Mushtaq Ahmed vs Deputy Commissioner etc.

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 10239 / 2018 / BWP

Mushtaq Ahmed Versus

Deputy Commissioner, Rahim Yar Khan and seven others

JUDGMENT

Date of Hearing: 27.09.2021 Petitioner(s) By: Mr. Mumtaza Mustafa, Advocate Respondent(s) Mian Mansoor Ahmad Sheikh, Advocate By: Ch. Shahid Mehmood, Assistant Advocate General

ABID HUSSAIN CHATTHA, J: Through this constitutional Petition, the Petitioner seeks a declaration to the effect that the impugned Notification No. DC/PS/194 dated 06.08.2018 (the “Notification”), whereby, Land Dispute Resolution Committees (the “LDRC”) have been constituted at Tehsil level for alleged amicable resolution of land related disputes, is illegal, void and without lawful authority.

2.The brief facts of the case are that the Petitioner and Respondents No. 3 to 8 were involved in civil litigation qua the determination of their rights as co-owner with respect to land situated in Chak No. 73/NP, Tehsil & District Rahim Yar Khan. The contents of the Petition disclose that there are serious disputes regarding the determination of rights between the parties. However, this Court does not feel it necessary to describe the nature and extent of such right and comment upon the merits of the same for the purposes of decision of this Petition for the

reason that it may cause prejudice to the respective rights of the parties. However, it may be remarked that chronic litigation between the Petitioner and private Respondents range from claims of ownership and possession regarding suit property attracting civil and revenue laws and forums. Suffice is to say that Respondents No. 4 to 8 filed an application on 04.09.2008 before Respondent No. 2, the Convener of the LDRC for getting possession of disputed land upon which the Petitioner was summoned who put his appearance on 10.11.2018 but the Petitioner was not heard on the ground that the proceedings before the LDRC are administrative in nature where counsels are not allowed. For the disposal of lis in hand, it is indispensable to judicially examine the legality and validity of the LDRC purportedly set up by Respondent No. 1 (Deputy Commissioner, Rahim Yar Khan) through the Notification referred supra which is reproduced as under:- No: DC/PS/194

OFFICE OF THE

DEPUTY COMMISSIONER

RAHIM YAR KHAN

Dated 06/08/2018.

NOTIFICATION

In order to stop violence, breach of law emanating from land disputes, and to ensure speedy disposal of such long standing cases, Land Dispute resolution Committees at Tehsil Level are hereby notified with immediate effect for amicable solution of land related disputes with the following composition and TORs:

Composition:

i. Assistant Commissioner (Convener) ii. Sub Divisional Police Officer (Co-Convener) iii. Tehsildar / Naib Tehsildar (concerned) iv. Station House Officer (Concerned) TORs:

i. To receive complaints regarding land disputes. ii. To examine Revenue record.

iii. To carry out inspection of the site.

iv. To call the concerned parties for hearing. v. To recommend necessary action to the Deputy Commissioner and District Police Officer, after

perusing the record, inspecting the site and hearing the parties.

vi. To take action against encroachments on state land. vii. To take action on any land related matter referred by the Deputy Commissioner and District Police Officer.

viii. To hold weekly meeting.

ix. To communicate regular progress of cases to the Deputy Commissioner and District Police Officer.

Deputy Commissioner Rahim Yar Khan

3.Learned Law Officer was confronted as to what is the legal backing of the LDRC as no law has been cited therein under which it had been issued. He relied upon the report and parawise comments filed by the official Respondents and stated that the LDRC had been constituted under the Punjab Civil Administration Act, 2017 (the “Act”). He argued that the Act was promulgated to institute a comprehensive system of civil administration in the Punjab for effective administration, improved service delivery, better coordination, supervision and regulatory enforcement and for all other ancillary matters. Further stated that the Deputy Commissioner had executive and administrative power under the said Act to constitute the LDRC. The Deputy Commissioner can exercise administrative powers in revenue matters other than the judicial proceedings simultaneously to facilitate the public and improve service delivery in the subordinate offices. The LDRC was executive in nature to deal with the Qabza Group & land grabbers who deprive poor people from their property, however, the LDRC did not deal or interfere with any matter sub-judice before any Court of law. The vital purpose of the LDRC was to redress the issues of common people at grass root level and ensure justice at door step.

