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Petitioner: Maqbool Ahmed and others VS Respondent: Secretary, Revenue Department, JUDGMENT
Court Name: Balochistan High Court Judge(s): Jamal Khan Mandokhail, Rozi Khan Barrech Title:Maqbool Ahmed and others vs Secretary, Revenue Department,
JUDGMENT
Reported As: 2020 CLC 1151 Result: Petitions allowed Judgment JUDGMENT ROZI KHAN BARRECH, J.---The titled constitution petitions have been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") to call in question the vires and validity of Notification Nos. 33A 13 and 63A 13 dated 16.06.2014 and 21.05.2018 whereby Mangochar Sub-Division of District Kalat was renamed as Khaliq Abad Mangochar" and "Tehsil Phelawagh" of District Dera Bugti was renamed as "Tehsil Qadirabad" respectively . 2. This consolidated judgment shall dispose of both the petitions, as common questions of law and facts are involved therein. 3. Learned counsel for the petitioners vehemently argued that: A. Respondent-Government while issuing the impugned Notifications has failed to take into consideration that political figures have no mandate to get modified the historical names of Sub Division and Tehsil, when different Tribes are inhabiting in the area and the act of changing the names smell malafides and ulterior motives on the part of respondents. B. Respondent-Government had travelled beyond its authority , as under the law, it is not vested with any power to oblige anybody in a representative capacity , which would amount to rivalry and hatred for times to come amongst the inhabitants of the area. C. Prior to changing the names, the respondents have failed to seek general consensus from the masses inhabiting in the area as well as calling a prior concern of inhabitants through publication for such modification or alteration. The respondents on their own cannot take any step either intentio nally or unintentionally to give
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preference to a family , which may have socio-economic and political dynamics related to different tribesmen, tribes and clans and may also have their own interests. D. Since Mangochar and Phelawagh are notified rural areas, therefore, municipal laws could not be enforced in such areas and the act done is an attempt to give fame to a political figure which obviously had multiple future repercussions on all counts. Besides above, learned counsel for petitioner further argued that in the entire Province of Balochistan, the roads, streets, towns overhead bridges, educational institutions, hospitals public parks and universities are named after people/individuals of ruling privileged, feudal, political class of the province without noticing role of such individuals in matter of developments, betterments and services for particular area, town, city, country or education. According to learned counsel it is evident from the conduct of Provincial Government and functionaries that the cities, towns, streets and all institutes (educational and health), relating to public in general have been treated as part of some undeclared kingdoms of local feudal and political lords of each town, city and area, therefore, naming, renaming such institutes, towns, cities, roads, streets is part of their kingdom rule. 4. Conversely the learned AAG strongly opposed the contentions put forth on behalf of the petitioners and stated that the Hon'ble Chief Minister Balochistan desired for moving summary on the request of the elected representatives as well as inhabitants of the concerned areas, and as per procedure enumerated in the Balochistan Government Rules of Business, 2012 a summary was accordingly submitted with complete background to the Chief Minister for approval and within the meaning of Section 6 of the Land Revenue Act, 1967 the Government of Balochistan approved the summary purely for the convenience of general public, better management and in the interest of the people of the area at large resulting in issuance of Notifications. In support of the parawise comments the learned AAG during course of arguments also raised objections that since the petitioners have challenged a policy matter which was endorsed by the government therefore, on this ground alone the petitions are not maintainable. The learned AAG raised the preliminary objection with regard to maintainability of these petitions on the ground that the petitioners have no locus standi to invoke the constitutional jurisdiction of this court. He further argued that the petitioners are not bonafide litigants, therefore these petitions being without substance, based on mere apprehension and resulting in abuse of the process of court, are liable to be dismissed. 5. We have heard the learned counsel for the petitioners, the learned AAG and have also gone through the entire record with their able assistance. Before dilating upon the respective contentions it may be seen that admittedly the petitioners are residents of Mangochar and Dera Bugti and are residing in the same vicinity . 6.It may be observed that dispensation of justice is not alone the function of Courts but public functionaries are equally responsible to act fairly, justly and in accordance with law being trustees of public power . It is settled law that where public functionaries have failed to perform their duties or they act illegally or in excess of their jurisdiction relating A to public duties, any concerned person can invoke the constitutional jurisdiction of this Court. The term 'aggrieved person' under Article 199 of the Constitution would not confined to a person having strict legal right but would extend to any person having legitimate interest in performance of a .public duty. The Hon'ble Supreme Court in case of M/s. Al-Raham Travel and Tours Private Limited and others v. Ministry of Religious Affairs (2011 SCMR 1621 ) held that constitution is living organism and has to be interpreted to keep alive the tradition of past blended in the happening of present. The august Supreme Court further held that even the policy in conflict with provision of law or violation of fundamental rights can be challenged in constitutional jurisdiction. 