Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. RAZIA JAFFAR and otherss VS Respondent: GOVERNMENT OF BALOCHISTAN through JUDGMENT
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title:Mst. RAZIA JAFFAR and otherss vs GOVERNMENT OF BALOCHISTAN through
JUDGMENT
Reported As: 1998 CLC 1738 Result: Petition dismissed Judgment JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---In Constitutional Petitions 509 of 1997 and 3 of 1998, order, dated 13th September, 1997, passed by the Board of Revenue, Balochistan, in Review Application No,17 of 1997, has been assailed on different grounds. However, we have proposed to dispose of, both the petitions, by this common judgment. Facts of C.P. 509 of 1997: ' This petition has been filed by Mst. Razia Jaffar wife of Atta Muhammad Jaffar, on the averments, that she is owner of Agricultural land, which she had acquired, either by purchasing the same from its previous owners or by adhering to process of 'Nautor' in aspect of unmeasured lands situated adjacent to the lands, purchased by her. The detail of her property is given in the following Tables:- --{{TABLE}} A. LAND PURCHASED BY PETITIONER S.No, Mutation Numbers Khasra Numbers Admeasuring Rods - Pols. 1. 24,25,32 & 39 88 5 29 2. -do- 89 9 - 28 3. -do- 90 7 - 13 4. -do- 90/1 15 - 27 5. -do- 91 24 - 30 6. -do- 92 5 - 22 7. -do- 93 4 - 38
---
## Page 2
8. -do- 94 1 - 34 9. -do- 95 3 - 26 10. -do- 96 4 - 13 {{TABLE}} S.No, Mutation Numbers Khasra Numbers. Admeasuring Rod. - Pols. 11. -do-97 5 - 38 12. -do-98 5 - 23 13. -do-99 1 - 26 14. -do-100 2 - 22 15. -do-101 4 - 0 16. -do-102 3 - 2 17. -do-108 17 - 18 18. -do-108/1 10 - 3 19. -do-109 12 - 0 20. -do-112 0 - 35 Total: 156 - 27 B. LAND ACQUIRED THROUGH PROCESS OF NAUTOR' BY PETITIONER S.No, Mutation No, Khasra No, Admeasuring Rods - Pols. 55, 39 106 47-28 1. -do-107 28-14 2. -do-103 43-17 3. -do-1'04 37-21 4. 128/104 1083 15-0 5. 198/280 1160 2-0 6. -do-1161 130-0 Total: 304 - 00 {{TABLE}} ' As per the averments of petition, following developments have been made on the land by petitioner, entering into Khasras Nos.104, 106 and 107, description of which is given in Table "(i) First Tubewell in Khasra No,104 with electric connection and turbine; (ii) 2nd Tubewell with electric connection and turbine in Khasra No,106; (iii) 3rd Tubewell with electric connection and turbine in Khasra No,107; (iv) Pucca built water tank of 60 x 40 ft. In Khasra No,104, (v) Pucca built water tank of 60 x 40 ft. In Khasra No,106, (vi) Pucca built water tank of 60 x 40 ft. In Khasra No,107, (vii) Trickle system irrigation installed in the total area; since brought under Orchard - About 20 Acres carried to every planted tree. (viii) Pucca built water drain to carry water from tubewells. (ix) Pucca built mosque-cum-Madrassah on Khasra No,106, (x) Public Call Office in Khasra No,1083, (xi) Approximately 2-1/2 acres of land leased out to WAPDA from Khasra No,1083, (xii) Primary school on land given by petitioner and building built by her on Khasra No,104, (xiii) Two acres leased to B & R Department used as machinery store, (xiv) Seven pucca built residential premises in Khasras Nos.104, 106 and 107." ' It has been further averred in petition that on 28th October, 1986, the Board of Revenue, in exercise of powers under section 116 of the Land Revenue Act, directed that survey of Quetta Tehsil, except Quetta Town, be carried out and record of rights be prepared accordingly. This Notification was
---
