1993 PLP 856 (MLD)

MUKHTAR AHMED JUNEJO, J.‑‑‑Petitioner Indus Glass Works Limited, which is a limited company incorporated under Company Law, 1913, has invoked Constitutional jurisdiction of this Court for declaring an order dated 24‑10‑1989, passed by the Member, Sindh Board of Revenue, to be illegal, void ab initio and of no legal consequence, and to have been passed without lawful authority. Petitioner also prayed that Hyderabad Municipal Corporation (respondent No.6) be restrained from disposing of, transferring, or alienating or in any manner treating the land in litigation as Katchi Abadi. M/s. Indus Glass Works a registered firm owned by Jaramdas and other partners, was running a glass factory situated in Survey Nos.160 and 161 of deh Nareji, which are adjacent to the property in litigation viz. 2‑34 acres of Survev No.162 of deh Nareji taluka City Hyderabad. Under an agreement of sale dated 21‑1‑1948 Jaramdas and his partners agreed to sell the firm M/s. Indus Glass Works to Haji Fariduddin Siddiqui for a sum of Rs.1,00,

000. Said agreement 'was confirmed by the Deputy Settlement Commissioner, Hyderabad, under an order, dated 19‑1‑1955. For specific performance of said agreement, Fariduddin filed Suit No.6/55 in Court of the First Class Sub‑Judge Hyderabad. Said suit was decreed on 27‑4‑1955 in favour of Haji Fariduddin against the Evacuee owners and the Deputy Custodian Evacuee Property, Hyderabad. In pursuance of such decree a sale‑deed was executed on 9‑6‑1955 in favour of Haji Fariduddin by Official Receiver of Civil Court, Hyderabad and the same was duly registered. This was all in respect of factory of Indus Glass Works which was situated on land bearing S.Nos.164 and 161 of deh Nareji and which is not the property in dispute. Subsequently under a sale‑deed dated 1‑9‑1956, the concern known as Indus Glass Works with its immovable and movable property, was transferred for consideration to a limited company named as M/s. Indus Glass Works Limited viz. the petitioner. While Indus Glass Works was owned by Evacuee owners Jaramdas anti others, they were given permission under a letter, dated 10‑5‑1950 issued by the City Mukhtiarkar. Hyderabad, to occupy the property in litigation measuring 2 Acres 34 Ghuntas of S. No.162 of Deh Nareja on payment of certain amount as `Malkano'. It appears that Hindue owners of Indus Glass Works failed to pay the price for the disputed area and Haji Fariduddin new purchaser of Indus Glass Works moved Collector of Hyderabad for the disputed area required by him for the extension of the factory of Indus Glass Works. On 27‑4‑1950 the Collector of Hyderabad granted the property in litigation to Indus Glass Works who deposited Rs.10,345.50 as `Malkano' in the Imperial Bank of India. Under a letter dated 28‑10‑1986 the City Mukhtiarkar, Hyderabad sought orders of the Additional Deputy Commissioner 1, Hyderabad for effecting mutation in favour of Indus Glass Industries Limited. Under an earlier letter, dated 16‑10‑1985 the City Mukhtiarkar, Hyderabad had intimated the Addl. Deputy Commissioner I, Hyderabad that 2‑34 acres of S.No.162 were permitted to be occupied by Indus Glass Factory, while remaining area was in possession of Burmah‑Shell Companies and some Mohajirs. In same letter, the City Mukhtiarkar informed Addl. Deputy Commissioner I, that 2.34 acres of S.No.162 were sanctioned in favour of M/s. Glass Works but no entry was available in the record of rights. The matter came for decision before Additional Deputy Commissioner 1, Hyderabad who under his order dated 15‑9‑1988 held the disputed land to be State Nakabuli Land and made note that M/s. Indus Glass Works Limited had not produced any fresh evidence in support of their being owner of the said land. Said order, dated 15‑9‑1988 passed by the Addl. Deputy Commissioner, Hyderabad was challenged before the Commissioner Hyderabad Division. Under an order, dated 16‑1‑1989 the Commissioner Hyderabad Division held that the disputed land was Kabuli land belonging to Indus Glass Works Limited. Being aggrieved with such order, Hyderabad Municipal Corporation filed an appeal before the Sindh Board of Revenue against the order of the Commissioner, Hyderabad Division dated 16‑1‑1989. Under the impugned order, dated 24‑10‑1989 the Member, Sindh Board of Revenue set aside the order, dated 16‑1‑1989 passed by Commissioner, Hyderabad as well as the order dated 15‑9‑1988 passed by the Additional Deputy Commissioner Hyderabad and referred the parties to seek remedy from a Civil Court of competent jurisdiction and get determined as to whether Survey No.162 is property of Cantonment Board, Hyderabad or 'it is G&ernment Na‑Kabuli land or it is Kabuli land of Indus Glass Works Limited. Hence this Constitution petition. Mr. Afzal Ahmed, learned counsel for the petitioner argued that the disputed land was purchased from the Government of Sindh Revenue Department under an order, dated 27‑4‑1950 passed by the Deputy Commissioner, Hyderabad and that subsequently the disputed land was purchased and `Malkano' for the same was paid and consequently the same land cannot be treated as Government Nakabuli land or as Katchi Abadi. Learned counsel challenged the impugned order to be illegal on the ground that it was contrary to factual position. It was also argued that there was not an iota of evidence to show that the disputed property belonged to Cantonment Executive Officer and that in the schedule the disputed property was shown to have been sold out. Mr. Anwar Zaheer Jamali, learned counsel for the respondents Nos.5 and 6 argued that the disputed property was treated as Evacuee Property and that whenever any property was treated as Evacuee Property the same vested in the Custodian free from all encumbrances and charges. Learned counsel for the respondents 5 and 6 next argued that the property in dispute was declared as Katchi Abadi in 1978 when Katchi Abadi Scheme was introduced under MLO

