' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 27-10-1994 as contained in Letter No,1674 of 1994 of the even date issued by the Deputy Commissioner, Gujranwala i,e, respondent No,3, directing Tehsildar Wazirabad District Gujranwala, i,e, respondent No,4 to transfer the private land owned by the petitioners in the name of Province of Punjab as also the consequent Mutation No,216 dated 5-4-1995 sanctioned by the said respondent No,4 whereby the land comprised in Khasra No,361 owned and possessed by the petitioners was transferred in the name of the Province of Punjab. With the added prayer of writ of prohibition thereby seeking to restrain respondent No,2 i,e, Assistant Director Local Government and Rural Development, Gujranwala, from encroaching in any manner upon the personal and private property of the petitioners comprising Khasra No,361 by laying and constructing anything thereupon.
2. The relevant facts are that the predecessor-in-interest of the petitioners was owner of land measuring 123 Kanals, 13 Marlas situate village Kot Qazi Khurd, Tehsil Wazirabad, District Gujranwala, who being permanent resident of Lahore died on 16-7-1994 and was buried also at Lahore, whereupon the land aforenoted devolved upon the petitioners in accordance with their ordained shares. The present dispute relates to an area measuring 4 Kanals, 8 Marlas comprised in Khasra No,361 which according to the petitioners had all along remained under cultivation of the seasonal crops. It is the case of the petitioners that their predecessor-in-interest being a Parda observing and old and infirm lady did not visit her land and taking advantage of the same some interested persons of the village who were inimical towards her hatched a conspiracy and manoeuvred surreptitiously to change the Revenue Record thereby showing the said Khasra Number as Ghair Mumkin Rasta, but despite the change in the revenue papers as aforesaid the said Khasra number continued to be shown in the Revenue Record as personal and private property of the predecessor-in-interest of the petitioners in the occupation of one Muhammad Sadiq, who was cultivating the same as her tenant. Reference was also made to successive Jamabandis starting from 1969 up till 1981-82, wherein the said Khasra number is recorded to be under plough. In the next Jamabandi an area of 10 Marlas is shown as Gltair Mumkin Rasta while the rest of the area measuring 3 Kanals, 18 Marlas comprised in Khasra No,361 continued to be shown under cultivation. However, in the next Jamabandi for the year 1989-90 the entire area of this Khasra number was shown as Ghair Mumkin Rasta in the revenue papers, while on the spot the said Khasra number remained under cultivation. It was stated that this was done maliciously and taking advantage of the prolong illness of the predecessor-in-interest of the petitioners and her absence from the village. It was asserted that this constant edging on the part of the revenue officials in connivance with the villagers was done maliciously to gain advantage as also to cause loss to Mst. Shirin Fatima the predecessor-in-interest of the petitioners. It was then stated that the master stroke came in the year 1995 when the predecessor-in-interest of the petitioners was denuded of her ownership of the said Khasra number and Mutation No,216 dated 5-4-1995 was entered in the name of the Provincial Government. The said change was brought about on the directive dated 27-10-1994 contained in Letter No,1674 of 1994 of the even date issued by the Deputy Commissioner, Gujranwala.
3. The above said order as also the consequent mutation aforenoted have been challenged in the present Constitutional petition mainly on the ground that it militates with the principle of audi alteram partem inasmuch no notice was issued to the predecessor-in-interest of the petitioners or the petitioners before taking away their valuable property particularly when the right to property is guaranteed under the Constitution which could not have been taken away by anybody much less the Government without adhering to the law in that regard as also without paying compensation. It was also challenged on the ground that there exists a metalled road encircling the land of the petitioners and in the existence of this Pakka Road there was no question of paving and laying another road right from the lands of the petitioners and that too without acquiring the same and paying the compensation therefor. It was also urged that on the one side the land of the petitioners is already hedged by high rising banks which formed the infrastructure of the metalled road while on the other side if the road is paved and laid, it would be hedged again with the result that the rain water would accumulate on the land of the petitioners causing damage to their crops and also resulting in water logging and salinity in the soil. It was thus urged that the respondent- authorities had no lawful authority transfer the personal private property of the petitioners in the name of the Provincial Government, therefore, the total action taken in pursuance thereof under the direction of the Deputy Commissioner of the District, by the Tehsildar as also functionaries of the Local Government be declared to be without lawful authority and of no legal effect, consequently the prayer as aforenoted.
