1997 PLP 2290 (MLD)

The petitioner has sought declaration through this Constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan that the impugned orders dated 15‑5‑1995, passed by respondent No.2, was arbitrary, capricious, without authority and without jurisdiction and further that they were lessee in respect of the land in question and the respondent No.4 was a sub- lessee in respect of total area of land measuring 776.33 acres and further respondents be restrained from giving effect to the impugned order of respondent No.2 and respondent No.4 be restrained from alienating, mortgaging and encumbering the said land in any manner. Brief facts of the case are that the petitioner M/s. Valibhai Karamuddin Sindh (Pvt.) Limited was leased out a land admeasuring 1113.30 acres from Naklas No.33 and Nakabuli Survey No.45 and others in Deh Manghopir for the construction of cement plant for a period of 99 years from the year 1961. Subsequently, Deputy Commissioner, Karachi, was requested by the petitioner to grant no objection/premises to sub‑lease an area of 26.32 acres from N.C. No.33 of Deh Manghopir in favour of M/s. Valika Cement Limited, the predecessor‑in‑interest to respondent No.4 for the purposes of establishing a cement factory which was granted and the petitioner by means of sub‑lease deed dated 21‑7‑1962, sub‑lease 26.32 acres of N.C. No.33 to M/s. Valika Cement Limited, the predecessor‑in‑interest of respondent No.4 for a period of 75 years on rental basis. The petitioner also sub‑leased out an additional area of 34.35 acres out of private land purchased to the said Valika Cement Limited on rental basis subject to payment of all Government dues, taxes to the Revenue Authorities in addition to the annual rent to the petitioner. The said Valika Cement Limited, predecessor‑in‑interest of respondent No.4, was nationalised and taken over by the Government of Pakistan in view of Economic Reforms Order, 1972, promulgated on. 1‑1‑1972, and published in the Gazette of Pakistan, Extraordinary on 3‑1‑1972, subsequently in terms of the said order, a Notification No.SRO‑206(1)/73, dated 19‑2‑1973, was issued whereby the said Valika Cement Limited was renamed as Javedan Cement Limited, the respondent No.4, and in the year 1976, it appeared that respondent No.4 had illegally obtained mutation of approximately 212.30 acres of private/purchased land of the petitioner from Survey Nos.34 to 103 and leased land bearing Survey Nos.33, 45, 70, 79, 80, 82 and 88 admeasuring 638.34 acres thus making an area of 851.24 acres in their favour through misinterpretation/ misrepresentation of SRO as lessee in respect thereof in place of petitioner. In fact, Valika Cement Limited had been sub‑leased 212.30 acres of private/purchased land, and from leased land bearing Survey No.33 and Survey No.70 measuring 424.03 acres only. The petitioner when came to know that name of M/s. Javedan Cement Limited has been entered in the relevant Revenue Record as lessee instead of sub‑lease, Deputy Commissioner was approached for rectification of necessary entries who was pleased to cancel the said entries as per order dated 2‑5‑1990, and restored the entries in the name of petitioner as lessee. The respondent No.4 filed C.P. No.1514 of 1991 challenging the order dated 2‑5‑1990 passed by the Deputy Commissioner, Karachi, when the said petition was disposed of and case was remanded to the Deputy Commissioner (West), Karachi, to pass a fresh order after notice to the parties, who decided the said case as per order dated 28‑11‑1993 holding that land in question was wrongly mutated and that respondent No.4 were in occupation of land in question pursuant to the registered sub‑lease deed for the period of 75 years and entries made in favour of respondent No.4 were ordered to be cancelled. The respondent No.4 filed an Appeal No.1 of 1994, before the Commissioner, Karachi Division, which was heard by the Additional Commissioner‑ II, Karachi, who allowed the appeal of respondent No.4 and of People's Steel Mills Limited, whereby order of Deputy Commissioner, Karachi, was set aside holding that the land held by Valika Cement Limited, the predecessor‑in‑interest of respondent No.4 granted by the petitioner vested in the Federal Government and leased out land stood resumed in the public interest, consequently, the entries were ordered to be reversed making the position as stood before 2‑5‑1990. The petitioner, has, therefore, filed the present petition. We have heard Mr. S. Afsar Ali Abidi, learned counsel for the petitioner, Mr. Talmiz S. Burney, learned counsel for respondent No.4, in C.P. No.1154 of 1995, Mr. S. Zaki Muhammad, learned counsel for respondent No.4 in C.P. No. 1155 of 1995, Mr. Shafi Muhammad Memon, learned A.A.‑G. for respondents Nos.1 to 3 for State, perused the impugned orders, Annexures filed alongwith the petition and the comments filed by the official respondents. The Deputy Commissioner, Karachi, in his order dated 28‑11‑1993 held that the respondent No.4 was only sub‑lessee in respect of the said lands and their status was only of a tenant. The Additional Commissioner‑II, Karachi, in his order dated 15‑5‑1995 observed:‑‑‑

