1. Urgency Application is granted.
' 3(sic) Exemption Application is granted subject to all just exceptions.
2 and 4. By invoking Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have impugned the Order dated 06-05-2009, whereby exercising his powers under section 164 of the of the Sindh Land Revenue Act, 1967 (herein after referred as the "Act of 1967") the defunct Executive District Officer (Revenue) Hyderabad now Deputy Commissioner, Hyderabad (respondent No,3) in Suo motu Revision No, 88/2009 cancelled the Foti-Khata Badal dated 08-07-1987 of deceased Muhammad Yousuf including all subsequent entries; if any, made in record of rights in respect of immovable property bearing C.S. No, 658/1, admeasuring 52 Sq.Yds in Ward "C", situated in Wallayat Shah Ka Pir, Khai Road, Hyderabad.
' 2(sic) Briefly stated facts of the case, as enumerated in the memo of petition, are that the immovable property bearing C.S. No, 658/1, admeasuring 52 Sq. Yds in Ward "C" was originally owned by one Muhammad Yousuf son of Gul Muhammad Soomro, who died leaving behind him (i)
Gul Muhammad (son) (ii) Ghulam Ali (son) (iii). Mst. Zainab (daughter). Later on, Ghulam Ali and Mst. Zainab also died. Thereafter, in the year 1987 Gul Muhammad got the Foti-Khata mutated in his favour in record of rights. On 05-09-2007 one Muhammad Naeem, the son of Mst. Zainab (respondent No,6) filed an application before the City Mukhtiarkar, Hyderabad alleging therein that deceased Muhammad Yousuf had left two sons and one daughter, but Gul Muhammad got the Foti-Khata Badal in his favour only. On that the then District officer (Revenue), Hyderabad through office noting part sent the papers to Executive District Officer (Revenue), Hyderabad for further action under section 164 of the Act of 1967, who vide Order dated 06-05-2009, cancelled the Foti- Khata Badal dated 08-071-1987, including all subsequent entries, if any, made in record of rights, observing that Gul Muhammad had got the Foti-Khata Badal in his favour by concealing other two legal heirs and directed the Mukhtiarkar (Revenue) concerned to hold Jalsa-e-Aam and mutate the Foti-Khata of deceased Muhammad Yousuf after observing all legal and Codal formalities as prescribed in the Act of 1967. This Order has been impugned in this petition.
3. On presentation of this petition, the office raised certain objections; therefore, learned counsel for the petitioners was put on notice to satisfy the Court on the point of maintainability of the petition, as the petitioner has efficacious remedy against the impugned order under the Act of 1967.
4. We have heard the learned counsel for the petitioners and also perused the material available on record.
5. Mr. Irian Ahmed Qureshi, learned counsel for the petitioners, has contended that the impugned order is illegal, unlawful, without jurisdiction and against the natural justice as no opportunity of being heard was provided to petitioners by the respondent No,3. He has further contended that after the said Foti Khata Badal, the petitioners purchased the property in-question jointly from Gul Muhammad through Sale Deed bearing No, 4534, registered with Sub-Registrar, Hyderabad on 25- 09-2007 and such entry was mutated in record of rights in favour of petitioner; therefore, the petitioners are successors-in-interest in the subject property. Respondent No,6 had filed a civil suit bearing No, 201/2007 (new F.C. Suit No,425/2008) for declaration, cancellation and permanent injunction against the petitioners and other official defendants wherein he sought cancellation of petitioners' Sale Deed, which was withdrawn by him on 24-12-2008 on the ground of filing fresh suit but instead of filing fresh suit, the respondent No,6 illegally invoked the jurisdiction of the Revenue Court. Placing his reliance on the case of Messrs Ahmed Clinic v. Govt. Of Sindh and others (2003 CLC 1196) and Mst. Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 other (PLD 2004 Karachi 391), the learned Counsel has maintained that any person desiring cancellation of an instrument should file a suit under section 39 of the Specific Relief Act, 1877 and if the cancellation is otherwise than, as provided under the law, that aggrieved person is entitled to invoke the Constitutional jurisdiction; that where an impugned action is completely without jurisdiction, unlawful and passed in flagrant disregard of natural justice, the same amounts to denial of justice, the aggrieved person can invoke the Constitutional jurisdiction in circumstances as it is not necessary to avail alternate remedies in such matters.
