1992 PLP 382 (CLC)

WALI MUHAMMAD KHAN, J.‑‑‑The petitioner, Tanzeem Bazyabi‑e‑Haqooq Malkan‑e‑Orush, is a Society under Act XXI of 1860 constituted by the owners of Orush, for the purpose of seeking declaration regarding the ownership of the land comprised in Cantonment and Urban area of Abbottabad city, taken, possession of by the British Government in its inception without the consent of the owners and recovery of rent fixed by the British Government which was discontinued by the Government of Pakistan after 1948. The writ petition does not disclose the names of the alleged owners in the heading of the plaint nor is it drafted in representative capacity according to the provisions of Order 1, Rule

8. The list of the owners who are allegedly members of the Society has also not been annexed with the writ petition though the same was forming part of the earlier writ petition No.44/87, since withdrawn with permission to file fresh one, vide order of this Court dated 23‑10‑1988. The petitioner seeks a declaration that (i) the order dated 25‑8‑1988 passed by the Revenue Secretary Government of N: W.F.P. (respondent No.6) is without lawful authority and is liable to be set aside, (ii) land owners as per list of owners attachable to the Misl‑e‑Haqiyat of Mauza Dhamtore, Salhad and Shiekhul‑Bandi are full owners of the area in relation to which they have been recorded as owners therein and are entitled to derive full benefits from the immovable property owned by them inasmuch as any other private owner and the land claimed by the said land owners is not liable to confiscation or being otherwise taken over except m accordance with law, (iii) order dated 10‑2‑1977 acted upon has no retrospective operation qua the rights vested in the land owners in question. The petitioner also prays that the Federal Government be directed to make an option within a reasonable time either to retain the area currently under Abbottabad Military and Cantonment use on payment of prevailing market value or to initiate the process of compulsory acquisition thereof under the existing law and in default of compliance thereof, they be ordered to vacate the same and deliver vacant physical possession thereof to the petitioner Society and also pay the arrears of rent accumulated. A direction was also solicited from the Court to the Provincial Government of N.‑W.F.P. for payment of compensation at the prevailing market rate falling within Abbottabad Municipal area and to hand over vacant physical possession of the sites to the owners plus the arrears of compensation for the unauthorised use thereof.

2. The case of the petitioner Society in nutshell is that the land measuring 5667 kanals, presently covered by Abbottabad Cantonment and the Military was originally part of the estate of Mauzas Dhamtore, Salhad and Sheikhul‑Bandi and was the ownership of the predecessors of the members of the Society; that the then British Government took possession thereof without the consent of the owners prior to the year 1904 for the purpose of garrisoning of troops and started paying annual rent to the owners no to the independence of Indo‑Pakistan Sub‑Continent; that after 1947 the successor Government of Pakistan stopped payment of rent on account of which the owners had to make a representation to the Federal Government which resulted in an inquiry into the grievances of the petitioner; that the petitioner also made representations to the then Chief Minister N.‑W.F.P. who after obtaining the detailed history of the case from the concerned revenue staff, entrusted the task to the Revenue Secretary concerned who vide notification dated 10‑2‑1977 accorded sanction to the correction of revenue record through `Fard‑e‑Badar' the record of villages Dharntore, Sheikhulbandi and Salhad respecting the disputed area of 5667 kanals to enable the right holders to get the rent since 1948‑49 to date, as provided in para.7‑(44‑F) of the Land Records Manual; that in compliance with the said Notification `fard‑e‑badar' regarding the estate of Sheikhulbandi was entered, but no compliance was made in the other estates; that the petitioner filed Petition No.44/87 in this Court and during the pendency of the same the Provincial Government of N.‑W.F.P. vide notification dated 15‑8‑1988 rescinded the aforementioned notification dated 10‑2‑1977; that faced with this situation the petitioners were forced to withdraw from the earlier writ petition with permission to file a fresh one and hence the instant writ petition.‑:

3. The respondents in their written comments challenged the' locus standi of the petitioner for instituting the instant writ petition, competency of the same, limitations/caches and non‑joinder of necessary parties. They denied the factual allegations contained in the petition in toto and claimed exclusive ownership of the disputed property on account of purchase, acquisition and title by prescription. They annexed the copies of the settlement record of 1904‑5, 1947‑48 and certain lease deeds whereby part of the suit land was t transferred to certain persons for a lease period of 99 years more than 12 years ago. The respondents also filed certain documents relating to the payment of Rs.215‑14 Annas and 8 Ps. fixed as rent/compensation for the land in dispute occupied by the Civil and Military Department.

4. We have heard Dr. Abdul Basit, Advocate Lahore for the petitioner and Alhaj Sardar Bahadur Khan, Advocate and Muhammad Aslam Khan Assistant Advocate‑General for respondents and have perused the available record of the case with their assistance.

