MUHAMMAD ROS HAN ESSAN I, J.--- The petitioners filed Const. Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking declaration that the impugned order dated 19.10.1998, passed by the respondent No. 3, be set aside as having been passed in contravention of the law and without consideration and in violation of the land grant policy. The petitioners further sought declaration that the period of lease has been extended from 10 years to 30 years automatically, pursuant to Notification No. KB-1/1/30/72/82, dated 19.1. 1999.
2. The brief facts for the purpose of disposing of this petition are that on Hafiz Memon Jokhio, predecessor-ininterest of the petitioners, was granted a piece, of agricultural land admeasuring 6- 20 acre sin Deh Darsano Channo Taluka and District Malir, Karachi for vahi chahi cultivation by the Collector, Karachi (East) on 1.3.1971 in open kutchery as he was resident and a small khatedar, having mohagho rights over the land applied for. It is alleged in the petition that lease initially was for one year and was renewed during 1971-72 and 1972-73 by the competent authority. He further stated that one Mst. Bhaiti raised objection against the renewal of the grant in favour of the predecessor-in-interest of the petitioners for the first time in 1973-74, but her objection was overruled and land was once again granted to late Hafiz Memon Jokhio on 23.12.1974 for 10 years.
The said Mst. Shalti approached Commissioner, Karachi against the order of the Deputy Commissioner, who directed the Additional Commissioner, Karachi to treat the Misc. Application of Mst. Bhaiti as appeal and decide the same on merits. The Additional Commissioner, Karachi dismissed the appeal by his order dated 26.6.1978, against which revision was preferred before the Member, Land Utilization, Board of Revenue, Sindh, Hyderabad, who rejected the same on 20.7.1978 and review petition was also dismissed on 14.1.1979. Against the said orders Mst. Bhaiti preferred Const. Petition No. 853/1979, which too was dismissed in limine vide order dated 22.8.1979 with an observation that the claim of petitioners (Mst. Bhaiti) in the petition, if any, be examined and considered after notice to them at the time of fresh disposal of land in question after expiry of the lease. It is alleged that on 9.10.1983, the Deputy Commissioner, Karachi East renewed the lease of the disputed land in favour of the predecessor-in-interest of the petitioners for 10 years, i.e. From 1983-84 to 1992-93. Mst. Bhaiti and one Yar Muhammad filed Appeal No. 13/1984 against the renewal of lease in favour of late Hafiz Memon Jokhio and the appeal was dismissed. After dismissal of the appeal and the revision application, respondent filed Const. Petition No. D 809/1989, which was dismissed on 5.8.1989 on the ground that disputed questions of facts, raised in the petition, could not be adjudicated upon in Const. Petition. The respondent then filed Suit No. 1750/1989 in the Court of Ilird Senior Civil Judge, Karachi East against the petitioners challenging the fresh renewal of the lease for 10 years in favour of the predecessor-in-interest of the petitioners.
The said suit was withdrawn by the respondent on 25.1.1993 and the learned Senior Civil Judge granted the permission to withdraw the suit with cost of Rs.1,000/-. It is alleged in the petition that before the Civil Suit was disposed of as withdrawn, the present petitioners had applied for renewal of the lease to Deputy Commissioner, Karachi East and the application of private respondent for grant of the same land to them was also pending before the Deputy Commissioner, Karachi East and considering the facts and circumstances of the case the Deputy Commissioner renewed the lease for 30 years in favour of predecessor-in-interest of the petitioners by his order dated 29.1.1983. The respondent filed appeal No. 22/1993 before the Commissioner, Karachi against the order of the renewal. The Additional Commissioner-I, Karachi remanded back the case to Deputy Commissioner vide his order dated 25.7.1993, against which order the petitioners filed Const.
Petition No. 1921/1995, which was disposed of on the statement of the Advocate-General, Sindh and the case was remanded to Additional 'Commissioner-11, Karachi for disposal afresh in accordance with law with notice to all the parties concerned. After hearing the parties,' respondent No. 3 dismissed the appeal vide his order dated 23.10.1996, against which the respondent filed Revision Application No. SROR-227/1996 before the Board of Revenue who set aside the order passed by the respondent No. 3 vide his order dated 19.10.1998 and remanded the case to respondent No. 4 with a direction to dispose of the land in question in open kutchehry as per rules. Aggrieved by the said order, the petitioners filed this Constitutional Petition.
3. We have heard Mr. Aleem Akbar M. Shaikh, learned counsel for the petitioners, Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh for respondents Nos. 1 to 6 and Mr. Abdullah Chandio, learned counsel for respondents Nos. 7, 9, 11 and 12.
4. The learned counsel for the petitioners contended that the lease was renewed for another 30 years in pursuance of Notification No. KB-1/1/30/72/82, dated 19.1.1992, issued by the Land Utilization Department and stated that since the lease has been renewed for 30 years by virtue of the said Notification, the respondent cannot cancel the lease and the impugned order passed by the respondent is as such without lawful authority.
5. On the other hand, the learned Additional Advocate-General, Sindh as well Mr. Abdullah Chandio, appearing on behalf of the respondents, argued that the petitioners have not come with clean hands and concealed material facts. They argued that the petitioners are not entitled for the grant of land in question and enter transaction is based upon fraud and misrepresentation of facts. The petitioners are not the residents of the area nor khatedars or agriculturists, entitled for the grant of the land. They further stated that the petitioners applied for the renewal of the lease order forged and fabricated signatures of late Hafiz Memon ]okhlo, who expired on 5.1.1984. By the impugned order the learned Member, Board of Revenue ordered that the Deputy Commissioner, Malir had illegally extended the period of lease for 30 years without holding open kutchehry and as such the impugned order of the learned Additional Commissioner-11, Karachi is set aside and matter was remanded to Dy. Commissioner, Malir for disposal of the land in open kutchehry as per rules. The terms and conditions of the grant provided that the lessee shall utilize the land within 12 months of the grant, failing which the land with structures, if any, thereon, shall liable to be resumption without any compensation for the structure constructed or development of the land carried out by the lessee. The terms of grant further provide that in the event of the death of the lessee, the Deputy Commissioner/Revenue Officers, Kotri Branch, unless he decided to resume the grant absolutely reserve to himself the right to lease out the land to anyone of the heirs of the deceased after hearing the other heirs for the unexpired period of lease provided the deceased/lessee has satisfactorily fulfilled the terms and conditions of the lease. The petitioners had failed to produce application, by which it is alleged that the deceased had applied for the renewal of the lease during his lifetime, the authenticity of which the respondents are questioning. The petitioners also failed to produce any document on record that they have not committed breach of any terms and conditions of the lease and are entitled for the renewal of the lease in their favour. These are the disputed questions of facts, which cannot be adjudicated in writ jurisdiction, and to decide the same evidence is required. The petitioners have not even cared to call for the record from the respondents, particularly the alleged application filed by the deceased for renewal of the lease so as to ascertain whether in fact such application was filed by the deceased or same has been manipulated in order to get extension in the period of the lease are to get benefit of the Notification dated 19.1.1992. The detailed counter-affidavit has been filed by the private respondents as well as parawise comments have been field by the official respondents. In the counter-affidavit private respondents made serious allegations of forgery and manipulations in the record. The said allegations have not been denied by the petitioners by filing the rejoinder affidavit and as such the same go without any rebuttal.
These are the reasons of our short order dated 8.4.2003.