## Page 3
followed by another Notification, dated 8th November, 1987, whereby the Board of Revenue, directed that re-settlement of Quetta Tehsil, except Quetta Town be carried out and record of rights be revised. Later on, vide Notification, dated 16th December, 1991, the Board of Revenue, directed that survey and settlement of all unmeasured (Baroon-az-line) land in Quetta District be carried out and record of rights be prepared. In pursuance of this Notification the Settlement Officer, Quetta, was directed to do the needful, vide Notification, dated 12th November, 1992. It is stated that on completion of process of settlement, which as per averments of petition, had completed in 1989, petitioner was entered as owner of the unmeasured land, details whereof have been given in Table ' B'. In the meanwhile, the inhabitants of the area made a representation to the Government, complaining that they are the owners of land, but it has been wrongly written/entered in favour of Government or some other persons. On this the Chief Minister on 22-10-1992, convened a meeting with the Minister of Revenue, Member-II, Board of Revenue and Settlement Officer, Quetta, and in their presence, the view-point of the Zamindars of the area was heard and it was decided that the Settlement Officer, Quetta will examine the rights of the Zamindars and take appropriate action. In case the Zamindars are not satisfied with the decision of the Settlement Officer, an appeal will be made to the Commissioner followed by an appeal before the Member, Board of Revenue, for appropriate decision. In the meanwhile, the Member, Board of Revenue, had also commenced the proceedings of reviewing the progress of the settlement operation, being carried out in Quetta and it was decided that the Settlement Officer shall provide the copies of all such documents to the Zamindars, Deputy Commissioner/Collector, Quetta for purpose of scrutiny and resorting to judicial proceedings at -next judicial Forums for the purpose of correction of record. In pursuance of this decision, the Settlement Officer also addressed a report/comments to the Commissioner, Quetta Division, in respect of the Appeals, Applications filed by the Zamindars, against the final attestation, carried out by the Assistant Collector, Settlement, for the purpose of determination of their rights in Mouza Khushkaba Sariab, Mouza Khushkaba Saadat, Mouza Shadenzai etc. It so happened that on receipt of such report, because its copy was also addressed to Senior Member, Board of Revenue, with reference to meeting held on 18-12-1994, the Member-II, Board of Revenue (Mr. Muhammad Afzal) on 6th December, 1995, issued a Notification, cancelled all titles/rights/interests acquired directly or indirectly through the process of Settlement work started with effect from Board of Revenue Balochistan's Notification No,180-14/84-Rev., dated 28- 10-1986, and consequently through Notification No,180-14/Rev., dated 8th November, 1987. The contents of the Notification, dated 6-12-1995, for convenience, are reproduced herein below, in extenso:--- "NOTIFICATION No,180-14 of 1993/Rev.--- Whereas repeated complaints regarding transgression of jurisdiction and illegal disposal of unmeasured State land were received by the Government of Balochistan, in Quetta Tehsil. ' And whereas, after enquiries conducted by Subordinate Revenue Officers of this Board it was proved that proceedings conducted by Settlement Officer, Quetta and his subordinate staff were in clear violation of scope of work assigned to them through this Board's Notification No,180- 14/Revenue, dated 12-11-1992 with particular reference to subsection (3) of section 40 of the Land Revenue Act, 1967. ' And whereas, sufficient evidence has been placed before the Government of Balochistan to prove the abovesaid and also the fact that besides wastage of precious Government lands, various tribal disputes have also arisen as a result of illegal conferment of titles/rights/interests in clear violation of law, Notifications, Orders and instructions issued by the Government from time to time in respect of these lands.
