Brief facts of the case are that the petitioners are resident of village Jarmot Kalan, Tehsil Gujarkhan, District Rawalpindi. They are co-sharers it possession of Shamilat land measuring 45 Kanals 5 Marlas bearing Khewa No.699, Khasra Nos.3321, 3719, 3672 as per copy of register Haqdaran Zamir for the year 1989-90. The petitioners decided to sell this land/property i.e Shamilat with possession to certain persons. They went to Halqa Patwari for entry of sale mutation. Patwari refused to do so on the ground that the respondents Nos. 1 and 2 have imposed ban on the sale of share/ownership of Shamlat -vide Letter No.205/Commissioner dated 15-5-1986 issued by the respondent No.1 and the Letter No.102-G. A.(R) dated 28-2-1990 issued by the respondent No.2. The petitioners feeling aggrieved brought the matter to the notice of Assistant Commissioner, Gujar Khan and to the respondents, why declined to do the needful. The petitioners objected to their jurisdiction any requested the respondents that the law did not permit them to impose ban over the rights guaranteed to them under the provisions of the Constitution o;: Islamic Republic of Pakistan. All their efforts went to vain thus they challenged the validity of the aforesaid letter/directions through the present writ petition.
2. Both these letters are quoted below with a view to appreciate the legality, propriety and exercise of jurisdiction by the respondents Nos. 1 and 2:--- "From: The Commissioner, Rawalpindi Division, Rawalpindi.
To The Deputy Commissioner/Collector, District Rawalpindi (By name), No. 205/Commr., dated 15th May, 1986.
Sub:ILLEGAL SALE OF SHAMLAT DEH IN VILLAGE CHUUAR HARPAL, TEHSIL RAWALPINDI.
Memorandum Reference. Assistant Commissioner (Sadar) is Memo No.1003/AC(S), dated 23-12-1986 addressed to the undersigned on the abovementioned subject.
2. The above referred merrio has been examined and it is found that A.C. (Sadar), it is hereby ordered that action on the following lines should be taken:---
(i) All Shamlati land in the Revenue Estate of Chuuar Harpal which is presently and illegally being shown in possession of individual land--owners should be ordered to be forthwith restored in the names of `Maqbooza Malikan'. Moreover, in future no `Hissadari possession should be entered on such land except through the procedure provided by law.
(ii) All sale of Shamlat land in the revenue estates of Chhuar Harpal and Kotha Kalan should be stopped immediately. In future all sales should be made conditional on getting that land partitioned first.
(iii) The sale of Shamlat land from Khana Kasht is not provided under any law. This unlawful practice should be discontinued immediately.
(iv) All the orders of mutations secured by fraud should be reviewed by the following under.
(v) Encroachments on the graveyard and Talab should be removed in exercise of the powers vested in the Revenue Officer under section 175 of the Land Revenue Act, 1967.
(vi) Correction in Revenue Record with regard to the entries in columns of cultivation said to have been recorded illegally and contrary to the actual position should also be ordered to the District Collector accordingly.
(vii) Departmental action should be taken against all the revenue officials who have been found guilty on various counts of misconduct and fraud criminal cases should also be registered against them particularly the following patwaris who were guilty of the most blatant kind of interpolation in the Revenue Record:---
(a) Abdur Rehman Patwari (Retd.)
(b) Ghulam Mustafa Patwari (Retd.)
(c) Abdur Rehman Patwari (Halqa Pindora)
(d) Qazi Muhammad Yousaf (Halqa Rawalpindi)
(e) Muhammad Afsar Patwari (under suspension),
(viii) Criminal cases should be instituted against all the private persons who have been found guilty of fraud. The victims of the frauds should also be compensated out of the amount of fines imposed and realised from the persons who defrauded them, this would meet the ends of justice.
(ix) A complete record of vacant land as well as houses built upto date should be got prepared immediately.
(x) Further, construction of houses etc. On the land which is subject-- matter of this case should be stopped forthwith.
(xi) Details of theft to the stamp duty, income tax and property tax should be prepared separately for passing on the relevant Authorities for initiating cases against the defaulters under the concerned laws accordingly for recovery of the Government dues from them.
