1982 PLP 750 (SCMR)

NASIM HASAN SHAH. J.‑The petitioners, who are 94 in number, filed a Writ Petition No. 267/81/BWP alleging that they had been granted state land on lease in Chak No. 30 D. N. B., District Bahawalpur under ten years Temporary Cultivation Scheme in the year 1968. The petitioners further claimed that they had developed the land in dispute by spending a huge amount on its improvement and, therefore, in their writ petition they con tended that they were entitled to be treated as sitting tenants and further entitled to the extension of the lease for a further period of five years. In response respondent No. 3, in his comments sent to the High Court, submitted that the petitioners had neither been allotted the land in dispute nor issued any allotment orders and the documents relied upon by them were forged. Even their possession over the disputed land was factually controverted. The learned Judge in the High Court, in view of this complete disagree ment on the facts, observed that as the question, whether the petitioners were ever allotted the land in dispute and that they were in cultivating possession thereof, was disputed by respondent No. 3 and the determination of these facts would require recording of evidence, the case was not fit for considera tion by the High Court in its extraordinary constitutional jurisdiction. He further observed that the petitioners may if so advised, approach the Court of "plenary jurisdiction" for the relief prayed. This petition for leave to appeal is directed against the above judgment of the High Court. In the meanwhile the petitioners have also approached the Board of Revenue on the administrative side considering the said authority to be the Court of "plenary jurisdiction" in the relevant regard. The learned counsel for the petitioners submitted before us that the petitioners were actually in physical possession of the land and bad moved respondent No. 3 for extension of lease. No written orders were passed on this prayer, but instead the law enforcing authorities were instructed to eject them physically from the areas in their possession and that it was for the said reason that they had approached the High Court for relief and being un successful they had then come to this Court. It is submitted that if they were not in possession of the lands being claimed by them it would be sheer madness for them to rush to the Superior Courts. The fact that they are actually in physical possession is indirectly supported by some observations made in the self‑contained note sent by they respondent No. 3, along with the comments to the High Court, wherein it is, Inter alia, said that "the possession of the land in dispute was also no delivered to the petitioners nor are they in its regular possession". Thus, the actual physical possession of the petitioners is not questioned but only the manner in which they came into possession and its legality is challenged. The learned counsel for the petitioners has submitted that in the mean time Martial Law Order No. 821 dealing with the "removal of encroachment of the public property" has been promulgated by Martial Law Administrator, Zone `A', on the 13th November, 1981 and para. 6 whereof dealt with the manner in which the persons, who are encroaching on any public property are to be dealt with. According to this provision an officer authorised to perform, the function under the Order "if, after making such inquiry as he thinks fit, is satisfied that any person has male an encroachment on any public property within the area of his jurisdiction, be may require that person to show cause within such period as may be specified by him in the order as to why h should not be directed to remove the encroachment". The learned counsel for the petitioners submits that if the petitioners are, indeed, encroachers they should be issued a show‑cause notice calling upon them to show cause why they should not be directed to remove the encroach merit and in these circumstances it is submitted that they will have an opportunity to establish their rights over the property, if any. Thus, the petitioners pray that before being physically ejected they should be heard to be the authorised officer and an opportunity granted to them to establish their contentions. It is not for this Court to consider whether the provisions of this order are applicable in the present case or that the petitioners are entitled to issuance of a show‑cause notice thereunder. But we have no doubt that the respondents will proceed in accordance with law in this matter. With these observations this petition stands disposed of. Petition disposed of accordingly.