..... I conclude that the Deputy Commissioner did not apply prudently without realising the ramification or rather misinterpreted the whole factual and legal position and acted in excess of his authority and jurisdiction by making an order of effecting the entries in the record in the name of original lessee notwithstanding the legal and administrative position as to governance was crystal clear and without ambiguity. Moreover, the Deputy Commissioner's order that the respondent No.2 (the petitioner in this petition) was only sub‑lessee and the appellant No.2 respondent No.4 in this petition was the tenant does not hold ground because it is again leading to question of title which is the domain of Civil Court. The Revenue Officer has very limited power under the Act. The appeals are hereby allowed. I set aside the order of the Deputy Commissioner, Karachi, West District, and order that the entries be reversed making the position as stood before 2‑5‑1990." Admittedly, in this petition the controversy between the parties is (i) whether the petitioners or respondent No.4 are the lessee of the disputed land, (ii) whether land legally stood transferred to the respondent No.4 by virtue of SRO‑206(1)/73, dated 19‑2‑1973, issued by the Federal Government, (iii) whether the petitioner as per its letter dated 9‑10‑1972 addressed to Mukhtiarkar, Karachi, gave its consent for mutation of lands in question in the name of predecessor‑in‑interest of respondent No.4 and (iv) that the respondent No.4 got the entries made in the record of rights by misrepresentation, would be the questions requiring evidence which could not be resolved in the Constitutional jurisdiction of this Court. Reference may be made to Muhammad Younus Khan v. Government of N.‑W.F.P. 1993 SCMR 618 wherein at page 632 it has been observed:‑‑‑ "The nature of controversy particularly the legality and correctness of Mutation No.36 is essentially a factual controversy. Where the case has been considered by various authorities, their decision on fact can be disturbed in exercise of writ jurisdiction if it is against the material record or without any basis. Even in such cases the High Court refrains from substituting its own finding of fact and proper course is to remand the case to lower Tribunal for proper determination of the controversy. Reference can be made to PLD 1970 SC 39; 1972 SCMR 47 and 1981 SCMR

758. It is a consistent view of this Court that in cases where factual controversies are involved, Constitution petition in the High Court is not the proper remedy." Reference may be made to Benedict F.D.'Souza v. Karachi Building Control Authority 1989 SCMR 918 wherein at page 920 it has been observed:‑‑‑ "Factual controversies, involved in the case, could not be solved without a full‑fledged trial. Accordingly, we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief to the petitioner, was unexceptionable." Reference may also be made to Federation of Pakistan v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 wherein at page 478 it has been observed:‑‑‑ "Thus after hearing both the learned counsel the final position that emerges is that the question of title is involved. Not only this the question of possession also cannot be resolved except through proper trial. With due respect to the High Court this case did not qualify for entertainment in the writ jurisdiction and the writ petitioner in his own interest should have been advised to approach the other proper forum. With these remarks this appeal is allowed, the impugned judgment is set aside and parties are left to seek and prove remedy in accordance with the law in the proper forum. " In the said circumstances, this petition is misconceived and not maintainable, which is hereby dismissed alongwith the listed application. However, the parties in the petition, if so desire, can seek their remedy before the competent Court of law. These are the reasons in respect of the short order dated 1‑10‑1996, dismissing this petition alongwith the listed applications. A.A./V‑3/K Petition dismissed.