(xii) As far as the partition of Shamalat land is concerned it can be ordered under para. 22(a) (c) of the Land Reforms Regulations 1972 because the whole areas falls within the Cantonment Limits and restriction said to be enforced by the said provision of MLR 115 stands waived in this case. You should therefore examine the possibility of treating this land as unripe of land bona fide required for the purposes of buildings thereon.
4. The above orders should be complied with strictly. The proceeding should be held on day to day basis to accomplish the target within a shortest possible period. A fortnightly retort showing the progress achieved should be sent up to the undersigned regularly.
(Sd.) Pervez Hamid Commissioner, Rawalpindi Division.
Endt. No.206/Commr., dated 15th May.
A copy is forwarded to the Assistant Commissioner/Collector, Saddar Sub-Division, Rawalpindi for similar necessary action with reference to his memo No. Dated.
(Sd.) Commissioner, Rawalpindi Division.
A copy with a copy of the memo No. Dated is forwarded to the Deputy Secretary, Prime Minister Secretariat Rawalpindi for information with reference to his office memo.
No.Dated.
(Sd.) Commissioner Rawalpindi Division From The Deputy Commissioner, Rawalpindi.
To All the Assistant Commissioners, in the District Rawalpindi.
No. 102/G.A.(R), dated 28-2-1990.
Sub:ILLEGAL SALE OF SHAMLAT LAND IN VILLAGE CHUUAR HARPAL, TEHSIL RAWALPINDI.
Memorandum A photo copy of the directive of the Commissioner Rawalpindi Division, Rawalpindi contained in Memo No.205/Commr., dated 15th May, 1985 is circulated for information and strict compliance. As regards the transfer of Shamlat land through oral mutations and Registered Deeds strict compliance of the above-quoted directive of the Commissioner be observed in letter and spirit in your respective Sub-Division as well. Any contravention of the directive will be seriously viewed.
FOR ASSISTANT COMMISSIONER (SADDAR) ONLY He is directed to submit a detailed report for the action as for taken by his office as envisaged in the directive of the Commissioner, Rawalpindi Division, Rawalpindi since its receipt in May, 1986.
Letter No.56/ is also addressed to you by the Commissioner, Rawalpindi Division, Rawalpindi in this regard.
(Sd.) Deputy Commissioner, Rawalpindi.
No./G.A. (R) Dated A copy is forwarded to Commissioner, Rawalpindi Division Rawalpindi for information with reference to Letter No.CO/HVC(R) dated 22-2-1990.
(Sd.) Deputy Commissioner, Rawalpindi.
3. The learned counsel for the petitioners contends that the share in Shamlat land is a proprietary right/property in the eyes of law. He relies upon reported judgment PLD 1979 SC (AJK)
123. Relevant portion is quoted below:--- "We are thus of the considered view that `share' in Shamilat and `right' in `Shamilat' are synonymous and contain import and meaning, 'share' in Shamilat means entitlement or right whatever it is `Shamilat' and `right' in Shamilat means .The `share' which a person owns in 'Shamilat'. If a person sells the right of ownership in Shamilat it definitely conveys his proprietary rights to the extent of his share in Shamilat:' ------------.
We are, therefore, of the view that 'Shamilat Deh' is a property for all practical purposes and intent.
The `share' or `right' in Shamilat Deh land as said earlier being synonymous has a separate entity and it is not a `right' attached with some land or with some individual Practically, all the villages have their own `Shamilat' but all the occupants of land cannot become owner and proprietor of `Shamilat' but all the occupants of land cannot become owner and proprietor of `Shamilat Deh'. To quote for instance, neither the tenants nor the `adan maliks' are entitled to any share in the Shamilat Deh'. Only `Aala Malik' is entitled to the Shamilat Deh or land or both. He is entitled to sell land without the share in Shamilat proportionate to his land and can retain full share of his 'Shamilat' and vice versa. It is to be noted that share of the Shamilat is always recorded in the record of rights in column of proprietor and is divided according to the holding of the proprietors."