7. In the matter of Human Right's case (PLD 2010 Supreme Court 759), the apex Court on a petition filed by member of a Civil Society entertained the petition against project in public park, thus the scope of locus standi was extended to even conscious and concer ned citizens who are live to the illegality and excess of jurisdiction by Executive Authorities of the Government. In Javed Ibrahim Paracha v. Federation of Pakistan (PLD 2004 Supreme Court 482), the scope of public interest litigation was determined that firstly the matter should be of public interest and secondly the petition er aims for public good and for the welfare of general public. It is well settled by now that where infringement of law and constitution by Executive Authorities is involved, Court in judicial review would unhesitatingly and without the slightest qualms of conscious cast aside the technicalities of procedure
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in dispensing judicial review and entertain the petition filed by like minded public individuals. However , there is no dispute that the individuals who moved the Court for judicial redressal must act bona fide. The matters indeed in our considered view concern public intere st and aim for good of public. Therefore, petitioners have locus standi to invoke the constitutional jurisdiction of this Court, to seek directions against the respondents restraining them from doing any wrong. 8. The case in hand is in the nature of public interest litigation and the petitioners have filed these petitions as pro bono publico. They are seeking directions against the illegal use and unauthorized renaming of Sub-Division in the name of fathers of elected representatives of concerned areas. 9. Even otherwise being the citizens of Pakistan the petitioners have every right to invoke the jurisdiction of this Court, for taking notice of abuse of trust and misuse of authority by the public functionaries. In the instant petition, the petitioner have alleged that the act of respondents in renaming the Sub-Divisions concerned is illegal and unlawful, as being in excess of the official authority and powers. The point raised and prayer made by the petitioners comes within the ambit and scope of sub-clause (ii) of clause (a) of Sub-Article (1) of Article 199 of the Constitution of Islamic Republic of Pakista n, 1973. The objection raised by learned AAG in this regard is held to be without any legal backing and thus not sustainable in the eyes of law . 10. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) the august Supreme Court of Pakistan while dealing with the case of construction of high rise buildings on the question of "locus standi" of the petitioners in para. 29 of its judgment has observed as follows: "For the facts and reasons, and case-law on the subject of locus standi as mentioned above, we find that even though some writ petitioners are shown E to be residing at distances far away from the building in dispute and one writ petitioner is shown to be residing in close proximity of the building in dispute and since the area is same, requirement of locus standi as contemplat ed under Article 199 of the Constitution is to have extended scope as this case has characteristics of public interest litigation and the writ petitioners are pro bono publico." 11. In these circumstances, we are of the firm view that the petitioners falls within the definition of an "aggrieved person" and they have the locus standi to file these petitions as contemplated in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The objection as to maintainability of the instant writ petition is rejected. 12. The learned AAG also questioned the maintainability of these petitions on the ground that the Government has taken a policy decision and it is not for this court in exercise of judicial review to sit in appeal over such policy decision to substitute it with its findings. 13. No doubt ordinarily the Courts should not interfere in the policy matters, however , if the policy is in conflict with any provision of law or is violative of the fundamental right of the citizens the same can be called in question in constitutional jurisdiction of this Court. In this context the august Supreme Court in judgment reported as "Al- Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others" (2011 SCMR 1621 ) held as under;- "As regards the contention of the learned counsel that the High Court cannot interfere with the policy matters in its jurisdiction, we have some reservations, as if the policy is in conflict with any provision of law or is violative of the fundamental rights of a citizen, the same can be called in question before the High Court in its writ jurisdiction. Reference can be made to Watan Party v. Federation of Pakistan (PLD 2006 Supreme Court 697) and Shaheen Cotton Mills v . Federation of Pakistan (PLD 201 1 Lahore 120 )." Reliance is also made on Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 201 1 Lahore 120 ). Policies in the ultimate analysis tend to be translated into Executive action. It is equally settled law that Executive has no inherent power to pass any order or take any action, as has been repeatedly held by the Hon'ble Supreme Court of Pakistan including in the judgment reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642 ) in the following terms: "There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power and duty ."
