2021 PLP 2129 (MLD)

ANWAAR HUSSAIN, J.

Brief facts leading to institution of the instant civil revision are that on 17.04.2006, respondent No.1 namely, Atta Rasool (hereinafter referred to as "the respondent") filed a suit for declaration and permanent injunction against the Province of Punjab and others (hereinafter referred as "the petitioners") with the averments that the land measuring 8 kanals situated in Rakh Jamali, Tehsil Nurpur, District Khushab is owned by the Provincial Government, which was allotted to him under Grow More Food Scheme (hereinafter referred as "the Scheme"), and is in his possession since 1958 qua the allotment; that he was earlier allotted land in "Khai Khurd" and on his application, he was allotted land in Mouza Rakh Jamali as an alternate; that the land allotted to him was forfeited by Extra Assistant Commissioner Colonies vide order dated 19.08.1967, which was assailed by him in appeal; that the said appeal was allowed by the Additional Commissioner Revenue Sargodha Division, Sargodha vide order dated 24.11.1967 remanding the case to Extra Assistant Commissioner Colonies who again forfeited the land vide order dated 09.07.1977; that he again preferred appeal which was accepted by Additional Commissioner Consolidation Sargodha Division, Sargodha and allotment of the respondent was declared lawful vide order dated 14.12.1977; that suo motu action was taken by learned Member Board of Revenue Colonies Punjab and order of Additional Commissioner Consolidation Sargodha Division Sargodha dated 14.12.1977 was set aside vide order dated 03.11.1994 against which the respondent preferred multiple review petitions, which were also dismissed whereafter the suit was filed.

2. The petitioners opposed the suit by filing written statement. Issues were framed and evidence adduced by the parties was recorded. The learned trial court dismissed the suit of the respondent vide judgment and decree dated 19.09.2011. Feeling aggrieved, the respondent filed appeal, which was allowed and the suit of the respondent was decreed vide judgment and decree dated 04.10.2012 (hereinafter called "the Impugned Judgment and Decree"). Hence, this civil revision has been instituted by the petitioners (Province of the Punjab and others).

3. Learned Law Officer submits that the jurisdiction of the civil courts is barred under the law in matters falling under the purview of the revenue hierarchy and the learned trial court rightly dismissed the suit filed by the respondent on merits. However, through the Impugned Judgment and decree, learned appellate court below has committed illegality by allowing the respondent to continue with illegal occupation of the state land. Further submits that even if the civil court has jurisdiction to decide the instant matter, the learned appellate court below has misread the evidence and decided the matter in negation of the evidence on record and in a manner which is contrary to the provisions of applicable law governing transfer of State land.

4. Conversely, the learned counsel for the respondent supports the Impugned Judgment and submits that the respondent was lawfully allotted the state land and is entitled to proprietary rights in respect thereof. Further contends that the orders of revenue hierarchy are perverse and against the law as two members of the same family can be allotted government land under the Scheme and civil courts in such like maters can exercise the jurisdiction.

5. Arguments heard. Record perused.

6. Before addressing the merits of the case, the issue of jurisdiction of the civil courts in relation to matters falling under the domain of the revenue hierarchy raised by the learned Law Officer needs to be examined. It is settled principle of law that the exclusion of jurisdiction of civil court should not be readily inferred but its exclusion must either be explicitly expressed or clearly implied. Admittedly, the matter pertains to allotment of government land, which falls under the exclusive domain of revenue hierarchy and is governed by the provision of Colonization of Government Land, Act, 1912 (hereinafter referred as "the Act, 1912") read with Land Revenue Act, 1967 (hereinafter referred as "the Act, 1967") and by virtue of Section 36 of the Act, 1912 as well as 172 of the Act, 1967 jurisdiction of civil court is barred. However, in certain cases, the Hon'ble Supreme Court of Pakistan has carved out the situations where the civil court has jurisdiction to look into the matter even if the jurisdiction of civil court is otherwise ousted under any enactment including the Act, 1912 as well as the Act, 1967. Such situations, inter alia, include a case when the order and action has been taken in a mala fide and malicious manner; the order has been passed and the authority has been exercised in excess of jurisdiction or without jurisdiction; and the aggrieved person has been left without any remedy. Reliance is placed on the law laid down in Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 SC 180), Muhammad Khan and others v. Province of Punjab and others (2007 SCMR 1169), and University of the Punjab v. Miss Wajiha Arooj (2008 SCMR 1577). In Gul Shah and others v. Hafiz Ghulam Muhammad and others (2009 SCMR 1058), the Hon'ble Supreme Court of Pakistan has held that unless and until, the impugned order is a nullity in the eye of law or the statutory provisions have not been complied with, the jurisdiction of civil court in respect of revenue matters is barred. Reliance is also placed on Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCMR 730).