4. The learned counsel is of tie view that it is not within the competency of the Commissioner or the Deputy Commissioner to impose ban on the sale of Shamilat land. He further argued that both the above-quoted letters pertain only to villages Chhuar Harpal and Kotha Kalan, Tehsil and District Rawalpindi. The letters issued by the Commissioner, Rawalpindi Division has no concern with the other Sub-Divisions. The instructions/directions contained therein imposing ban on the sale of Shamilat shale circulated and requiring its strict compliance by the Deputy Commissioner, Rawalpindi regarding Shamilat of other Sub-Divisions has no nexus to be acted upon the directions contained in Letter No.102/GA.(R), dated 28-2.1990. He placed reliance also on a number of other judgments namely:---
(i) 1989 SCMR 427
(ii) PLD 1959 SC 9
(iii) 1992 SCMR-138
(iv) PLD 1974 SC 193
(v) 1989 SCMR 93
(vi) PLD 1978 SC (AJ&K) 75
(vii) PLD 1980 Lah. 647
(viii) 1993 SCMR 2357
(ix) PLD 1987 Lah. 537 He has, therefore, prayed that both the letters be declared illegal, without jurisdiction, ultra vires and ineffective in the eyes of law having no legal justification to impose ban embodied therein on the sale of Shamilat land by its owners/shares.
5. I heard the learned AA.-G. Assisted by ADCR etc. Firstly, they opposed the contention raised by the learned counsel for the petitioners, but after going through the contents of the letters and Articles 4 and 23 of the Constitution of Islamic Republic of Pakistan, frankly conceded that the imposition of ban on the sale/transfer of the land by owners and co-sharers in Shamilat had no legal sanctity especially in Sub-Division Gujar Khan. The letter issued by the learned Commissioner on 15-,55-1986 pertains to two villages Chuhar Harpal and Kotha Kalan of Rawalpindi Sub-Division only. Tehsildar and Assistant Commissioner, Gujar Khan were summoned in the Court. In their presence an order was passed, on 9-3-1995 with clear direction to the Officers that the letters issued by the Commissioner and Deputy Commissioner had no legal justification: The directions were declared ineffective in the eyes of law to the extent of imposing ban over the sale/transfer of Shamilat land by owners and sharers including the petitioners.
6. On 9-3-1995, it was considered appropriate to see vires of both the letters vis-a-vis Shamilat land located in all the Sub-Divisions of Rawalpindi, hence the Deputy Commissioner, Rawalpindi was directed to appear in person alongwith record on 14-3-1995.
7. On 14-3-1995 i.e. Today, the Deputy Commissioner alongwith other concerned Officers of the District is present. He was called upon to explain as to why the letters in questions be not declared illegal, void, ultra vires and ineffective as the Commissioner and Deputy Commissioner had no powers to impose ban on the sale. He has tried to explain the matter in his own way by submitting that though every citizen has right to possess proprietary right but all such rights are to be exercised subject to law. He is of the view that `right subject to the law' includes the directions issued by the Deputy Commissioner or Commissioner in exercise of their powers. It is made clear to him that `right subject to law' means law which is passed/enforced by the legislative authority duly empowered by the Constitution of the Islamic Republic of Pakistan.
8. I heard the parties, perused the letters issued by the Commissioner and Deputy Commissioner, Rawalpindi. The letters in question embodying ban especially vide para 2(i) & (ii) of the Commissioner's letter and para. 1 o_ f the Deputy Commissioner's letters on the sale/transfer of Shamilat land from `Khana Kashat' etc. In respect of the villages Chuhar Harpal and Kotha Kalan, Tehsil & District Rawalpindi. The learned Commissioner proceeded on the assumption that the sale of Shamilat land by the owners had not been provided in any law. He has, therefore, directed that the sale of Shamilat land in revenue estate of villages Chuhar Harpal and Kotha Kalan must be stopped immediately, while the learned Deputy Commissioner went further and mentioned in his letter that oral transfer/sale of Shamilat and through mutations or registered deed must have the compliance of the directions issued by the Commissioner. He has also directed all the Assistant Commissioners of the District Rawalpindi to comply strictly with the directions in their respective Sub-Divisions.]