4.This Court is of the firm view that the provisions of the Act have been misconstrued and misapplied in the present context. The Act does not in any way extend the system of civil

administration for the determination of civil rights between the private parties which are required to be determined by the Courts of competent jurisdiction. The system of civil administration including all public functionaries are creation of the law and are bound by the law. They cannot exercise any power not specifically conferred by law. Section 10 of the Act provides that “The Government may constitute Divisional, District or Tehsil Coordination Committees consisting of such heads of local governments, members of National Assembly and provincial Assembly, heads of Division, District and Tehsil administrations and police and such other persons as may be specified to achieve the goals of good governance, effective service delivery, public welfare and better coordination through democratic control and oversight.” Importantly, power to constitute the LDRC under Section 10 of the Act is reserved with the Government and not the Deputy Commissioner. Such Committees are merely restricted to provide voluntary services to the public and do not have any legal power and mandate to decide their civil or revenue cases or determine their rights of civil nature requiring recording of evidence. It is well-settled that jurisdiction not vested in a body cannot be assumed even by the consent of the parties. Similarly, the reliance upon Section 15 of the Act is also misplaced. The said Section only empowers the Deputy Commissioner on his own, or on the request of the head of a local government or head of the District Police, to convene a meeting for the purpose of maintaining public order and safety of public and public or private properties in the District. The mandate of such committees or meetings cannot be extended to subvert the specific provisions of law providing forums or remedies for the determinations of civil rights of the people including the Courts of competent jurisdiction. Rather, even any executive action taken under any Section of the Act would be subject to judicial review. The reliance on the provisions of the Act with respect to

the constitution of the LDRC is not backed by any law. The perusal of TOR’s of the LDRC include receiving of complaints regarding land disputes, examination of revenue record, carrying out inspection of site, calling the concerned parties for hearing, making recommendations for necessary action to the Deputy Commissioner and District Police Officer after perusing the record and taking action against encroachments on state land etc. Many such functions are beyond the mandate of the Act itself. No citizen of Pakistan enjoying fundamental rights and statutory rights under the Constitution of Islamic Republic of Pakistan, 1973 can be compelled to do anything what the law does not require him to do. Constitution of such LDRC is, therefore, beyond the mandate of the Act and against the provisions of the Constitution. Hence, constitution of the LDRC without any backing of specific law which confer such functions as were granted in the Notification is patently illegal. In the case titled, “Raja Muhammad v. Mst. Shamim Akhtar and 2 others” (PLD 2008 Lahore 408) maintenance allowance fixed by the Family Court in favour of wife and minor was enhanced by the Chairman Khidmat Committee, which Committee was found to have been constituted in exercise of executive powers through a notification and it was held that every executive action should have backing of some law and in absence of such law, the said committee would be illegal and unconstitutional. Similarly, in case titled, “Ch. Muhammad Idrees, Advocate v. S.H.O., Police Station, Pattoki, District Kasur and others” (1999 CLC 570) it has been held that in the matters of civil and criminal nature, Khidmat Committee had no jurisdiction and lawful authority for taking any action against one of the parties. In case titled, “Pir Imran Sajid and others v. Managing Director / General Manager (Manager Finance) Telephone Industries of Pakistan and others” (2015 SCMR 1257) it was observed that object of good governance could not be achieved by exercising discretionary

powers unreasonably or arbitrarily and without application of mind. Such objective could be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 & 25 of the Constitution.

5.In the instant case, it is evident that the LDRC had assumed jurisdiction to itself regarding the determination of civil rights pending between the parties under the garb of amicable resolution of land disputes which was beyond its jurisdiction conferred under the law including the Act. Even otherwise, no legal mandate is conferred upon such LDRC to settle such civil or criminal cases under any law. The LDRC had no jurisdiction and lawful authority to decide the civil matter between the Petitioner and the private Respondents. All orders passed and actions taken by the LDRC are declared as illegal and unlawful. Further, in order to prevent further abuse of power, the impugned Notification is also declared to have been issued without any lawful authority being beyond the mandate of the Act. The parties to this lis are free to avail appropriate remedies available under the law.

6.Allowed in the above terms.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*