P L D 1969 Quetta 85 (PLP)

QADEERUDDIN AHMED, J.

‑ In all of these twelve petitions the facts and question of law are common. Counsel for the parties have made references to two petitions only, bearing Nos. 13/1968 and 77/1968, and have agreed that all the petitions now before us be considered and decided on that basis.

2. Briefly stated the facts are that the petitioners are the tenants or cultivators of land in a number of villages in the Districts of Kachhi and Kalat. The case of the petitioners is that the contesting respondents were Jagirdars Inamkhoors who enjoyed the right to receive Batai from the cultivators or tenants of land by virtue of Sanads which were granted to them by the Rulers of the region about two centuries ago. The petitioners have alleged that the Jagirdari of the contesting respondents was abolished by virtue of para. 21 of Martial Law Regulation No. 64 on the 7th of February 1959. In support of their case all the petitioners, except for the petitioners in Petition No. 77 of 1968, have relied on the letter of the 27th of April 1966 which was issued by the Deputy Commissioner/Deputy Land Commission, Kachhi District. It was written by him in the circumstances described in the letter as follows :‑ "On taking over the charge of the District the first problem with which I got confronted was the dispute between Jagirdar, Land‑owners and tenants over the question of batai. Complaints have poured in from various quarters that with the abolition of Jagirdari by Martial Law Regulation No. 64 the interest of Jagirs stand terminated and consequently the actual cultivators who are in continued possession of the lands are not bound to share the produce with these ex‑Jagirdars." He has traced the history of the Jagirdari System which was, according to him in vogue in the region from 1740 down to the present times and has referred to the practices which were observed by various tribes inhabiting different areas of the region in respect of the payment of Batai. After doing so he has referred to the notifications by which para. 21 of Martial Law Regulation No. 64 was applied to Kalat Division. He has explained the facts as follows "Martial Law Regulation No. 64 came into force on 7‑2‑59 and applied to the whole of West Pakistan with the exception of unsettled area of Quetta and Kalat Divisions, however, by Notification No. ASP/3461/59/1106/LC, dated the 18th May 1959 para. 21 of Regulation was enforced in whole of the Kalat Division with effect from 7‑2‑

59. By another Notification No. ASP/836/60/4207/LC, dt. the 11th July 1960 the Land Commission directed that the provision of M. L. R. No. 64 with the exception of paras. 7 to 18, 20, 22 to 26 shall be applicable to the unsettled area of the whole Kalat Division. The position is now that with the exception of paras. 7 to 18, 20, 22 to 26 Martial Law Regulation No. 64 with all subsequent amendments has come into force in Kalat Division with effect from 7th February 1959." There is little doubt that on the application of para. 21 all Jagirs, of whatever kind and by whatever name described, subsisting immediately before the commencement of the application of the para. stand abolished.

3. The petitioner's grievance, therefore, is that in spite of the above legal position the respondents have continued to claim to be the Jagirdars and to demand batai from the produce of the land cultivated by the petitioners. The petitioners have alleged that the Deputy Commissioner has, by a subsequent order dated the 6th of March 1967, directed that Batai be paid. In conclusion they seek the relief that the subsequent order of the Deputy Commissioner and the claim and demand of the contesting respondents for Batai be declared as without lawful authority and of no legal effect.

4. The petitioners in Petition No. 77 of 1968 have not referred to the two orders of the Deputy Commissioner but have objected to the legality of the entries that have been made in the revenue papers showing the petitioners as tenants, and the contesting respondents as Jagirdars, and pray that those entries be declared to be without lawful authority and of no legal effect. They have also questioned the orders of the Tahsildar and Naib Tehsildar (Settlement), Gandawa, in pursuance of which the entries have been made, to be equally without lawful authority and of no legal effect. Basically their case is the same as that of they other petitioners.