5. The learned counsel for the petitioner forcefully argued that the Secretary to the Government of N: W.F.P. Revenue Department (respondent No.6) according to the rules of business is presumed to be acting under the authority of the Government and in consequence, his acts and deeds are binding on the Provincial Government. He meant to say that the notification dated 10‑2‑ 1977 was an implied admission on the part of the provincial Government that the suit land in fact belonged to owners and that they are entitled to receive rent for the same and therefore he (respondent No.6) was obliged to order corrections of the revenue record through the entry and attestation of fard‑e‑badar under para.7(44‑F) of the revenue rules. According to him, the Provincial Government could not legally wriggle out of its earlier admission and that there was no legal justification to rescind the notification dated 10‑2‑1977 through the impugned notification dated 15‑8‑1988 which is mala fide, without lawful authority and of no legal effect. He emphasised that the Court need not go into the origin of the title of the owners but can base its decision on the admission of Revenue Secretary respondent No.6 so far as the title of the owners and their right to recover the rent or in the alternative the possession of the suit land is concerned. 5‑A. One of us (Mr. Justice Wali Muhammad Khan) when questioned him whether the notification dated 10‑2‑1977 was issued by the Revenue Secretary respondent No.6 in exercise of his powers as Member, Board of Revenue under the West Pakistan Land Revenue Act or in exercise of his function as Secretary to the Government of N: W.F.P. Revenue Department, he replied that, in his. view, the said notification was issued by him in his capacity as Secretary to Government of N: W.F.P. and not as Member, Board of Revenue. 5‑B. The learned counsel for the respondents on the other hand stressed that the provision of Civil Procedure Code applies to writ petition as well and that the proper course for the aggrieved persons was to have drafted the instant petition as provided for under Order 1, Rule 8 and that the petitioner Society has no locus standi for invoking the writ jurisdiction of this Court. He submitted that the grievance of the petitioner necessitates detailed elaborate investigation and inquiry into the factual aspect of the case viz. who were the owners of the suit land prior to its occupation by Military/Civil Departments; whether they were joint owners or exclusive owners of particular plots and their present location ; what was the original agreement between the Government and the then owners; the huge constructions made over the said property long long ago without any objection by the owners; the cost of the same and the question of its compensation; the nature of possession of respondents over the suit land from its inception etc. and that the High Court in exercise of its Constitutional jurisdiction cannot embark upon such elaborate inquiry into the facts of the case as held by the august Supreme Court in case of The Province of East Pakistan v. Kahiti Dhar Roy and others reported as PLD 1964 SC

636. He referred to settlement record of 1872, 1904‑05; jamabandi of 1942‑43, settlement record of 1948‑49 and 1982‑83 to show that the names of the predecessors of the owners, being represented by the petitioner Society, are not recorded therein and, ex consequenti, they cannot, these summary proceedings, be declared as the original owners of the suit lam in the absence of any positive proof or evidence of unimpeachable character in respect of their alleged title to the suit land. The Government of Pakistan recorded as full‑fledged owner in the ownership column right from settlement of 1904‑05 and according to the learned counsel for the respondent presumption of corrections is attached to it under section 44 of the then Punjab Revenue Act and any person feeling aggrieved from the said entry was required to file a suit for declaration for the correction thereof. There is n entry therein showing the Government as in permissive possession on payment of rent to the owners. This entry has been repeated in the subsequent record of rights and went unchallenged. According to the learned counsel the owner whosoever they were, acquiesced in the ownership of the Government for about a century and they are legally debarred to assert ownership right at this belated stage and that too through invoking extraordinary jurisdiction of this Court.

6. As regards the notification of the Revenue Secretary dated 10‑2‑1977 his simple assertion was that the same is coram non judice as the said Provincial Secretary had no jurisdiction to order the correction of revenue record which was function of the revenue officers as mentioned in the Land Revenue Act and further, that through `lard‑e‑badar' only clerical mistake can be corrected whereas apparently there was no mistake in the revenue record to call for correction through `lard‑e‑badar' and also that, in the notification it is no where mentioned that the ownership column may be corrected and that the Government may be substituted by private owners in the ownership column.

