Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD AZMATULLAH SIDDIQUI AND OTHERS VS Respondent: REVENUE OFFICER, KOTRI JUDGMENT
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title:MUHAMMAD AZMATULLAH SIDDIQUI AND OTHERS vs REVENUE OFFICER, KOTRI
JUDGMENT
Reported As: PLD 1984 Karachi 413 Result: Petition allowed Judgment JUDGMENT ' AJMAL MIAN, J.-Since these two petitions involve common questions of acts, we intend to dispose of the same by this common judgment. 2. The brief facts leading to the filing of the above petitions are that coup Captain (Retired) A. M. Murad, hereinafter referred to as Mr. Murad, as allotted agricultural land, measuring 496-27 acres in the mechanized arming scheme in Ghulam Muhammad Barrage area, hereinafter, referred as the land. It is the case of Muhammad Yousuf Qamar Siddiqui hereinafter referred to as Mr. Yousuf that in 1980 he agreed to purchase the land from Mr. Murad at the rate of Rs. 1,000 per acre. Out of the above ale consideration, he allegedly paid Rs. 2,00,000 on 3-5-1980 and further sum of Rs 1,10,000 to Pir Mehfooz. According to Mr. Yousuf he was also pay the remaining outstanding instalments in respect of the land to the government. It has also been averred by him that in pursuance of the hove sale consideration Mr. Murad executed a general power-of-attorney in his favour on 3-5-1980 and gave possession of the land, inter alia authorizing him to sell the land. It has further been averred by Mr. Yousuf hat under the sale agreement dated 1-6-1980, he agreed to sell the land Muhammad Azmatullah (hereinafter referred to as Mr. Azmatullah) at the ate of Rs. 1,500 per acre plus the payment of outstanding Government issues. It has been further averred that Mr. Azmatullah in consideration f the above sale agreement paid a sum of Rs. 3 lacs on the date of the execution of the above sale agreement and the balance consideration mounting to Rs. 4,50,000 was to be paid within one year and 7 months from the date of the agreement i. e. On or before 31-12-1981. It has also an averred that Mr. Murad executed a second general power-of- attorney dated 17-12-1981 in favour of Mr. Yousuf containing more exhaustive were. It has further
---
## Page 2
been averred that Messrs Yousuf and Azmatullah have spent a considerable amount on the development of the above land. It is further the case of Messrs Yousuf and Azmatullah that since Mr. Murad on -5-1982 had published a notice in a daily newspaper advertising the land for ale and thereafter purported to cancel the general power-of-attorney on 5-1982, Mr. Azmatullah filed a suit No. 235/82 on 2-6-1982 in this Court or specific performance of the above sale agreement against Mr. Murad nd Mr. Yousuf. Alongwith the plaint an application under Order XXXIX, rules 1 and 2, C. P. C. Was filed. Upon the above application an ex parte talus quo order was passed on 2-6-1982, which was confirmed on 31-8-1982. Against the above confirmation of the status quo order Mr. Murad filed a High Court Appeal No. 88/82, to which Mr. Azmatullah filed cross-objections. The above appeal was disposed of by an order, dated 3-3-1983, where-y the order of status quo was modified 'inter . Alia providing that Mr. Murad could file legal proceedings for ejecting Messrs Yousuf and Azmatullah mom the land. After that Mr. Murad filed an application under section 32 lead with section 19 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act) on 4-4-1983 before the Revenue officer, Kotri Barrage, Hyderabad thereinafter referred to as the Revenue Officer) against Messrs Yousuf and Azmatullah for ejectment. The notice of the above application was Issued for 23-4-1983 and according to Messrs Yousuf and Azmatullah, the above notice was not served on them. Whereas according to Mr. Murad the same was served on both of them. The Revenue Officer on 23-4-1983. After hearing the counsel of Mr. Murad in the absence of Messrs Yousuf and Azmatullah passed the impugned order ordering their ejectment from the land and directing the Barrage Mukhtiarkar concerned to deliver the possession of the land to Mr. Murad Or his attorney Mst. Yasmin Choudhary. Though in Const. Pet. No. D-553/82, which has been filed by Messrs Yousuf aad Azmatullah against the above impugned order, it has not been stated that in pursuance of the above impugned order the possession of the land was given to Mst, Yasmin Choudhary but Mr. All Ahmed Fazed, the learned counsel for Messrs Yousuf and Azmatullah, while stating the facts of the petition has stated that the possession, of the land was given to Mst. Yasmin Choudhary. This statement of Mr. All Ahmed Fazeel seems to be in consonance with the Court diary, dated 