P L D 2008 Supreme Court 582 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This appeal, by leave of the Court, has been directed against the judgment dated 58-10-1996 passed by Lahore High Court, Lahore, whereby the learned Judge in Chambers while dismissing the Writ Petition bearing No.4430 of 1996 filed by appellants, directed the Deputy Land Commissioner for conclusion of the inquiry in terms of the order dated 19-10-1995 passed by Senior Member, Federal Land Commissioner within three months.

2. The facts of the case, in small compass, leading to the filing of instant appeal are that Syed Muhammad Tahir Shah, a landowner of Tehsil Chiniot District Jhang by filing declaration under MLR 64 (West Pakistan Land Reforms Regulations, 1959) surrendered land measuring 521 Kanals, 15 Marlas in village Sadev of Tehsil Chiniot, District Jhang. The present appellants claiming themselves in cultivating possession of the land before the promulgation of MLR 64, asserted for allotment of the resumed land as tenants of Syed M. Tahir Shah, declarant whereas Muhammad Yar and Ahmed Yar sons of Muhammad Hayat, respondents Nos.3 and 4, in this appeal and other residents of village Bhukharian set up their title in the land measuring 434 Kanals, 15 Marlas on the basis of mutations sanctioned in their names on different dates. It was stated that these respondents managed to procure a forged order dated 30-3-1980 allegedly passed by Tehsildat, Chiniot exercising the power of Sub-Assistant Land Commissioner (SALC) wherein they claimed ownership of the land as auction-purchaser and consequently, they got a fake and bogus mutation sanctioned in their favour. The appellants challenging the genuineness of the claim of respondents, filed a direct revision before the Additional Chief Land Commissioner, Punjab, which was dismissed vide order dated 13-4-1983 and thereafter, they filed a second revisions before the Federal Land Commission, Government of Pakistan, which succeeded and Mr. Amir Yousaf Ali Khan, Member, Federal Land Commission, while setting aside the order of the Additional Chief Land Commissioner, Punjab, remanded the case to the Deputy Land Commissioner, Jhang for a thorough enquiry into the matter. The respondent Nos. 3 and 4 filed a Writ Petition No. 5401 of 1983 in the Lahore High Court against the order of Federal Land Commission, which was dismissed and the order of High Court having been not further challenged, attained finality. The Deputy Land Commissioner, Jhang, having found the Mutation Nos. 480, 484, 485, 486-490 and 471, 472, 476 and 477, sanctioned on different dates, based on forged order, directed for registration of criminal case against the respondent Nos. 3 and 4, as beneficiary of the transaction together with Akhtar Raza Zaidi, Reader to SALC/Tehsildar, Chiniot, and Ghulam Hussain, Consolidation Patwari, who were found responsible for committing fraud and forgery. Deputy Land Commissioner therefore, directed the SALC to determine the eligibility of tenants of the resumed land and submit the list of eligible persons. In the process, Muhammad Yar, respondents, made a statement before Colony Assistant that he was owner of 38 Kanals of land in village Sadev and was in self-cultivating possession of this land since 1970. The SALC having formed an opinion that respondents Nos.2 and 3 were not entitled to the allotment of resumed land determined the eligibility of 21 persons including the appellant and submitted the list of eligible persons accordingly. The conclusion drawn by the Deputy Land Commissioner, Jhang was affirmed by Mr. Shahzed Hassan Pervez, Land Commissioner, Faisalabad, in appeal filed by the respondents who after hearing the parties, held that on repeal of MLR 64, the land resumed thereunder was available for disposal under MLR 115 and disposed of the appeal in terms of para. 32(4) of Land Reforms Regulation, 1972. The respondents namely Ahmed Yar and Muhammad Yar and one Bahawal son of Sadad filed separate revision against the above order and Chief Land Commissioner, Punjab, disposed of the revisions with the observation that the conclusion drawn by the Deputy Land Commissioner to the effect that respondent Nos.3 and 4 were not eligible for grant of resumed land in village Sadev, Tehsil Chiniot, District Jhang, under para. 18(3) of the Land Reforms Regulation, 1972 (Martial Law Regulation No.115 of 1972) as they were owners of more than five acres of land in the village was unexceptional. The revision was accordingly dismissed vide order dated 9-6-1993 and respondents then filed a revision petition against the above order before the Federal Land Commission, Pakistan, which came up for hearing before Mr. M. Ashiq Siddiqui, Senior Member, Federal Land Commission, Islamabad (Camp at Lahore) who allowed the revision and remanded the case to Deputy Land Commissioner for decision afresh. The appellants being aggrieved of the order of Senior Member, Federal Land Commission, filed a writ petition in the Lahore High Court, Lahore (Writ Petition No.4430 of 1996), which was dismissed in limine vide impugned judgment with the observation as under: Sikander and three others challenged the order dated 19-10-1995, of the Senior Member, Federal Land Commission by invoking the constitutional jurisdiction with the pleas that the petitioners are admittedly found entitled to get the allotment of land as tenants of the resumed land as tenants of the resumed land and, therefore, entry which has been ordered to be held in the impugned order should not have been made basis for allotment in their favour. On enquiry, learned counsel frankly stated that if ineligible persons who are twenty one in number after the enquiry are held to be eligible then the right to the allotment of the land will be adversely affected. This being the position, the allotment to the determination of all the eligible tenants entitled to receive the allotment of the resumed land. We are also told that a civil revision (C. No.3017/94) pertaining to a part of land in dispute is pending adjudication and the final determination cannot take place unless the said revision petition is not decided. The remand orders are ordinarily not interfered with in constitutional jurisdiction specially when the decision so made by the competent authority by remanding the order is not challenged and controverted. It is true that the matter of allotment is pending for the last two decades but without consideration of the question of eligibility grant of allotments cannot take place. In the circumstances, no justifiable exception can be taken to the impugned order of the learned Senior Member Federal Land Commission and interference in exercise of extra-ordinary constitutional jurisdiction is not warranted. We will, however, directed the Deputy Land Commission to whom the case is remanded to conclude the enquiry within three months. The office is also directed to put up the file of Cr. No.3017 of 1994 before the Chief Justice for fixation of the same for disposal. The writ petition is without merit and is hereby dismissed with no order as to costs."

