2010 PLP 577 (CLC)

KHAWAJA MUHAMMMAD SHARIF, C.J.

This judgment will dispose of Writ Petitions Nos. 17665, 21583 and 22033 of 2009 as the point involved in all these matters is one and the same inasmuch as in all these Writ Petitions declaration has been sought declaring Notification No.862-2009/U-771/475-DIR (R&G) dated 19-8-2009 issued by Government of the Punjab in the Revenue Department, as ultra vires, arbitrary and based on mala fide.

2. It is contended by learned counsel for the petitioners that Chiniot was ordered to be a separate District on 26-1-2009 and in the notification it was stated that it will come into being w.e.f. 1-7-2009; that it was in the notification that Chiniot District will consist of three Tehsils Chiniot, Lalian and Bhawana; that Iftikhar Ahmad Khan Baloch respondent No.8 submitted an application before the Chief Minister, Punjab requesting therein that 22 villages are near to Jhang and away from District Chiniot so those villages should be detached from Chiniot and should be attached with District Jhang; that respondent No.2 under section 6 of the Land Revenue Act accepted the application of Iftikhar Ahmad respondent No.8 which is available at page 44 of the petition dated 19th of August, 2009; that from 1856 all the 22 villages remained with Tehsil Chiniot pertaining to Union Councils Nos.9 and 11 and he has referred section 7 and 11 of Local Government Ordinance 2001. He read before me section 7 regarding the delimitation and alteration of local areas; that in fact at the time of Notification dated 19th August, 2009 the authority did not bother to go through sections 7 and 11 which are mandatory provisions and special law; that according to report and parawise comments of Tehsil Nazim Chiniot and the District Coordination Officer these revenue estates which have been detached from Chiniot are at a distance of 25 kilometers from Tehsil Headquarter and 45 Kilometers from District Headquarter whereas the distance from Jhang to those revenue estates is 65 kilometers; that Nazim Tehsil as well as DCO Chiniot have fully supported the version of the petitioners; that matter has been taken up by respondent No.2 in very arbitrary manner and this should be declared as null and void.

3. Mian Muhammad Sikandar Hayat, learned counsel for the petitioner submits that respondent No.8 in his personal interest has manoeuvered the notification without lawful justification and has referred page 45 of this petition and submits that four villages were also detached from District Chiniot; that twenty councillors of two Union Councils had also placed their affidavits with this petition and had appeared on the last date of hearing.

4. Syed Faiz-ul-Hassan, learned counsel for the petitioner in Writ Petition No.22033 of 2009 submits that respondent No.8 has no authority to make application to the Board of Revenue for attaching or detaching the above said villages; that power under sections 6 and 7 of West Pakistan Revenue Act has been given to the Board of Revenue in order to do so after seeing the convenience of public at large; that application of respondent No.8 before the Board is based on wrong facts; that prior to the declaration of Chiniot as District it was biggest Tehsil of the area; that due to the act of respondents provisions of Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan have been violated; that petitioner was never given an opportunity to hear his objections; that no reason has been given in the notification for detachment of villages from District Chiniot. He has referred PLD 2001 Kar. 52 and 2005 SCMR 25 and submits that discretion ha$ been used illegally and arbitrarily.

5. Malik Rehmat Ullah, Advocate in Writ Petition No.21583 of 2009 submits that Chiniot District consists of 44 Union Councils and District Jhang consists of 84 Union Councils; that Tehsil Lalian consists of 13 Union Councils and Union Council Nos.9 and 10 are within the jurisdiction of Tehsil Lalian; that amongst 13 Union Councils of Tehsil Lalian, if two Union Councils are taken out remaining will be 11 Union Councils; that Police Station Bhawana is at a distance of five kilometers from the said Union Councils; that if these Union Councils remained in District Jhang police Station Qadir Pur will be at a distance of 25 kilometers and it will create great inconvenience to the public at large; that this all has been done with mala fide intention and the same may be declared as null and void.

6. Respondent No.8 submits that his constituency consists of 14 Union Councils; that 12 Union Councils are from District Jhang while two are from District Chiniot; that this constituency is since 1977; that he belongs to a middle class family and people belongs to Union Council Nos.9 and 10 are living in District Jhang, they have so many facilities which are not available in Chiniot; that even son of Rai Munir Ahmad petitioner namely Laroosh Zafar also taking education in District Jhang; that an application to the Board of Revenue has been submitted by both the Nazim Union Councils stating therein that they want to remain with Jhang and not with Chiniot; that he is representing people of Union Council Nos.9 and 10 and he had taken votes from them and no illegality has been committed by him or the Board of Revenue.

