MUNEER AHMED SIYAL Versus PROVINCE OF SINDH through Secretary Revenue, Sindh Secretariat, Karachi
MUHAMMAD SALEEM JESSAR, J. --- Through this Constitutional Petition the petitioners have challenged the action of the respondents refusing to effect mutation in favour of the petitioners in respect of agricultural lands bearing survey Nos.47/1 to 9, 70/1 to 6, 71/3 to 6, 71/11 to 12, 69/11 to 12, 90/1 to 16, 94/1 to 6, 95/1 to 16, admeasuring 79-24 acres situated in Deh 57 Jamrao, Taluka Jam Nawaz Ali, previously known as Sinjhoro, District Sanghar, in lieu of Claim No.3169 for agricultural lands allegedly left in India in 1947.
2. Brief facts, as unfolded by the petitioners in the instant Constitutional Petition, are that the father of petitioners, late Wali Muhummad Siyal, was a migrant from India to Pakistan and was allotted agricultural lands bearing survey Nos.47/1 to 9, 70/1 to 6, 71/3 to 6, 71/11 to 12, 69/11 to 12, 90/1 to 16, 94/1 to 16, 95/1 to 16, admeasuring 79-24 acres situated in Deh 57 Jamrao, Taluka Jam, Nawaz Ali (previously known as Sinjhoro), District Sanghar, allegedly in lieu of his verified Claim No.3168 for the agricultural lands left in India in 1947 and in view of said allotment the name of the petitioners' father was entered into RL-II vide entry No.16 dated 20.04.1959, therefore he was issued Khatooni No.32 dated 21.12.1963 in lieu of his Claim No.3168. It is further stated that father of petitioners deposited all the dues and fees of Rehabilitation Department and was issued a certificate by Assistant Rehabilitation Mukhtiarkar, Sanghar dated 12.10.1965; however, possession thereof was not handed over to the petitioners' father, therefore the petitioners approached revenue authorities for mutation of the land in question; however, such prayer has been declined therefore, they have invoked constitutional jurisdiction of this Court by filing instant petition. In the petition following prayers have been made: i. This Honourable Court may be pleased to declare that the act of the respondents Nos.2 to 4 not to effect mutation of the names of petitioners in respect of the lands bearing Survey Nos.47/1 to 9, 70/1 to 6, 71/3 to 6, 71/11 to 12, 69/11 to 12, 90/1 to 16, 94/1 to 16, 95/1 to 16, admeasuring 79-24 acres allotted to their father under Khatooni No.32 dated 21.12.1963 is illegal, mala fide and without justification and the respondents Nos.2 to 4 are bound to effect mutation of the aforesaid land in the name of petitioners. ii. Direct the respondent Nos.2 to 4 to effect mutation of aforesaid land in the name of petitioners immediately and deliver possession forthwith. iii. Saddle costs of petitioner upon the respondents. iv. Any other relief this Honourable Court deems fit.
3. The respondents have filed their respective parawise comments to the petition. The contesting respondents in this petition are revenue authorities. Respondent No.4, Mukhtiarkar (Revenue), Jam Nawaz Ali, District Sanghar, in his parawise comments has disputed the material factual aspects of the case. He has stated that the land in-question is Government Evacuee property and is not in the possession of the petitioners and the case is about 50 years old, therefore the authenticity/genuineness of the claim documents are required to be thoroughly examined by the competent authority i.e. Deputy Commissioner of the District. He further stated that the policy of allotment to the claimants has long been abandoned by the Government. He further stated that the documents i.e. Khatooni 32 dated 21-12-1963 as well as clearance certificate dated 12-10-1965 are very old and their genuineness/authenticity appears to be doubtful, hence they need to be thoroughly examined and verified and their genuineness needs to be established it the first instance. He further stated that admittedly neither the petitioners have been holding possession of the land in question for the last 45 years, nor they or their predecessor got mutation of the land in question which creates doubts regarding, genuineness of the allotment. He further stated that the petitioners have also not produced any proof to have ever approached Respondent No.4 for the purpose of mutation during the past 45 years. According to him, this belated litigation appears to be an attempt to grab government land.
4. We have heard learned counsel for the parties and have gone through the material available on record.
5. Learned counsel for the petitioners contended that the petitioners' father had acquired a vested and legal right consequent upon issuance of Khatooni and No Dues Certificate in his favour and such right has been devolved upon the present petitioners who are entitled to get mutation of the khata in their names in respect of land in question and the respondents are bound under the law to effect such mutation in petitioners' favour.
6. Conversely, learned Additional Advocate General, Sindh opposed the petition and submitted that petitioners have not arrayed the proper parties as respondents, besides this Court has no jurisdiction to grant the declarations sought by the petitioners. He also challenged the maintainability of instant petition on the ground of laches. Besides, Mr. Soomro submitted that the documents adduced by petitioners are also doubtful. He, therefore, opposed the petition and submitted that same on the very face of it is liable to be dismissed. He next submitted that factual controversy is involved in the claim of the petitioners, therefore, such prayer requires to be decided after recording of evidence of the parties which cannot be done by this Court being barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, he prayed for dismissal of this petition.
7. From the perusal of the facts narrated by the petitioners in the memo of petition and the reliefs sought therein, so also the parawise comments submitted by the respondents, it seems that in the instant petition various disputed- facts are involved to be determined. The petitioners in support of their claim and the fact of pursuing their remedy for effecting mutation before the respondents and the refusal of the respondents to effect mutation, have filed photostat copies of certain documents. It is a well settled principle of law that disputed facts cannot be determined by this Court in exercise of its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Such disputed facts and the genuineness or otherwise of such documents original whereof have not been produced, cannot be determined without undertaking exercise of recording of evidence of the parties. In the case reported as Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others (2011 SCMR 279), Honourable Supreme Court while relying upon it various previous decisions on this legal point, held as under:
"Let we mention 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 extra ordinary 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."
8. In view of above legal position, we are of the considered view that instant petition is not maintainable for the reason that it involves disputed questions of fact which cannot be decided in a Constitutional Petition. Accordingly, the petition is hereby dismissal being not maintainable. However, the petitioners will be at liberty to pursue their remedy by filing a civil suit or resorting any other remedy if admissible under the law, if so advised.
SA/M-163/Sindh Petition dismissed.