1. MUHAMMAD ASLAM ARAIN, J.---For orders on Miscellaneous 5981 of 19.94. Since the petitioner is disposed of finally, no orders are required to be passed on this application.
2. For hearing of Misc. Applns Nos 3149/94 695/92 and 696/92.
3. These are applications for taking action under contempt of Courts Act for violation of the orders of this Court and are moved either by the petitioners or by the respondents. From the counter- affidavits, filed to these applications, we do not consider it appropriate to pass any orders as the matter is finally disposed of.
4. For hearing Miscellaneous Application No 694/1992.
5. This is an application for injunction and no orders on this application are even required to be passed as we are finally disposing of the matter and the question of grant of injunction or otherwise does not arise. --The petitioners pray for the following relief:---
(1) Declaration that the impugned order, as passed by the respondent No. l respectfully dated 8th and 12th March, 1989 (Annexures P-13 and P-14) stand quashed and or set aside as the impugned orders have been passed without jurisdiction, without lawful authority, are void and to no legal effect;
(2) A prohibitory injunction do issue to the respondents to refrain from taking any step or action against the petitioners in respect of their quiet and peaceful enjoyment of the subject land/plot pursuant to their title which ensures for their benefit and advantage;
(3) Any other order or direction deemed fit and proper, in the circumstances of the case by way of substitution or addition to the foregoing and also in relation to subsequent event transpiring after institution of the petition be also passed by the Hon'ble Court.
6. It would be advantageous to give the facts of the case, as disclosed in the petition.
7. Urban Evacuee Survey No. 322 Deh. Gidu, Taluka and City Hyderabad, measuring 3-24 acres was owned by Tirathdas Manghanmal, as reflected in Form VI of Patwari Register, for the year 1937-48.
8. Out of the said survey number an area of 1 acre was carved out and allotted to predecessor-in- interest of petitioners Nos. l to 5 (late) Mst. Sharifan widow of Liaquat A.I Khan vide a Khatoni dated 26-10-1971 against her URV entitlement certificate dated 11-4-1970. Mst. Sharifan died and was succeeded by petitioners Nos. l to 5 and the mutation in respect of the rights and interest of the Petitioners Nos. l to 5 in the subject land/plot was duly shown in revenue certificate No.ARM/1247 dated 1-12-1971. The mutation in respect of the residuary area and its transfer were affected in favour of third party.
9. Upon the sub-division of the said land, petitioners Nos. l to 5 were put into actual possession of the subject plot measuring 1 acre. On 17th October, 1988 the petitioners Nos.1 to 5 jointly executed a 99 years registered lease in favour of the petitioner No.6 which was registered under Registration No.354 at pages 31 to 39. The petitioner No.6 pursuant to the registered lease in his favour, as aforesaid, was inducted into actual physical possession who thereafter obtained water and power connections for the said plot. Petitioner No.6, Hi-Tech International (Pvt) Limited has for its directors amongst others, Nazar Muhammad Quresni and Shabbir Ahmad Khan.
10. While the above Misc. Civil Appeal was pending and with a view to destroy the rights of petitioner No.6 in the land the respondent No. l hurriedly proceeded to pass impugned order dated 8th March, 1989 at the back of the said petitioner, cancelling petitioner's interest in the area of 1 acre, which is in dispute. The said order was followed by another order dated 12th March, 1989 and this exercise of jurisdiction by the respondent No. 1, according to the petitioners, was based on mala fide, as the respondent No. l had no powers under law to pass the impugned orders.
11. During the pendency of this petition, Hyderabad Municipal Corporation moved an application to be joined as a party and such application was granted whereupon amended petition showing Hyderabad Municipal Corporation as respondent No.6 is filed.
12. The respondent No. l who at the relevant time was Additional Deputy Commissioner-I, Hyderabad, filed his affidavit controverting the allegations in the petition. He stated that because of Civil Suit No.34/1989 filed by the petitioners, a detailed inquiry and investigation was held which revealed that the documents filed alongwith the petitioners were forged. He also stated that the lease in favour of the petitioner No.6 for 99 years was violative of the law. It may be made clear, that this affidavit was filed by the respondent No. l to an application for contempt moved by the petitioners.
13. There is another affidavit of the SDM, Latifabad, Hyderabad, in reply to a contempt application which indicates that he and the Tehsildar, Latifabad, had verified R.L.II and other relevant documents, on verification of which it transpired that the orders impugned in this petition were in accordance with law.