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Therefore, executive action should be such having no possibility of violating a Fundamental Right. The only power of the Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, have to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admittedly to be derogatory to law and Constitution, is liable to be struck down." Reliance is placed on the case titled as "Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others" (2014 SCMR 676) and Salahuddin Dharaj v. Province of Sindh through Secretary , Local Government Department and 4 others PLD 2013 Sindh 236 . The Hon'ble Supreme Court of Pakistan in the case of "Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v . Ministry of Religious Affairs ", reported in 2011 SCMR 1621 , in paragraph 33, has held that: "50 If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen the same can be called in question before High Court in writ jurisdiction". A bare perusal of case law manifestly shows that even a policy can be called in question in writ jurisdiction if the same is either in conflict with any provision of law or is in violation of fundamental rights of a citizen. 15. Reverting to merits of the case, recor d reveals that a summary was submitted to the Chief Minister which was approved within the meaning of section 6 of the Land Revenue Act, 1967, resulting in issuance of impugned Notification of 21st May , 2014. Contents of the Notification read as under: Dated Quetta, the 21st May , 2014 NOTIFICA TION No.33 A 13. In exercise of powers conferred by Section 6 of the Balochistan Land Revenue Act, 1967 (XVII of 1967), the Government of Balochistan is pleased to constitute a new Sub-Division namely Manguchar in District Kalat with Headquarter at Mangochar . Consequent upon the formation of the Sub-Division the territorial limits of Kalat District are re-arranged as per following schedule. District Sub-Division Tehsil Sub-T ehsil Kalat Kalat Kalat Mangochar Manghochar Johan Sub-T ehsil Gazg Sub-T ehsil.
Surab Surab
BY THE ORDER OF GOVERNOR BALOCHIST AN
After the above notification the Board of Revenue submitted another summary to the Chief Minister for change of name of Sub-Division Mangochar to Sub-Division Khaliqabad Mangochar , which is reproduced here under: SUMMAR Y FOR CHIEF MINISTER Subject: CHANGE OF NAME FROM SUB-DIVISION MANGOCHAR TO SUB-DIVISION KHALIQ ABAD MANGOCHAR Placed below is a D.O. letter from Mir Khalid Khan Langove Advisor to Chief Minister for Finance Department Balochistan, received through Commissioner , Kalat Division (F/A) wherein it has been stated that during his visit to
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Mangochar , the people of Mangochar District Kalat made a request regarding change of name of the newly created Sub-Division from Mangochar to Khaliq Abad Mangochar . 2. Brief facts of the case are that a new Sub-Division Mangochar was created in Kalat District with the prior approval of Government of Balochistan (F/B). Now the Commissioner , Kalat Division has come up with the proposal put forward by Mir Khalid Khan Langove, Advisor to Chief Minister for Finance Department to change the name of newly created Sub-Division from Mangochar to Khaliq Abad Mangochar . 3. In view of the above, approval of the Hon'ble Chief Minister is solicited on the proposal of Commissioner , Kalat Division as referred to at Para-2 above. Senior Member . Board of Revenue" On basis of such summary the Notification Nos. .33 A 13 dated 16th June 2014 was issued about change of name of Sub-Division Mangochar as Khaliq Abad Mangochar . The Notification reads as under: Dated Quetta, the 16th June, 2014 NOTIFICA TION No.33 A 13. In partial modification of this Board Notification of even number dated 21.05.2014, the Government of Balochistan is pleased to change the name of Sub-Division Mangochar as "Khaliq Abad Mangochar" with immediate ef fect. BY THE ORDER OF GOVERNOR BALOCHIST AN