7. We have given our careful and anxious consideration to the learned arguments of the learned counsel for the parties.

8. The petitioner's claim ,is that its members are the owners of the site underneath the Cantonment and urban area Abbottabad City measuring 5667 kanals, previously forming part of the estates of Dhamtore, Salhad and Sheikhulbandi and that the respondents are in occupation of the same without their permission and that in consideration of their wrongful possession, their predecessor viz. British Government had been paying them rent. Their plea is that the British Government and after they abandoned the Sub‑Continent, the Government of Pakistan is legally the tenant of the suit property under the owners and have no right to deny their title or raise exclusive title to the suit land or refuse to pay rent to them. Had the respondents conceded any of the aforesaid allegations of the petitioner then the question whether they can be granted relief in the instant writ petition 'would have been easier but the respondents have not only denied the contentions of the petitioner in toto but have questioned the jurisdiction of this Court to embark upon inquiry into the complicated question of title regarding huge property without proper proceedings under the C.P.C. and recording of evidence. However, whatever record is available on the file, in the light thereof, the prayer of the petitioner is to be considered. Unfortunately the petitioner did not annex the copy of the revenue record on the file to lend support to their plea of ownership. On the contrary the respondents alongwith the written comments placed true photo stat copies of the settlement record of 1872, alongwith `masavi' prepared in the same settlement showing demarcation of the suit area, settlement record of 1904‑05, 1947‑48 and 1983‑

84. No record prior to 1872 has been placed by either party and may be, that no record of right was prepared prior thereto. In the settlement record of 1872 the entire area in question is given one khasra number i.e. I and its detailed measurement is shown in settlement record and described in the `masavi'. He (sic) one is shown as owner and the same is described as Cantonment Abbottabad probably because at that time the Punjab Revenue Act had not yet been promulgated. In the settlement record of 1904‑05, however, the suit land is divided in several khasra numbers having been carved out from the earlier khasra No.1 and is shown as the ownership of SARKAR DULATMDAD and in possession of various Government agencies. The entry of ownership is repeated in the `Misal‑e‑Haqiat' 1947‑

48. In Jamabandi 1947‑48 the possession remains with the Government functionaries but in the Jamabandi 1983‑84 besides Government. agencies some individuals are recorded in possession of considerable property on account of acquisition on behalf of the Government most of which are comprised of commercial/residential buildings. The petitioner miserably failed to bring any document on the file to substantiate that the predecessors of the alleged members were the owners of the suit property and that they had leased/rented out the same to the then British Government and in the absence of any such document it will be well‑nigh impossible for this Court to hold them as owners of the suit property.

9. The petitioner in its representation dated 2‑5‑1987 (copy Annexure III on the file) have made certain glaring admissions against their own interest and for convenience sake some excerpts therefrom are being reproduced:‑‑ "

5. Sometime before 1847, all the area which now constitutes Hazara Division was acquired by the British Government through a transaction of territorial exchange with one Gulab Singh, the Chieftain of Jammu. Being a notorious historical fact, even judicial notice can be taken of it.

6. After thus acquiring it, the British Government intended to set up a Cantonment for the British Army in the Hazara Territory. The site selected for this purpose fell within the limits of two villages situated on the brink of the Rush Plain namely Sheikhul Bandi and Dhamtore. At the relevant time, the strategic site in question comprised of land under actual agricultural use of certain tribes living in the adjacent villages in question. The prevalent land tenure system was essentially triable with fedual overtome .

7. It appears that the concerned landowners refused to sell or lease the land in question to the British Government. So far as can be ascertained, no record of any treaty or lease exists.

8. On the refusal of the local landowners to consent to the acquisition of their land, the British Government took over the selected strategic site in exercise of its inherent sovereign powers. Consequently, an area measuring 4556 Kanals 8 Marlas situated within the limits of Mauzas Shaikhul Bandi and Dhamtore was actually taken over for the purposes of setting up the Abbottabad Cantonment. The revenue record shows that it was in the year 1847 that a new revenue estate comprising of one Khasra number alone was set up. This was given the name "Chhawni". This is the genesis of Abbottabad. Cantonment, and even of Abbottabad town. In this case, the town itself has been a subsequent growth, being essentially a garrison town.

9. In 1847, when the British Government took over 4556 Kanals 8 Marlas of land for the purposes of setting up the Abbottabad Cantonment, no law existed on the Statute Book to regulate the power of compulsory acquisition. The relevant Land Acquisition Act was enacted much later. In this view of the matter, there was no legal hurdle in the way of the British Government even to confiscate the immovable property of the subject land owners, if it was so minded or advised. Had this been done, there would have been no occasion to address the instant Representation. May it be noted that the grievance has arisen precisely because it can be shown that even the British Government at the relevant time did not proceed to acquire the title in the land by way of confiscation." Thus according to the petitioner the site was never owned by their predecessors but was ownership of Gulab Singh from whom the British Government acquired it as far back as 1847. None of the inhabitants of the area living at that. time can possibly be available for evidence now and in the absence of any document showing the ownership of the predecessors of the members of the petitioner Society, this Court sitting in its Constitutional jurisdiction cannot be expected to give a declaration to the petitioner.

