NOOR MOHD Versus SUB-DIVISIONAL MAGISTRATE

KHUDA BAKHSH MARRI, J .-----By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek to challenge the validity of proceedings and orders passed by res pondent No. 1, (Mr. Abdur Rashid Memon) Sub-Divisional Magistrate, Malir, dated 24-6-1975, I1-7-1975, 14-7-1975 and 19-7-1975, whereby he on a Misc. Application dated 21-6-1975, filed by respondent No. 3, Nawab Hasan Yar Jane, visited the site of land in dispute and dispossessed the petitioners and handed over the possession to respondent No. 3 of garden situated at Survey No. 112/372, Deh Mal, Malir, Karachi.

2. The only question for consideration in this petition is whether the Magistrate hack any power and jurisdiction to eatert4in the Misc. Application which does not show under what law it is filed and to inspect the site and dispossess the petitioners and hand-over the possession to the other side without notice and recording any evidence, whatsoever. It seems that S. H. O. Police Station, Gaddap, submitted a report on 13-6-1975, to the Magistrate for making an enquiry under section 107, Cr. P. C. and to bind down the parties to keep peace. In this application he clearly stated that respondent No. 3, Nawab Hassan Yar Jang, moved an application to the authorities that the petitioners are in illegal occupation of his garden in dispute since last 10-15 years and they are not giving him possession, and whenever he goes to take possession he is harassed, therefore, there was a danger to disturbance of public peace. Alongwith report were en closed certain documents pertaining to the dispute between the parties. The Magistrate on 21-6-1975, registered application and ordered for calling the opponents. He adjourned the case to 25-6-1975. Nawab Hassan Yar Jang, res pondent No. 3, it appears not being satisfied with the report of the S. H. O. and the orders of the Magistrate moved another application on the same day, that is, 21-6-1975, of the same nature with a prayer that he may be given peace ful possession of the garden in dispute with police assistance. Thereupon the Magistrate has ordered on 23-6-1975, "S. H. O. Gadap for report about the taking over of the possession". Now comes a second report of the same S. H. O. Gadap dated 24-6-1975, wherein, amongst others, he has stated that respondent No. 3 has all along been denied of its possession by the petitioners and there is apprehension of breach of peace in view of illegal and forcible occupation of the petitioners and he wants to take possession in the legal way by police assistance, thereafter he referred to a letter of a political secretary to the Chief Minister also and then goes on to request that site inspection be made for favour of further necessary action and possession. This application was entertained by the Magistrate without any notice to the other side and recorded this order on the application that "I will be able to go for this on 14-7-1975 at 4-30 p.m. Issue letter to S. H. O. Gadap to arrange for force." This order was passed on 11-7-1975. Thereafter it appears he went to the site, forcibly dispossessed by force of police the petitioners and handed-over possession to respondent No. 3 and passed the following order :----

"Office of the Asstt. Commissioner & S. D. M. (Malir), Karachi. No. AC/SDM/Malir/1301/75 Karachi the 11th July 1975.

To,

The Station House Officer,

Gadap Police Station,

Karachi.,

Sub : Nawab Hassan Yar Jang v. Noor Mohammad

Ref : Your report dated 24-6-1975, in connection with the garden situated at S. No. 112/372 Deb Malh Malir, Karachi.

As requested by you I will be inspecting site on 14-7-1975 at 4-30 p.m. for the purpose of handing over the possession of the said garden to its legal owner in order to enable the legal ;owner to get the possession as per the order of the Court.

(Sd.)

(Memon Abdul Rashid)

Asstt. Commissioner and S.D.M. Malir, Karachi.

Possession delivered, (Sd.)