As far as CP No. 149 of 2018 is concerned the Principal Secretary to the Chief Minister issued a letter to Senior Member Board of Revenue with direction that the Chief Minister has desired that a summary for change of name of Tehsil Phelawagh for his kind perusal be submitted. Contents of Para No.1 1 of the said letter read as under: The Hon'ble Chief Minister has desired that a summary for change of name of Tehsil Phelawagh, District Dera Bugti as T ehsil Qadirabad be submitted for his kind perusal/orders." Thereafter on 21st May 2018 Notification No. 63A 13 was issued which is reproduced here under: Dated 21st May , 2018 NOTIFICA TION No.63 A 13. The Government of Balochistan is pleased to change the name of T ehsz I Phelawagh as "T ehsil Qadirabad" District Dera Bugti with immediate effect. BY THE ORDER OF GOVERNOR BALOCHIST AN
16. It may be seen that admittedly durin g the entire process of renaming, no advertisement was made in any newspaper , calling objections from the inhabitants of the area. The above change of name occasioned on the request of an elected representative of the area despite the fact that Senior Member Board of Revenue in his comments, in the summary moved by the Board of Revenue before the Chief Minister clearly wrote that Section 6 of the Land Revenue Act, 1967 is silent in this regard. The comments are reproduced here under: BOARD OF REVENUE BALOCHIST AN SUMMAR Y FOR CHIEF MINISTER BALOCHIST AN Subject: CHANGE OF NAME OF TEHSIL PHELA WAGH AS TEHSIL QADIRABAD The Principal Secretary to Chief Minister has conveyed the desire of Hon'ble Chief Minister (F/A) regarding renaming Tehsil Phelawagh, District Dera Bugti as Tehsil Qadirabad. 2. A report in this regard was asked from Commissioner , Sibi Division and copy among others endorsed to Deputy Commissioner , Dera Bugti for similar necessary action (F/B). The Deputy Commissioner Dera Butgti vide his report
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(F/C) has submitted that District Dera Bugti is comprising of three Tehsils i.e. Dera Bugti, Sui and Phelawagh have estimated population of 350000 souls as per Census, 2017. 3. The Deputy commissioner in his report has further submitted that the new proposed name of Tehsil Phelawagyh as Qadirabad, is after the name of late Mir Ghulam Qadir Bugti a renowned tribal Chief, politician (former member of Mahlis-e-Shoora), philanshtopist, educationalist and social personality who contributed in various fields especially in the field of social welfare. 4. Keeping in view the above mentioned contributions of late Ghulam Qadir Bugti in various fields of life, the Deputy Commissioner , Dera Bugti has recommended the change of name of Tehsil Phelawagh District Dera Bugti as Tehsil Qadirabad. 5. It is pertinent to mention here that Section 6 of Land Revenue Act, 1967, is silent about change of name of District, Sub-Division, Tehsil, Sub-T ehsil, Mouza, Circle and village etc. However , many instances exist regarding renaming places/cities etc by the Government of Balochistan. 6. Submitted for kind perusal of the Hon 'ble Chief Minister Balochistan. Sd. Senior Member Board of Revenue Revenue Minister: (on tour) Chief Secretary: P1 examine the legal ef fect of such cha...Is there something in the General Clauses. Chief Minister: Foregoing paras: 8. The Deputy Commissioner in his report annexed with the Summary has mentioned that the person on whose name the name of Tehsil Phelawagh is proposed to be changed i.e. Tehsil Qadirabad, was a renowned Tribal Politician (former member of Majlis-e-Shoora), Philanthropist, educationalist and social personality who contributed in various fields especially in the field of Social Welfare. However , it is not known as to whether the objections and suggestions of the people of the area have been invited by the District Administration in this respect or otherwise. If the answer is in negative then it is likely to give rise to an uncalled for litigation and unrest amongst the people of the area. The proposed change of the name of a Sub-division as it existed since long/right from its creation till date, may necessitate the change in the Revenue entries and may be contrary to the proviso of the Wajib-ul-Arz, (if any) prepared at the time of settlement since there might have been some reasons or customs prevailing in the area for giving the name of "Phelawagh" to the sub-division. 