2017 PLP 1123 (CLC)

ZAFAR AHMED RAJPUT, J.

By invoking Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following reliefs: (a) That this Honourable Court may graciously be pleased to appoint some of the officer of this Honourable Court, directing him to visit the office of Respondent No.2 and secure complete record and the R&P of Appeal and impugned order dated 08.07.2011 and produce the same before this Honourable Court for inspection of the same. (b) To declare the impugned order dated 08.07.2011 passed by Respondent No.2 as illegal, void, mala fide and set aside the same being in violation of principles of natural justice and to bye-pass the judicial orders of competent courts of civil jurisdiction, this Honourable Court and Honourable Supreme Court of Pakistan. (c) To issue a writ of prohibition, restraining the Respondents from interfering with the land in question in any way so as to its possession of petitioner and her ownership by way of grant to her on harap basis and record of rights concerned.

2. Briefly stated facts of the case, as enumerated in the memo. of petition, are that the agricultural land bearing S. Nos. 707 and 658, admeasuring 12 01 acres, situated in Deh Dera, Taluka Kambar (hereinafter referred to as the "subject land") was granted to petitioner by the respondent No.3 i.e. the then District Officer, Revenue and Estate, Kambar-Shahdadkot as per government policy for grant of land to landless Haris on harap basis. Subsequently, the respondent No.2 i.e. the then Executive District Officer, Revenue Kambar-Shahdadkot cancelled the said grant in favour of petitioner and allotted the subject land to respondent No.1 on Malkana basis, vide order dated 08.07.2011, which has been impugned in this Constitutional petition by the petitioner. It is case of the petitioner that the impugned order has been passed by the respondent No.2 without serving any notice and providing hearing to her, as such, it is being in violation of principles of natural justice liable to be set aside, as the petitioner has been condemned unheard and she has been deprived of her lawful property and since no other efficacious remedy is available, the petitioner has maintained this Constitutional Petition.

3. Mr. Habibullah G. Ghouri, learned counsel for the petitioner, has contended that the impugned order, dated 08 07.2011 passed by the respondent No.2 is illegal, unlawful, without jurisdiction and against the natural justice as no opportunity of being heard was provided to petitioner by him. On the point of maintainability of the petition, the learned counsel has contended that the Maxim "audi alteram partem" is applicable to judicial, quasi-judicial as well as to non-judicial proceedings and it is read into every statute as its part if right of hearing has not been expressly provided therein and the violation thereof can be equated with the violation of a provision of law warranting pressing into service the Constitutional jurisdiction of this Court. He added that the High Court will not entertain a writ petition when other appropriate remedy is yet available to petitioner is not a rule of law barring the jurisdiction but a rule by which the court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner then the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party. In support of his contention, the learned counsel has placed his reliance upon the case of Mst. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others (PLD 2008 SC 135).

4. On the other hand, Mr. Gulab Rai Jessrani, learned counsel for the respondent No.1 has maintained that the respondent No.1 had filed an appeal under section 161 of the Land Revenue Act, 1967 (hereinafter referred to as the "Act of 1967") against the grant of subject land in favour of petitioner, which was properly heard in presence of all the parties, including the petitioner, and allowed by the respondent No.2 in accordance with law vide impugned order, whereby he cancelled the illegal grant in favour of petitioner by holding that while granting the subject land some illegalities were committed as she (petitioner) is residing in Deh Ghatahar while the land is situated in Del Dera and the land was granted without notice to respondent No.1, who had got preferential right for the allotment of the land, as he had spent huge amount and made it fit for cultivation. Learned counsel has also maintained that proper, legal and efficacious remedy was available to petitioner under revenue hierarchy, but she deliberately did not exhaust the same, this Constitutional petition is; however, not maintainable in law.

5. Mr. Naimatullah Bhurgari, learned State Counsel, has fully supported the impugned order and while adopted the arguments made by the learned counsel for the respondent No.1, he has asserted that the impugned order itself reflects that the same was passed after hearing the petitioner; therefore, Maxim "audi alteram partem" is applicable in this case.

6. We have given due consideration to the arguments of learned counsel for the parties.

7. It appears from the perusal of the material available on record that initially the subject land was granted to claimant Allah Yar as Central Government Property in satisfaction of his claim and the respondent No.1 purchased the subject land from him on 15.05.1976 through registered sale deed and; thereafter, the record was mutated in favour of respondent No.1; later on, the then Mukhtiarkar Taluka Kambar declared the grant in favour of Allah Yar as bogus and after cancelling the allotment, he resumed the land; thereafter, the subject land was placed for disposal by the Board of Revenue, vide order dated 17.02.1981. The respondent No.1 impugned the said order by way of filing Suit No. 199 of 1991 in the Court of learned IInd Senior Civil Judge, Larkana seeking declaration that the order dated 17.02.1981 was illegal. After framing issues and recording evidence, the learned trial Court decreed that suit in favour of respondent No.1. The judgment and decree was challenged in a Civil Appeal by some of the defendants before IVth Additional District Judge, Larkana, who allowed the appeal and dismissed the suit. Thereafter, respondent No.1 preferred Civil Revision Application No.03 of 1994 before this Court, which was also dismissed vide order dated 27.04.2005; then respondent No.1 preferred C.P.L.A. No.621-K of 2005, which was too dismissed by the Honourable Supreme Court of Pakistan, vide order dated 27.12.2005. However, as per revenue record, the respondent No.1 remained as possession holder of the subject land since the date of its purchase from said Allah Yar, but on 10.06.2010 the subject land was granted to petitioner by the order of respondent No.3. Respondent No.1 challenged the said order by filing appeal under section 161 of the Act of 1967, which was allowed by the respondent No.2, vide order impugned in this Constitutional Petition.