14. We have heard learned counsel for the parties and perused the record. The contentions raised on behalf of the petitioners are that the disputed land was at one time declared as an Evacuee Land and allotted to Mst. Sharifan, on whose death, the land devolved upon her heirs (Petitioners Nos. 1 to 5) and on the date the impugned orders were passed, the respondent No. l was not competent in law to have exercised jurisdiction under the Displaced Persons Compensation and Rehabilitation Act, the Evacuee Property Laws or even under section 164 of the Land Revenue Act under which provision the orders impugned are purportedly passed. It is also contended that under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) only pending proceedings were to be decided and that also by the officer as may be notified by proceedings the provincial Government in the official Gazette. In respect of the disputed area, neither any proceedings were pending immediately before the repeal nor the respondent No. l was a notified officer when he assumed jurisdiction and passed the impugned orders. It is next contended that the respondent No. l could not exercise jurisdiction under subsection (2) of section 164 of Land Revenue Act, 1967, as the matter was outside the scope of the Land Revenue Act. It is further argued that under subsection (3) of section 164 of the Land Revenue Act, the respondent No. l could call for the record and proceedings taken or order made in appropriate cases, but not in this case and if in his opinion it was considered necessary to modify or reverse any order, he had to report the case with his opinion thereon for the orders of the Commissioner. Instead of doing so, the respondent No.1. Not only assumed jurisdiction under section 164 of the Land Revenue Act, which was not attracted, but he failed to report the case with his opinion for the orders of the Commissioner and hurriedly passed the orders at petitioners back and without affording any opportunity of hearing to them. In support of all these contentions, learned advocate has referred the following cases:--
(1) Khuwaja Bashir Ahmad v. The Deputy Settlement Commissioner, Rawalpindi and others 1991 SCM R 1604.
(2) Raja Hasan Akhtar and others v. Akbar Khan and others 1981 SCM R 503.
(3) Ch. Taj Din v. Begum Nazeer Ahmed Khan and another 1989 CLC 2436.
(4) A.I Muhammad and 3 others v. Muhammad Bachal and eight others 1992 M LD 2436.
(5) Mai. Riaz Ahmad Rashid and others v. The State and others 1991 CLC 277.
(6) Ameenullah and 2 others v. Qalandar Khan and 4 others 1993 SCM R 2307.
15. Learned Additional A'-G. Sindh, appearing for the official respondents, except intervenor, has suggested that it is a fit case which may be remanded to the respondent No.1 for deciding it afresh after hearing the parties aggrieves because, documents filed by the petitioner if considered by this Court, would amount to deckling factual controversy when the respondents had questioned the genuineness of all these documents. It is also contended that the petitioners had committed fraud and manipulated all documents including the entitlement certificate, the receipt of payment of rehabilitation fees, the Khatonis, the Possession certificate or the entries in the relevant revenue record.
16. We have considered all above contentions raised on behalf of the parties and have perused the referred documents, annexed with the petition. We feel that it would be appropriate to refer to some of the documents filed with the petition, on the basis of which the disputed land was either allotted to Mst. Sharifan or devolved upon her successors or thereafter taken on lease by the petitioner No. 6. The entitlement of the allottee Mst. Sharifan is reflected in URV issued by the Central Record Office (West), Pakistan, Lahore (Annexure "C"), the Khatoni in favour of Mst. Sharifan dated 2-10-1971 (Annexure "B"), the legal heirship certificate on the demise of Mst. Sharifan (Annexure "P-26") clearance certificate (Annexure "P-27") dated 8-10-1971, mutation order dated 1- 12-1971 (Annexure "P-1 "), mutation in the Dakhil Kharij form Register (Annexure "P-2"), Mashirnama of possession dated 26-10-1974 showing that the possession of 1 acre was delivered on the said dated (Annexure "P-4") and subdivision sketch (Annexure "P-5"). Thereafter, we have before us a registered lease-deed whereby the petitioners Nos. l to 5 had leased the area to the petitioner No.6 for a period of 99 years and on the basis of which water and electricity connections were obtained by the petitioner No.6. This mass of documentary evidence cannot be brushed aside or rejected on the basis of an affidavit filed by either the respondent No.1 or by other functionaries of the Government. All these documents are certified to be the true copies of the originals.
17. The impugned order dated 8th March, 1989 reflects that on verification of the rehabilitation record it transpired that there was no entry with regard to allotment of land to claimant Mst. Sharifan in the R.L.II register which is a basic record to certify the genuineness of the allotments; that the allotment is only a paper allotment without physical possession and payment of rehabilitation fees, which is essential, as per rules; that the clearance certificate was issued in the year 1971 whereas the Khata was affected in the revenue record after lapse of four years and lastly that consequent upon such observations the allotment made in the name of claimant Mst. Sharifan was cancelled. The second order impugned this petition is dated 12th March, 1989 which is passed after four days of the earlier order, and it is directed that the remaining area (3.04 acres) and the disputed area of 1 acre are reserved for Government purposes (for construction of offices/residences of the officers of District Administration of Hyderabad District).
