1998 P Cr (PLP)

Date of hearing: 23rd April, 1997. The petitioners have through this Constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan challenged the vires of action of respondent 'No. 1 regarding registration of a case under section 379/188, P.P.C. vide F.I.R No.117 of 1996 at Police Station Garh Maharaja, at the instance of respondent No.2.

2. Following facts, relevant for this case are gleaned from connected Writ Petition No.75-R of 1996; two persons namely Ghulam Abbas and Safdar Hussain filed declarations under M.L.R. 115 and they admitted to own land in excess of permissible limit. Litigation ensued and final order was passed by Additional Chief Land Commissioner on 15-6-1973 whereunder area specified therein equal to 3006 P.I. Units was directed to be resumed. Both the declarants applied to Deputy Land Commissioner to implement this order, who in his turn asked the Assistant Commissioner to do the needful. It appears that the order of Additional Chief Land Commissioner was ultimately implemented in the relevant record in April, 1976. As a result of above implementation the name of the petitioner was scored of from the column of ownership and, instead, the name of Provincial Government was inserted therein. Same day name of Ghulam Abbas etc. was shown as owners after deleting the name of Provincial Government.

3. After having secured the insertion of his name in the Revenue Record as owner, Haq Nawaz applied to the Assistant Collector for appointment of Superdar who vide order, dated 22-4-1996 appointed respondent No.2 as Superdar. It is on the complaint of' respondents No.2, as Superdar, that the criminal case in question was registered wherein, inter alia, allegation of violation of section 114, Cr.P.C. by removal of wheat crop, sown in the disputed land was raised. Hence this writ petition.

4. It is contended by learned counsel for the petitioners that till April, 1996 they were shown as owners and admittedly the wheat crop had been sown by them. According to him there was no relationship of landlord and tenant between the petitioners and Ghulam Abbas etc. or for that matter even Provincial Government for the crop in question. It is argued that under section 17 of Punjab Tenancy Act, 1887 a Revenue Officer can appoint a Superdar in case of dispute about the division or appraisement of a crop. Prerequisite for such an order of appointment of Superdar, is the existence of relationship of landlord and tenant, between the parties. It is submitted that since this relationship was not present the question of appointment of Superdar could not arise and the order of Assistant Commissioner passed in this behalf on 22-4-96 was non est.

5. I find force in this writ petition. The crop in question was sown by the petitioners in their' capacity as owner. They had harvested it as such and were fully entitled to lift it without any let or hindrance. Relationship of landlord and tenant can come into being if one holds land under another person and is liable to pay rent for the use and occupation of land to such other person. The petitioners, clearly, did not possess the attributes of tenants within the meaning of section 4(2) of West Pakistan Land Revenue Act, 1967, in this respect see Roshan Din's case 1994 CLC

677. In this view of the matter the order of Superdari was a nullity. The Assistant Commissioner without application of conscious mind to the facts of the case proceeded to mechanically grant the application of Haq Nawaz for appointment of Superdar. 6 For the reasons mentioned in the preceding para it would be deemed that no Superdar had been appointed in the eye of law. The consequential F.I.R. got registered by respondent No.2, the so-called Superdar is therefore, a nullity and the action of respondent No.l regarding its registration is without jurisdiction.

7. The upshot of the above discussion is that this writ petition is accepted and the action of respondent No. 1 regarding registration of F.I.R. in question is declared to be without lawful authority and the same is hereby quashed. The petitioners are entitled to the costs of this writ petition. N.H.Q./M-366/L???????????????????????????????????????????????????????????????????????????????? F.I.R. quashed.