2006 PLP 907 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

This appeal through leave of this Court is directed against an order, dated 21-5-1997 passed by the Hon'ble Lahore High Court in I.C.A. No.126 of 1993 whereby the said appeal filed by the Executive Engineer of Irrigation Department and another questioning an order, dated 9-8-1993 of a learned Single Judge of the same Hon'ble High Court was dismissed and the order passed in Writ Petition No.3314 of 1993 was maintained.

2. Abdul Majeed respondent before us had approached the Multan Bench of the Lahore High Court through the above mentioned Writ Petition No.3314 of 1993 claiming therein that he was inter alia the owner of a piece of land measuring 4 Kanals 15 Marlas falling in Khasra No.140 and alleging therein that the Irrigation and the Revenue departments, with the assistance of the local police, were interfering with his possession and ownership of the said land and praying consequently that the said respondents and others be directed not to harass and humiliate the petitioner and they be further restrained from unlawfully interfering with his possession over the suit-land and with the construction work which he was carrying thereon.

3. This writ petition is dated 8-8-1993 and from the order, dated 9-8-1993 it appears that the said petition had got put up before a learned Single Judge on the very day it was filed i.e. on 8-8-1993 when the Tehsildar (Consolidation) appears to have been summoned for the next day i.e. 9-8-1993. On the said date i.e. on 9-8-1993 the Tehsildar (Consolidation), namely, Agha Ahmad Raza appears to have presented himself before the High Court where he made a statement that the writ petitioner was the owner of the land in question; that the said land was lying vacant and that he did not feel any difficulty in handing over vacant possession of the said land to its owners Maqbool Ahmad and Muhammad Ashraf. Having recorded this statement the learned Single Judge directed Amir Abdullah Inspector/S.H.O. of Police Station, Chowk Sarwar Shaheed who was also present in Court to ensure maintenance of law and order situation at the spot while the possession of the land in question was handed over to the petitioner and a direction was issued to the above mentioned Tehsildar to immediately convey the possession of the said land to the petitioner in terms of his statement. A direction had further been issued that a compliance report shall be sent to the High Court through the learned Law Officer.-The writ petition was allowed as having succeeded in the above terms. The Irrigation Department who claimed to be owner of 157 Kanals and 3 Marlas of land which included the land in question having acquired this entire land for establishing a canal colony and a rest house in pursuance of a Notification, dated 7-6-1961 of the Commissioner Multan Division and having been in possession of the said land since 1960-61 filed an Intra-Court Appeal bearing No.126 of 1993 questioning the above-noticed order of the learned Single Judge. It had been further claimed by the Irrigation Department that in the year 1988 Abdul Majeed writ petitioner had manoeuvred an order from the A.D.C. (Consolidation) Muzaffargarh for transfer of the said land in his favour but the said order had been set aside by the Additional Commissioner (Consolidation), D.G. Khan on 13-4-1992 which order still holds the field.

4. The learned I.C.A. Bench dismissed the said appeal in limine through an order, dated 21-5-1997 which could hardly be said to be a speaking order and having done this the learned I.C.A. Bench on the very next date i.e. 22-5-1997 passed another order on a Misc. Application bearing C.M. No.1390 of 1997 directing the S.P. of Muzaffargarh to provide necessary protection to Abdul Majeed writ petitioner while taking over possession of the land in dispute and to ensure that no law and order situation was created on the spot.

5. This was a strange manner in which the learned Single Bench and the learned I.C.A. Bench had disposed of and decided a contentions question of fact relating to the title of a piece of land.

6. The learned counsel for the appellant has been heard at some length.

7. As has been noticed above, it was within one day of the filing of the writ petition that the learned Single Judge in the High Court had decided the issue in question in a summary manner and that also without giving any opportunity to the contesting respondents to defend themselves against the claim of the writ petitioner. It could not be shown that the Irrigation Department who claimed to have become owner of the land in question having acquired the same in accordance with law were either summoned by the learned Single Bench to answer the petition or were even present or heard while deciding the issue against them. The learned I.C.A. Bench was in gross error in not having appreciated that the Irrigation Department had been condemned unheard. The learned Bench had also failed to notice that a question of title could not be determined in such a summary manner in which the same had been done by the High Court in the exercise of its extraordinary Constitutional jurisdiction. The conduct of both the learned Benches in having adopted extraordinary measures in not only determining the title of the writ petitioner in the impugned manner but in also giving directions to the local police to ensure immediate handing over the possession to the writ petitioner was open to serious exception. This was a more that extraordinary steps taken by the Hon'ble High Court and no reasons existed on record which could have justified such an extraordinary course of action.

8. Having thus considered all aspects of the matter in the light of the submissions made before us, we set aside the impugned orders of the Hon'ble High Court, dated 21-5-1997 and 9-8-1993 passed respectively in I.C.A. No.126 of 1993 and Writ Petition No.3314 of 1993. This appeal is allowed in the above terms with no orders as to costs. S.A.K./E-22/SC Appeal accepted.