ANJUMAN FRUIT ARHTIAN and others vs DEPUTY COMMISSIONER, FAISALABAD

' JAVED IQBAL, J.---A Writ Petition was preferred on behalf of petitioners before the Lahore High Court, Lahore with the following prayer:-- "It is, therefore, prayed most respectfully that by issuing an appropriate writ, the respondents Nos.1, 2 and 4 be directed to sanction and incorporate the requisite mutations in respect of the land in dispute in the name of petitioner No,1 in the revenue record.

' Any other relief which this honourable Court deems fit may also kindly be granted.

' It is further prayed that till the final disposal of this petition the respondents may graciously be restrained from making any change in the relevant record".

' The above mentioned Writ Petition was rejected by means of order dated 14-12-2004 by the learned single Judge of Lahore High Court, Lahore in chambers, hence this petition.

2. Precisely stated the facts of the case as enumerated in the order impugned are "that suit land (measuring 52 kanals, 3 marlas, bearing killa Nos. 1 to 3, 8 to 10) was transferred in favour of petitioner No,1 in 1958. On payment of the transfer price the transfer orders were prepared on 23-12- 1978 and issued in its favour on 12-8-1984. After payment of price and settlement fee, transfer deeds were executed in their favour. It has been averred that petitioner No,1 submitted application before Deputy Commissioner for attestation of mutation, but the same was rejected on 29-9-1991.

The petitioners filed appeal thereagainst which was dismissed by Commissioner on 4-1-1993. They also filed revision petition before Board of Revenue, Punjab Lahore which was dismissed by Member, Board of Revenue on 21-1-2000." The petitioners being aggrieved preferred a writ petition which has been dismissed, hence this petition.

3. Khawaja Saeed-uz-Zafar, learned Advocate Supreme Court entered appearance on behalf of petitioners and contended that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is contended that order dated 3-9-1970 passed in Writ Petition bearing No,304/R/66 and Writ Petition No,955 of 1967 have been ignored without any rhyme or reason whereby a precious right had accrued in favour of petitioners. It is further submitted that letter dated 20-6-1958 issued by Central Government to the Custodian of Evacuee Property, Lahore whereby an approval to transfer of evacuee land measuring 34 kanals and 12 marlas was given has been ignored and provisions as enumerated in section 25(2)(s) of the Pakistan (Administration of Evacuee Property), Act, 1957 have been misinterpreted and misconstrued without assigning any reasoning. It is urged with vehemence that the judgment and decree dated 4-9-1983 passed by learned Civil Judge, 1st Class, Faisalabad in civil suit No,122/80 should have been considered which went unnoticed causing serious prejudice against the petitioners. It is argued that constitutional jurisdiction could have been exercised as it was a case of malafides and ulterior motives of the revenue authorities and declining the Constitutional jurisdiction without any reason, is not considered desirable by the honourable apex Court. It is urged with firmness that inconsistent pleas of the revenue department to deprive the petitioners from their lawful right should have been dilated upon and considered but ignored and on this score alone order impugned is liable to be set aside.

4. Learned Additional Advocate General entered appearance pursuant to the notice dated 17-2- 2006 on behalf of respondents and vehemently controverted the view point as canvassed at bar by Khawaja Saeed-uz-Zafar learned Advocate Supreme Court on behalf of petitioners and supported the judgment impugned for the reasons enumerated therein with further submission that it was a case of fraud and forgery as the land in question was never allotted to the petitioners and in collusion with the settlement officials a fake and forged transfer order qua the land in question under ante dated and fictitious signature of the then Deputy Settlement Commissioner was prepared who had already expired. It is next contended that petitioners have not approached this court with clean hands and substantial justice has been done by the learned single Judge of the Lahore High Court, Lahore in chambers which being well based, does not warrant interference.

5. We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned with eminent assistance of learned Advocate Supreme Court on behalf of petitioners and learned Additional Advocate General. Let we mention here at the out-set that there are certain controversial questions which cannot be resolved in exercise of constitutional jurisdiction as a thorough probe and investigation would be needed to set the controversy at naught specially when a categoric allegation of fraud and forgery has been levelled by the Additional Advocate General. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (Ataur Rehman Khan v. Dost Muhammad (1986 SCM R 598), Muhammad Akhtar v.

