P L D 1975 Karachi 202 (PLP)

GHULAM RASOOL K. SHAIKH, J.‑This petition has been filed to challenge the order of the Deputy Commissioner, Karachi, ordering ejectment of the petitioner from the agricultural land. The land originally belonged to nine persons belonging to Kandawala family. It was given on, lease; by them to the petitioner for a period of 11 months by a lease deed dated 19‑6‑1965. The lease was renewed from time to time till it expired on 31‑3‑1968. Before expiry of the aforesaid lease, Beroz Godrej Kandawala, on his own behalf and as attorney of other owners sent a notice dated 25‑3‑1968 to the petitioner to hand over the vacant possession of the land on the 1st of April 1968, when the lease was to expire. To this the petitioner sent a reply on 12‑4‑1968, claiming that although the lease was drawn for a period of 11 months but in fact it was orally agreed that the lease would be for a period of 30 years commencing froth 1-7‑1965 as the land was lying uncultivated and there was apprehension that the Government would forfeit the land. It was further stated that the petitioner had improved the land by investing about Rs. 5,00,000.00 and had developed it into a garden. The owners refuted the claim of the petitioner by a letter dated 29‑5‑1968. It was pleaded that the lease originally was for 11 months only and it was expressly agreed that it would be renewed if the parties mutually agreed to the renewal. It seems that no further action was taken by the owners to secure possession from the petitioner. Sometime later the owners sold the land to one Haji Zakaria, who tried to secure the possession from the petitioner but did not succeed. Consequently, he approached the Deputy Commissioner, Karachi, by making an application dated 1‑4‑1972. It reads as under:‑ "That I had purchased lands bearing Survey Nos. 229, 253, 254 and 348 admeasuring 32 acres 38 ghantas situated in Deb Drigh Tapoo Malir, Taluka Karachi,, from Mr. Kandawalla and others by registered sale deed. Unfortunately, due to interference of one Wali Dad I have not been able to hand over the control of the local area and whenever I go on the site be appears with Goondas to fight and gives an impression that they would not allow anyone to set his foot on the land. He made a demand for ransom and is determined to extort money from me or anyone going on my behalf. It is submitted that he has no right in any portion of the land which otherwise is lying unauthorised and legally in my possession. I have sold and transferred the said land to Mr. Peerji Muhammad Yousuf and others in terms of the sale deed, I am bound to hand over the vacant possession to them. But I have not been allowed even to enter the land under the threat to my life by said Wali Dad and in this way I have been put to a great loss and mental torture by the activities of Wall Dad. It is respectfully submitted that suitable action at law be taken against Wali Dad and his men so that he should not take law in his own hands and deprive me from the use and enjoyment of the land in question." On the basis of this application a notice was sent to the petitioner as indicated in the subsequent notice dated 25‑7‑1972, but the petitioner did not appear before the Deputy Commissioner, Karachi. In the meantime Haji Zakaria sold the land to Peerji Muhammad Yousuf, respondent No.

3. Thereafter Haji Zakaria sent another application to the Deputy Commissioner, Karachi. It reads as under:‑ "With reference to my application submitted to you I would like to add that Peerji Muhammad Yousuf and others whom I have sold and transferred the Survey Nos. 229, 248, 253 and 254 through Muhammad Rafi and others and to whom I am bound to hand over the vacant possession of the above‑mentioned survey numbers wants to utilise the same for Residential Housing Project and have already secured the necessary permission as per your letter No. 1212/1970 photostat copy of the case is attached herewith. Further, survey No. 348 stands on the name of Punjabi Soudagaran Corporation, a registered Housing Society already established in Malin Now, in the end I would request your honour to take the suitable action at law against the said illegal occupation by Wali Dad, who encroaches upon the land unauthorisedly and is hesitating to vacate it on one or other plea." The Deputy Commissioner, Karachi, sent a notice dated 31‑10‑1972 purporting to be under paragraph 24 (6) of M. L. R.