1-6-1983 of Const. Pet. No. D353/83, in which while arguing the stay application a request was made by the then Advocate of Messrs Yousuf and Azmatullah Mr. Inamul Haq that Mr. Murad be evicted and the possession be restored. ' It seems that Mr. Murad filed a suit bearing No. 200/83 on 28-4-1983, against Messrs Yousuf and Azmatullah for accounts, mesne profit and permanent injunctions.. Alongwith the suit he also filed an application under Order XXX1X, rules .1 and 2, C.P.C. And obtained status quo order on 28-4-1983. It further seems that Messrs Yousuf and Azmatullah on 30-4-1983 filed a review application against the above order, dated 23-4-1983 before the Revenue Officer. The above review application came up for hearing on a-5-1983 when Messrs Yousuf and Azmatullah filed an application for withdrawal of the review on the ground that the same was misconceived. However, the Revenue Officer in spite of the above withdrawal application passed an order on 8-5-1983 suspending the above order, dated 23-4-1983, passed by him. Mr. Murad being aggrieved by the above suspension order has filed the second petition, namely, Const. Pet. No. D-402/83 impugning the above order. 3. Before taking up the contentions of the learned counsel for the parties, it may be observed that the case of Mr. Murad is that he had never agreed to sell the land to Mr. Yousuf and that the latter was not authorised to enter into any sale agreement with Mr. Azmatullah. It is also the case of Murad that since the land of Mr. Yousuf was situated adjacent to this land and as he was going to Canada, he executed the first power-of-attorney in favour of Mr. Yousuf for looking after the land. His further case is that the second power-of-attorney was executed after his return from Canada for the reason that he was to live in Lahore. 4. We intend to take up first the contentions in support of Const. Pet. D-353/83. Mr. All Ahmed Fazeel in support of the above petition has contended as follows :
---
## Page 3
(I) that the impugned order dated 23-4-1983 was passed without service of proper notices on Messrs Yousuf and Azmatullah ; (ii) that section 32 read with section 19 of the Act could not have been pressed into service for enforcing the private rights or for resolving the private dispute. ' On the other band, Mr. S. Ishtiaq All alongwith Messrs Abbas Zia and Shabbir Advocates has urged as under :- (i) that due notice was served before the passing of the impugned order, dated 234,1983, (ii) in the alternative factually no notice was required to be served by the Revenue Officer before the passing of the impugned order. (iii) that the impugned order could have been passed on the basis of Mr. Murad's application under section 32 read with section 19 of the Act. 5. Mr. Ali Ahmed Fazeel in support of his first contention has invited our attention to section 7 of the Act, which inter alia provides that subject to the provisions of the Act, the West Pakistan Land Revenue Act, 1967, Chapter VII of the Punjab Tenancy Act, 1887 or corresponding provision of any other law relating to tenancy I or the time being in the area where proceedings under the Act are to be taken and the rules thereunder, shall apply to all proceedings under the Act. On the basis of the above provisions of section 7 of the Act, Mr. All Ahmed Fazeel has referred to section 24 of the West Pakistan Land Revenue Act, 1967, which reads as follows : Sec. 24.-(1) A summons issued by a Revenue Officer shall, if practicable, be served (a) personally on the person to whom it is addressed or, failing him, (b) on his suthorised agent or (c) on adult male member of his family usually residing with him. (2) If service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the District in which the. Revenue Officer is employed and the case to which the summons relates has reference to land in that District, the summons may be served by :- (a) sending it by post to the Collector of the District in which that person has his usual residence who shall cause it to be served in accordance with the provisions contained in subsection (1) ; and (b) affixing a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer so directs be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf, and proclamation of the contents thereof for the information of the other persons interested. (4) A summons may, if the Revenue Officer so directs, be served on the person named therein, either in addition to, or in substitution for, any owner mode of service by forwarding the summons by registered post to the person concerned. (5) Where summons is forwarded as aforesaid, the Revenue Officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course or post. ' It may be noticed that abovequoted subsection (1) of section 24 provides the normal mode of service of summons by serving the same personally on the person to whom it is addressed or failing him on his autnorised agent or on the adult male member of his family usually residing with him. ' It may further be noticed that subsection (2) of section 24 lays down that if service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing the copy thereof at the usual or last . Known place of
