Both these applications have been preferred against the orders of the Deputy Commissioner and District Magistrate, Kachhi dated the 21st December 1966 passed under section 145, Cr.. P. C. attaching land claimed by the applicants on both sides of the Pat Feeder Canal, and as they involve common questions of law and fact, I shall dispose them of by this order.
2. The applicants belong to the Jamali Tribe and, according to them, for many generations their Tribe had owned the land through which the Pat Feeder Canal flows now. That land was not of much value before the construction of this Canal, but after its construction, it became very valuable. As most of the land had not been surveyed by the Revenue Department, other Tribes made false claims to this land because of the availability of water, therefore the Jamalis filed a representative suit against the Government in the Court of the District Magistrate, Kachhi for a declaration that the land specified in the plaint belonged to the Jamali Tribe. Further, as according to the plaintiffs in that suit, the land was being leased out by the Government, they also sought an interim injunction to restrain the Government from leasing the land to any other persons. Their application for an interim injunction was rejected by the District Magistrate, therefore they filed an appeal in the High Court and on 18-7-1966 a learned Single J Age of the West Pakistan High Court passed an ad interim order in their favour restraining the respondents (namely the Government and its agencies) "from leasing out the land in dispute or other wise interfering with the possession and enjoyment of the appellants over the land in suit till further orders". This injunction was confirmed by another learned Single Judge of the West Pakistan High Court on the 10th of October 1966. I may point out here that this suit has now abated, in view of the Baluchistan Pat Feeder Ordinance, 1970, to which I shall presently refer again. But during the pendency of this civ:1 litigation, the respondents 2 and 3 in Criminal Revision No, 5 of 1967 had made an application to the District Magistrate, Kachhi claiming the disputed land for themselves and they had asked for an enquiry into the question whether the land in dispute was in their possession or in the possession of the Jamali Tribe. The then District Magistrate had ordered the Nazim Dhader to hold an enquiry. The Nazim Dhader had thereupon proceeded to the spot, held an enquiry and submitted his report dated 13-8-1966 to the District Magistrate. (This report is at page 37 of Criminal Revision No, 5 of 1967). This report is very important and, according to it, the disputed land was in the possession of the Jamalis who were displaying "proper order and discipline". This report supports the claim of the applicants because they are Jamalis, but after one Mr. Abdul Karin] Alkozai had taken over as District Magistrate, on 17th December 1966, the second and third respondents in Criminal Revision No, 8 of 1967 and the first respondent in Criminal Revision No, 8 of 1967 both filed separate complaints under section 145, Cr. P. C. against Mir Khan Jamali (the first applicant in both the applications) under section 145, Cr. P. C. Their complaints are broadly similar, except that, according to the complaint in Criminal Revision No, 8 of 1967 the disputed land is situated in Village Kathohar Sub-Tehsil Chattar, whilst, according to the complaint in the other revision application, the disputed land is situated in Village Bag Bazar Sub-Tehsil Chattar. On 21-12-1966 the District Magistrate passed similar orders on both the complaints and directed that the area cultivated by the applicants before him and the area which was in dispute should be attached but that the share of the cultivators was to handed over to the cultivators. These orders were passed without hearing the applicants or any member of the Tribe, despite their known interest in the land in dispute, therefore the applicants filed revision applications in this Court against these two orders of the District Magistratedated 21-12-1966 and obtained ad interim orders staying the operation of the impugned orders. These revision applications have now come up for hearing before me, and I will consider the arguments of the learned counsel.
3. Mr. Abdul Karim Alkozai was the Magistrate who passed the impugned orders on 21st December 1966, and Mr. Khalid Ishaque's submission was that this officer had passed the age of compulsory retirement when he passed these orders, therefore the orders were illegal and void ab initio. In support of this argument for produced copies of the relevant Gazette notifications which were admitted as correct by all the learned counsel. By a notification dated the 1st June 1966, in the West Pakistan Gazette of 10th June 1966, the Governor of West Pakistan had directed the retirement of Mr. Alkozai with effect from 20th June 1966, and the reason for this order is shown in the next notification dated the 9th June 1966. According to this notification Mr. Alkozai had completed the age of 55 years, yet by this notification the order for his retirement passed barely a week earlier was cancelled and his appointment was extended by one year with effect from 1st August 1966.