7. In order to ascertain whether in the instant case, the learned courts below have failed to appreciate that the respondent had no case in his favour and the orders of the revenue authorities suffered from no illegality or infirmity and the suit filed by the respondent was not maintainable, it is appropriate to analyse the evidence brought on record. In order to prove his stance, the respondent appeared before the trial court as PW.1 and reiterated his stance taken in the plaint; however, in the cross-examination, he stated as under: (Emphasis provided) The statement of the respondent, quoted hereinabove, alone indicates that he failed to establish as to when he paid amount of rent/lease etc., to the government and he was also unaware about the year for which the last payment was made by him. Non-payment of the rent/lease money by the respondent is sufficient to establish that the state land was never allotted to him. The purported allotment in question being claimed by the respondent for the last six decades is governed by various notifications issued in furtherance of Grow More Food Campaign where under the Scheme was envisaged for the first time by virtue of Notification No.6539-56/589-C (G) dated 23.11.1956. It is worth mentioning that maximum period of lease under the said notification was three years. No allotment letter was produced before the trial court let alone any extension in the lease after expiry of three years. When confronted as to whether the respondent can now present any allotment letter/renewal letter or proof of payment of lagan/rent in favour of the government in respect of the state land in question, the answer by the learned counsel for the respondent was in negative. On the contrary, Muhammad Sher, Patwari Halqa Rakh Jamali, Tehsil Nurpur, District Khushab appeared before the court as DW.1 and clearly deposed that double allotment was procured by the respondent and hence, the state land was rightly ordered to be resumed in favour of the government. Said DW-1 categorically stated that no payment on account of lagan/rent was made by the respondent. This goes on to reflect that the orders passed by the revenue authorities were not result of any mala fide or passed in excess of jurisdiction or without jurisdiction, which could confer jurisdiction on the civil courts and hence, on this score alone the suit filed by the respondent was not maintainable in the first place. The petitioners should have taken ground as to maintainability of the suit, however, same has not specifically been pleaded and the learned trial court has dismissed the suit of the respondent on merits.

8. While the evidence on record, in unequivocal terms shows that the respondent is in unlawful possession of the state land, it is astonishing that the learned appellate court below has upset the well-reasoned judgment and decree of the learned trial court, in slipshod manner, inasmuch as the operative part of the Impugned Judgment is self-contradictory, which for facility of reference is reproduced hereunder: "

11. As stated above nothing has been produced by the plaintiff to show the allotment to him of disputed land under Grow More Food Scheme and also its cancellation on the ground that any other member of his family has been allotted the land under Grow More Food Scheme. Under these circumstances, my humble view is that no decree can be passed declaring the orders dated 05-10-1978 and 13-11-1994 passed by defendant No.3 and to direct the defendants to comply with the order dated 14.12.1997 (sic) of Additional Commissioner Sargodha. However, keeping in view the admitted possession of the plaintiff by the defendants since long, the findings of the learned trial court on these issues are reversed " (Emphasis supplied) The above observations of learned appellate court below make it abundantly clear that the said court on one hand was cognizant of the fact that no decree can be passed in favour of the respondent as he was not an allottee of the State land, and on the other hand, acted in aid of the respondent and allowed the respondent to continue with the unauthorized possession of the valuable State land, which is not in consonance with the dicta of august Supreme Court on the subject. The august Apex Court, in Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another (2014 SCMR 1351) has denied proprietary right over the state land for having possession over forty years, in the absence of any valid allotment order forming basis of the possession. In the instant case too, the respondent could not establish that he was in possession of state land under any lawful authority, therefore, ratio in Fazal ur Rehman supra is squarely applicable to the present case as well. Moreover, in Muhammad Sharif through LRs v. Province of Punjab through District Officer Revenue Pakpattan (2014 SCMR 334), the Hon'ble Supreme Court of Pakistan has rejected the claim of an appellant who failed to show as to how he came under the possession of the land which he has been cultivating for his own benefit for a number of years. In another landmark case, the Hon'ble Supreme Court in Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others (2014 SCMR 1611) has held that no person shall have the right or title in the state land without a formal written order in his favour and in furtherance of which such person has taken over possession. The cumulative effect of the above referred landmark judgments of the apex Court clearly establishes the fact that the state land is not a bounty which can be given away to any one rather it is to be considered as trust. It is the duty of the executive authorities to remain vigilant and conscious not only at the time of allotment of state land but also during the currency of the allotment so that the state land is resumed well in time and in accordance with law if there is any breach of terms and conditions of the allotment. In fact, the disposal/transfer of the state land in accordance with law, in a fair and transparent manner is the higher public law consideration as held in Member Board of Revenue/Chief Settlement Commissioner, Punjab v. Abdul Majeed and another (PLD 2015 SC 166) by the honourable apex Court.

9. Above referred discussion indicates that whenever the executive authorities have deviated or failed to meet the requirement of higher public law consideration in relation to care, custody, management and disposal of state land, the honourable Supreme Court has reprimanded such action and/or inaction, therefore, it is imperative not only for the executive authorities but the courts of plenary jurisdiction to ensure that while adjudicating the matter pertaining to the state land, higher public law consideration qua state land must be at the forefront. In the instant case, the government is trying to put the state land to public auction for the last more than six decades, which is being halted by the respondent by filing multiple applications before the revenue authorities and after failing to get a relief therefrom, the respondent approached the courts of plenary jurisdiction for its aid to prolong and perpetuate its unauthorized occupation of state land.

10. In light of the foregoing discussion, this civil revision is allowed, the Impugned Judgment and Decree passed by learned Additional District Judge, Khushab is set aside and the judgment and decree passed by learned Civil Judge, Khushab is restored with the modification that the suit of the respondent is dismissed on merit as well as maintainability. The petitioners are entitled to resume the state land and also effect recovery of arrears of lagan due till date, from the respondent in accordance with law. ZH/P-11/L Revision allowed.