---
## Page 4
' Now, therefore, with prior approval of Government of Balochistan and in exercise of powers vested in it, the Board of Revenue, Balochistan hereby directs immediate cancellation of all titles/rights/interests acquired directly or indirectly through the process of Settlement work started with effect from Board of Revenue, Balochistan's Notification No,180-14/84-Rev., dated 28-10-1986 and consequently through Notification No,180-14/Rev., dated 8-11-1987. This will, however, have no effect on legitimate titles/rights/interests acquired earlier than 28th October, 1986 in respect of all area under settlement operation after the above date and all valid transactions made by landowners and their successors in interest in respect of lands validly owned by them. The Revenue Record prepared by Settlement Staff is transferred to Deputy Commissioner/Collector, Quetta District with immediate effect for necessary entries in the relevant record and resumption of state land in accordance with rights and titles in relevant record before issuance of the above said notifications. (Sd.) Member-II Board of Revenue, Balochistan." ' Petitioner, challenged the above Notification before this Court in Constitutional Petition No,73 of 1996. Surprisingly, during pendency of petition, petitioner and so many other persons, approached the Member-III, Board of Revenue, by filing a Revision Petition, which was accepted and Notification, referred to hereinabove, was set aside. It may be noted that Notification, dated 6th December, 1995, affected only to the land, which petitioner had acquired allegedly through process of Nautor', details of which, have been mentioned in Table 'B' above. But as far as the land mentioned in Table ' A' is concerned, it was not effected, as this fact is indicative from the perusal of order of Member-III, Board of Revenue, dated 26th February, 1997. When the petition filed before this Court came up for hearing, counsel appearing for Board of Revenue, pointed out that after the order, dated 26-2-1997, passed by Member-III, Board of Revenue, in favour of petitioner, the petition has become infructuous. Copy of the order was also supplied to learned counsel, who sought necessary instructions and ultimately on 12th May, 1997, petition was dismissed. With observations that petitioner shall be free to file a petition on the available cause of action, as and when, need be, subject to all just exceptions. It appears that towards the month of April, 1997, Government of Balochistan through Deputy Commissioner/Collector, Quetta, filed an application under section 8 of the West Pakistan Board of Revenue Act, 1957 (hereinafter referred to as ' Act of 1957'), for review of order, dated 26-2-1997, before the Board of Revenue, Balochistan. The Application was contested by petitioner and others. Statedly they raised following objections:--- (A) Application for review under section 8 of the Act of 1957, is not competent; (B) The Deputy Commissioner has no locus standi to file Review Application, on behalf of the Government of Balochistan, and (C) Mr. Muhammad Afzal, Member-II, Board of Revenue, can only sit with two other Members, to constitute a Board, but he cannot sit with one Member, or at all, he cannot participate in the Board proceeding, in this case. ' The above objections were disposed of vide order, dated 13th September, 1997, by Senior Member, Board of Revenue and Muhammad Afzal, Member-II, Board of Revenue, in following words:--- (A) We have considered the objection in the light of provisions of the law, and have come to the conclusion that the Full Board is absolutely competent to dispose of the present review application. The reasons of our coming to that conclusion are being given in the final order which is expected shortly. (B) Second objection raised on behalf of the respondents is that the learned Member-II, cannot sit in the Full Board as the impugned Notification No,180-14/93, dated 6-12-1995, was issued by him. ' The objection is overruled, as in the instant case the Notification, dated 6th December, 1995, has not been challenged.
---
## Page 5
(C) It is pointed out that neither the petitioner is aggrieved by the Notification, nor he has impugned the same in his review application. However, they were respondents, who challenged its validity by filing Writ Petitions Nos.33, 34 and 73 of 1996, before the Hon'ble High Court of Balochistan. It is further, pointed out that the Hon'ble High Court could not give a decision on the validity of the Notification, as the respondents withdrew their writ petitions. Consequently, the Notification has attained finality and is very much in the field. ' It has been painfully noted that after passing of this order, the matter was adjourned on different dates, but uptil now, final decision has not been pronounced and in the meanwhile on 19th December, 1997, instant petition has been filed. ' The Deputy Commissioner/Collector, Quetta, has filed parawise comments to the petition, wherein emphatically it has been denied that petitioner has developed the Baroon-az-line land by means of 'Nautor'. It has been stated that process of 'Nautor' is a detailed process and there are special Rules regarding 'Nautor' for which the Settlement Officer was not competent to survey or prepare record of rights of land situation beyond the recognized boundaries of Estates (Baroon-az-line) shown in the record of rights, prepared at the time of settlement of 1940-45, which is still in force. All such work done by the Settlement Officer was nullified by the Government of Balochistan, vide Notification No,180-14 of 1991/Rev., dated 23rd May, 1993. It has been further, stated that all these orders/transfer/interest were made with mala fide intentions and with the sole aim of grabbing the precious