9. It would have been better had the Administrative Department in the first place examined the aftermath repercussions of such change and then come up with some specific proposal. Anyway , like the Land Revenue Act, 1964 the General Clauses Act have also no such provision where under the name given to a place could be changed. Submitted please. Sd. Secretary Law CHIEF SECRET ARY: 10. What is the name Phelawagh associated with. Paras 8, 9 & 10 refer: As per report of Deputy Commissioner Dera Bugti, Phelawagh is the name of an area of District Dera Bugti, where the Masoori Section of Bugti tribe are settled since centuries. Phelawagh litera lly means "upper highlands" in Balochi. This office suggests that such demands should not be entertained otherwise amendment/tempering in revenue record would hurt the common man. The proposal of Deputy Commissione r, Dera Bugti is not supported at this stage." But despite that the then Chief Minister on 20.04.2018 directed as under: "Tehsil Phelawagh is renamed as T ehsil Qadirabad." 17. The creation and variation of limits of a District is basically a type of territorial division usually made for administrative or electoral purposes. The creation and variation of limits of District or Sub-Division was governed by
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Sections 5, 6 of the West Pakistan Land Revenue Act, 1967. In the matter in hand the Act, 1967 is in force. The relevant provision contained in section 6 thereof is reproduced as under: "6. Division to be divided in to Districts and Districts into Sub-Divisions etc (1) Each Division shall be divided into such Districts, and each District may be divided into such Sub-Divisions or Tehsils (which also include Talukas), as Government may, by notific ation, specify; and each Sub-Division may, consist of such Tehsils, and having such limits, as Government may , by notification, direct. (2) Government may, by notification, vary the number and limit of Divisions, Districts, Sub-Divisions or Tehsils in the Province." 18. The above Section particularly deals with division of Districts, Sub-Divisions and Tehsils whereas subsection (1) of Section 6 thereof empowers the Government to divide each Division and District into Sub-Divisions or Tehsils. Subsection (2) thereof empowers the Government to issue a notification for the purpose. The question therefore is as to whether the partial modification or change of the names of Tehsil Mangocha r and Phelawagh brought in the manner by the official respondents through impugned notifications were permissible under the law when there is no such provision under the Land Revenue Act, 1967. 19. It is pertinent to mention here that the Local Government Act, 2010 (the Act, 2010 ) repealed the Balochistan Local Government Ordinance, 2001 (Ordinance, 2001 ) while the Ordinance, 2001 had repealed the Balochistan Local Government Ordinance, 1980. In terms of Section 196(3) of the Ordinance, 2001, rules, regulations and bye- laws made under the repealed Ordinance of 1980 in so far as they were not inconsistent with the provisions of Ordinance, 2001 were protected. It appears that no bye-laws, rules or regulations were made under the Ordinance, 1980 to deal the question of naming a District, Tehsil etc. 20. The Ordinance of 1980 had repealed the Balochistan People Local Government Ordinance, 1972 ("Act, 1972"). The Act, 1972 had repealed the Municipal Administration Ordinance, 1960 ("MAO, 1960") . In exercise of powers conferred by sections 81 and 121 of the MAO, 1960, the competent authority made and enforced West Pakistan Municipal Committee (Streets) Rules, 1962, ("Rules, 1962"). Under Rule 9, the criterion for naming a street has been provided. The criteria is as follows: "a. Inviting objections/suggestions from general public by through publishing the same. b. No street to be named after a person unless, he is a well known character of history or has rendered distinguished service in the cause of nation or the municipality . c. Street or Road shall not be named after a person if he is a sitting member of the Municipal Committee, Provincial Assembly , National Assembly , or holds any office under the Central Governmen t, provincial government or any other public. " 21. No rules, regulations or bye laws have been made under the above laws specifically for the manner in which the names of a District or Tehsil…
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