2000 PLP 1320 (YLR)

‑‑‑‑Paras. 13 & 16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Restoring the possession of surrendered land to the persons to whom such land was allotted after surrender‑‑‑Authority restrained the petitioners from interfering into the _ possession of such allottees‑‑‑Validity‑‑‑Order as passed by the Authority in an administrative capacity and not in judicial capacity‑‑‑Findings recorded by Authority were subject to judicial review and the petitioners had ample opportunity to agitate all relevant grounds before the Court of law that might be available to them‑‑‑Where the petitioners had nothing to do with surrendered land, their interference into such land was uncalled for‑‑‑Order of the Authority did not suffer from inherent lack of jurisdiction and was not passed without any lawful authority‑‑‑Petition was dismissed in circumstances. M.A. Rasheed for Petitioners Zawar Hussain Jafferi, Addl. A; G, for the State. Through this Constitutional petition petitioners have assailed the vires of ‑the order, dated 23‑9‑1998 passed by Deputy Commissioner and Deputy Land Commissioner, Khairpur Mirs, as without lawful authority and of no legal effect. They seek a direction from this Court restraining respondents Nos. 1 and 2 not to take any action against them in pursuance of the impugned order.

2. Facts in a nut‑shell emerging from the petition as well as parawise comments and brief history of the case given out by Deputy Commissioner, Khairpur appear to be that an area of 4100 acres was resumed from late Haji Abdul Kareem predecessor‑in‑interest of petitioners Nos. 1 and 2 on 6‑6‑1959 under Martial Law Regulation

64. Later, Federal Land Commission Rawalpindi in exercise of its revisional jurisdiction under Paragraph 29 of M.L.R.115 held on 2‑7‑1974 that an area of 351‑02 acres out of the, above resumed lend be retained by Syed Udhal Shah Jillani and desired that the balance area be allotted to the deserving haris after proper measurement. Said Udhal Shah also known as Pir Ghulam Muhiyuddin Shah resident of Ranipur filed F.C. Suit No.24 of 1996 before the Court of Civil Judge, Gambat against the Provincial Government and the legal heirs of deceased. Haji Abdul Kareem Kharal including petitioner No.1 wherein he lost his claim over 351‑02 acres of land. Consequently an area of 2588‑34 acres was disposed of in favour of 127 sitting tenant of deh Ketti Kanoori by the Assistant Commissioner, Khairpur under M.L.R. 115 promulgated in 1972 for the reason that at the relevant time, Taluka Gambat was a part of Khairpur Sub‑Division. According to the petitioners after the surrenttet of the land by their predecessor, they nad no concern with the surrendered land but certain Kalhora haris were in cultivating possession thereof, which in law vested in the Provincial Government. It is their case that due to political influence members of Lak tribe, were brought from out side the deh and allotted the surrendered land in the year 1975 but subsequently Kalhora Haris dispossessed such persons and remained in cultivating possession of the lands so surrendered till 1998, when local administration tried to forcibly disposses them. It is said that such Kalhoras were, therefore, obliged to file C. P. No. S‑1129 of 1998 against the Provincial Government and the private persons, which was disposed of by a Single Bench at Sukkur on the assurance of the Additional Advocate‑General that Government functionaries shall not harass the petitioner and action if any, shall be taken in accordance with law. A copy of the order impugned in this petition, was filed alongwith the comments in the earlier petition, which has been impugned as without any lawful authority and in violation of the principle of natural justice directing prosecution against the petitioners under Pargraphs 30 and 31 of the Land Reforms Regulation, 1972, hence this petition.

3. Parawise comments had been called from respondents Nos. 1 and

2. These were filed by the Deputy Commissioner/Deputy Land Commissioner, Khairpur on the last date of hearing, copy whereof has been made available to the learned counsel for the petitioners. In the comments respondent No. 1 has denied that not only Kalhoras but persons of Channa caste were also Haris in cultivating possession of the surrendered land at the time of its surrender. He has expressed the view that petitioners are advocating the claim of Kalhora Haris, which is absolutely uncalled for as they have nothing to do with the surrendered lands. As regards the impugned order he has stated that it was passed after verification of the fact through Assistant Commissioner, Gambat by visiting the site and obtaining facts from several allottees in an open Katchery on the spot. He has supported the impugned order as lawful and within jurisdiction.

4. With the assistance of the learned counsel for the parties, we have gone through the impugned order, which tends to suggest that as many as thirty persons of Lak and Kalhora tribe have been allotted various pieces of land in different blocks out of the surrendered lands, who got their statements recorded. The impugned order appears to have been passed after recording statements on oath of such allottees and others most of whom complained that they were being allowed from cultivating their lands by petitioners Nos. 1 and 2 and through 'Kamdar' of petitioner No. 3 on the pretext that the land still belongs to them. In the impugned order, Deputy Land Commissioner, the respondent No.1 after satisfying himself that the petitioners in contravention of Paragraphs 13 and 18 of the Land Reforms Regulation, 1972 (M.L.R. 115), had been and were still obstructing the process of resumption of land, its subsequent grant to landless Haris by their acts and omission as pointed out by the allottees rendered themselves liable to prosecution under para.30/31 of the Land Reforms Regulation, 1972 sanctioned prosecution against the petitioners.

5. Mr. M.A. Rashid, learned counsel for the petitioners vehemently contended that Deputy Land Commissioner himself being delegate from the Land Commission could not authorise the filing of a complaint through his Assistant Commissioner as he could not delegate to his authority to a third party. He referred to a Single Bench case from the Lahore jurisdiction reported as Nafees‑ud‑Din Khan v. State 1979 PCr.LJ

389. From the language employed in the Notification, dated 17th May, 1974 issued by the Sindh Land Commission delegating authority to various authorities, we are of the opinion that the Deputy Land Commissioner A can authorise the filing of a complaint in writing against a person who contravenes the provisions of the Regulation or the rules and orders made there under. Reported case is distinguishable in the sense that in that case Deputy Land Commissioner had directed the Superintendent of Police to lodge a F. I. R. against the delinquenets, which is absolutely different from a complaint as defined in the Code of Civil Procedure.

6. Learned counsel then submitted that this order was passed behind the back of the petitioners and without affording an opportunity of hearing to them. Suffice to it, say that the order has been passed in an administrative capacity and not in the judicial capacity. 'Furthermore, findings recorded by the Deputy Land Commissioner, are subject to judicial review and the petitioners shall have ample opportunity 8 to agitate all relevant grounds before the Court of law that may be available to them. In view of the facts stated and comments brought on record it can hardly be said that the impugned order suffers from inherent lack of jurisdiction or was passed without any lawful authority. Petition is, therefore, dismissed alongwith listed applications. Q.M.H./M.A.K./A‑9/K