1987 PLP 1455 (SCMR)

NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the judgment of the learned Single Judge of the Peshawar High Court, Peshawar, dated 25‑3‑1978 in R.S.A. No. 148 of 1968. The relevant facts are that land measuring 17 Kanals 3 Marlas bearing Khasra No. 809/1590 situated in Kot Najibullah, Tehsil Haripur, District Hazara, was owned in equal shares by one Nand Kishore, now an evacuee, and Karam Khan son of Sher Zaman. Subsequently, through Mutation No. 2777 attested on 21‑11‑1961 the rights and interest of Nand Khisore‑‑The evacuee owner‑‑were acquired by the Central Government. In the meanwhile, on 26‑6‑1959, the evacuee land belonging to Nand Kishore alongwith some other land was allotted to Mst. Maqsoodi Begum, respondent No.5 herein, against her verified claim of 2056 units. This land was subsequently also confirmed in her favour. The remaining half of the land, which was owned by Karam Khan son of Sher Zaman, was given to Mst. Sabira Khatoon, Syed Qamar Masood and one Muhammad Suleman in consolidation proceedings. It may me mentioned that Mst. Sabira Khatoon and Syed Masood Qamar, respondents Nos. 3 and 4 herein, are wife and husband. In order to become exclusive owners of Khasra No.583 Syed Masood Qamar purchased the land given to Muhammad Suleman from him which he thereafter transferred to his wife Mst. Sabira Khatoon. Subsequently, on 3‑12‑1962, Mst. Maqsoodi Begum also sold her one half share in the said Khasra No.583 in favour of Mst. Sabira Khatoon, respondent No.3 herein. Thus, after the above sales, the entire land measuring 16 kanals 3 marlas comprised in Khasra No.583 came to vest in Mst. Sabira Khatoon and Syed Qamar Masood, respondents Nos. 3 and 4 herein and they, in turn, on 29‑6‑1963 gifted the said land in favour of their son, Sabih‑ul‑Hassan, appellant herein and a mutation in that behalf was duly sanction in his favour. It appears that during this period the Rehabilitation Authorities, while scrutinizing the allotment made in favour of respondent No.5 (Mst. Maqsoodi Begum‑‑who had sold a part of the land allotted to her in favour of Mst. Sabira Khatoon), discovered that she had secured the allotment in Khasra Nos. 583, 2356, 2362 and 2357 in Kot Najibullah in excess of her entitlement. Consequently, the Tehsildar made a report on 1‑4‑1963 suggesting that the said allottee should be summoned an enquiry be made and in the event of it being established that she had obtained the excess allotment, the requisite action be taken. In this connection, the husband of Mst. Maqsoodi Begum namely Amjad Ali appeared before the Rehabilitation Authorities. While explaining how the excess allotment was secured he stated that certain Khasra Nos. had been added in the RL‑II without the allottee's knowledge and that he (Amjad Ali) had no objection to the cancellation of the allotment of the said Khasra Nos. However, the aforesaid Amjad Ali subsequently submitted another application to the Rehabilitation Authorities for amending his previous statement and requesting that since the land comprised in Khasra No.583 had been sold in favour of Sabih‑ul‑Hassan, (appellant herein) some other land of the allottee may be resumed, in case the allotments secured by Mst. Naqsoodi Begum were found to be in excess of her entitlement. Nevertheless, the Assistant Rehabilitation Commissioner, by his order dated 4‑8‑1964, cancelled the allotment of Khasra No.583 from the name of Mst. Maqsoodi Begum and six kanals out of the land comprised in the said Khasra was subsequently allotted to Mohammad Raza Khan, respondent No.2. The aforesaid Muhammad Raza Khan, thereafter, sold the said 6 kanals in favour of Haji Abdul Jabbar, respondent No.1 vide Mutation No.3191 dated 15‑3‑1965. The case of the appellant is that the was never served with any notice by the Rehabilitation Authorities with regard to the proceedings regarding cancellation of the alleged excess allotment of Mst. Maqsoodi Begum and that the order of the Assistant Rehabilitation Commissioner dated 4‑8‑1964 was without jurisdiction and of no legal effect. He, therefore, instituted a civil suit in the Court of the Civil Judge, Haripur, for grant of a declaratory decree to the effect that the proceedings for the resumption of the land