Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 it is prayed that:-- "possession of the land taken over forcibly from the petitioners by the respondents may kindly be restored to them with immediate effect and the allotment in the name of their predecessor-in- interest may kindly be considered in-tact and no interference from any quarter may be allowed to be taken in this case and the crops which have been destroyed and ruined by the respondents alongwith some other public personal and a case may kindly be ordered to be registered against them and the respondents be kindly directed not to interfere further in the matter in any manner whatsoever not warranted in the law."
2. It is the case of the petitioners, that their predecessor late Muhammad Sarwar, an ex-army personnel, had been allotted land in dispute in the year 1979, which allotment had been duly implemented in the public records and mutation had also been sanctioned in his name in the year 1981. It is their grievance that they have been forcibly dispossessed by and at the instance of Respondents Nos, 2 to 4, which action is unwarranted by law as they are successors of a lawful allottee of the land, which allotment had already been scrutinized by the Border Area Committee and was found as legal and valid vide order dated 7.12.1989.
The learned counsel for the parties have been heard and respective contentions have been considered.
3. In the report and parawise comments submitted by the Border Area Committee the allotment in favour of Muhammad Sarwar deceased is dubbed as bogus. As to the proceedings undertaken by the Border Area Committee about the scrutiny of allotment, which remained pending from the year 1986 till 7.12.1989 when order upholding the allotment was passed by the Committee, a somewhat strange and curious stance has been taken i,e, "Surprisingly the case was closed on 7.12.1989 holding that the allotment in the name of Muhammad Sarwar was genuine. Bare .perusal of the order date. 7.12.1989 shows that the forged signatures of the then members of BAC had been made, and this order had been manufactured by the so called allottee in connivance of the functionaries of the BAC, otherwise no order' could be passed without the submission of the verification report as ordered on 14.11.989." Thus an attempt has been made to disown/discredit order dated 7.12.1989.
4. The learned counsel for the Border Area Committee has, on my asking produced and shown the original file of proceedings, which contains order dated 7.12.1989, perusal whereof shows that scrutiny of the allotment of Muhammad Sarwar deceased had commenced in the year 1986. He was directed to produce the relevant documents pertaining to his allotment, which were produced before the Committee as is evident from order dated 21.7.1988. Thereafter the matter remained pending with the Committee till 7.12.1989 when the file was consigned to record upholding the allotment. The file further shows the correspondence exchanged between the Border Area Committee and the District Authorities qua allotment of Muhammad Sarwar. On 26.4.1981 a registered communication had been sent by the Border Area Committee to the Assistant Commissioner, Shakargarh for implementation of allotment orders of land under the Border Area Scheme, relevant portion thereof reads as follows:-- "1. Following individuals were allotted land in village Dhadwal and Haji pur Guj ran Tehsil Shakargarh Distt. Sialkdt but their allotment order could not be incorporated in revenue record at Shakargarh due to exigencies of service of the individuals in hard area. From the. records maintained in this office it is found that they have rightly been allotted land in the said village. Their allotment orders are sent herewith for completion of legal requirements and implementation in the revenue records at your end:-- (a)xxx - xxx (b)xxx - xxx (c)Swr Muhammad Sarar '111/BAC dated 10 Jan 79. Village Haji pur Gujran.
(d)xxx - xxx
2. Please incorporate the same in your revenue record accordingly.
3. Above mentioned allottees are also permitted to deposit the cost of allotted land in Govt.
Treasury at the rate of Rs, 01.00 per unit and after deposit of amount the mutations in their name may please be made accordingly.
AAG(LT Col.)
Member Border Area Committee (Abdul Jalil)
It was thus, that the factum Of allotment was carried into effect and implemented in the public/revenue records. To dispute such allotment or the legal efficacy of order dated 7.12.1989 is not possible and is too late for the Border Area Committee. Order dated 7.12.1989 in original had been passed and is part of a duly maintained file, which bear the signatures of members of the Committee. Not only that it has got a presumption of correctness and regularity it does not behove the Border Area Committee to discredit its own proceedings and orders. It is not possibly understandable that how all orders and communications made by the Committee from time to time, from the year 1979 to the year 1989 was a manipulated affair. It is too general and wild an assertion to entertain. .
5. There is no denying the fact that the Committee is empowered to scrutinize the allotment, but once such a power had been exercised, which culminated into order dated 7.12.1989, exercise of that power over again would not be consistent with the legal position obtaining on the subject, rather the same would erode the very essence of concept of finality of adjudicatory process.
Indeed the principle stated at Page 1334 Volume II of `Justice Munir's Principles ,and Digest of the Qanun-e-Shahadat by Justice (Retd.) Khalil-ur-Rehman Khan, gets attracted to a situation of this nature, which reads as follows:-- 'Estoppel by record means nothing more generally than that the matter is res judicate. It belongs more properly to the province of pure procedure and is so dealt with in our legislation. Res judicata is an estoppel by judgment. It embraces all those rules the common characteristic of which is that a final judicial decision of a tribunal of competent jurisdiction, once pronounced between parties litigant, cannot be contradicted by anyone, as against any other of such parties, in any subsequent litigation between the same parties respecting the same subject matter. There is a difference in the principles upon which the doctrines of res jdicata and estoppel by representation are based.
Res judicata in this country is founded on the principle that there should be, an end to litigation as to any issue between the parties when once that issue has been directly determined between them by a Court of competent jurisdiction, and it affects not only the original parties but all others afterwards claiming under them and litigating under the same title. It was fresh litigation at the outset. Estoppel by representation is a rule of evidence based on the principle that a man, who by his acts or statements has induced another to believe a thing to be true, should not afterwards be heard to deny the truth of that thing to the prejudice of the other who acted upon the belief so. induced. Res judicata ousts the jurisdiction of the. Court, while estoppel merely shuts the mouth of a party. Estoppel never means anything more than that a person shall not be allowed to say one thing at one time and the opposite of it at another time, while res judicata means nothing more than that a person shall not be heard to say the same thing twice over."
I am thus not prepared to entertain such a plea of Respondents Nos,' 1, which runs counter to its own correspondence, proceedings and orders.
6. Insofar as action and conduct of Respondents Nos, 2 'to 4 in dispossessing the petitioners from the land is concerned, the same is wanton in law, inasmuch as it does not fall within the ambit of authority and jurisdiction of the said respondents to probe and pry into the genuineness or otherwise of title of a citizen qua the land, nor the State machinery could be employed to dispossess in such a manner. Needless to state that all actions of the. State functionaries must have the backing of a contemporaneous law, failing which the action would be regarded as without jurisdiction and illegal. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This provision of the Constitution embodies safeguards of utmost importance to an individual, in the matter of his life, liberty, honour, reputation and, property. A citizen 'cannot be deprived of such protections and guarantees on the basis of any supposed assumption. The action taken by Respondents Nos, 2 to A is sought to be justified on the basis of some intelligence report about the alleged-bogus nature of allotment of Muhammad Sarwar deceased. As noted above, the said allotment having been scrutinized already by the competent authority in the matter i,e, the Border Area Committee, there was no jurisdiction and authority vested in these respondents to call in question either the factum of allotment or the efficacy of the orders passed by the Border Area Committee. Suffice it to observe that in case some illegal and offensive activity was going on in the border belt, the same could be handled and curbed by having resort to the legal process in accordance with law but there was no justification or warrant to dispossess the petitioners by forcible means from the land allotted to their predecessor late Swr.
Muhammad Sarwar. In view of the above. the petition is accepted to the extent that dispossession of the petitioners from the land in dispute was unwarranted and had no backing of the contemporaneous law, which