67. That the Hyderabad Municipal Corporation (respondent No.6) had passed a resolution on 27‑1‑1983 for including the disputed area in Katchi Abadi Scheme. It was added that the respondent No.5 had moved the Additional Deputy Commissioner I, Hyderabad to verify ownership of S.No‑162 of Deh Nareja (including disputed area) on the ground of a Katchi Abadi, known as Liaquat Ashraf Colony, subsisting thereon and having been declared as Katchi Abadi. Reference was made to a letter dated 4‑3‑1986 from the Addl. Deputy Commissioner I, Hyderabad to the Commissioner, Hyderabad where it was mentioned that the Indus Glass Works had claimed the disputed land on the basis of an order, dated 27‑4‑1950 passed by the then Collector of Hyderabad. Learned counsel for the respondents 5 and 6 supported the order, dated 15‑9‑1989 passed by the Addl. Deputy Commissioner I, Hyderabad holding that the disputed property was a State Nakabuli land. The Addl. Deputy Commissioner I, Hyderabad was said to have recommended transfer of the disputed property to the respondent No.6 for regularization of Katchi Abadi under MLO

183. It was added that respondent No.6 also requested the Commissioner, Hyderabad to move the Secretary (Land Utilisation), Board of Revenue for transfer of the disputed land to the respondent No.6. Learned counsel for the respondents 5 and 6 defended the impugned order referring the matter to the Civil Court. Learned counsel referred to subsection (6) of section 19 of Sindh Katchi Abadis Act, 1987 and argued that even an area owned by a private person can be acquired in consideration of compensation to be paid to the owner. Learned counsel further argued that in this Constitution petition disputed questions of facts had arisen and consequently the same was not maintainable. In support reliance was placed on the cases of: (i) Fawwad & Fareen Enterprises Ltd. v. Director of Industries Government of Sindh and others (PLD 1983 SC 268). (ii) Nawaza v. Additional Settlement and Rehabilitation Commissioner, Gujrat and another (PLD 1970 SC 39). (iii) Chaudhry Tanvir Ahmed Siddiky v. Province of East Pakistan and others PLD 1968 SC