7. On the other hand learned Advocate-General submits that this District has been notified under section 6 of West Pakistan Land Revenue Act, 1967; that under sub-clause (2) of said section 6 it is prerogative of the Government and the Government may, by notification, very the number and limit of divisions, districts, sub-divisions or Tehsil in the province and there is no jurisdictional defect in this notification; that section 11 of Punjab Local Government Ordinance referred by learned counsel for the petitioner is not relevant in this regard; that in the present matter factual controversy cannot be decided in the writ jurisdiction. He has referred 1999 CLC 430 and PLD 2006 Lah. 627 and submits that in both the judgments notification issued by the Government of Punjab have not been touched by this Court. Lastly submits that this notification is within the jurisdiction of competent authority.

8. I have heard learned counsel for the parties at a great length and have gone through the record and the precedents cited from both the sides.

9. The Notifications under challenge have been issued by Government of the Punjab in exercise of the powers under section 6(2) of the Punjab Land Revenue Act 1967 (West Pakistan Act XVII of 1967). To proceed with the matter any further, I may reproduce section 6 and in particular sub clause 2 thereof. "

6. Divisions to be divided into Districts and Districts into Sub-Divisions etc. (1) (2) Government may, by Notification, vary the number and limit of Divisions, Districts, Sub-Divisions or Tehsils in the Province."

10. The facts of the cases in hand are that Chiniot was declared as a District vide Notification dated 26-1-2009 with its Headquarter at Chiniot and three Tehsil, Chiniot, Lalian and Bhawana. The application on the basis whereof the impugned notifications were issued is at page No.32 of the file and marked as Annexure "D". This application, which is in Urdu, is reproduced hereunder:

11. The averments of the application made by respondent No.8 are belied from a map of District Chiniot an attested copy whereof has been placed on record, according to which, the villages detached from District Chiniot through the impugned notification fall in Qanoongoi Sheikhan Tehsil Lalian District Chiniot and are about 25 kilometers away from Tehsil headquarter Lalian whereas by inclusion of the villages in District Jhang, the distance between the villages now included in District Jhang is 65 kilometers from Tehsil headquarter Jhang. Moreover, the areas of Qanoongoi Sheikhan in which Union Council Nos.9 and 10 fall are the part of Chiniot since its creation as Tehsil in 1856. Similarly, Police Station Bhawana is at a distance of about 5 kilometers from these villages whereas Police Station Qadir Pur of Tehsil Jhang is at a distance of 40 kilometers from the said areas. The respondent-Government through Board of Revenue had rightly issued notification dated 26th January, 2009 but the subsequent Notification dated 19-8-2009 on the application of a MPA seems to be issued on political consideration without keeping in mind the factual hardships of the inhabitants of the 23 villages and merely on the wish of respondent No.8, issued the impugned notifications, which amounts to non-application of mind by the authority while passing the order.

12. It is not a matter of wishes or the views of the respondents but the supreme purpose of all laws and enactments is to do public good, welfare and betterment of the people. By issuing the impugned notifications, instead of providing facilities and ease to the inhabitants of the villages, their miseries have been increased in as much as distance between their residences to Police Station and Tehsil Headquarter has become more.

13. It was hotly objected by the learned Advocate General Punjab that the impugned notification being administrative in nature and writ petition involved factual controversies. There is no denying the fact that the policy decisions of such nature fall within the ambit of power of the Executive Government which is expected to take such decisions keeping in view many consideration, that is, public interest administrative, practical convenience and difficulties of the Local population etc. but all the same the notifications issued by the provincial Government under section 6 of the Punjab Land Revenue Act 1967 are not immune from being called in question and moreover the power of judicial review is available in appropriate cases of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of Government. The impugned notification is a classic example of unfairness and unreasonableness.

14. As a result of the above discussion, all the three writ petitions are accepted and the impugned Notification No.862-2009/U-77/475 dated 19-8-2009 issued by Government of the Punjab in the Revenue Department, is declared to be ultra vires and of no legal effect. There IE shall however be no order as to costs. M.U.Y./M-858/L???????????????????????????????????????????????????????????????????????????????? Petitions accepted.