of people and its allotment to individual is subject to adherence to certain law. The government cannot, on its own whims and wishes grant the government land to individuals without following the law. In law, such authority is not vested with the government functionaries either. This court and the honourable Supreme Court of Pakistan in the past have dealt with the same issue meticulously and have commented upon the state of affairs prevalent in the Revenue Department of Sindh. We with utmost respect have visited some of these decisions and as a reference would like to reproduce them.
8. On 23.12.2004 in C.P. No, D-265 of 2004, a Division Bench of this Court passed order, relevant paragraph whereof reads as under:-- "12. Under these circumstances, we would direct the Senior Member Board of Revenue to order the concerned officials that the original revenue record shall be kept with the concerned Mukhtiarkar in future and shall not be removed from his office by any of his subordinates. The Tapedars and / or Supervising Tapedars shall not be handed over the original revenue record. The entries in the record shall be kept and signed by the Supervising Tapedar along with the concerned Mukhtiarkar.
The DDO (Revenue) shall verify .Such entry. The concerned Mukhtiarkar shall be made custodian of the record and the Tapedars of the beat shall have no access to the original record in future. These directives are issued in order to minimize tampering of the revenue record which has become a common feature of the day and high-ups in the revenue department have failed to take the required steps to check the forgeries in the record of rights resulting in usurpaticn of thousands of acres of government lands by land grabbers through the blessings of the subordinate revenue staff besides depriving the private owners from enjoying their own properties. The aforesaid directives shall be forthwith circulated by the Senior Member, Board of Revenue, to all concerned for compliance under intimation to the MIT, of this court. Non-compliance of any, of the directives contained in this order would expose the concerned officials to contempt proceedings.".
(Emphasis supplied)
9. Again a Division Bench of this Court, in presence of high ranking revenue officials, passed another order on 28.5.2009 in C.P. No,D-11/2001, relevant paragraphs whereof read as under:-- , "We have directed the two Senior Officials of the Board of Revenue to formulate guidelines for the officers of the Revenue Department in order to reconstruct the record. The proposed guidelines have been placed before us and we have perused the same. It is only confined to the reconstruction of the record but it does not cater as to how the existing revenue record, which is tampered with, can be rectified and or authenticated. The proposed guidelines do not provide any suggestion for action against the revenue officials who were and are instrumental in tampering with the revenue record, we would like the revenue officials, who were guilty of tampering with the revenue record, should be taken to task, in order to ensure that in future no revenue official has the courage to tamper with the revenue record. The Senior Member is expected to hold inquiry against such officials forthwith and award and or recommend appropriate punishment.
2. In addition to the proposed guidelines, in future, the Mukhtiarkar in letter and spirit shall comply with the provisions of Land Revenue Act and the rules framed thereunder, especially the provisions of Section 42(2) of the Land Revenue Act. We would also direct that in future the entries kept in the revenue record should not be kept in figures but it should also be kept in words in order to minimize the element of tampering in the revenue record. We have noticed that the revenue registers, which are maintained in the name of village form are not properly paged and there are/is pages containing fictitious entries, which are inserted in such registers by the subordinate staff of the revenue department. To avoid such tampering in the record, we direct that in future every page of the register shall have a printed page number on it as is provided under the rules and before such register is used, it should have a certificate on its back, which certificate should not only be issued and signed by the Mukhtiarkar but it should also be attested by the concerned DDO (Revenue) certifying the total pages in the Register.
3. All these printed registers, as prescribed by the rules, shall be issued by the Board of Revenue and no private register should be used or utilized as official register by any Mukhtiarkar and or any other authority in future as is being practiced by them. We direct the Senior Member, Board of Revenue to immediately provide the requisite printed registers, in terms of the rules, with requisite format printed in it covering the requirement of Rule 72 of the Land Revenue Rules. We are aware of the fact that under the rules; the area of land is required to be given in figures in village form but we would like the Senior Member and or any other competent authority to amend the rules by adding the words "words and figures" in form VII by amending the relevant form. We further direct the Member, Board of Revenue that while issuing the proposed printed registers to the Mukhtiarkar, he shall establish a separate cell in office of Board of Revenue, which shall have complete record with an officer issuing different printed registers and or material to the Mukhtiarkars in the entire Sindh. Such officer, at the time of issuing register shall stamp and initial each page of the register which he will issue to the Mukhtiarkars. He will also maintain the record of the registers of each Mukhtiarkar and will issue a certificate on the last page of such register and the number of pages the register contains, whereafter a certificate shall be endorsed by the Mukhtiarkar and D.D.0 (Revenue) as has been proposed hereinabove. The printed registers would be handed over to the Mukhtiarkar against proper acknowledgment and such record of handing over of each and every register shall be maintained by the Board of Revenue under the proposal cell. The proposed cell shall maintain in duplicate district wise entire revenue record of all Sindh and any future entry kept in any revenue of any district shall be sent to the proposed cell, which shall be kept in proper register. All transactions on village forms II, VII A and VII B shall be sent to the proposed cell of the Board of Revenue within three days of such entry by the Mukhtiarkar".