185. Mr. Abdul Latif Ansari, learned AA.‑G., appearing for respondents Nos. 1 to 4 argued that as per the order dated 15‑9‑1989 passed by the Additional Deputy Commissioner I, Hyderabad, the petitioner never remained in possession of the disputed property. Learned AA: G. did not agree with order of the Commissioner dated 16‑1‑1989 and argued that said order was passed without looking into the original documents. It was next argued that Hindu owners of Indus Glass Works had never become owners of the disputed property, as per para 10 of the Constitution petition. Learned A.A.‑G., defended the impugned order. The only evidence which goes in favour of the petitioner is "permission" to occupy the disputed property issued by the City Mukhtiarkar, Hyderabad on 10‑5‑1950 and a letter, dated 16‑10‑1985 from the City Mukhtiarkar, Hyderabad to Addl. Deputy Commissioner 1, referring to the permission dated 10‑5‑1950 and reiterating the' fact that Indus Glass Works were permitted to occupy 2‑34 acres of land of Survey No.162 on payment of `Ma'lkano' which was paid and the letter dated 28‑10‑1986 from the City Mukhtiarkar, Hyderabad to Addl. Deputy Commissioner 1, showing Shat 2‑34 acres of Survey No.162 was property of Indus Glass Works Ltd. Admittedly there was no entry in the record of rights in favour of the petitioner. Copy of order of the Collector, Hyderabad dated 27‑4‑1950, said to have been passed in favour of Indus Glass Works about the disputed property, was not produced. The petitioner produced with his petition, copies of the sale‑deeds showing that he was owner of factory of Indus Glass Works alongwith Survey Nos.160 and 161 of Deh Nareji which is not in dispute. Grant of permission to the Indus Glass Works to occupy the disputed land on payment of certain amount as Malkano, would not make Indus Glass Works proprietor' of the disputed property, as permission to occupy cannot amount to permission to own. There is force in the contention of learned counsel for the respondents 5 and 6 that disputed questions of fact have arisen in this Constitution petition about title of the disputed property. Impugned order shows that the property in litigation is claimed, not only by the petitioner and the respondent No.6 and the Government of Sindh through respondent No.5, but it is also claimed by the Cantonment Board, Hyderabad. In the case of Fawwad & Fareen Enterprises Ltd. (PLD 1983 SC 268) it was held that where a question had become a disputed question of fact, it was rightly declined to be gone into by the High Court in the Constitutional jurisdiction. In the case of Nawaza, PLD 1970 SC 39 it was held that the High Court in the exercise of its writ jurisdiction, does not act as a Court of facts and ought not to enter into and decide disputed questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence. In the case of Chowdhury Tanbir Ahmed Siddiky (PLD 1968 SC 185) it was held that where the disputed questions of fact and law, requiring investigation, arise for consideration, it would not be a suitable subject for adjudication under Article 98 of the Constitution of Pakistan, 1962 (equivalent to Article 199 of the Constitution of Pakistan, 1973). Over and above this, the petitioner does not appear to be an "aggrieved part" by the impugned order which refers the parties to Civil Court. It cannot be said that the petitioner has no other remedy except to invoke Constitutional jurisdiction of this Court. More particularly in a case of this nature, where not only that evidence is required but appreciation of evidence is involved. Despite getting an opportunity, the petitioner could not even produce copy of the order of the Collector, which was basis of his claim to the disputed property. In the circumstances, it would be to the benefit of the petitioner, if the disputed questions which had arisen between the parties, are tried in a Civil Court after recording of evidence of the contesting parties.' In this view of the matter, we decline to invoke Constitutional jurisdiction in the case and dismiss this Constitution petition with no order as to costs. AA./I‑219/K Petition dismissed.