Fazal Khan and others Vs Additional Deputy Commissioner and others.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

WP No. 1291-P/2022.

Fazal Khan and others vs. Additional Deputy Commissioner and others.

J U D G M E N T.

Date of hearing: 13.05.2022

Mr. Tariq Kamal, Advocate, for the petitioners.

Mr. Rab Nawaz Khan, AAG, alongwith Waqif Khan, Tehsildar Pabbi, District Nowshera.

Mr. Muneer-ud-Din Ghori, Advocate, for respondents No.3 to 7.

SYED ARSHAD ALI, J. Fazal Khan and six others who are co-owners in the disputed property comprised of Khasra No.275 situated at Village Dag Ismail Khel, Tehsil Pabbi District Nowshera; through the instant constitutional petition have challenged the order of Additional Deputy Commissioner, Nowshera dated 07.03.2022 whereby; the possession of the suit property was handed over to the private respondents No.3 to 7.

2.Arguments heard and record of the case was perused.

3.It is evident from record that respondent No.3 and 7 and one Akhtar Ali son of Janz Ali; on 13.11.2018 had filed a civil suit before the civil court at Nowshera; seeking a decree for perpetual injunction/mandatory injunction against the present petitioners claiming that their predecessor in interest are in possession of the suit property

bearing Khasra No.275 measuring 179 kanals and 5 marlas to the extent of more than 40 kanals and the entries in the names of the present petitioners (defendants) in the column of cultivation in the respective jamabandi relating to the suit property are wrong and incorrect on their rights.

4.The suit was contested by the present petitioners through their written statement. The learned trial court vide order dated 14.11.2019 had dismissed the application of the Plaintiff for temporary injunction and asked the parties to argue the case on the maintainability of the suit.

5.The said order was challenged by the

Plaintiffs/Respondents through civil miscellaneous appeal No.94/14 of 2019 before the learned appeal court. The learned appeal court vide judgment dated 05.12.2019 dismissed the appeal. The Respondents had then filed a civil revision against the concurrent findings of both the courts below before this Court which too met the same fate and was dismissed by this Court vide judgment dated

6.On 18.11.2021, the Private Respondents had filed an application before the Deputy Commissioner Nowshera for possession of the suit property through their attorney, purportedly under Section 175 of the West Pakistan Land Revenue Act, 1967 (“Act of 1967”). It is averred in the said

application that the said attorney namely Weseem-ur- Rehman has also purchased land measuring 33 kanals from the Private Respondents. The application was marked by the Deputy Commissioner to the tehsildar concerned; who had allegedly inspected the spot and handed over the disputed property to the respondents vide impugned order dated

7.It is evident from record that the nature of the property is shamilat-e-deh which is comprised of Khasra No.275 total measuring 179 kanals and 5 marlas. Both the parties are admittedly co-owners in the said Khasra number.

The respondent No.1 has allegedly exercised jurisdiction under Section 175 of the Act of 1967. The main assertion of the learned counsel for the petitioners was that Section 175 of the Act of 1967 is not applicable to the present case, therefore, in order to resolve this issue, let us go through Section 175 of the Act of 1967 which reads as under: - “175. Prevention of encroachment upon common lands.- (1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land is situate has been encroached upon by any person, and the land has been shown encroachment as so reserved, a Revenue Officer may, on the application of a land-owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show cause against the proposed action-

(a)eject from the land the person who has encroached thereupon;

and

(b)by order proclaimed in the manner provided in section 26, forbid repetition of the encroachment;

Explanation.- An edition of the record-of-rights made before the coming into force of this Act, under the provisions of section 33 of the Punjab Land Revenue Act, or under the provisions of any other law repealed by this Act, shall be deemed to be a periodical record for the purposes of this section.

(2)The proceedings of the Revenue Officer under sub-section (1) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.