10. Conspicuously, these specific directions were neither heeded nor complied with by the Revenue hierarchy, the flaws and loopholes so highlighted continued unabated. Usurpation of thousands of acres of government land by the land grabbers under the blessings of revenue staff remained unchecked. The high-ups did not perform their duty diligently and no serious efforts in this regard on their part were witnessed either. Honourable Supreme Court of Pakistan took stock of such situation and passed an order in a Suo Moto case No,14 of 2009, which reads as under:-- "No one in authority, whosoever high office such person in authority may be holding, has any power, jurisdiction or discretion to distribute any public property or asset and in these cases extremely valuable lands, on nominal consideration, which land or asset essentially belong to the People of Pakistan. It was patently mala fide exercise of power. This Court further ordered that the grants of lands to the petitioner specially in the manner, the same was done are prima facie violative of Article 3 (elimination of exploitation) Article 25 (equality clause) and Article 31 of the Constitution of Islamic Republic of Pakistan which requires the State to endeavour to promote observance of Islamic moral standards and Article 38 of the Constitution which inter alia requires the State to secure the well being of the people by preventing concentration of wealth in the hands of a few to the detriment of general interest. The grant of lands to the petitioner in these cases were reprehensible acts on the part of the highest executive authority in the province, totally alien to the concepts of Islam."
' In another case, reported as 2014 SCM R 1611, it is held with regard to manner of exercise of powers by an authority regardless of its status that Looking at the powers of the Chief Minister for allotment of public property, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others (2008 SCM R 105) will be useful wherein this court has observed as under:- "We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. Province of Sindh (2000 SCM R 907) and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214)."
' Yet things did not improve. Ultimately the honourable Supreme Court in its order dated 28.12.2012 in Suo Motu Case No,16/2011 clamped down a complete ban on mutation, allotment, transfer, and conversion of any state land in the following words.
"In the face of the aforesaid directions, the Board of Revenue abusing its authority, has allowed transactions relating to transfer of state land, which, prima-facie, must have caused huge financial losses to the exchequer, particularly, in the absence of reconstruction of record; and encouraged the menace of land grabbing, one of the basic causes of the poor law and order situation.
' Under these circumstances, we are constrained to direct that the Deputy Commissioners/ District Coordination Officers of Sindh, to ensure that immediately the entire revenue record of all the district is kept in the custody of Mukhtiarkar in terms of the directives contained in the aforesaid judgment of the High Court and shall not be removed from the office of the Mukhtiarkar to any other place. Moreover, mindful of rampant corruption and organized crime of land grabbing, particularly, regarding prime state land, and mismanagement/forgeries in the revenue record, we hereby, until further orders restrain the Government/Revenue Department from mutation, allotment, transfer and or conversion of any state land and or keeping any transaction or entry in the record of rights in this regard in revenue record of Sindh or till the entire revenue record in Sindh reconstructed. The conversion of lease for 30 years or of any term up to 99 years shall also be stopped immediately as by this mode the state land is being sold out at a throwaway price without participation of public at large, which the law does not permit. Any further conversion or mutation of state land in the record of rights from today onwards would be deemed nullity and would expose the Deputy Commissioner/DCO of the relevant districts/dehs besides others to contempt proceedings.
' In addition to the above arrangements, the Chief Secretary, Sindh, under his supervision shall ensure completion of process of reconstruction of the revenue record in the entire Sindh in terms of the directives of the High Court, referred to herein-above, within three mmths from today in terms of the aforesaid judgment/order of the High Court and shall report compliance. He shall also place on record the detailed list of persons and complete details of the lands converted from 30 years to 99 years lease in the Sindh Province after the assassination of Mohtarma Benazir Bhutto till date explaining the procedure adopted by the revenue officials for this purpose. He shall also furnish list of entries kept in the record of rights after the assassination of Mohtarma Benazir Bhutto till date in different districts of Sindh certifying that no other mutation other than mentioned in the proposed list has been effected, which after examination by the Court, if necessary, could be referred to the NAB authorities for inquiry in order to satisfy whether government has suffered losses and or whether revenue authorities have misused and or abused their authority while passing orders in these transactions.
11. Evidently, in the above order very specific remarks to the past transactions relating to transfer of state land have been made, which, in the esteemed view of the Honourable Apex Court, prima facie, must have caused huge financial losses to the exchequer and encouraged the menace of land grabbing, one of the basic causes of the poor law and order situation. While examining the file, we have not come across any substance to determine whether while granting the subject land to respondent No,7, the dictates of relevant law were followed, and whether the public at large was invited to participate in any such proceedings or any auction in this regard was held or not.
Scrutiny of the file does not reveal either any material indicating extra or special qualification of respondent No,7, which weighed with the government to select him for granting the government land while he was government employee, nor any such qualification of respondent No,7 is mentioned in the subject lease deed agreement. Moreso, we have also noticed that the possession, which respondent claims, is a disputed fact. Although the claim of the petitioners to the possession of the said land is shorn of any right or title and manifestly they are not entitled to its possession. But it at least casts clouds on the claim of respondent No,7 to have received the possession of the said land pursuant to Lease Deed Agreement, and obviously therefore such claim cannot be termed as a confirmed fact. It is crucial to note here that if it is established at any stage in any proceedings that 'respondent No,7 was not put into possession as claimed by him, his purported proprietary rights over the said land could go in a serious jeopardy and such rights then would be subject to certain legal explanations. However, we while sitting on the constitutional jurisdiction cannot determine all these factual aspects of the case, and the merits which led the Government to grant government land to respondent No,7. And in absence of any material on record, we cannot determine either the fact that whether the governing law and the rules regulating grant of the government land were adhered to in the case of respondent No,7. But, we in the facts and circumstance cannot wash off our hands and simply dispose of the matter by dismissing the petition. We are of the view that in the matter a probe to determine all abovementioned questions is necessary; hence while dismissing the petition, we have decided to send this matter to the Commissioner Hyderabad Division for conducting required scrutiny with directions to complete it within a span of 30 days of receipt of this order and shall submit compliance report through Additional Registrar of this court. While doing so, the Commissioner would be required to seek guidance from the above referred decisions.
12. In above terms, the petition is disposed of.