---
## Page 4
residence of the person to whom it is addressed or if that person does not reside in the District in which the Revenue Officer is employed and the case to which summons relates has reference to land in that District, the summons may be served by sending it by post to the Collector of the District in which that person has his usual residence and thereafter the summons is to be served in terms of subsection (1) of section 24 and affixing a copy of the summons on some conspicuous place in or near the estate wherein the land is situated. It may also be pointed out that subsection (3) deals with the service of the summons in respect of a case in which numerous persons have same interest and it is not reasonably practicable to serve all of the persons. The above subsection (3) empowers the Revenue Officer to direct the service of the summons by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the persons interested. It may further be noticed that subsection (4) empowers the Revenue Officer either in substitution or in addition to order the service of the summons by forwarding the same by registered post to the person concerned. Whereas subsection (5) provides that when the summons is forwarded in the manner provided hereinbefore, the Revenue Officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post. 6. In the instant case, the Revenue Officer sent the notices of the application for personal service through the Barrage Mukhtiarkar as well as under the registered A/D. The notice addressed to Mr. Azmatullah was received by his son Asadullah, whereas the notice addressed to Mr. Yousuf was allegedly received by his wife but she 'declined to sign the copy of the notice. As regards the notices sent under registered A/D post, the notice addressed to Mr. Azmatullah was received on 25-4-1983 i. e. After the date of hearing, whereas the notice addressed to Mr. Yousuf was refused. ' Mr. Ali Ahmed Fazeel has vehemently urged that since the Revenue Officer has not held that Asadullah was' residing with his father Mr. Azmatullah, the service on him was not valid and that the alleged delivery of the notice to the wife of Air. Yousuf also does not constitutes valid service. In furtherance of the above contention he has referred to the following cases :- (i) Gul Muhammad v. Moolchand and others AIR 1933 Lah. 797, in which a learned Single Judge of the Lahore High Court while construing Order V, rule 15, C. P. C. And Order XLI, rule 21, C. P. C. Held that where service of summons to father was effected on his son in the father's absence, but as the son was not residing with the father, the service was not good. The reliance was placed on the cases reported in AIR 1932 Pat. 150 and (1917) 43 Cal. 447. (ii) Bhomshetti Jinappasheti v. Uma Bai 1897 21 I L R Born. 223, in which a Division Bench of the Bombay High Court while referring to sections 8 and 82 of C. P. C. (Act XIV of 1882) held that in the matter of service of a summons, the C. P. C. Does not take into account the female members of a defendant's family and does not rely upon the presumption that they will take step informing the defendant of what takes place in his absence. 7. The above Lahore case has no application to the present case as even Mr. Azmatullah has not stated in his petition or in any of the affidavits that his son Asadullah was not residing with him at the time of the service of the above notice. However, it was urged by Mr. Ali Ahmed Fazeel that it was for Murad or for the Revenue Officer to have averred that Asadullah was residing with his father Mr. Azmatullah and that in the absence of any such averment the service cannot be held to be good by serving the notice on Asadullah on behalf of Azmatullah. We are inclined to hold that if a notice or summons is addressed at the residential address to a defendant or opponent and the above notice is accepted by a son of the addressee at the above given address, it will be presumed that he is a male member usually residing with the addressee. It is not uncommon in our society that even married sons continue to live with their parents. We are also of the view that it was for Mr. Azmatullah to have averred that his son Asadullah was not usually residing with him if