Later his appointment was extended up to 31st July 1967. In view of these notifications, it is not disputed before me that Mr. Alkozai had passed the age of 55 when he passed the impugned orders in December 1966. Further all the learned counsel admitted that under the Constitution of 1962, originally, the age for compulsory retirement was 55 years; but on 31st March 1966, came the 6th Amendment to the Constitution, and Article 178 was amended. Clause (5) of Article 178, as it stood after the Amendment, read as follows: "(5) Notwithstanding anything contained in paragraph (b) or paragraph (c) of clause (4) the competent authority may, except for the purpose of the performance of any judicial function, extend the service of a person beyond, or re-employ a person after, the date of his retirement under that paragraph for such period and on such terms and conditions as it may deem fit."
Thus the benefit of this amendment was not available to persons performing judicial functions. But this clause was again amended by the 8th Amendment, on 19th December 1967. The effect of this 8th Amendment was that "the competent authority" under clause (5) was empowered to extend the services even of persons performing judicial functions. But this was from and after 19th December 1967. Turning now to the instant case, the impugned orders were passed by Mr. Alkozai on 21st December 1966. This was during the pendency of the 6th Amendment and almost a year before the promulgation of the 8th Amendment. As Mr. Alkozai was performing judicial functions, it is clear that by virtue of clause (5) of Article 178, as it stood in December 1966, he was not competent to discharge any judicial functions because he had reached the age of retirement for judicial officers, namely, completion of the age of 55. Therefore, in view of the constitutional bar under clause (5) of Article 178, the Governor of West Pakistan was not competent to extend his services. The notifications extending his services were null and void, and all orders passed by him as District Magistrate were null and void in consequence.
4. Mr. Jaffery, who appeared for the State, admitted that Mr. Alkozai's appointment as District Magistrate after 20th June 1966, was illegal; therefore the impugned orders were illegal. However, Mr. Munawar Ahmed sought to defend the legality of Mr. Alkozai's appointment on the basis of the 8th Amendment which came into force on 19th December 1967. I do not see how this Amendment supports the case of Mr. Munawar, because the Amendment came into force long after the date of the impugned orders, and there is nothing in the Amendment to validate retrospectively any action taken before this Amendment which was illegal when it was taken. I therefore accept Mr. Khalid Ishaque's argument that the impugned orders are illegal because Mr. Alkozai, who passed them, was not competent to act as a District Magistrate under section 145, Cr. P. C.
5. Mr. Khalid Ishaque also challenged the impugned orders on merits and submitted that the orders were illegal, because they were in contravention of the mandatory provisions of section 145, Cr. P. C., and because they had been passed during the pendency of a civil dispute between the parties.
6. The satisfaction of a Magistrate that a breach of the peace is imminent is a condition of his jurisdiction under section 145, Cr. P. C. and as the impugned orders do not state anywhere that Mr. Alkozai was satisfied about an apprehension of the breach of peace, Mr. Khalid Ishaque submitted that these orders were illegal. In view of the judgment of the Supreme Court reported in Muhammad Ishaque v. Nur Mahal Begum Mr. Jaffery very fairly conceded that he could not challenge the correctness of Mr. Khalid Ishaque's submission, but Mr. Munawar half heartedly tried to defend the impugned orders on the ground that there was evidence of the imminence of a breach of the peace on 21-12-1966, when these orders were passed, and, oddly enough, in support of this argument, he referred me to the report of the Nazim Dhader dated 13-8-1966 which, as I have pointed out, goes against the case of Mr. Munawar's clients I may repeat here that this report was prepared under the orders of the then District Magistrate after an inspection on the spot by the Nazim. After referring to his investigations, the Nazim has stated in his report : "The Naib Tehsildar, Chatter present at the spot asked the people of Katohar to furnish person 11 bonds for ejectment and the people of Katohar requested for 24 hours time for vacating the possession which was granted to them. According to our information, Jamalis have fully occupied (the land) and are busy in cultivating the same. It would not be out of place to mentioned here that thousands of pair of (bullocks) of Jamali tribe were found at the spot. We were much pleased to see the smooth management of Mir Muhammad Murad of Jamali tribe and the people of his community displayed proper order and discipline. Had they desired, they would have expelled these Katohars easily. The report is submitted."
