1980 PLP 1119 (CLC)

SARDAR MUHAMMAD SHARIF KHAN, J.-In this writ petition an order' dated 15th September, 1975 of Ch. Sohbat Ali, Revenue Minister of the Government and the orders in compliance of the said order made by the Sub-Divisional Magistrate and Naib-Tebsildar, Nakyal respectively in dispossessing the petitioners from the disputed land in their possession and consequently putting Said Muhammad respondent No, 4 in possession of the same, are under challenge. Briefly, the facts of the case are that the land measuring 14 kanals, 2 marlas under Survey Nos. 1041 and 1076 situate in village Tangal, Tehsil Nakyal, District Kotli was in possession of the petitioners about which there was a dispute between the petitioners and Said Muhammad respondent. The latter brought a suit for possession of the land in dispute against the petitioners in the Court of Sub-Judge, Kotli wherefrom it was withdrawn with a view to apply for partition of the land jointly owned by the parties before a Court of competent jurisdiction to entertain such an application. Accordingly, an application for partition was lodged by Said Muhammad respondent before the Assistant Collector of the First Grade, Kotli. It may be noted here that the application for partition of the land is still pending in the Court of the said Revenue Officer. It was during the pendency of the revenue proceedings before the revenue Court dealing with the case of the parties that Said Muhammad respondent made an application to the Revenue Minister alleging that on measurement and demarcation of the lands in the fresh Settlement the land in dispute was found in possession of the petitioners in excess of their shares who were not willing to part with their possession and hand over the same to him simply because they are influential persons and related to Sardar Sikandar Hayat Khan, an ex-Minister who asked him to join. Muslim Conference so that the delivery of possession of the land in dispute to him could be effected. It was also prayed therein that the Sub-Divisional Magistrate, Nakyal should be 'ordered for taking posses sion from the petitioners and handing over the same to him. On presen tation of this application to the Minister, an order to the following effect was made by him :-- It was in obedience to this order of the Minister that the Sub Divisional Magistrate, Nakyal ordered Naib-Tehsildar, Nakyal to take the possession of the land in dispute from the petitioners and hand it over to Said Muhammad respondent. Sub-Divisional Magistrate was then Mr. Ghulam Abbas Nagina who was not impleaded as a party in person. It is with the designation of the Sub Divisional Magistrate Nakyal that the office of the Sub-Divisional Magistrate is made a party as such. The Sub-Divisional Magistrate, Mr. Ghulam Abbas Nagina after having made an order for compliance to the Naib-Tehsildar, pro ceeded himself to the spot alongwith his Naib-Tehsildar and a large number of Police-men so as to dispossess the petitioners forcibly from the land in dispute. Obviously, it was thus, they say, by show of force that the petitioners were ejected and deprived of their possession of the land in dispute. The written statements were filed by respondents Nos. 2, 3, and

4. Respondent No. 3 is Mr. Rashid Ahmed, Sub-Divisional Magistrate, Nakyal who is a successor to Mr. Nagina. The Sub-Divisional Magis trate does not whole-heartedly take the responsibility of the action taken by his predecessor though he submitted that it was in obedience to the order of the Minister that his predecessor acted in accordance with law while delivering the possession of the land in dispute to Said Muhammad respondent. Muhammad Khan, Naib-Tehsildar admitted that he in compliance with the orders .of his superiors made the possession of the land to dispute available to Said Muhammad when the Sub-Divisional Magistrate Mr. Nagina was also present on the spot alongwith the Police force. It is said by him that it was in the presence of Karam Dad that the possession was handed over to Said Muhammad respondent and it was with his assent but it is not borne out by the record and the peti tioners are not going to admit this part of his statement: The circumstances of the case show that it was with show of force that the petitioners were forcibly ejected from the land in dispute anti as such question for their assent does not arise. Ch. Sohbat Ali respondent No. 5 avoided to face the petitioners before the Court and so be was unable to file the written statement and as such we proceeded against him ex part. The Government also did not like to defend the actions of the Minister, and his subordinate officers. The prayer of the petitioners is to declare the orders of the Revenue Minister, Sub Divisional Officer and Naib-Tehsildar, Nakyal as illegal, without lawful authority and of no legal effect and consequently a prayer for the recovery of the possession of the disputed land is also made. It is claimed by the petitioners that their dispossession of the land in dispute was otherwise than in due course of' law. The circumstances of the case themselves speak as such. The respondents v ere unable to show under which provision of law the impugned orders were made by them. However, a preliminary point has been raised by the learned counsel for respondent No. 4 that the High Court is not competent to take up the matter in dispute as other remedy is available to the petitioners. No doubt, the petitioners could go to a Civil Court for the recovery of the possession of the land in dispute under section 9 of the Specific Relief Act but the circumstances of the case are such that resort to a Civil Court for the restorations of possession is not a speedy and efficacious remedy available to them. As a matter of fact, the circumstances are such that the High Court ins exercise of its writ jurisdiction must come to the help of the aggrieved persons who fell a victim to the highhandedness of the Officers of the Government who have acted illegally beyond their powers and as such the petitioners were deprived of their lawful possession through unlawful means adopted by Mr. Ghulam Abbas Nagina and others with the help of police. There is no law of the land by which a Minister of the Government could make an order for ejectment of a person from the land possessed by him as one of the; joint owners. We may go to the minimum extent to say that such ran order is not less than that of `Sikha Shahs' one ; which cannot be allowed to have its effects in favour of a party who was unduly supported by the officers of the Government in presence of rule of law under which for settlement of disputes between different members of the public, Courts are establish ed by law to deal with such like cases. On the revenue side, a depart ment of which respondent No. 5 is the Minister, we find the following classes of the revenue officers, namely:

(i) The Financial Commissioner ; (ii) The Commissioner ; (iii) The Collector ; (iv) The Assistant Collector of the 1st Grade ; and (v) The Assistant Collector of the 2nd Grade. These are the only revenue Courts which are competent to deal with the cases between the litigants and not a revenue Minister who may be an administrative Officer exercising his control over the revenue officers in respect of disciplinary and other departmental matters. But this control on his part does not extend to the judicial functions of the revenue officers where the Financial Commissioner is the final authority. The impugned order dated 15th September, 1975 made by the Revenue Minister is without powers and as such is made by an unlawful authority having no jurisdiction, whatsoever, for making such an order and so is the case of the subsequent orders made by Mr. Nagina and Naib-Tehsildar, Nakyal in pursuance of this illegal order by which the petitioners were illegally/wrongfully dispossessed from the land, admittedly, in their posses sion. The Sub-Divisional Magistrate is a person who is supposed to have a knowledge of law and procedure while dealing with the cases of lands and if the Minister of the Department who was ignorant of law though ignorance of law is no excuse, and did not know the procedure to disposal of the application presented to him by Said Muhammad respondent who played a trick of politics with the Minister and succeeded in obtaining an illegal order from him, Mr. Nagina was to let the Minister know that the order made by him was bad in law. Vide Annexure `D' (7) which is a true copy of the application made by Said Muhammad respondent to the Minister in this behalf and the written affidavit of the petitioners support ing their application which in no way stands refuted in this behalf. Thus, the mala fide on the part of respondent No. 5 in the circumstances, cannot be lightly brushed aside. Said Muhammad, respondent whose application for partition of they land in dispute is still pending in the Court of the Assistant Collector of the 1st Grade, Kotli, took undue advantage of the political situation and resorted to the office of the Minister as an easy way of getting the possession of the land in dispute without waiting for the decision of a competent revenue Court to which recourse was already taken by him self. This was a clear abuse of the office of the Minister in use of his authority in aid of lawlessness who could not even be stopped by the Sub-Divisional Divisional Magistrate who was duty-bound to make the Minister aware about the illegal order made by the Minister which was sent down to him for carrying it out. It could not be shown to him by the Sub-Divisional Magistrate that the 'impugned order made by Minister was not covered by any law. Thus, such an order breaking law of the land and so the subse quent orders made there under and actions taken thereof are tantamount to bring a Court established under law into contempt 'therefore, for the reasons above, this writ petition is accepted and it is declared that the impugned orders and the action taken thereof by respondents Nos. 2, 3 and 5 are without lawful authority and of no legal effect and as such inoperative. In the result the Sub-Divisional Magis trate and Naib-Tehsildar, Nakyal are hereby ordered to restore the possession of the land in dispute to the petitioners within a period of one month, from the receipt of this order under intimation to this Court. We think that the case in respect of partition of land in dispute is going between the petitioners and Said Mohammad in the Court of Assistant Collector of the 1st Grade, Koth who is also directed to expedite the proceedings of the case so as to dispose. of the same without a further delay. The costs of this writ petition shall be borne by Mr. Nagina, Sub- Divisional Magistrate, Mohammad Khan, Naib-Tehsildar, Nakyal and Ch. Sohbat Ali, respondent No. 5 who have put the petitioners to un warranted trouble and inconvenience etc. The costs are fixed at Rs.

500. M. Y. M.