10. There is yet another legal insurmountable hurdle in the way of the petitioner. The settlement record of 1872 alluded to above has been prepared under the provisions of Punjab Land Revenue Act, under which a presumption of truth attaches to such record of rights under section 44 of the Act ibid and section 45 thereof provide that if any person feels aggrieved of any such entry in any record of rights he may go for declaration of title to a Civil Court under the Specific Relief Act for which the normal period of limitation is 6 years. The property was shown as the ownership of "Sarkar daultmdad" in the ownership column and the possession thereof was recorded as that of functionaries of the Government obviously on behalf of the Government. The persons whosoever felt aggrieved from those entries were bound to challenge them in the Civil Court within the statutory period. It is nowhere recited in the record of rights referred to above that the Government is in possession as licensee on behalf of certain other persons. Rather, the Government is recorded as full‑fledged owner and in possession as such. The ownership and possession of petitioner. from its inception, apparently is denied including the predecessors of the members of petitioner Society and the members themselves. The Government having remained in such possession has acquired prescriptive title as well.

11. The petitioner has produced certain letters showing that a paltry sum used to be paid by the British Government to them yearly which was discontinued after the creation of Indo‑Pakistan Sub‑Continent and for the recovery thereof they made the representation. It is still not manifest what was the consideration for the payment of this amount. As stated earlier if the petitioner had proved ownership of its members then they could have stressed for a presumption drawn in their favour that this amount was fixed as rent for the property, debarring the Government to deny their title, but on their failure to produce any document regarding the ownership of the predecessors of its members this concession cannot be extended to them. The petitioner did not care even to show that its members or their predecessors were in occupation of the suit land and in lieu of surrendering their possession the amount was being paid to them for their disturbance. Anyhow if it was so, even then they cannot claim ownership of the suit property.

12. Reverting to the argument of the learned counsel for the petitioner that the notification dated 10‑2‑1977 issued by the Revenue Secretary Government of N.‑W.F.P. may be held to be an implied admission on behalf of the Provincial Government of N: W.F.P. regarding the title of the members of the petitioner and that they were legally debarred to resile from this admission and had no jurisdiction to rescind the same vide impugned notification dated 15‑8‑1988, suffice it to say that the ownership of Abbottabad Cantonment originally vested in the Central Government and they having not been given an opportunity of being heard could not be held bound by whatever order was passed by the Provincial Government muchless by a Secretary who is incharge of the Revenue Department. The notification was issued by the Revenue Secretary for the correction of revenue record through `Fard‑e‑Badar,' under revenue Rule 7(44‑F) quoted in the petition itself in para.11 and according to it only clerical mistake can be corrected which may have occurred in copying the entries of one register into another and does not involve the alteration of any mutation order. The perusal of the notification would reveal that no order for the correction of the entries of ownership col. in the name of "sarkar daultmdad " right from 1872 till date was ordered to be corrected and substituted by the names of predecessors of the members of the petitioner. May be such alteration could be against the general principle of interpretation of document. Consequently the notification having been issued under mistake of fact and law was of no legal effect and the Provincial Government on coming to know of it had the inherent jurisdiction to set it at naught. The argument of the learned counsel for the petitioner that this Court should not indulge ire finding out origin of the title of the suit land but take into consideration the notification dated 10‑2‑1977 declaring them as owners of the suit land has no force and cannot be acted upon. The impugned notification dated 15‑8‑1988 does not suffer from any legal infirmity and is within lawful authority,

13. There is sufficient force in the technical objection raised by the learned counsel for the respondents gas well. It is by now well settled that provisions of C.P.C. apply to writ petitions as well and as such the petition should have been drafted according to the provisions of Order I Rule 8 and the list of the owners ought to have been attached with the instant writ petition. Moreover substantial portion of the suit property has been alienated by the Government in favour of different individuals as borne out by the document filed by the respondents and also from the entries of the latest record of rights placed on the file. The transferees have made constructions over the property through spending huge amounts and are obviously interested persons to defend their rights in the above property. They have not been made parties to the instant writ petition and in their absence no effectual and complete adjudication is possible. As earlier discussed in detail the cause of action accrued to the petitioner a century ago and the instant writ petition badly suffers from laches as well. Accordingly the petition is not entertainable on this ground as well.

14. The upshot of the above discussion is that there is no merit in the instant writ petition and the same is accordingly dismissed. However, in view of the complicated legal and factual points involved, we leave the parties to bear their own costs.

15. For the reasons stated above the application for Contempt of Court registered as C.'M. No.250/88 alongwith C.Ms. Nos.264/88 and 4/90 also stand dismissed. A.A./1275/P Petition dismissed.