2005 PLP 1435 (CLC)

The brief facts out of which present writ petition arises are that the predecessor-in-interest of the petitioner was allotted land measuring 119 Kanals and 13 Marlas situated at Mauza Koriana Revenue Estate, under Colombo Plan Scheme vide Notification dated 21-10-1954. The respondents had allotted the land in question to different tenants in three Revenue Estates in District Jhang. The predecessors-in-interest of the petitioner after investing the huge amount over the land in question, made the same under cultivation. He also secured the electricity connection to install the Tubewell for making the land under cultivation. The respondents had recommended the case of predecessor-in-interest of the petitioner for the grant of proprietary rights along with other allottees with regard to land allotted to them under said Scheme to the higher Authority. The Deputy Secretary (Colonies) accepted the recommendation vide letter dated 22-10-1962, which is attached with this file at page No.27. The Circle Registrar also recommended the case of predecessor-in-interest of the petitioner along with other allottees on 19-4-1980 that proprietary rights be conferred upon allottees, which is attached with this Constitutional petition as Annexure "D". The said scheme was dropped under the influence of politicians. The allottees being aggrieved filed Constitutional Petition No.51 of 1961, which was accepted by this Court vide judgment dated 4-12-1972. This Court has observed in the said judgment that Colombo Scheme as a matter of fact, was grow more food scheme, therefore, allottees have accrued vested rights as is evident from Annexure "E" attached with this Constitutional petition, and the case was remanded by this Court to the Collector concerned for fresh decision in accordance with law. The Deputy Commissioner/Collector concerned after remanding, sent the case of the petitioner to the Secretary, Board of Revenue vide letter dated 26-6-1978 along with recommendation in favour of the petitioner to grant proprietary rights including the petitioner and other allottees. The petitioner thereafter, submitted various applications before the respondents, which were not decided by the authority. The petitioner and other allottees being deprived of their vested rights on account of inaction of the respondents, filed Writ Petition No.2505 of 1983 challenging the vires of notice dated 1-3-1983 and action of the respondents. The Constitutional petition was accepted by this Court vide judgment dated 29-5-1990. The impugned notification was set aside and case was remanded to the Deputy Commissioner/Collector to decide the case afresh. The respondents being aggrieved filed Civil Appeal No.195 of 1991 before the Honourable Supreme Court, which was partly accepted vide judgment; dated 23-2-1992. The apex Court upheld the judgment of this Court to the extent that case was remanded to the District Collector/Deputy Collector to decide the case afresh, but notification set aside by this Court, was not approved. The petitioner, thereafter, submitted applications before respondents in view of judgment of this Court and apex Court, which were not decided by the concerned Authority. The respondent No.3 passed ex parte impugned order on 31-3-2005. The petitioner being aggrieved filed this Constitutional petition.

2. The learned counsel of petitioner submits that petitioner is being penalized by inaction of public functionaries as notice was not received by the petitioner as is evident from proceedings before the District Officer (Revenue) Jhang, which are at pages Nos.69 to

74. Notice was issued to the petitioner by the Office of District Collector, Jhang on 17-3-2005 for 31-3-2005. While report of Process-Server reveals that the petitioner has given undertaking orally to appear before D.O.R. but he did not receive the notice. It is pertinent to mention here that report of undertaking of the petitioner to appear before the District Officer (R) on the backside of notice, is dated 28-4-2005; whereas report of verification is dated 29-3-2005, which is prior to the report of Process-Server, therefore, impugned order is hit by principle of natural justice, which is also not in consonance with section 24 of the Colonization of Government Land Act, 1912; wherein it is specifically provided that the District Officer (Revenue) has to proceed against the petitioner, after notice, hence, the impugned order is not sustainable in the eye of law as the same was passed by him without application of mind and in violation of mandatory provisions of section 24 of the said Act read with section 24-A of the General Clauses. In support of his contention, he relied upon Messrs Airport Support Services case 1998 SCMR 2268. He further submits that in case proceedings are looked into any canon of justice, then impugned order is passed by the District Officer (Revenue) in haphazard manners, which is not in consonance with law laid down by the Superior Courts. In support of his contention, he relied upon Asian Food Industries Ltd. and others v. Pakistan and others 1985 SCMR 1753. He further submits that the impugned order is passed in violation of parameters prescribed by this Court as well as apex Court at the time of remanding the case to the Authority concerned, therefore, the impugned order is without lawful Authority. In support of his contention, he relied upon Khizar Hayat v. Member, Board of Colony 2004 CLC 1960. He further submits that the impugned order is not in consonance with instructions issued by the competent Authority under the provisions of Colonization of Government Lands Act, 1912 and law laid down by the Superior Courts. In support of his contention, he relied upon S. Abdur Rahim and others v. The Member, Board of Revenue (Colonies), West Pakistan Lahore and others 1989 MLD 2299.