9. Articles 4 and 23 of the Constitution reads as follows:--- "Article 4:
(1) To enjoy the protection of law and. To be treated in accordance with law is the inalienable right of every citizen, where ever he may be, and of every other person for the time being within Pakistan.
(2) In particular---
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
Article 23: Every citizen shall have right to acquire hold and dispose of property in any part of Pakistan, subject to the Constitution and any reason. He restrictions imposed by law in the public interest."
10. It is an inevitable and inalienable right of every citizen, where ever, he may be, to enjoy protection of law besides other matter which regard to any action detrimental to life, liberty, body, reputation or property except in accordance with law. Under Article 4 `except in accordance with law' does not, mean instruction and directions issued by the Commissioner and Deputy Commissioner of the District. In fact, words `in accordance with law denote the law, which is promulgated by way of any statute/Ordinance passed by the legislative body or by the authority empowered under the Constitution of Pakistan. Similarly Article 23 of the Constitution of Islamic Republic of Pakistan maintains the rights of every citizen to acquire, hold and dispose of property in any part of Pakistan subject to reasonable i.e. Restrictions imposed by law in the public interest.
Word,, used it :his article `any reasonable restrictions imposed by the law in the public interest' do also denote that the restrictions are to be imposed by law which is legislated by a Legislative body and not by the Administrative authority like the Commissioner and Deputy Commissioner of a Division/District.
11. I have read the judgments quoted by the learned counsel for the petitioners. It is clear from these judgments that the share/ownership in Shamilat land is a property and if anybody owns he has every right to use or dispose it because of the protection guaranteed by the provisions of the Constitution. Both the Officers have assumed jurisdiction and powers of Legislature in the matter on their own having no legal justification. They have acted in the matter as if the division/district is under the yoke of colonial rule. The Administrative Authorities are not vested with the powers to make law and impose it by imposing and putting such like clog over the right/title guaranteed by the Constitution. The Commissioner and Deputy Commissioner are, therefore, directed to refrain from acting beyond their jurisdiction. The Commissioner shall recall the instructions contained in his letter to this effect and refrain from implementing the aforesaid ill-begotten imposition of ban over the right of ownership/shares in Shamilat in any case. However, if any--body transfers Shamilat land beyond his entitlement, it is within the competency of the authorities concerned to refuse sale/transfer through mutation but not by ways and means adopted by the Commissioner and Deputy Commissioner of supra Constitutional directions through the impugned letters.
12. From the contents of the aforesaid letter a quite .Interesting feature is evident that originally letter was issued with a view to impose ban over the sale/transfer of Shamilat land falling in two villages Chuhar Harpal and Kotha Kalan, but taking it an ordinary affair directions been shaped so extensively that the Deputy Commissioner directed all the Assistant Commissioner of Sub--- Divisions of Rawalpindi District to obey the directions of the Commissioner in their respective Sub- Divisions. During the course of arguments, the Deputy Commissioner has attempted to raise objection that nobody from the villages Chuhar Harpal and Kotha Kalan of District Rawalpindi has come forward to challenge the validity and legality of the directions. He thus prays the writ petition be dismissed solely on this ground. In this regard, it is made clear that the petitioners have challenged the propriety and legality of the directions issued by the Commissioner and Deputy Commissioner in toto. There is no bar to look into the matter and take into account all the actions taken by the respondents in contravention of the provisions of law. I have, therefore, no hesitation to interfere and redress the illegality committed by the respondents. The officers, in fact, transgressed to the extent that they have exercised the powers of a legislative body by passing directions which are not only violative of law but also the Constitutional provisions. To uphold the supremacy of law, the respondents are directed to consider both the aforesaid letters as non- existing with regard to the matter in issue narrated above. Copy of this order be sent to the Commissioner and Deputy Commissioner, Rawalpindi, with a direction to circulate it to all the Assistant Commissioners of the Sub---Divisions, with a copy to the Additional Registrar of this Court for necessary compliance with immediate effect. '