AMIR HANI MUSLIM, J.--- Through this petition the petitioners have challenged orders of Chief Land Commissioner, Sindh, Hyderabad and Land Commissioner, Hyderabad, respondents Nos. 2 and 3 respectively, passed by them on the proceedings initiated by the petitioners.
2. The facts as pleaded -in the memo. Of petition are that an area admeasuring 15.35 Acres was granted under sales scheme of defunct West Pakistan Land Commission under paragraph 19 of Martial Law Regulations 64 of 1959 from Rabi 1959-60 to late Amir Bux, father and husband of petitioners Nos. 1 and 2 respectively. Such entry was kept in Form LC-13 on 16.12.1953. Pursuant to paragraph 19 of MLR, a sale agreement was executed in favour of Amir Bux by the Sub-Assistant Land Commissioner, Tando Allahyar, which sale-agreement was registered with the concerned Sub-Registrar. The petitioners claimed that their predecessor remained in physical cultivating possession of the said area of land and was paying installments in terms of the sale agreement besides the other Government dues.
3. After the promulgation of MLR 115 of 1972, the grantees of the said area were exempted from payment of installments in terms of Paragraph 28 of MLR 115. MLR 64 of 1959 was repealed by MLR 115 of 1972. The petitioners claim that by virtue of this repeal the status of land was changed from grant to that of Kabuli Land.
4. The petitioners also have pleaded to obtain loan from Agricultural Development Bank ("ADBP") after mortgage the land in question on 7.12.1985.
5. One Commodore Abdur Rahman, predecessor of Mst. Khatni and Abdul Ghafoor, the respondents Nos. 6 and 7 respectively, made an application to the Project Director, Sindh Gothabad, Board of Revenue, Hyderabad, the respondent No. 5 herein, seeking cancellation of Survey No. 504/1 and 3, which application was opined that the grant of the land to the petitioners was protected under paragraph 28 of MLR 115 of 1972. Subsequent thereto, the respondent No. 2 accorded permission to respondent No. 3 who after hearing the parties in exercise of his suo motu revisional jurisdiction passed orders on 30.1.1995 cancelling the grant of land in Survey No. 504/1&3, which area was 5,30 Acres and ordered that the entry kept in the record of rights in favour of the petitioners may be rectified accordingly .Further' directing the respondent No. 5 to take further action/step in the light of his decision.
6. The petitioners preferred Revision Application before the respondent No. 2 who on 7.1.1996 dismissed the said revision application holding that the petitioners could retain only 1.03 Acres of land out of Survey No. 504/1 and remaining area of the land 5.17 Acres was cancelled, modifying the earlier order of the respondent No. 3. Both these orders have been challenged by the petitioners in these proceedings.
7. Counter-Affidavit has been filed by respondent No. 8, besides the Comments by the, Additional Deputy Commissioner, Hyderabad. The respondent No. 8 has pleaded in his counter-affidavit that since more than 100 years the land under dispute was part of ,village Missan Wadee and was neither 'agricultural land nor was it remained under physical cultivating possession of the petitioners or their predecessor. According to the respondent No. 8, the grant of land to the predecessor of the petitioners was contrary to the provisions of MLR 64 of 1959 and or MLR 115 of 1972. He pleaded that the cancellation of the land was made after due enquiry, site inspection by the relevant authorities after providing opportunity of hearing to the petitioners. He submitted that the grant of land to the petitioners was unwarranted in law, and unless such grant was cancelled the villagers would be deprived of the facilities like water supply, electricity installation and gas supply, as the land in dispute was part of the village.
8.. In the Comments filed on behalf of the official respondents , it was pleaded that the petitioners were not in physical cultivating possession of the land in dispute. It vas further pleaded that the land could only have been utilized for agricultural purpose and use of land by the petitioner as houses was impermissible. It was further pleaded that the disputed land was unfit for agricultural use which finding was given after holding inquiry and inspection and, therefore, the orders of respondents Nos. 2 and 3 were lawful. The petitioners according to the comments have failed to lead any evidence to establish that they were even in physical cultivating possession of the land. It was further stated in the comments that neither the petitioners nor their predecessor cultivated the disputed land. According to the comments petition was not maintainable as the petitioners have failed to invoke the revisional jurisdiction available to them under paragraph 29 of MLR 115 before the Federal Land Commission.