5. The officers and the State have not appeared in response to the notices issued to them by this Court in their capacity of being respondents in those petitions and have conveyed infor mation that they are not interested in this dispute of the private parties. The case of the contesting respondents is that the order of the Deputy Commissioner dated the 27th of April 1966 is no longer operative because it was set aside by a letter of the Commissioner, Kalat Division, written as the Land Commission, dated the 25th of June 1966. Additionally their stand is that the Sanads held by them confer on them full proprietary rights in the land and that as.such they were never Jagirdars. They have produced a copy of a Sanad which purports to have been issued in 1211 Hijra by Mir Naseer Khan to the Birohi Tribe, in support of their contention that they are owners of the land and not Jagirdars.

6. The answer to the question as to whether the contesting respondents are Jagirdars or not will have to be determined by applying the definition of Jagirs contained in sub‑pare. (4) of para. 2 of Martial Law Regulation No. 64 to the facts of each case. The scanty material which has been placed before us in these petitions is far too inadequate to be conducive to a satisfactory decision. Moreover, we had the benefit of the presence of Mr. Haji Khan, Extra Assistant Settlement Officer, Mr. Gul Muhammad, Tahsildar, Settlement and Mr. Lal Muhammad, Naib Tehsildar, Settlement. They have informed us that the survey of the entire area of Kalat Division has been com pleted and that documents have been prepared although they are waiting to be finalised by giving them the required legal shape and ultimate sanction. According to these officers the entries about the ownership, tenancy and occupation of every plot of land in this area have been made in the revenue papers and copies of Khatonis have been issued to those who applied for it. According to them no plot of land has been shown as a jagir. On the contrary the documents of Sanad Holders have been examined after notice to the tenants and occupants and the, Sanad Holders have been shown as the owners. This work has been done in accordance with the West Pakistan Land Revenue Act, 1967.

7. We, therefore, enquired from counsel for the petitioners as to how these constitutional petitions were competent before the petitioners exhausted their remedies under that Act. They expressed a general grievance that copies of documents were not supplied and that without enabling them to have recourse to legal remedies they are being coerced to give Batai to the contesting respondents. Additionally the grievance of counsel is that above‑mentioned letter from the Commissioner has prejudiced their case owing to the Departmental expression of the views that the Sanads should be interpreted in favour of the contesting respondents and that the Settlement authority were right in entering their, names as the owners of the land. The Commissioner has not considered the claims of the petitioners nor has he provided them with an opportunity of being heard but has in a general and sweeping manner given expression to his opinion in the capacity of being the Land Commission in spite of the fact that the preparation of revenue documents is not being made under Martial Law Regulation No.

64. The three officers, named above, have confirmed that they are accomplishing the job in accordance with the West Pakistan Land Revenue Act, 1967.

8. Mr. Azizullah Sheikh took a similar stand with regard to the letter of the Deputy Commissioner dated the 27th of April 1966 and has drawn our attention to the judgment of a Division Bench of this Court in Constitutional Petition No. 298 of 1967 decided on the 26th of July 1967 at Lahore. The learned Judges have commented on the inefficacy of that letter in the following words : "It is important to point out at this stage that the above memorandum (or letter) was not issued by respondent No. 1 (D. C Kachhi) as a result of any inter partes proceedings before him, in which the petitioners or the real respondents were given a hearing. It was entirely in the nature of executive instruction issued by respondent No. 1 on his own initiative and on what he thought to be rights and interest of the petitioners and the real respondents in these lands."

9. After pointing out this weakness of the latter they have observed that the petitioners had stopped paying Batai in view of it and that this "led to multiple proceedings" between them and the real respondents before the revenue Courts which included demands for the recovery of Batai and claims for the ejectment of those petitioners. In the meantime the Deputy Commissioner was informed by the Commissioner vide his letter dated the 25th of June 1966 that the instructions issued by the former were wholly wrong and had no legal foundation and that those instructions should be deemed to have been withdrawn. In pursuance of that direction the Deputy Commissioner changed his previous views and issued an order on the 6th of March 1967 that Batai be paid. Mr. Azizullah Sheikh, therefore, argued that the petitioners had no case on merits. He further criticized the petitioners for having suppressed the issuance of the letter dated the 25th of June 1966 by the Commissioner. He stated that the petitioners, in the above‑mentioned case, which has been decided by a Division Bench of this Court, had also conducted themselves similarly and that this aspect was considered by that Bench to be a good reason for dismissing their petitions, counsel asked for similar orders against the present petitioners.