8.In order to understand the application of Section 175 of the Act of 1967 ibid, we have to break Section 175 of the Act of 1967 as following;

i. that a particular land has been reserved by the proprietary body of the village for a common purpose;

ii. the said land has been encroached by any person;

iii. the revenue officer; on the application of any land owner in the estate may proceed in the matter and after serving upon the alleged encroacher, a show cause notice and if not satisfied with the explanation of the alleged encroacher, if any, may pass an order for ejectment of encroacher in order to

preserve/restore the property for the purpose for which it was reserved.

9.The bare perusal of the aforesaid provision would show that the revenue officer can assume jurisdiction in the circumstances for example; when a particular property is commonly reserved by a proprietary body of a village for the purpose of pasture, graveyard or other similar propose and in case any person either belonging to the proprietary body or stranger has encroached upon the said property, the revenue officer has the jurisdiction to intervene in the matter and recover the possession of the property from the encroacher by restoring it for the purpose for which it was reserved. This section has no application in the matter when there is dispute between two co-owners in respect of the property which has not been reserved for any purpose rather is either agriculture or non-agriculture property being enjoyed by the person in possession.

10.The law is by now settled that in case where a co- sharer in possession on a portion of joint property is dispossessed by another co-sharer, the remedy for the aggrieved person is either to bring a suit for possession under Section 9 of the Specific Relief Act 1877 or possession through partition before the appropriate forum.

“Contractor Haji Muhammad Alam (deceased) through

Legal Heirs vs. Shaukat Sultan and others (2009 SCMR 688), Mst. Resham Bibi and others vs. Lal Din and other (1999 SCMR 2325), Nazar Hussain vs. Additional District Judge, Chakwal and 4 others (2004 YLR 322), Mahmood Ahmad vs. Abdul Ghafoor and others (2014 YLR 2046).”

It is for the obvious reasons that when a particular land which is jointly owned by co-owners, the revenue authorities do not maintain record in respect of each holding of co-share in a particular Khasra number by meets and bounds.

In the present case, the Revenue official as evident from the the record have not only acted without any jurisdiction but the mala-fide and collusion of the revenue officials as well as the private respondents is evident from record.

11.Indeed, it is a classic example of misuse of authority by the revenue officials which in our humble view can be corrected by the High Court while exercising constitutional jurisdiction despite the availability of remedies available to the aggrieved person under the hierarchy established under the Act of 1967.

12.Indeed, it is by now settled that the rule about invoking the constitutional jurisdiction of a High Court only after exhausting all other remedies, is a rule of convenience and discretion by which the courts regulate its proceedings

and it is not a rule of law affecting the jurisdiction. A constitutional petition can be entertained against an order passed by a court or authority established under any law, by exceeding its jurisdiction; even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case. “Gatron (Industries) Ltd vs. Government of Pakistan and others (1999 SCMR 1072).” Similarly, in the case of “The Murree Brewery Co.Ltd vs. Pakistan Through the Secretary to Government of Pakistan, Works Division and 02 others”, the Hon’ble Apex Court has held, “the rule that the High Court will not entertain a writ petition when other appropriate remedy is available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well-recognized exception to the general rule is a case where an order is attacked on the ground that it was wholly without authority, whereas, statutory functionary acts mala-fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its jurisdiction has power to grant relief to the aggrieved party”.

Similar view has been reaffirmed by the Apex Court in the case of “Collector Customs (Valuation) and another vs.

Karachi Bulk Storage and Terminal Ltd (2007 SCMR 1357), Muslimabad Cooperative Housing Society through

Secretary vs. Mrs. Siddiqa Fiaz and others (PLD 2008 SC 135), Wattan Party through President vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697).”

13.In view of the above, we admit and allow this petition by setting aside the impugned judgment and order dated 07.03.2022 passed by the respondents and direct the respondents to restore possession of the property to the present petitioners within a period of one month.

Announced

JUDGE

JUDGE

Haider Shah SSS (DB) Hon’ble Mr. Justice Ijaz Anwar and Hon’ble Mr. Justice Syed Arshad Ali.