---
## Page 5
he wanted to overcome subsection (1) of section 24 of the West Pakistan Land Revenue Act, 1967. We are, therefore, inclined to hold that there was valid service of notice on Mr. Azmatullah as the notice was received by his son Asadullah at his residential address. However, the case of Mr. Yousuf is on different footing for more than one reason, firstly, admittedly copy of the notice was not signed by his wife as per report on the copy of the notice and, secondly, that subsection (1) of section 24 of the West Pakistan Land Revenue Act, 1967 contemplates service of a notice on adult male member of the addressee and not on adult female member. In this view of the matter, there was B no valid service of summons on Mr. Yousuf. We are unable to agree with the contention of Mr. Ishtiaq All that since Messrs Yousuf and Azmatullah had same interest, the service of notice on one was good service for the purpose of both. His reliance on subsection (3) of section 24 of the West Pakistan Land Revenue Act, 1967, is not warranted as the above provision is not applicable to the instant case. It may again be observed that in order to press into service subsection (3) of section 24, it is incumbent that the Revenue Officer should apply his mind to the fact or the case and should come to the conclusion that it is not reasonably practicable to serve the summon on the numerous persons having same interest. Apart from the fact that there is no order of the Revenue Officer in the present case that it was not reasonably practicable to serve both Messrs Yousuf and c Azmatullah, it is also doubtful, whether the word "numerous' would cover a case in which there are only two defendants or opponents. Mr. S. Ishtiaq Ali has referred to the case of Nazar Muhammad and others v. Settlement Commissioner and others (1) in which the Hon'ble Supreme Court whil declining leave to appeal observed that the maxim, audi alteram partem (no one should be condemned unheard) is not applicable to a case where party after having been served by substituted service does not turn up to contest the case. The above case has no application to the instant case as there was no substituted service in the present case. 8. It was then contended by Mr. S. Ishtiaq All that principle of natural justice cannot be pressed into service as Messrs Yousuf and Azmatullah have failed to show that any prejudice has been caused to them as admittedly they were trespasser on the land. In furtherance of his above submission he has referred to the following cases :- (I) Sind Employees' Social Security Institution and another v. Dawood Cotton Mills Limited PLD 1977 SC 177, in which the Hon'ble Supreme Court of Pakistan repelled the contention that {{FOOT NOTE}} (1) 1978 SCMR 311 {{FOOT NOTE}} before creating a demand for social security contributions under the West Pakistan Social Security Ordinance, 1965, the affected party was entitled to a notice. (ii) Collector Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681, in which it was held that failure to give show-cause notice prior to dismissal of a Government servant in terms of Article 177 (1) (b) of the late Constitution of Pakistan, 1962, was fatal to the dismissal order and that initial defect would remain incurable even if opportunity of hearing is afforded at the subsequent hearing. (iii) Mst. Sattan and others v. Group Captain Mansoor Hussaian, Officer Commanding P A F Station, Sargodha PLD 1962 (W. P.) Lah. 151, in which a Division Bench of the Lahore High Court has held that the principles of natural justice cannot be pressed into service if the law under which order passed did not contemplate any such notice. It was held that section 237 of the Cantonment Act, 1924, as worded does not contemplate that the enquiry mentioned therein must necessarily consist of an opportunity to the person against whom the order was to be passed to show cause against the order proposed to be made. 9. The above Supreme Court case of 1977 has no application to the present case, whereas the second Supreme Court case referred to herein-above in fact is against the proposition canvassed
---