10. The reply of counsel for the present petitioners was that the letter of the Commissioner dated the 25th of June 1966 was an intra‑Departmental communication, therefore, these petitioners could have no knowledge of it. They came to know of the letter which was written by the Deputy Commissioner because he had issued instructions to the officers of his district to implement the provisions of para. 2 L of Martial Law Regulation No.

64. Thus what he wrote came to the public knowledge. They also came to know that the Deputy Commissioner withdrew those instructions and subsequently ordered that Batai be paid because that order was being enforced against them. We feel that in the circumstances of this case there is no reason to believe that these petitioners are guilty of suppressing information of the letter which was issued by the Commissioner. Moreover, we feel that the same criticism which the learned Judges of the Division Bench, mentioned above, have found applicable to the letter of the Deputy Commissioner, applies with equal force to the letter which was issued by the Commissioner. Neither of the two officers appears to have considered that the Departmental instructions which were contained in their letters did not relate to mere procedural matters but affected valuable rights of a large number of persons who occupied, cultivated or claimed to own, vest areas of land in Kachhi and Kalat Districts. If the letters were inter parte orders made after giving opportunities to the parties of being heard then their nature would have been entirely different. Their legal significance with respect to the rights and obligations of the parties is so little that the learned Judges, who constituted the above‑mentioned Bench, have referred to them as mere "memorandums".

11. The above facts and circumstances lead us to the conclusion that the Departmental instructions issued by the Deputy Commissioner as well as by the Commissioner are without lawful authority and of no legal effect in so far as the rights and obligations of the petitioners and the contesting respondents are concerned. It is fair that we should take note of the situation under which the petitioners were placed owing to the Depart mental instructions which were issued by the Commissioner to the Deputy Commissioner and the ex parte order which the Deputy Commissioner issued for payment of Batai in pursuance of that letter. We have no doubt that the situation was so pressing for the petitioners that they were compelled to take resort to Article 98 of the Constitution of 1962. It is pertinent that we should further note the feelings of despondency which counsel for the petitioners expressed in respect of all possible legal remedies open to the petitioners under the West Pakistan Land Revenue Act, 1967, when they referred to the following observations of the Commissioner in his letter of the 25th of June 1966 "If after holding the necessary enquiry and examination of these documents, the Settlement Tehsildar is satisfied that the sanad is genuine and possession of the sanad holder is continuous then he should enter such sanad holders as owners.". Further, "The Settlement Department rightly entered these tribesmen as lawful owners and not Jagirdars as defined in Martial Law Regulation No. 64." Counsel complained, and we think with justification, that after the expression and communication of the above views by the highest officer of the Division who was also the Land Commis sion, it was impossible for the petitioners to expert that the subordinate Revenue Officers would pay genuine attention to the contents of documents and would open mindedly examine, the nature of the evidence which might be produced before them.

12. Apart, however, from appreciating the above complaints of counsel for the petitioners we have also to keep before us the constitutional requirement contained in Article 98 that relief shall not be granted by this Court under the Article if adequate alternative remedy is available to the petitioners. Since we have declared as without lawful authority and of no legal effect the two Department letters issued by the Deputy Commissioner as well as the ex parte order of the Deputy Commissioner we hope and expect that the Settlement and Land Commission authorities will consider each case on its own merits and decide it according to law. We also hope and expect that objections as to limitation that are likely to impede the petitioners in seeking relief under the relevant statutes will be examined by the authorities concerned in the light that the occupants and cultivators were obsessed by a genuine feeling of being handicapped. Since we are taking this view of the situation, we find that the petitioners must first exhaust their remedies under the relevant statutes.

13. We order accordingly. S. A. H. Order accordingly.