18. The questions before us are whether:
(1) The respondent No. l who passed the impugned orders on 8-3-1989 and 12-3-1989 had the jurisdiction to pass such orders in the purported exercise of his jurisdiction under section 164(2) of the Sindh Land Revenue Act, 1967;
(2) Whether on repeal of the Evacuee Property and Displaced Persons Law Act (XIV of 1975) which came into force at once and was deemed to have taken affect on the first day of July, 1974, the respondent No.1 had the jurisdiction to reopen a past and closed chapter; and
(3) Whether the impugned orders could have been passed by the respondent No. 1 without hearing the persons likely to be aggrieved by such orders, and whether in the circumstances it would be appropriate to remand the case to respondent No .l for rehearing.
19. To all these questions the answer has to be in the negative.
20. Section 164(2) of the Land Revenue Act, 1967, reads as under "164.--(1) ......................
(2) A Commissioner or Collector may at any time of his own motion or on an application made to him within 90 days of the passing of an order call for the record of any case pending before or disposed of by, any revenue officer under his control.
(3) If in any case in which the Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed he shall report the case with his opinion thereon for the orders of the Commissioner.
21. (4)------------------------.--- The impugned orders are y passed by the respondent No.1 in the purported exercise of his jurisdiction under subsection (2) of section 164 of the Land Revenue Act. While assuming such jurisdiction the respondent No. 1 completely ignored the provision of subsection (3) of the said section which lays down that if in the opinion of the Collector, who has called for the record, it is considered that the proceedings taken or order made should be modified or reversed, he had to mandatorily report the case with his opinion thereon for the orders of the Commissioner. The respondent No. l not only assumed jurisdiction illegally but also acted with material irregularity in passing the impugned orders which was beyond his scope and authority.
22. The first order dated 8th March, 1989 impugned in this petition reflects that the mass of documentary evidence in favour of the allottee, her successors or the lessee (petitioner No.6) have been held to be not genuine and/or forged in a summary inquiry and on the ground that there was no entry in R. L. II Register. And further on the ground that there was no record of either the payment of mutation fee or the corresponding entry in the revenue record showing the clearance of the arrears. All the findings of the respondent No. l are not only perverse, but against the record. Even before this Court all that has been stated on behalf of the official respondents, is that the documents filed with the petition were forged and were not genuine.
23. The second question that could arise is whether on repeal of the evacuee and rehabilitation laws with effect from 1-7-1974, respondent No. l before whom no proceedings were pending and who was not even a notified officer under section 2 of the Act XIV of 1967, could suo motu act and pass the impugned orders. To this also the answer has to be in the negative. In the case of Kh.Bashir Ahmad (1991 SCM R 1604) the facts were that the property in question was transferred to the appellant in the said case in 1964 who secured PTD after depositing transfer price and transfer of property was duly made in his favour, which attained finality. It was observed that the evacuee laws were repealed on 28th January, 1975, on which date said case was neither pending before settlement authorities nor before High Court/Supreme Court and the notified officer, therefore, had no jurisdiction whatsoever to reopen the prosecution, which was past and closed. It was further observed that the High Court also could not remand the case to same authority for any decision. In the case of Raja Hasan Akhtar 1981 SCM R 503 it was observed that the Deputy Settlement Commissioner being devoid of jurisdiction to cancel PTD after promulgation of Act XIV of 1975, the observation of the High Court that the petitioner was free to prosecute his claim in suit filed by him, was not correct. The rule laid down in the case of Ch. Taj Din 1989 CLC 2436 is not applicable to the facts of this case. In the case of A.I Muhammad 1992 M LD 2436 the order of the Commissioner cancelling grant of land of the petitioner in suo motu jurisdiction after prescribed period of five years of continuous cultivation of land was held as without jurisdiction, illegal and void and in the result the same were set aside. In the case of Maj. Riaz Ahmad Rashid 1991 CLC 277, which is a judgment passed by the Member, Board of Revenue, Punjab, it was observed that the claim of ownership of land by parties, the land being evacuee and relevant register R.L.II having been lost, reliance would have to be placed on record of rights prepared from time to time. It was also observed that entries in record of rights supported petitioners claim as owner of land in question. It was further observed that the settlement laws have been repealed in 1974 and no settled case would be reopened after the repeal of settlement laws on a miscellaneous application not connected with pending proceedings. In the case of Ameenullah 1993 SCM R 2307, it was observed that where a finding of fact given by a tribunal of, exclusive jurisdiction was so contrary to the material placed by it, High Court was not barred to render a finding afresh on the basis of material available on file. It was held that High Court's findings on jurisdictional fact being supported by material on record, was correct and need not call for interference.
24. We cannot agree with the suggestion of the learned Addl. A.G. Sindh, that it is a fit case to be remanded for rehearing by the respondents. To us the impugned orders, on the face of it, are passed without jurisdiction, are void ab initio and illegal, without hearing the petitioners and are passed on an inquiry which would reflect the maladministration in the offices of the official respondents.