This report establishes that the applicants had possession of the land in dispute at the relevant time and further, that they had no desire whatsoever to take the law into their hands. If, as submitted by Mr. Munawar, Mr. Alkozai relied on this report, then I have to state with regret that the impugned orders are not only illegal but perverse, became the report not only supports the claim of the applicants for physical possession of the land in dispute but it commends them for their1 respect for the law; therefore if this report influenced Mr. Alkozai to attach their land, his orders are utterly indefensible, and if such orders are allowed to stand, they will put a premium on aggressiveness and violence.
7. Mr. Khalid Ishaque then referred me to the representative suit filed by the Jamalis in the District Magistrate's Court and pointed out that after the District Magistrate had rejected the /3 prayer for an injunction, the Jamalis had filed an appeal in the High Court of West Pakistan, and on 18-7-1966 a learned Single Judge of the West Pakistan High Court had granted them ad interim injunction which was confirmed on 10th October 1966. He therefore submitted that, as the civil Court already bad seisin of the dispute between the parties, Mr. Alkozai was not competent to entertain an application under section 145, Cr. P. C. on the same facts. In support of this submission Mr. Khalid Ishaque referred me to a judgment of the Supreme Court in Shah Muhammad v. Hug Nawaz .
Yaqub Ali, J. has summed up the position as follows : "The conclusion, we have reached thus, is that a case in which a civil Court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. Action can of course be taken under sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made."
I am in respectful agreement with these observations, but I have to point out here that the suit on which the applicants rely had been filed against the Government. However, as I have explained, it was a representative suit on behalf of the Jamali Tribe, therefore it was very unfortunate that Mr. Alkozai entertained an application under section 145, Cr. P. C. during the pendency of the injunctions granted by the High Court.
1 But as he did not have the benefit of the judgment oft their Lordships in Shah Muhammad's case, I do not need to go further into this aspect of the case.
8. Mr. Munawar Ahmed then submitted that the revision application had abated, in view of the Baluchistan Fat Feeder Ordinance, and this indeed was learned counsel's main submission before me. I have also to observe here that whilst Mr. Jaffery admitted that he could not defend the orders passed by Mr. Alkozai, he also supported Mr. Munawar's submission that these revision applications had abated on account of the said Ordinance. I will now examine this submission, but before doing so, I will briefly examine the provisions of this Ordinance.
9. The Ordinance was promulgated by the Governor of Baluchistan on 23rd December 1970, and came into force at once. A conspicuous feature of the Ordinance is its very elaborate preamble, which states that it has been promulgated "to safeguard the rights and interests of the Provincial Government and genuine owners of land in Pat Feeder Area of Kachhi" It then states that the proprietary rights in the entire area rest with the Government of Baluchistan and that many people have illegally occupied Government lands under false claims of ownership, therefore it states that "It is expedient to safeguard the rights and interests of the Government, as well as genuine owners".
I now turn to the provisions of the Ordinance. Section 1 deals with the title and commencement of the Ordinance, whilst section 2 is the definition section. Section 3 then prescribes that all the land in the Pat Feeder Area "shall vest wholly and absolutely in Government free from all encumbrances, and the right, title and interest of any person in the said land shall stand extinguished". Section 4 states : "a person who claims any right, title or interest in the land or any part thereof may, within 30 days of the coming into force of this Ordinance, submit his claim to the Tribunal." Section 5 deals with representative claims. Section 6 prescribes that a person who has not filed a claim under the Ordinance shall vacate possession of the land within the prescribed period. According to section 7, all claims preferred under section 4 have to be2 decided by a Tribunal appointed under the Ordinance and the powers of this Tribunal are set out in sections 8 and 9. Section 10 states that the Tribunal shall not accept any claim filed under section 4 unless the claimant can show that he has acquired his interest from the Government or from a person competent to grant an interest, and when such a claim is allowed the claimant is entitled, under section 11, to have the Record-of-Rights corrected in his favour in accordance with the Tribunal's order. Section 12 prescribes that if the Tribunal rejects any claim, the claimant shall if he be in possession of the said land, vacate possession thereof within 30 days of the date of the order of the Tribunal. Section 13 bars the jurisdiction of the Courts with regard to any matter or claim which the Tribunal is required or empowered to adjudicate upon under this Ordinance. Section 14 deals with the finality of the orders of the Tribunal. The other sections of the Ordinance are not relevant to the arguments of Mr. Jaffery and Mr. Munawar Ahmed.