6. We have given due considerations to the arguments of learned counsel for the petitioners. What has emerged from the facts of the case is that the respondent No,3 by exercising suo motu powers, under section 164 of the Act of 1967, cancelled the Foti-Khata Badal dated 8-7-1987 of deceased Muhammad Yousuf including all subsequent entries made in record of rights, observing that Gul Muhammad (from whom the petitioners had purchased the subject property) had got the Foti- Khata Badal in his favour by concealing other two legal heirs and he directed the Mukhtiarkar (Revenue) concerned to hold Jalsa-e-Aam and mutate the Foti-Khata of deceased Muhammad Yousuf after observing all legal and Codal formalities as prescribed in the Act of 1967. Since instant petition has been preferred against the order passed by E.D.O. (Revenue) Hyderabad (respondent No,3) under section 164 of the Act of 1967, which is an "Original Order", and the said Act of 1967 itself provides the remedy of appeal and revision against the orders passed under the Act of 1967 by the revenue officers; therefore, first and foremost question before, us is of maintainability of this Constitutional petition. For the sake of convenience section 161 of the Act of 1967 is reproduced as under:-- "161. Appeals.- --(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely--
(a) to the Assistant Collector of the first grade when the order is made by the Assistant Collector of the second grade; and (b)to the Collector when the order is made by an Assistant Collector of the first grade;
(c) to the Commissioner, when the order is made by a Collector; (d)to the Board of Revenue only on a point of law, when the order is made by a Commissioner: ' Provided that---
(i) when an original order is confirmed on first appeal, a further appeal shall not lie.
(ii) When any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final.
' Explanation (1):- Omitted
(2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from.
(3) No Revenue Officer other than the Board of Revenue shall have power to remand any case in appeal to a lower authority.
7. Instead of questioning the impugned order in hierarchy of the Act of 1967, the petitioners have filed instant Constitutional petition seeking declaration that the impugned order, passed by the.
Executive District Officer (Revenue) Hyderabad is illegal, unlawful and void ab initio. The impugned order may be strictly not in accordance with law or it may be an incorrect order, but it cannot be said that it has been passed without jurisdiction, as under section 164 of the Act of 1967, an Executive District Officer (Revenue) has jurisdiction to hear a suo motu revision and pass an order.
Revenue Courts have exclusive jurisdiction to determine the matter pertaining to making and maintenance of record-of-rights, the assessment and collection of land revenue, the survey and demarcation of boundaries of the land, the appointment and functions of Revenue Officer and other matters connected with the Land Revenue Administration in the Province of Sindh under the Act of 1967.
8. This Court being Court of Constitutional Jurisdiction does not step in where an adequate remedy to aggrieved person is available by way of appeal and full-fledged machinery for the redressal of his grievances is provided by the Act of 1967. It has been held by the Apex Court in the case of Mumtaz Ahmed and another v. The Assistant Commissioner and another (PLD 1990 SC 1195) that the petitioners should not have approached the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums and a Constitutional Petition being premature thus could be dismissed on that ground alone.
9. So far the contention of the learned counsel for petitioners that no opportunity of being heard was provided to petitioners by the respondent No,3 is concerned, we do not need to make much deliberation on this factually controversial contention of petitioners' counsel, as it is mentioned in the impugned order that the notices were issued to all the interested parties to ascertain the truth and the Mukhtiarcar City informed that the respondents Nos. 2 and 4 (petitioners) refused to accept the notices, while respondent No, 3 (Gul Muhammad) appeared on 19-02-2009 and 12-03- 2009; thereafter, he remained absent.
10. In view of above facts and circumstances of the case, the case-law cited by the learned counsel for the petitioners are distinguishable from the facts of the case in hand. As the case-law cited by the learned counsel pertain to cancellation of the registered instrument which off-course the revenue authority cannot do as in such matters jurisdiction lies with Civil Courts but in the instant case not the registered instrument of the petitioners (sale deed), but the Foti-Khata Badal (entry) and subsequent entries have been cancelled.
11. Accordingly, without going into the validity of the impugned order, we deem it fit to dismiss this petition on alternate ground that the petitioners should not have approached to this Court without exhausting other remedies provided to them in the hierarchy of Revenue Forums under Act of 1967, as held in the case of Mumtaz Ahmed (supra). This petition is, therefore, dismissed in limine, along with listed application.