115. This notice reads as under:‑ "The owners of S. Nos. 229, 248, 253, 254 and 348 of Deh Digh have reported that they intend to use the said S. Nos. for bona fide building purpose and have complained that you, being an unauthorised occupant, do not vacate the land. You are hereby required to show cause within seven days of the receipt of this notice why you should not be ejected under the provision of Martial Law Regulation 115 and possession handed over to the owner." On receipt of this notice, the petitioner made representation to the Deputy Commissioner, Karachi, claiming that he had taken the lease of the land for a period of thirty years and had spent Rs. 5,00,000.00 and had developed a garden with mechanical aid. This reply is dated 7‑I1‑1972. Thereafter another notice dated 1‑3‑1973 issued by the Deputy Commissioner, Karachi was served upon the petitioner directing him to deliver possession of the land to the owner within three days of the notice. failing which he would be forcibly ejected. This notice reads as under: "Your above application has been considered in the light of lease agreement dated 10‑2‑1967 which expired on 31‑3‑1968. The land is required by the owner for bona fide purpose. In exercise of powers conferred upon me under para. 24 (6) of Martial Law Regulation 115, you are directed to vacate the land within three days and hand over its possession . to the owners of the said land, Le. Peerji Muhammad Yousuf and others in the presence of Mukhtiarkar, Karachi." On receipt of this notice the petitioner, filed a civil suit for declaration and permanent injunction. Simultaneously, he moved an application under Order XXXIX, rules 1 and 2, C. P. C. Ad interim injunction was granted but subsequently on the application made under Order VII, rule 11, C. P. C. the interim injunction was discharged and the plaint was rejected. Aggrieved by this two appeals i.e. No. 194 of 1973 and No. 195 of 1973 were filed in the District Court, but the same were dismissed. A view was entertained by the lower Courts that the jurisdiction of the civil Court was barred by virtue of para. 27 of M. L. R.‑