11.As the land in dispute is admittedly in the Pat Feeder Area, on the basis of sections 4, 5 and 6 of the Ordinance read with section 13, the learned counsel submitted that, as all disputes whatsoever about land in the Pat Feeder Area had to be referred to the Tribunal, the revisions before me had abated. The argument amounts to a submission that section 145, Cr. P. C. has been repealed, in the Pat Feeder Area. But if the Legislature had intended to do so it could have made express provision in this respect. Be that as it may, turning to the sections on which Mr. Jaffery and Mr. Munawar relied, merely because section 3 extinguishes the rights of all land-owners in the Pat Feeder Area, this will not oust the jurisdiction of the Courts under section 145, Cr. P. C. because that jurisdiction is not concerned with title to land but only with disputes about the physical possession of land which is likely to lead to a breach of the peace. But learned counsel emphasised that even an interest in land fell within the ambit of the Ordinance, and that an interest in land was wide enough to include a dispute about the physical possession of land. The Ordinance has not defined an "interest in land, "but obviously the words would not include the physical possession of a licensee at will or of a trespasser. In any case, the words "interest in the land" have to be construed with reference to the objects of the Ordinance. Both the preamble to the Ordinance and the provisions of sections 10 and 11 show that an "interest in land" under the Ordinance means an interest supported by some claim of title which can be entered in the Record-of-Rights.
12.Mr. Munawar and Mr. jaffery then submitted that the effect of section 6 was to bring even disputes about physical possession with the ambit of the Ordinance because it required a person in occupation of land to hand over possession of that land to the Government. But this section has reference only to land occupied by person who have not filed a claim under the Ordinance, and the object of the section is to induce all persons in possession of land to file claims before the Tribunal.
I do not see how it is relevant to the definition of an "interest in land" under the Ordinance. In any case, the section is not applicable to persons in possession of land who have preferred a claim before the Tribunal. Their right to possession continues until their claim has been rejected by the Tribunal or by the High Court in appeal. Whilst the right to possession of persons who have filed claims before the Tribunal is thus protected, what is to happen to disputes about possession that may lead to a breach of the peace? As the promulgation of the Ordinance will not prevent people from taking the law into their own hands, the necessity for provision like section 145, Cr. P. C. remains. However, as, according to learned counsel, this section had been repealed by implication. I invited them to show me whether the Tribunal had been invested with similar powers to prevent a breach of the peace. Neither Mr. Jaffery nor Mr. Munawar could refer me to any provision in the Ordinance which would enable the Tribunal to take action to prevent a breach of the peace. On the other hand, section 8, to which Mr. Khalid Ishaque referred me, confers on the Tribunal the magisterial powers which have been specified in that section. As these powers do not include the power of taking action under section 145, Cr. P. C., I accept Mr. Khalid Ishaque's argument that the Tribunal is not competent' to exercise the powers of a Magistrate under section 145, Cr. P. C. therefore, bearing in mind the presumption in favour of the jurisdiction of the Regular Courts, and the necessity of preserving the jurisdiction to prevent a breach of the peace. In my humble opinion, the Ordinance has not curtailed the jurisdiction of the Courts under section 145, Cr.
P. C.
11. I now turn to section 13 which, according to Mr. Jaffery and Mr. Munawar, bars the jurisdiction of the Courts. This section reads as follows : "13. No Court, Civil, Criminal or Revenue, or other authority shall have jurisdiction to take cognizance of or to adjudicate upon or in respect of any matter or claim which the Tribunal is required or empowered to adjudicate upon under this Ordinance, and all proceedings before any Court or other authority in respect of any such matter or claim which were pending at the time of the corning into force of this Ordinance shall abate."
On a plain reading of the section it ousts the jurisdiction of the Courts only with regard to any matter which the Tribunal "is required or empowered to adjudicate upon" under the Ordinance. But I have explained that the Tribunal has not been invested with the powers of a Magistrate under section 145,G Cr. P. C. nor with any powers for preventing a breach of the peace. Therefore, as clause ousting the jurisdiction of the Regular Courts have to be construed strictly, it is clear that the jurisdiction of the Courts under section 145, Cr. P. C. is not barred by the Ordinance. The result of this finding is that the revision applications before me have not abated, and as the orders passed by the District Magistrate on the complaint of the second and third respondents in Criminal Revision No, 5 of 1967, and on the complaint of the first respondent in Criminal Revision No, 8 of 1967 are illegal, the revisions are allowed. PLD 1961 SC 426 PLD 1970 SC 470