measuring 6 kanals in Khasra No.583 and its allotment in favour of Muhammad Raza Khan were illegal, void and inoperative on the rights of the appellant herein. The pleadings of the parties gave rise to several issues of which Issue No.4 is relevant for our present purposes and it reads as follows:‑ "Whether the order of the A.R.C. (Lands) Haripur dated 4‑8‑1964 was without any jurisdiction and the plaintiff is not bound by it? O.P.D:" The learned Civil Judge, who heard this suit, found in his judgment dated 8‑5‑1967 that the Civil Court was not competent to declare the impugned order of the Assistant Rehabilitation Commissioner dated 8‑4‑1964 as illegal. In this connection, he observed:‑ "It is abundantly clear from the documentary evidence adduced by the parties and specially from the documents Ex. D. A. Ex.D.B. and Ex. D.C. that the suit land to the extent of 6 kanals was confirmed by the A . R. C. (Lands), Haripur in the name of Defendant No.

2. According to Section 17 of the Pakistan Rehabilitation Act, 1956 "No suit, prosecution or other legal proceedings shall lie against the Central Government, any Rehabilitation Authority or any person acting under the direction of that Government or Authority for anything which in good faith is done or purports or is intended to be done in pursuance of this Ordinance or for any loss of damage caused to or in respect of any property taken over by any Rehabilitation Authority under this Ordinance." The suit was, accordingly, dismissed. The above view of the learned Civil Judge was upheld, on appeal, by the Additional District Judge and on second appeal by the High Court. Hence this appeal. Before us, it was contended that as the order passed by the Assistant Rehabilitation Commissioner (Lands) was passed without issuance of any notice to the appellant, therefore, the said order was not passed in accordance with the statutory provisions. Hence, the jurisdiction of the Civil Court was not ousted. We observe that this aspect of the case was examined by the High Court and it was observed that the cancellation proceedings in regard to the disputed property were known to the mother and father of the plaintiff /appellant (namely Mst. Sabira Khatoon and Syed Masood Qamar) and "that it would be absurd to suggest that the plaintiff/appellant was not aware or had no notice of these proceedings". Although we agree with the learned counsel for the appellant that the issuance of the notice to the appellant was necessary before ordering cancellation of the disputed 6 kanals comprised in Khasra No.583 but as held by the High Court the appellant, in fact, had the knowledge of the proceedings and that he was essentially relying only upon a technicality. The High Court has, furthermore, held that even otherwise the appellant could not be granted any relief because, according to Khasra Girdawari placed on the record, the disputed land has by now become a part of the graveyard of Kot Najibullah and presently there were graves in it. Hence the appellant could not seek a declaration regarding the ownership of the disputed property as it was now being utilized as a graveyard. The learned counsel for the appellant challenged the, findings of the High Court both with regard to the question that the appellant had knowledge of the cancellation proceedings or that the area in dispute had become a graveyard. We, however, do not consider it necessary to examine these contentions because we think that the view taken by all the Courts below that the civil suit was not maintainable is correct. The order dated 4‑8‑1964 passed by the Assistant Rehabilitation Commissioner could have been challenged before the Deputy Rehabilitation Commissioner or the higher Rehabilitation Authorities under the provisions of the Rehabilitation Act, 1956 and that section 17 thereof barred the jurisdiction of the Civil Court to entertain the suit. This Court in Sh. Fazal‑ur‑Rehman v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others (Civil Appeal No.238 of 1976) decided on 11‑3‑1987 has, in a somewhat similar situation, taken the same view. No ground for interference with the order passed by the Courts below, therefore, exists. This appeal is, accordingly, dismissed with costs. S.Q./S‑42/S Appeal dismissed.