President, Cantonment Board, Sialkot Cantt. (1981 SCM R 291), Mian Muhammad v. Govt. Of West Pak.

(1968 SCM R 935), Abdur Rashid Bhhiya v. Province of East Pak (PLD 1970 Dacca 633), Zuhra Begum v. Sajjad Hussain (1971 SCM R 697), Landale & Morgan (Pak) Ltd. v. Chairman, Jute Board Dacca (1970 SCM R 853), Mahboob Alam v. Secretary to Govt. Of Pak. (1969 SCM R 217), Umar Daraz v.

Muhammad Yousaf (1968 SCM R 880), Saghir Ali v. Mehar Din (1968 SCM R 145), Abdur Rehman Khan v. Deputy Commissioner Jessore (PLD 1968 Dacca 367), Lutfonnessa Ibrahim v. Province of East Pak.

(PLD 1969 Dacca 779), Mainuddin Ahmed v. Delimitation Officer (PLD 1965 Dacca 263), Province of East Pakistan v. Kshiti Dhar Roy (PLD 1964 SC 636), Abdur Rab Choudhury v. Registrar of Joint Stock Companies (PLD 1960 Dacca 541), Md. Nur Hussain v. Province of East Pak (PLD 1960 Dacca 31), Chand Miah v. IT and Sales Tax Officers (PLD 1960 Dacca 523), Parbatipur Industries v. Chief Secretary E. Pak (12 DLR 255), Md. Noor Hussain v. Province of E. Pak. (11 DLR 367), State Life Insurance Corp. Of Pak. v. Tobacco Co. (PLD 1983 SC 280), Md. Ibrahim v. Prov. Of East Pak. (15 DLR 703).

6. It is worth mentioning that it is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. In the light of alleged forgery and fraud as pointed out by learned Additional Advocate General, we are of the considered view that legal right and entitlement of the petitioners are controversial. It hardly needs any elaboration that disputed question of fact cannot be decided in constitutional jurisdiction. In this regard reference can be made to the following authorities:-- Benedict F.B. Souza v. Karachi Building Control Authority (1989 SCM R 918), Karachi Municipal Corporation v. Hargina Salt Chemicals (1988 SCM R 1259), Ehsanul Haq Kiani v. Allied Bank of Pakistan, Karachi (1984 SCM R 963), Mian Muhammad v. Municipal Committee (1983 SCM R 732), N.M. Khan v. Chief Settlement and Rehabilitation Commissioner (1970 SCM R 158), Muhammad Ibrahim Mondal v. Province of East Pakistan (PLD 1964 Dacca 522), Rizwan Co-operative Society v.

Custodian of Evacuee Property (1978 SCM R 449). Muhammad Sadiq v. Commr, Rawalpindi Division (1973 SCM R 422), Musharofa Begum v. Nayyar Hussain (1984 SCM R 377), Muhammad Ishaq v. Abdul Haque (1974 SCM R 28), Niaz Muhammad v. Abdul Aziz (1982 SCM R 883), Abdul Rahman v. Said.

Muhammad ( 1982 SCM R 372).

7. There is no cavil to the proposition that "Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition". Ejaz Hussain v. Messrs Hotel Jabees Ltd. (1990 PLC 643), Allah Bakhsh and another v. Muhammad Ismail and others (1987 SCM R 810), Ghulam Rasool v. Returning Officer PLD 1985 Kar. 315, Golden Industries Ltd. v. Province of Sindh (PLD 1983 Kar. 76), Lipton (Pakistan) Ltd.

Karachi v. Govt. Of Sindh (PLD 1977 Kar. 714). The petitioners may approach the forum concerned for redressal of their grievances subject to all legal exceptions.

8. The upshot of the above discussion is that learned single Judge in chambers has rightly declined to exercise his constitutional jurisdiction in view of various controversial questions of law and facts which can only be resolved on the basis of evidence which cannot be recorded in exercise of constitutional jurisdiction. The petition being devoid of merit is dismissed and leave refused.