115. Thereafter the present petition was filed. After filing this petition a revision application was also filed in the High Court which is still pending. At the outset it may be stated that the learned counsel for they petitioner attempted to argue that the petitioner held lease for a period of 30 years on the basis of an oral agreement, and, therefore, he could not be ejected till that period was over. To this our immediate reaction was that in the first place there was no documentary proof of the contention of the claim and secondly, it was a disputed question of, fact and could not be investigated in these proceedings. When this was .pointed out to the learned counsel, he then urged that the present case was not covered by para. 24(6) of M.L.R.‑115, and therefore, the Deputy Commissioner, Karachi, had no jurisdiction to entertain the complaint muchless he could order the eject ment. There is considerable force in this contention. Para. 24 reads as under:‑ "Restriction on alienation of holding.‑(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: Provided that such a person may alienate his entire holding. (2) No person owning an economic holding should be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding: Provided that such a person may alienate his entire holding. (3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an, area less than the area of sub sistence holding: Provided that such a person may alienate his entire holding. (4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, Deh or Mauza. (5) Any alienation made in contravention of the provisions of this paragraph shall be void. (6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required by the owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner." For the purpose of the present petition clause (6) is relevant. It gives powers to the Deputy Commissioner to eject a tenant in possession of the land who refuses to quit after notice if the land is bona fide required by the owner for the purpose of building. Thus it is clear that the person whose ejectment can be ordered should be a tenant which clearly means a cultivator or a hari and not a lessee. The contention of the learned counsel for the respondent No. 3 is that the word `tenant' was used in the generic sense and would include a lessee as well, but we are unable to accept this contention in view of the object and purpose of promulgation of the M.L.R. This Regulation is of special nature designed to reduce large holdings of the landlords and provide land to landless cultivators as well as to impose restrictions upon the latter type of class. This has been aptly explained in the case of Jhamandas v. Chief Land Commissioner (P L D 1966 S C 229). The relevant observation appears at page 251; as under:‑ "The law in this case enables sequestration of property, and it does so in the way of advancing social justice, by providing land for the landless many, from out of the abundance that, through the centuries, under the protection of law, have accumulated in the hands of the few. The law sets a limit on what must be left to those on whom it falls, so that they are not converted into a new landless class. That too is in the way of social justice; the observance of which, according to the principles enunciated by Islam, is one of the high objectives of the constitution." The next para. 25 gives protection to the tenant against the ejectment except under the circumstances stated therein. in view of that protection clause 6 of para. 24 became necessary. Moreover, the insertion of clause 6 of para. 24 was to relax the restriction of reduction of the holding below the economic holding or subsistence holding. According to the Regulation' "Economic Holding" means 65 acres and "Subsistence Holding" means 16 acres of land in the Province of Sind. The meaning of the word tenant was further clarified by the Advocate‑General, who referred us to pare: 24(8) of the Regulation, which reads as under: "Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, a Commission may, with the approval or on the direction of, the President, make such provisions in respect thereof as it thinks fit, or as may be directed by the President, and such order shall be deemed to form a part of this Regulation and have effect accordingly." In pursuance of this power, the Sind Land Commission issued a press note published in the Gazette of Sind, Extraordinary, Part I dated 30th August 1973, which reads as under:‑ "A question has been raised by some interested persons whether the word "Tenant" as used in paragraph 25 of Martial Law Regulation‑115 also includes a "Lessee". The Sind Land Commission is pleased to clarify that the word "Tenant" as used in paragraph 25 of Martial Law Regulation‑115 does not include a lessee who is covered by the definition of `Landlord' as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967 (West Pakistan Act XVII of 1967)." According to the definition of "Landlord" provided by subsection (12 ), section 4 of the West Pakistan Land Revenue Act, 1967, this term includes a lessee. Thus the term `tenant' used in M.L.R: 115 is not used in the generic sense but is confined to a cultivator i.e. a hari. Of course, the Land Commission had assigned the meaning to the word `Tenant' in reference to para. 25 of the Martial Law Regulation, but the same word occurring in para. 24 cannot be construed differently. From what has been stated above it is plain enough that clause (6), para. 24 of M.L.R: 115, was not at all attracted in the case of a lessee, and, therefore, the Deputy Commissioner had no jurisdiction to entertain the application and order the eviction. I have already reproduced the two applications made by one of the owners and there is absolutely no allegation that at any time the petitioner was a tenant. What was pleaded is that the petitioner was in wrongful possession of the land. He suppressed the fact of the previous lease granted to the petitioner. Even the notice dated 31‑10‑1972, issued by the Deputy Commissioner, shows that according to the complaint the petitioner was an unauthorised occupant. The final notice dated 1‑3‑1973 also shows that the Deputy Commissioner, was conscious of the fact that the petitioner was originally a lessee and the lease agreement had expired on 31‑3‑1968. Neither in this notice nor there is any other document indicating that the Deputy Commissioner ever came to the conclusion that the petitioner was a tenant within the meaning of clause (6), para. 24 of the M.L.R:

115. The entire basis of the complaint as well as the notices issued by the Deputy Commissioner was that the petitioner's lease having expired, he was in wrongful possession of the land. These allegations did not confer any jurisdiction upon the Deputy Commissioner to take action under para. 24(6) of the M.L.R:

115. Now I propose to deal with the remaining objections raised by the learned counsel for the respondent No.

3. It was pleaded that the jurisdiction of this Court was barred by virtue of 26 of the M.L.R: 115 and order passed by the Deputy Commissioner, assumed finality. I find no force in this contention. It is a settled position needing no authority that the bar of jurisdiction operates only if the order is passed in pursuance of the power conferred by law and this power cannot be extended to an action taken when that action is clearly without jurisdiction. It has been explained that M.L.R: 115 did not authorise the Deputy Commissioner, Karachi, to eject a lessee or a person in wrongful possession of the property. The only remedy available to the aggrieved person was to have recourse to the Civil Court for recovery of the possession. The provisions of the M.L.R: 115 could not be invoked. The learned counsel for the petitioner in order to support his contentions referred. to the case of Jhamandas v. The Chief Land Commissioner (P L D 1966 S C 229 ), but this authority on the contrary lays down that the Court has to observe the limits placed upon its power of judicial review and relief in respect of every thing done within the scope of the Land Reforms Regulation by duly constituted authorities. In the present case, the action of the Deputy Commissioner while acting in para. 24(6) of the M.L.R.‑115 did not fall within the scope of Martial Law Regulation so as to attract the provisions of para. 26 of the M.L.R. to oust the jurisdiction of this Court. The other contention is that the order of the Deputy Commissioner assumed finality. This does not require any consideration, because the finality is assumed only when the action taken is within the jurisdiction of the authority passing the order. In this connection a reference may be made to the observations made in the case of Muhammad Din v. Fazal Karim (P L D 1968 Lah. 544), and the case of Abdur Rauf and others v. Abdul Majid Khan and others (P L D 1965 S C 671). It was next contended that if the M.L.R. permitted a tenant to be ejected the trespasser ‑had no better rights and could be ejected under the same Regulation. I am unable to accept this contention. If the intention of the c M.L.R. had been to eject the lessee or the trespasser then such a provision would have been made. Since this was not done it was never intended to eject the persons other than the tenant which means a cultivator or a hart, and this is in consonance with the object of the Regulation. The other objection that was taken is that the petitioner did not raise the objection to jurisdiction before the Deputy Commissioner, and therefore, he could not be allowed to raise any such plea in this petition. To support this contention the learned counsel referred us to the case of Ghulam Mohiuddin v. $The Chief Settlement Commissioner (P L D 1964 S C 829), but this authority is clearly distinguishable, as in that case although the petitioner had filed a revision before the Chief Settlement Commissioner, whereby the jurisdiction of the Settlement Commissioner was barred to review the order but he did not inform the Settlement Commissioner, that he had already filed a revision application. It was, therefore, on the basis of his conduct that the relief was refused. In the present case, the petitioner had pleaded before the Deputy Commissioner, that he was a lessee and could not be ejected. Of course he had based his case on the subsistence of his lease which according to him was for a period of 30 years but all the same, the fact that he was a lessee, was pleaded and it was also found by the Deputy Commissioner, that he was a lessee and his lease had expired. In view of the plea and the finding the Deputy Commissioner, could not take any action under the M. L. R. I would like to refer another authority of the Supreme Court in the case of Muhammad Afzal v. The Board of Revenue, West Pakistan (P L D 1967 S C 314). It was laid down that when an act bad been performed by the Tribunal without lawful authority and the mere fact that the petitioner had submitted to the authority in the capacity of respondent, neither conferred the ‑ jurisdiction on the Tribunal nor petitioner was deprived of his right to challenge the order under Article 98 of the Constitution. This authority is complete answer to the contention raised by the learned counsel. Lastly, it was urged that in respect of the same matter, revision was pending in the High Court and, therefore, this petition was not maintainable. There is also no force in this contention. It was explained by the learned counsel for the petitioner that the point involved in the revision was different from the one involved in this petition. This suit which the petitioner had filed was rather' misconcieved as in that suit the protection against the eviction was sought under the West Pakistan Urban Rent Restriction Ordinance, which quite obviously was not applicable. Moreover, it was laid down in the case of Lt: Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119), that simply because the other remedy was pending, the petition was not necessarily incompetent and the bar against the writ, petition on the plea of other remedies was not a rule of law but a rule E by which the Court regulated the exercise of its own discretion. It was also held that complete lack of jurisdiction of authority passing the impugned order the petition for writ appeared to be a more appropriate remedy. In the circumstances the petition is allowed with costs and 'the action taken by the Deputy Commissioner is declared to be without jurisdiction and of no legal effect. K. B A. Petition accepted.