State land. Further, it was explained that in present case, the terms 'Nautor' and 'Mauroosi tenant' have been used to cheat and with the only motive of grabbing the precious State land. Otherwise none of the petitioners had paid a single penny as rent, land revenue or cess nor the land in question ever remained under their possession/cultivation. The petitioners through exercise of influence and use of other illegal methods managed to get illegal orders, granting ownership of the State land from the Settlement Officer, who was not competent under the law to do so. The Government Projects were manoeuvred to be taken to the area of allotments for rapid escalation of price of lands, roads were proposed and constructed. Government Departments were coerced to lease out lands without any purpose and the property was mortgaged with the banks for obtaining loans. This is a story of land mafia working under official patronage at the highest level and the whole area claimed by means of 'Nautor' whereas these areas are still 'barren lands' and bear on sign of cultivation. In respect of the preliminary objections, put forth by petitioner before the Member, Board of Revenue, it was stated that no written objection was filed and orally the maintainability of Review Application was challenged, Answer to the objections of petition, as per the stand of respondent No,3 is as under: (A) The Members were satisfied that the Deputy Commissioner, who is the custodian of Government lands as well as Collector, Quetta, has to watch the interest of Government. Since the Government was being deprived from hundreds of acres of land, with mala fide intentions with the connivance of lower staff of Settlement, therefore, such fact was brought in the notice of MBR, whereupon the Notification, dated 6-12-1995 was issued but petitioner due to her influence got it set aside from another Member (Mansoor Shah) on 26-2-1997, as such review application was competently filed before the Board; (B) Full Board constituted under section 8 of the Act of 1957 has the authority to adjudicate upon the review application. It may be stated here that no such objection with regard to the participation of Member-II Board of Revenue, who issued notification, dated 6-12-1995, was taken. It was further pointed out, that said notification was got issued by Mr. Mansoor Hussain Shah, the then Member, Board of Revenue, whereas the Review application was being heard by the other person, i,e,, Mr. Muhammad Afzal, the present Member-II, Board of Revenue. ' It would be appropriate to reproduce hereinbelow the relief which has been sought in the petition:---
---
## Page 6
"It is, therefore, to pray that impugned order, dated 13-9-1997 passed by the two learned Members, Board of Revenue for and on behalf of the Board of Revenue, Balochistan may be determined to have been passed unlawfully and without lawful authority and be consequently set aside; adjudging further that the review petition filed by the Respondent Deputy Commissioner is not lawfully maintainable and accordingly be recorded to be dismissed." Facts of Constitutional Petition No,3 of 1998: ' This Constitutional petition has been filed on behalf of Abdul Manan son of Abdul Hamid and 21 others, wherein it has been stated that in the settlement operation, land entering into different Khasra Numbers, was entered in the names of Mst. Razia Jaffar, Javed Ismial, Arz Muhammad, Syed Manzoor Ahmad, Muhammad Ismail, Lal Muhammad and Abdul Qadir Shahwani, in the record of rights. They being vendors developed the land and the petitioners purchased the said lands, by making payment on the basis of the then prevalent market value. By means of different Notifications, on having acquired the rights of ownership, they started raising construction over the lands, but after issuance of Notification, dated 6th December, 1995, the local Administration stopped them from raising any construction on the land in question, with the result that huge investment made by them has been blocked. The petitioners being aggrieved from the Notification, referred to hereinbefore, preferred Constitutional Petition No,34 of 1996, before this Court and during pendency of same, the Notification was withdrawn and the entries in favour of petitioners, in respect of the lands in question were restored vide order, dated 26th February, 1997. As such, they withdrew their petition on 25th March, 1997. Then the Deputy Commissioner/respondent No,3, challenged the order, dated 26-2-1997, passed by Member-III, Board of Revenue, before the Full Board of Revenue, by filing a Review Application under section 8 of the Act of 1957. It is stated that the jurisdiction of the Full Board was challenged by filing an application, but vide order, dated 13th September, 1997, announced on 30th October, 1997, it was held, that the Full Board has the jurisdiction to hear the application and ruled out the objection. However, reasons for coming to such conclusion were not given. In this petition, following relief has been claimed:--- "It is, therefore, most humbly and respectfully prayed that the impugned order, dated 13-9-1997 passed by the learned Board of Revenue, Balochistan (2 Members) may kindly be declared to have been passed without lawful authority and as such is of no legal effect with the further observation that neither the review petition under section 8 of the Board of Revenue Act, 1957 was maintainable and further that the Board of Revenue, Balochistan has no jurisdiction to review the order, dated 26-2-1997 passed by the learned Member-III, Board of Revenue of Balochistan, and as consequential relief the Board of Revenue, Balochistan may be restrained from exercising jurisdiction not vested in it under law. Any other order deemed fit and proper in the circumstances of the