4. In view of the assertions forming subject-matter of this Constitutional petition, the functionaries of the Provincial Government were injuncted not to lay and pave any road in the said Khasra number. The report and parawise comments as called for were filed and since they were not supported by any revenue paper, therefore, this petition was admitted to regular hearing, whereafter the Provincial Government applied for vacation of stay which too was declined. The standpoint taken by the Provincial Government was to the effect that according to the Revenue Record pertaining to the consolidation for the year 1964-65 Khasra No,361 measuring 4 Kanals, 8 Marlas was Ghair Mumkin Rasta, but the petitioners had included the land comprising in this Khasra number in their ownership while the field staff by a clerical mistake had not taken notice of this act of the petitioners. It was then submitted that total action for mutating the land in the name of the Provincial Government was taken under the direction of the Commissioner of the area as contained in his Letter No,6295 dated 30-10-1994 wherein it was directed that the land forming part and comprised in a Rasta should be mutated in the name of the Government, whereupon a letter was issued by the Deputy Commissioner of the area on 27-10-1994 consequently a mutation was entered and attested in the name of the Provincial Government. It was also asserted that the paving of the passage as also laying of the road would be beneficial to the public-at-large.
5. At the hearing the learned counsel for the petitioners pointed out at the very outset that as per the showing of the respondents the total action was initiated on the basis of letter dated 30-10- 1994 issued by the Commissioner, Gujranwala Division, Gujranwala, thereby directing that the lands owned by private persons earmarked for roads be mutated in the name: of the Provincial Government. It was stated with surprise that how come the Deputy Commissioner of Gujranwala District came to know of the said letter even prior to the issuance thereof for he had issued a letter on 27-10-1994 i,e, three days prior to the Commissioner's letter. He relied on Articles 4 and 23 of the Constitution of Islamic Republic of Pakistan 1973 to contend that the rightto own and acquire property is enshrined in the Constitution while Article 4 ibid. Mandates that every person is to be treated in accordance with law. In amplification of the above said arguments reliance was placed on ' Muhammad Nawaz and 4 others v. Commissioner, Rawalpindi Division, Rawalpindi and 4 others (1995 MLD 1728) to contend that the expression 'in accordance with law' would not mean instructions or directions issued by the Commissioner or Deputy Commissioner and that the 'law' means law 'made by the legislative body and not instructions issued by the executive. He then relied on Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan and others (1992 SCMR 2450), whereby the directions issued by the Central Government were struck down by the Hon'ble Supreme Court of Pakistan holding that no person can be denuded of his private property by way of executive orders. Reliance was also placed on Government of Sindh through Secretary, Home Department, Kaachi and another v.
Abbas Ahmad, Advocate and 2 others (1994 SCMR 923), wherein it was observed that it is inalienable right of every citizen to be treated in accordance with law and that mandate contained in Article 4 is a salutary provision, therefore, the person interfering with the property of any other person must show that he has taken the action under the cover of law so as to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive.
6. The learned Assistant Advocate-General, on the other hand, maintained that the disputed Khasra number was shown to be Ghair Mumkin Rasta in the revenue papers, therefore, the same was rightly mutated in the name of the Provincial Government under the directions of the Commissioner.
7. The question which falls for determination is to the effect as to whether a citizen can be deprived of his valuable property under the executive orders and without adhering to the various provisions of law applicable thereto as also without affording him an opportunity of being heard in the matter.