9. Mr. Aijaz All Hakro, learned counsel for the petitioners , has argued that the predecessor of the petitioners was the owner of the land, which is subject-matter of these proceedings by virtue of the sale agreement. He submitted that entry in the record of rights substantiates this fact and on promulgation of MLR 115 the instalments having been waived by law, the petitioners became owners. He submitted that petitioners and predecessor of the petitioners remained in physical cultivating possession of the land and the petitioners obtained loan from the ADBP by mortgaging the land in dispute and such entry was made in the records of right. He submitted that the right of the petitioners as owner was protected under MLR 115.
10. According to Mr. Hakro the very application of respondent No. 6 and exercise of suo motu revisional jurisdiction by the respondents Nos. 3 was unwarranted. He further argued that both the respondents in law did not have the jurisdiction to pass an order and or adjudicate upon the matter. In this regard, he has relied upon the case of Ghulam Muhammad v. Sijawal Hussain, reported in 1990 M LD 2412 and the case of Khushi Muhammad v. Chief Land Commissioner, reported in 1993 SCM R 878.
11. As against this, Mr. Jhamat Jethanand, the learned counsel for the respondents Nos. 6 to 8, has argued that the grant of land to the petitioners' predecessor was for limited purpose and the conditions of the sale agreement on the basis of which the grant was made remained intact. He submitted that promulgation of MLR 115 in 1972 modified only one condition of the conditions of the sale agreement in regard to the payment of instalment, which was waived. According to Mr. Jhamat the very land, which is subject-matter of these proceedings was wrongly granted to the predecessor of the petitioners as it was neither agricultural land nor was in physical cultivating possession of the predecessor of the petitioners or with the petitioners. He submitted that the land in question before it could have been granted was never available with the authorities as it was part of the village.
12. According to Mr. Jhamat Section 4 of the MLR. 115 authorizes the provincial Government to adjudicate upon such issues and, therefore, the orders passed by the respondents Nos. 2 and 3 were lawful. It was also argued by Mr. Jhamat that the petitioners have failed to invoke the revisional jurisdiction available to them and instead have invoked the Constitutional jurisdiction of this Court, therefore, the petition was liable to be dismissed on that score.
13. Mr. Masood A. Noorani, -learned Additional Advocate' General, Sindh, has adopted the arguments advanced by Mr. Jhamat Jethanand.
14. We have heard the learned counsel and have gone through the record. Petitioners have not disputed the fact that after a detailed inquiry in which the petitioners have participated the impugned orders were passed. The report of the Mukhtiar kar, which in fact is made basis of the impugned orders has not been disputed by the petitioners. It is clear from the record that the promulgation of the MLR 115 does not nullify the effect of the sale ''agreement or the conditions incorporated therein on the basis of which the predecessor of the petitioners has acquired the right in the land. Provision of MLR 115 had only relaxed and or waived one of the conditions of the sale agreement entered into by the predecessor of the petitioners with the concerned officials, which condition pertained to the payment of instalment. The other conditions contained in the sale agreement having not been changed by the statute, would remain intact and the petitioners as well as their predecessor was bound by such terms of the sale agreement. The very promulgation of the MLR 115 in no way could change the status of the land, which was in the nature of the grant.
Moreover, the loan having been procured from ADBP by the petitioners was also permissible under the terms of the sale agreement and merely obtaining Joan by the petitioners would not improve their case nor would it give them a better title then what was contained in the sale agreement. The question of possession being a question of fact could not be decided in exercise of constitutional jurisdiction. The report of the Mukhtiar kar, the orders impugned are based on sound reasoning and the petitioners having failed to avail the remedy by invoking revisional jurisdiction before the appropriate forum under the hierarchy, this Court would not sit in appeal against the orders of respondents Nos. 2 and 3 by allowing the petitioners to bye-pass the available remedies. Even otherwise, the issues raised by the petitioners which otherwise are in the nature of factual controversy and this Court would not entertain such controversies in exercise of its writ jurisdiction.
The jurisdiction exercised by the respondents Nos. 2 and 3 is covered by law. Both the cases cited by the learned counsel for the petitioners are distinguishable on facts. Moreover, the case of Khushi Muhammad v. Chief Land Commissioner supports the contentions of Mr. Jhamat, learned counsel for the respondents Nos. 6 to 8.
15. For the aforesaid reasons, we find no merits in the petition, which is accordingly dismissed alongwith all the listed applications.