## Page 6
at the Bar by Mr. S. Ishtiaq Ali. The Lahore case has also no application as we have held that under section 24 of the West Pakistan Land Revenue Act, 1967, the service of the notice could be made in one of the modes provided therein. It cannot be urged that the impugned order has not caused any prejudice to Messrs Yousuf and Azmatullah as they have been ejected from the land in respect of which they were claiming certain rights. 10. Adverting to the alternate submission of Mr. S. Ishtiaq Ali that factually no notice was required, it may be observed that he has invited our attention to the difference in the language between sections 24 and 32 of the Act, namely, under section 24 the Collector cannot pass an order against a tenant without providing him an opportunity to appear and state his objections to the proposed action either of imposing penalty or resumption of the land in respect of which breach is committed. Whereas section 32 provides that the Collector may in addition to any other power he may possess, forthwith re-enter upon the land. It was vehemently contended by Mr. S. Ishtiaq Ali that the use of the word "forthwith" negates the requirement of any service of notice. In support of the above contention he has referred the case of Kashab Nilkandh Joglakar v. The Commissioner of Police, Greater Bombay and others, in which the Supreme Court of India while considering the words "forthwith" and "as soon as may be" used in sections 3(3) and 7 of the Preventive Detention Act, 1950, pointed out the difference between the above two different terminologies and observed that an Act which is to be done forthwith must be had to have been so done, when it is done with all reasonable despatch and without avoidable delay. Whereas the phrase "as soon as may be" by its very nature is indefinite depending on the facts and circumstances of the case. We are inclined to hold for the reasons referred to hereinbelow that in the instant case the Revenue Officer could not have pressed into service section 32 or section 19 for the benefit of a private party for resolving a private dispute between the two private parties. In this view of the matter, the alternate submission of Mr. S. Ishtiaq Ali is of no consequence. However, it will suffice to observe that the factum that section 24 of the Act expressly contemplates providing of an opportunity to the affected tenant before taking any adverse action against him and the passing of any such order and the absence of any requirement of providing opportunity under section 32 of the Act and the use of the word "forthwith" supports the contention of Mr. S. Ishtiaq Ali, but it is not necessary to record any definite finding on the above contention. 11. Reverting to the main controversy, whether section 32 read with section 19 of the Act can be pressed into service for the benefit of a private party for resolving the private dispute, it may be advantagous to reproduce sections 19 and 32 of the Act, which read as follows :- "Section 19. Transfer of rights to be void.-Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant, who has not acquired a right of occupancy and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer of charge made without such consent in writing shall be void, and if after the commencement of this Act the transferee has possession, he shall be ejected under the orders of the Collector: ' Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated. ' Section 32. Power of re-entry in case of squatters and trespassers.- When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may in addition to any other power he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops trees and buildings thereon on behalf of Government without payment of any compensation whatsoever."
---
## Page 7
It may be noticed that above section 19 prohibits the tenant from transferring or creating any charge by any sale, exchange, gift, will, mortgage or other private contract other than sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy and seven E years in the case of a tenant who has acquired the right of occupancy. It further provides that any transfer or charge made without such consent shall be void and the transferee having possession shall be ejected under the order of the Collector. It may further be noticed that the above-quoted section 32 empowers the Collector, when he is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, he (the Collector) may in addition to any other power s forthwith re-enter upon the land and resume possession of it and also take possession of all crops, trees and buildings thereon on behalf of the Government without payment of any compensation whatsoever. 12. It has been vehemently argued by Mr. Ali Ahmed Fazeel that neither section 19 nor section 32 of the Act could have been pressed into service in order to cause the eviction of Messrs Yousuf and Azmatullah. On the other hand, it was vehemently contended by Mr. S. Ishtiaq Ali that since the alleged transaction was in violation of section 19 of the Act, the status of Mr. Yousuf or Mr. Azmatullah in relation…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.