14-7-1975," A. C. & S. D. M. (Malir)

3. It is obvious that the entire proceedings were taken without any notice to the petitioners who however, after being forcibly dispossessed moved a Misc. Application, Annex. `B' dated 18-7-1975, in the same Court stating that they are share-holders in the undivided garden in dispute, they have been ejected by the Court with police force at 8-00 p.m. after sunset, and that the Court has no jurisdiction to eject him and that Deputy Commissioner, Karachi East has passed order for restoring the possession on 17-7-1975, by his letter No. P. A/E/2455/75 of 1975 but no possession has been restored to him so far. He requested for restoration of possession. On the same day, that is, 18-7-1975 curiously enough the Magistrate simultaneously passed four orders; first putting up the papers, and then ordering for hearing on 19-7-1975 and then stating that he will send the report to D. C. and lastly recorded the following order ;-

"Heard D. A.

In this connection a report was received from S. H. O., Gadap dated 24-6-1975, wherein he had sent a judgment of the Court and also other documents declaring that the applicant Hassan Yar Jang was a legal owner of the said land and the S. H. O. bad requested that Magisterial aid be provided to him for handing over the vacant and physical possession to the allottee. This was done and possession handed over on 15-7-1975. 1 see no ground to restore the applicants the possession of the said land. The application with regard to this prayer is rejected.

(Sd.)

19-7-1975. A. C. & S. D. M. (Malir), Karachi."

4. We have heard Mr. M. Hussain Adil Khatri, Advocate for the peti tioners Mr. Ghulam Ali Memon, Advocate-General and Mr. Ameer Ahmed Khan, Advocate for respondents Nos. 3 and 4. At the very outset learned Advocate-General submitted that the Magistrate had no power to interfere with possession of a citizen of his property except under due process of law and in the present case he acted very high-handedly inasmuch as be dispossessed the petitioners without any notice and without recording statement of any witness. Besides the order does not show under what law he has taken this action. We, therefore, called for the Magistrate (Abdur Rashid Memon) A. C. & S. D. M. (Malir) and enquired from him as to under what law and why he has passed patently illegal orders. Perhaps seeing himself in difficult situation, he firstly denied that he has passed any orders and then he apologised that he has committed mistake and that he was not in a position to show as to under what law he has passed the above illegal orders. However, we have administered a stern warning to the Magistrate to be careful in future.

5. Mr. Ameer Ahmed, Advocate, appearing for respondent No. 3 did concede that the orders are illegal and there is no law under which it can be said that the Magistrate was empowered to pass the impugned order and dispossess the petitioners in such unholy haste. He, however, submitted that writ petition does not lie but he has not substantiated his arguments either by citing any case-law or by any tangible arguments except by saying that the dispute was of a civil nature and the petitioners could go in revision or in appeal before some other forum. But when it was pointed out to him that when the Magistrate had no jurisdiction and the very proceedings on the face of it are void and illegal how the petitioners could get the remedy before any other forum except this Court in its constitutional jurisdiction, the counsel was not in a position to advance any worthwhile submission either. Perhaps at the most, although it was not, it could be argued that the first Misc. Application can be treated as an application under section 145, Cr. P. C. but again assuming, it was so, even then the mandatory provision of section 145, Cr. P. C. has not been complied with, because admittedly, even from the police report, referred earlier, it were the petitioners who were in possession for the last 10/ 15 years, therefore, there is no question of a disputed possession or forcible occupation within statutory period of two months before applica tion was moved. Besides there was no order of the Magistrate showing that he was satisfied that there was apprehension of breach of peace even then he could not dispossess the petitioners and give possession to the other side without issuing notice and recording of evidence.

6. From the documents filed, it appears there is a long-standing dispute between the parties with regard to ownership of the property in dispute, litigations are pending in different Courts, the dispute essentially is of a civil nature which must be settled . in a civil Court but not in this high-handed way as this Magistrate has done.

7. For the reasons given above, we accept this petition and set aside the impugned order and direct the same Magistrate, Mr. Abdur Rashid Memon, A. C. & S. D. M. (Malir) to go and put the petitioners in possession and submit compliance without any delay to this Court.

S. Q. Petition accepted.