3. The appellant have filed the instant appeal in which leave was granted vide order dated 12-4-1999, as under:-- "

3. We are inclined to grant leave to consider the following questions: (i) whether factually the appellants entitlement to the disputed land has been determined; (ii) if the answer of the above question is in the affirmative, whether the learned Senior Member, Federal Land Commission by his order dated 19-10-1995 was justified in remaining the case; and (iii) whether the learned Division Bench was justified to maintain the above order. Leave to appeal is accordingly granted."

4. Learned counsel for the appellants contended that FLC on the basis of wrong assumption of law and facts, remanded the case of the DLC and High Court without properly appreciating the matter in true prospect, passed the impugned judgment through misreading of the record. Learned counsel submitted that the judgment rendered by the High Court in a slipshod manner, was suffering from serious infirmity of patent errors on record which caused miscarriage of justice as the order dated 19-10-1995 passed by Senior Member, Federal Land Commission, was suffering from legal defect of misappreciating the correct legal and factual position, which has caused serious prejudice to the appellants as after determination of their eligibility as genuine claimants, there was no justification for remand of case and in any case except the appellants, there was no other genuine claimant. Learned counsel asserted that since the right of the appellant for allotment of resumed land, was established on record, therefore, the High Court was under legal obligation to dispose of the writ petition on merits and not to maintain the remand order.

5. Learned counsel for the respondents, on the other hand has vehemently contended that the learned High Court has rightly dismissed the writ petition and this Court may not interfere in the conclusion arrived at by the High Court on a question of fact.

6. The observation of the High Court regarding interference in remand order in writ petition particularly in a case which involves factual inquiry is correct but at the same time, this is settled principle that in a case in which facts are not as such disputed, the High Court may pass appropriate order on merit in respect of legal rights of the parties involved therein in exercise of its constitutional jurisdiction and should not remand the case to a lower forum which may not serve any purpose except to prolong the litigation. In the present case, we find that basic facts were admitted and the High Court instead of remanding the case of the Land Commission Authorities could conveniently decide the question of entitlement of the parties on the basis of the facts available on record. The Deputy Land Commission after remand of the case by the Federal Land Commission having conducted a through inquiry prepared the list of eligible persons and passed order accordingly, therefore, subject to all just exceptions apparently no further enquiry was required to be conducted. The judgment rendered by the High Court in a slipshod manner without appreciating the legal and factual aspect of the case in the light of material available on record and determining the rights of allotment of resumed land, was not correct exercise of the jurisdiction.

7. In the light of the facts and circumstances of the case in the background, the High Court was required to determine the question of eligibility of the parties in letter and spirit and instead of remanding the case back to the Land Commission Authorities should have passed an appropriate order on merits on the basis of available record.

8. In consequence to the foregoing discussion, we allow this appeal, set aside the impugned judgment and remand the case to the High Court for decision of the writ petition on merits afresh in accordance with law. There shall be no order as to costs. M.B.A./S-24/S Appeal allowed.