3. The learned Law Officer entered appearance on Court's call, he submits that the writ petition is not maintainable.

4. The learned counsel of the petitioner in rebuttal submits that in the presence of alternative remedy, there is no bar to entertain the Constitutional petition; whereas the impugned order is without lawful authority. In support of his contention, he relied upon the following judgments: Anjuman-e-Ahmadiya v. Deputy Commissioner and others PLD 1966 SC 639; Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395; Bashir Ahmad and others v. M.B.R. (Colonies), and others NLR 1980 Revenue Lah. 33; Noor Ahmad v. Member, Board of Revenue 1986 MLD 2065; Ghazi Fabric International Ltd. v. WAPDA and 3 others PLD 2000 Lah. 349; Mst. Razia Begum v. Cantonment Board, Clifton and others 2000 YLR 2114; Town Committee v. Authority under the Payment and others PLD 2002 SC 452; Messrs Ahmad Clinic v. Government of Sindh and others 2003 CLC 1196 and Muhammad Aslam v. Senior Member (Colonies) and others 2004 SCMR 1587.

5. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

6. It is admitted fact that the petitioner has more than one alternative remedies against the impugned order before the higher Authorities of the District Officer (Revenue) under the provisions of law, therefore, the Constitutional petition is not maintainable. My learned brother the then Ehsan-ul-Haq Chaudhry, J. has considered this proposition qua maintainability of Constitutional petition in the presence of alternative remedy in Writ Petition No.4174 of 1998 and laid down the following principle: "There is recent tendency to file Constitution petitions without exhausting the remedies under the Statute. This recent trend is dangerous. Honourable Supreme Court clearly held in the cases reported as Pir Sabir Shah v. Shad Muhammad Khan, N.-W.F.P. and another PLD 1995 SC 66, The Collector Customs Karachi v. Messrs New Electronics (Pvt.) Ltd. and 59 others PLD 1994 SC 363 and Riffat Askari v. The State PLD 1997 Lah. 285." It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and its facts, as per principle laid down by the Honourable Supreme Court in Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties:-- Urdu Para Page 1440 Mere reading of the operative part clearly reveals that present controversy cannot be resolved without recording evidence of the parties, which is not permissible in the eye of law, as this Court seldom evidenced while exercising power under Article 199 of the Constitution. The operative part also brings the case of the petitioner in the area of the disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction, therefore, the writ petition is not maintainable in view of law laid down by the Honourable Supreme Court in Muhammad Younas Khan v. Government of N.-W.F.P. 1993 SCMR

618. The judgments cited by the learned counsel of the petitioner qua maintainability of the present writ petition in the presence of alternative remedy, are distinguished on facts and law. I have taken aforesaid view in the different Constitutional petition, therefore, I am not in a position to deviate from my own view on the well-known principle of consistency, as per law laid down in Muhammad Muzaffar Khan v. Yousaf Khan PLD 1959 SC 9.

6. However, in the interest of justice and fairplay and keeping in view the peculiar circumstance of this case, the impugned order is held in abeyance for 10 days from today to enable the petitioner to avail alternative remedy, in case the impugned order has not been implemented till date. The learned counsel of the petitioner is directed to hand over copy of this writ petition along with all the Annexures to Mr. Muhammad Hanif Khatana, Additional Advocate-General, who is directed to send the same to respondent (concerned authority) for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned Law Officer for onward transmission to concerned authority for necessary action and compliance.

7. With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges. M.H./Z-96/L Order accordingly. ***