8. It may be observed that instant petition has been preferred against the order passed by the then Executive District Officer, Revenue Kambar-Shahdadkot, which is an "appellate order" whereby he reversed the order of District Officer (Revenue) dated 10.06.2010. Sindh Land Revenue Act, 1967 (hereinafter referred as the "Act of 1967") itself provides the remedy of appeal and further appeal against the orders passed by the revenue officers; therefore, first and foremost question before us is of maintainability of this Constitutional petition. For the sake of convenience sections 161 and 162 of the Act of 1967 are reproduced asunder:

"

161. Appeals.

(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely-- (a) to the Assistant Collector of the first grade when the order is made by the Assistant Collector of the second grade; and (b) to the Collector when the order is made by an Assistant Collector of the first grade; (c) to the Commissioner, when the order is made by a Collector; (d) to the Board of Revenue only on a point of law when the order is made by a Commissioner: Provided that -- (i) when an original order is confirmed on first appeal, a further appeal shall not lie. (ii) When any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final. Explanation (1):- Omitted (2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from. (3) No Revenue Officer other than the Board of Revenue shall have power to remand any case in appeal to a lower authority.

162. Limitation for appeals.

Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be- (a) thirty days, where the appeal lies to the Collector; (b) sixty days, where the appeal lies to the Commissioner: (c) ninety days, where the appeal lies to the Board of revenue;

9. It would be relevant to mention here that under Sindh Laws (Amendment) Ordinance, 2001 the historical designations of revenue officers, namely, Commissioner, Collector, Assistant Collector of the first grade, and Assistant Collector of the second grade, which were in field since the promulgation of Sindh Land Revenue Code, 1879 were substituted with Executive District Officer (Revenue), District Officer (Revenue), Assistant District Officer (Revenue) of the first grade and Assistant District Officer (Revenue) of the second grade, respectively, which has been revived now after coming into force Sindh Land Revenue (Amendment) Act, 2011.

10. In the instant case, instead of questioning the impugned order in hierarchy of the Act of 1967, the petitioner has filed instant Constitutional petition seeking declaration that the impugned order is without lawful authority and of no legal effect. The impugned order passed by the respondent No.2 (the then "Executive District Officer (Revenue)" now after re-designation "Commissioner") may not be strictly in accordance with law or it may be an incorrect order, but it cannot be termed as passed without jurisdiction. Perusal of the order shows that it was passed after hearing the petitioner and in her presence and from no stretch of imagination it can be held to have been passed malafidely or in a partial, unjust and oppressive manner. Under Clause (d) of the subsection (1) of Section 161 of the Act of 1967, the Board of Revenue has jurisdiction to entertain further appeal on a point of law, when the order is made by a Commissioner. Besides, under section 164 of the Act of 1967 the Board of Revenue has jurisdiction to entertain revision application against the order passed by any Revenue Officer sub-ordinate to it.

11. This Court being Court of Constitutional Jurisdiction does not step in where an adequate remedy to aggrieved person is available by way of appeal or revision and full-fledged machinery for the redressal of his grievances is provided by the Act of 1967. It has been held by Apex Court in the case of Mumtaz Ahmed and another v. The Assistant Commissioner and another (PLD 1990 SC 1195) that the petitioner should not have approached the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums and a Constitutional Petition being premature thus could be dismissed on that ground alone.

12. In view of above facts and circumstances of the case, the case-law cited by the learned counsel for the petitioner is distinguishable from the facts of the case in hand. Accordingly, without going into the validity of the impugned order, we deem it fit to dismiss this petition on alternate ground as held in the case of Mumtaz Ahmed (supra). This petition is, therefore, dismissed, along with listed application with no order as to costs.

13. However, before parting with this order, we would like to observe that since the petitioner has preferred this Constitutional Petition within 41 days from the date of impugned order, the petitioner, if so advised, can approach the concerned Revenue Forum to redress her grievances and while considering the question of limitation in filing further appeal, benefit of excluding time consumed in pursuing the remedy before this Court will be considered sympathetically.

14. By our short order, dated 07.09.2016, instant Constitutional Petition was dismissed, above are the reasons for the said order. ZC/M-193/Sindh Petition dismissed.