The answer to the above said question is obviously in the negative. The right to acquire and hold property has been guaranteed in Article 23 of the Constitution of Islamic Republic of Pakistan. It is no doubt correct that the said right is circumscribed by some reasonable restriction and that restriction, to my mind, is the provision contained in the Land Acquisition Act, 1894, which prescribes a procedure for acquiring land for public purpose and if the land is acquired ultimately for payment of just compensation therefor. Provisions contained in Article 4 are another check on the said action for it has been ordained in the said Article that every citizen is to be treated in accordance with law. Article 4 precedes the chapter of fundamental rights granted to the citizens for the pertinent reason that this was assured at the threshold of the Constitution that every citizen would be treated in accordance with law. The wisdom is not far to understand for in a democratic State when the authority has been wrested from monarch of olden times it has been, assured to the citizens that the days of king's decree are over and that they would not be treated otherwise than in accordance with law. Article 4 is followed by the chapter granting and securing certain rights to the citizens. This is the spirit behind a democratic rule. It is to be understood that no citizen is to remain insecure so far as life, liberty, body, reputation or property is concerned and in particular to ward off personal likes or dislikes of the executive it was necessary to incorporate such a guarantee in the Constitution. In the instant case the orders issued by the Commissioner as well as the Deputy Commissioner are not backed by the law nor in accordance with law and can at the most be termed as an executive fiat, therefore, cannot be sustained. Learned Counsel for the petitioners very rightly relied on the case of Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan and others, noted supra. In the reported case Mr.Zulfiqar Ali Bhutto, Chairman of the People's Party while addressing a public meeting at Par Kalpani in Hoti promised that if the voters voted his party into power, he would, within one month of his taking charge, make the chain of shops tenanted by different persons and owned by Nawab of Hoti to be the property of the said tenants. It so happened that the Peoples Party won the election, whereafter Martial Law Order No,47 (Zone "F") was issued thereby transferring 237 shops to the tenants who were in occupation thereof. The vires of the said Martial Law Order were challenged before the Peshawar High Court in the case titled Nawabzada Muhammad Umar Khan and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Peshawar 1 and the said Martial Law Order was struck down by the Peshawar High Court.
The matter was taken to the Hon'ble Supreme Court of Pakistan where the appeal was dismissed, which case has already been referred and is reported as 1992 SCMR 2450. It was observed thus:-- "Martial Law Order No,47 (Zone "F") cannot qualify even as a legislative judgment. It does not adjudicate. It does not vindicate. It punishes a person by transferring his property to other without any reason or occasion for it. It is an executive fiat of the most arbitrary, unreasonable and ruthless character. It cannot and does not qualify as a law."
' It would be seen that the action proposed by the Commissioner as implemented by the Deputy Commissioner is also of most ruthless character, arbitrary and unreasonable for the private property of the petitioners has been taken away without the backing of law as also without any cause or justification thereof. The question can well be approached from another angle inasmuch as where was the need to create a second road while a metalled road was available and that too at a small distance. The argument of the learned Counsel for the petitioners that the said action is mala fide and manoeuvred, is not without substance for after all a functionary is obliged under the Constitution to show that he is interfering with any other person's property under the cover of law and then to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive. If any authority is needed, reference may be made to the case of Government of Sindh through Secretary, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others, (supra). In the instant case no such reasoning is available for if the metalled road was available at the site, where was the need to pave and lay another road from the private property of the petitioners. Again it transpires from the order passed by the Commissioner as well as the Deputy Commissioner that the Local Government tad been granted certain funds and to 'Wise the same the roads were being aved from the private properties of the citizens without adhering to the provisions )f law as applicable for the acquisition the private property and payment of compensation. The action is obviously tainted with mala fide. Additionally it is anybody's guess that how the Deputy Commissioner came to know on 27-10-1994 that the Commissioner of the area would pass an order on 30-10-1994 thereby directing that the private lands comprised in roads were being mutated in favour of the Provincial Government. The position as explained above leads to one irresistible conclusion that this despotic attitude of the executive be curbed with strong hand. As for the respondents' plea that Ghair Mumkin Rasta was even shown in the consolidation proceedings of the year 1964-65, suffice it to observe here that the same is not supported by any Revenue Record. Needless to add that the private property could not be converted into Rasta without the consent of the owners.
8. In the circumstances, this writ petition is allowed, resultantly the executive order dated 30-10- 1994 issued by the Commissioner, Gujranwala Division, Gujranwala as also the order dated 27010- 1994 issued by the Deputy Commissioner are declared to be without lawful authority and of no legal effect, resultantly the Mutation bearing No,216 dated 5-4-1995 is cancelled and quashed. As a corollary respondent No,2 is hereby restrained from paving and laying any road in the private land of the petitioners and is further directed to remove all the material from the land comprising Khasra No,361. The respondents shall also pay the costs of this petition.