ABDUL REHMAN Versus PROVINCE OF SINDH

1. SYED ABDUR REHMAN, J.‑‑ The facts giving rise to this writ petition are briefly stated as under:‑

2. Malirir: Forest is a Reserved Forest. Sind Forest Department had introduced a scheme of Agro Forest cultivation on co‑worker basis for the development of this forest. An area of 76‑5 Acres was selected and given on contract basis to the petitioner on the following terms and conditions.

(1) That the total area of 76.5 Acres will be developed mechanically i.e. the area will be levelled with the help of bulldozers/ tractors.

(ii) That in the area so levelled, the co‑worker (petitioner) will raise and maintain his agricultural crop over 2/3rd of the area i.e. 51.0 Acres.

(iii) That over 1/3rd of the area i.e. 25.5 Acres, he should raise and maintain forest plantation.

(iv) From the agricultural crop over 51.0 Acres the entire production during initial 5 years i.e. from 1‑11‑1980 to 31‑10‑1985, was to be taken by the co‑worker and for the last two years i.e. from 1‑11‑1985 to 31‑10‑1987, was to be shared between Forest Department and co‑worker on 50.50 basis.

(v) Besides this the irrigation charges of entire area were to be paid by the co‑worker annually.

3. The period of the agreement was from 1‑11‑1980 to 31‑10‑1987. The agreement was executed on 28‑10‑1980 when the possession of the area, was also handed over to the petitioner. The petitioner states that immediately thereafter, he hired bulldozers and spent huge amount and levelled the land and started to bring it under cultivation and developed the same. He raised crops including banana cultivation thereon, but on account of degeneration of soil, salinity and water‑logging he could not obtain proper yield from the same. On the expiry of initial period of two years the agreement was extended from year to year implying thereby that development of land was being carried out to the entire satisfaction of respondent No. 2 viz. Chief Conservator of Forest who was to carry out yearly evaluation thereof. Motivated by ulterior and mala fide reasons respondent No.2 issued a notice, dated 13‑6‑1985 alleging that petitioner had levelled and made fit for cultivation only 20 Acres as against 76.5 Acres of land. It further alleged that he had failed to pay irrigation charges for the last three years. Thus, he had failed to discharge the obligatios undertaken by him in the agreement. Hence he was called upon to show cause why his agreement should not be cancelled. The petitioner submitted the reply. The respondent No. 2, however after consideration of reply terminated the agreement by his order, dated 6‑7‑1985. The petitioner being aggrieved by the above order having no other alternative remedy filed this writ petition, wherein he has prayed as under:‑

(a) That the impugned order has been passed mala fide and with ulterior motives as stated hereinabove and is, therefore, void inoperative in law.

(b) That the impugned order has been passed on facts contrary to the record.

(c) That there is no provision in the project agreement whereby the learned respondent could terminate it. According to the term and conditions by 31st October every the respondent No. 1 is required to evaluate the progress personally and, thereafter, grant extensions annually. In the present case the case was and/or must have been processed and extension granted for the current year. In case any fault was found with petitioner the respondent No.2 could withhold the extension which was never done. In view of it the impugned order has been passed without any lawful authority.

(d) That even the show‑cause notice issued in 1985 contains a false allegations relative to a period between 1980 and 1982. The allegations are false and imaginary.

4. The respondent No. 2 was called upon to file parawise comments. He has admitted in the comments that the petitioner was given contract for developing the land as stated by him, on the above terms and conditions. It is, however, denied that the petitioner was fulfilling his obligations under the agreement satisfactorily. It was alleged that the petitioner was being regularly warned in writing as well as verbally, to perform his obligation under the agreement but he always gave excuses. On 1‑6‑1985 the Chief Conservator with his subordinate officers inspected the project and found that petitioner had not worked satisfactorily as per agreement. He had developed only 20 Acres of land as against 76.5 Acres. He had not paid irrigation charges for 3 years. Hence he was called upon to show cause as to why his agreement should not be cancelled. The reply which was received from the petitioner was not found to be satisfactory. Hence his project was cancelled on 6‑7‑1985. The possession of the land was taken back from the petitioner on 11‑7‑1985. The land was re‑auctioned on 1‑8‑1985 and the possession has been handed over to new auction‑purchaser. It is further alleged that the petitioner had forcibly trespassed on the land on 3‑8‑1985, for which a complain had been lodged with the police. The possession of the petitioner was, therefore, no more in pursuance of the agreement but is unauthorised encroachment over the forest land and he had come to the Court with unclean hands.

5. We have heard Mr. Imam Ali Qazi, Advocate for the petitioner at length and have gone through the R and P of the case from cover to cover. We find that the petitioners had entered into an agreement with the Forest Department and certain terms and conditions were agreed into between the parties. This case was neither of a land grant nor a statutory alienation of Government property. There is a clear allegation that the terms and conditions of that agreement were violated by the petitioner. Hence, his agreement was cancelled after giving him show‑cause notice after taking into consideration the explanation submitted by him. Hence there is no violation of the principles of natural justice as well. The petitioner cannot say that he was condemned without being heard and, therefore, principle of natural justice of audi alterm piartem has not been violated. The respondent No. 2 has passed an order which is within his jurisdiction. Hence the Court cannot interfere with it irrespective of the fact whether, it was correct or incorrect. When an authority has jurisdiction to decide a matter it has a right to decide it rightly as well as wrongly.

6. Moreover, the petitioner had given an undertaking in para. 8 of the obligations contained in the agreement that he will give an undertaking that he will not resort to any litigation in any Court of law on account of any dispute during the working of this project, and that the decision of the Chief Conservator of Forests in all such matters will be final and will be binding on the petitioner Accordingly on 28‑10‑1980 he gave such an undertaking.

7. Moreover the facts with regards to the fulfilment of terms and conditions of the agreement have been seriously contested and disputed by the respondents. It is well‑settled that in a writ petition the Court will not generally enter into disputed questions of facts. Some Courts have gone so far as to say that where facts are disputed the Court should not exercise this extraordinary jurisdiction. It is incumbent upon a party applying for a writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy.

8. Reference in this connection may be made to P L D 1961 Lah. 304, P L D 1967 Lah. 329 and P L D 1960 Dacca 660. This view has also been approved by the Supreme Court in P L D 1968 S C 185 where it is held that disputed questions of facts requiring investigation are not a suitable subject for investigation under the writ jurisdiction

9. This Court has also held in P L D 1962 Kar. 712 that the High Court was not in writ jurisdiction to sit as a Court of appeal on the finding of the fact. ,

10. Hence we are of the clear view that generally an administrative body is a sole judge of those facts on which it takes a decision within its competence. This Court while exercising the powers of judicial review over such an administrative body will exceptionally interfere with its findings of the fact.

11. Moreover there is a clear allegation that the petitioner was dispossessed from the land in consequence of the termination of the agreement and the land has been re‑auctioned and even its possession has been handed over to the third person that is the new auction purchaser. The said auction‑purchaser was also not made a party. Finally, it has been alleged that the petitioner has forcibly trespassed into the land and has encroached upon it. It shows that on the one hand the decision has been executed and vested right been created in favour of the third person who has not been made a party while on the other hand there is the serious allegation of mala fide to the extent of commission of an offence against the petitioner. It appears that the petitioner wants to abuse the process of this Court to perpetuate his trespass over the land.

12. In these circumstances we are of the clear view that the petitioner is not entitled to any relief whatsoever. Hence we dismiss the writ petition in limine.

13. A.A. Petition dismissed.