case may also be passed with cost." ' Mr. Basharatullah, learned counsel appeared in Constitutional Petition No,509 of 1997 on behalf of petitioner, whereas Mr. Ehsanul Haq, Advocate, appeared in Constitutional Petition No,3 of 1998 for petitioners. Mr. Noor Muhammad Achakzai, learned Additional Advocate-General and Syed Ayaz Zahoor, Advocate, appeared for the Government and Deputy Commissioner/Collector, Quetta, respectively. ' Mr. Bashartatullah, learned counsel contended as follows:- (A) Whether impugned order, dated 13-9-1997, signed by Syed Muhammad Hussain, Senior Member, Board of Revenue and Muhammad Afzal, Member-II, Board of Revenue, can be deemed to be a competent order, when it has been passed without assigning reasons? Though it has been mentioned that the reasons will be given in the final order, which is to be announced shortly, but so far no reasons have been written and now it is not possible for the Board with the composition of these two Members, to write down the reasons, because one of them namely Syed Muhammad Hussain, had retired from service, therefore, the new Member of the Board, whosoever, will be
---
## Page 7
posted, without hearing the contentions of parties, would not be in a position to write down the reasons, particularly in view of the fact that Board had exercised judicial authority. ' As such, the order deserves to be set aside. Reliance was placed by him on PLD 1976 Lahore 758; (B) Whether order impugned, passed by two Members, styling themselves to be Full Board, has been passed with lawful authority; when such matter is to be heard by three members? And (C) Assuming that Board has passed a lawful order, then whether it has the jurisdiction to review the order, dated 26-2-1997, passed by Member-III, Board of Revenue (Mansoor Hussain Shah), when review is competent not against the order of one member, but in respect of the order, which the Board has passed itself. ' Mr. Ehsanul Haq, learned counsel adopted the arguments of learned counsel Mr. Basharatullah, with addition that Board has invoked the jurisdiction under section 8 of the Act of 1957, on the application of respondent No,3, and as the Review Application is not competent, therefore, the Board be refrained from proceeding with the Review Application, because the Board has not been permitted by law to entertain it. ' Srd Ayaz Zahoor, learned counsel for respondent No,3, argued that petition is not maintainable, as so for reasons have not been assigned by the Board of Revenue to conclude that Review application is competent. Therefore, against such interim order, Constitutional petition is not competent, as it has been held in 1976 SCMR 450, 1988 MLD 2139 and 1996 SCMR 1165. ' Mr. Noor Muhammad Achakzai, learned Additional Advocate-General also subscribed to his contention, on the point of non-maintainability of petition. ' Mr. Basharatullah, learned counsel stated that in the instant case, question of jurisdiction is involved, therefore, against such order, notwithstanding the fact; whether it is an interim or final order, the Constitutional petition, can be maintained. He placed reliance on PLD 1975 SC 450 and 1982 CLC 1625. ' We are inclined to first dispose of the question of maintainability of petition, before considering the merits of case. ' It may be seen that petitioners have put forth objection, challenging the jurisdiction of Full Board, before submitting themselves, for further proceedings. Perhaps, challenge has been made due to apprehension that once they submit to the jurisdiction of Board in the hope, that matter will be decided in their favour, but ultimately it goes against them, then because of acquiescence on their part, they would be precluded to question, that the Full Board had no jurisdiction. It is a settled practice that the jurisdiction of a Court, Tribunal/Forum must be challenged at the first available occasion and if the Court seized of the matter, consider it proper to dispose of such objection without recording evidence, like the cases in which pecuniary jurisdiction of the Court/Forum is under consideration, must dispose of such question preferably before entering into the merits of case. Therefore, in our opinion, the petitioners, rightly challenged the jurisdiction at the appropriate time. The question of jurisdiction can be considered from another angle; namely that if a party questions the jurisdiction of a Forum and decision on it is not given promptly, then such party considers itself to be before a Forum, which has no authority to dispose of the matter and ultimately at the time of final decision of case, if Court comes to the conclusion that it had no jurisdiction, then it would tantamount to causing of unnecessary harassment, wastage of time, energy and time of the parties, as well as of the Court/Forum. In this behalf the Hon'ble Supreme Court in the case of Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), held as follows:--- "Mr. Sami Ahmed next argued that section 64 of the 1965 Ordinance provides for further appeal to the High Court against the order of Social Security Court 'on a substantial question of law'. Therefore, even if the ultimate decision by respondent 2 is against the appellant, the latter will have a right of appeal to the High Court which was adequate alternative remedy to preclude
---
## Page 8
interference by the High Court in its writ jurisdiction. On the above argument learned counsel canvassed against interference by this Court even if the proceedings respondent 2 did not strictly fall within its jurisdiction moreso when the High Court has declined to interfere, in exercise of its discretionary jurisdiction. ' On this aspect of the matter, the essential facts are these namely:--- (i) as explained already,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.