MUMTAZ AHMAD and another vs ASSISTANT COMMISSIONER and anothers

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought; against the dismissal by the High Court, of a Constitutional Petition which had arisen out of proceedings which are still pending as stated, for ejectment of the petitioners/tenants from agricultural land.

2. ' According to the learned counsel a suit for eviction of the petitioners' side had been instituted under Paragraph 25(1) of the Martial Law Regulation 115 of 1972. He further stated that no progress of any significance having been made in the proceedings of the suit, the Shariat Appellate Bench of this Court by its judgment reported as Qazilbash Wakf v. Chief Land Commissioner (PLD 1990 Supreme Court 99) declared the relevant provisions of the said Martial Law Regulation as against the injunctions of Islam and accordingly were rendered ineffective from 23-3-1990. On this the petitioners' side filed the Writ Petition in the High Court without seeking any intermediary remedies provided by the law, with a view to seek annulment of the proceedings. A learned Judge in the High Court while dealing with the main argument that the law under which the suit for eviction was filed was no more in the field, observed as follows:-- "It is not necessary to pronounce upon the correctness or otherwise of the view expressed by the learned Assistant Collector. (He had held that the suit for eviction was instituted on 7-11-1989 and because the said judgment came into effect on 23-3-1990, therefore, the eviction proceedings remained unaffected and would continue). It is suffice to say that the petitioners' case is based upon a wrong assumption namely that the Paragraph 25(1) of the Regulations has, in its entirety, been declared repugnant to the injunction of Islam. What was held was that in accordance with the opinion of the majority of the Judges separately recorded" the following Provisions "of the Land Reforms Regulations, 1972, Land Reforms Act, 1977 and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam:-- (i)

3. (ii)

(iii) .......

(iv) ......

(v) .............

(vi) Paragraph 25(1) of the Land Reforms Regulation in so far as it does not give sanctity to the grounds of ejectment available in a valid contract between the landlord and the tenant, entered into in accordance with the Injunctions of Islam.

4. ' It was not the petitioner's case either in the application seeking dismissal of the eviction suit or in their written statement that there was such a valid contract between the parties entered into in accordance with the injunctions of Islam and that there was grounds for ejectment available in such a contract. Learned counsel called my attention to the observation of Mr. Justice Muhammad Taqi Usmani at page 276 of the Report to contend that the whole of the Paragraph 25(1) of the Regulation was found to be repugnant to the injunctions of Islam. This contention overlooks the important fact that the decision of the Court reflected the opinion of the majority of the learned Judges and that in terms of Article 203-D of the Constitution the operative part of the decision is contained in the Order of the Court as summarised at page 284 of the report one of the findings being the finding relating to Paragraph 25(1) of the Regulation quoted above.

3. There is, therefore, no merit in the writ petition."

5. ' During the course of the hearing of this petition another judgment of this Court relating to the inter action of Paragraph 25(1) of the Martial Law Regulation on the earlier prevailing laws relating to eviction of the tenants, was brought to our notice. It is Lucas alias Luci and others v. S.M. Nasim, Member (Revenue) Board of Revenue Punjab, Lahore and another (PLD 1984 Supreme Court 227).

6. In such like cases a further question would arise: whether, on 23-3-1990 when the provision in question in its entirety or partially ceased to have effect, the other provisions in the other laws relating to eviction of tenants did or did not become automatically available to the landlord to evict a tenant on the grounds available in the other laws. The question of procedure also can come under discussion as to whether the same Officer in the Revenue Department when dealing with the eviction suit under paragraph 25 could not convert it (suit) into an application for eviction as if filed before a Revenue "Officer" as the same officer might be acting as a Court. All these aspects of the matter could have been gone into by the special Tribunal; namely, the Revenue Court/Officer and the higher forums in the hierarchy of the Revenue law. If such exercise would have been done the grounds urged by the landlord for the eviction of the petitioner would also have been examined both on the touchstone of the provisions contained in the other laws relating to the ejectment of tenants from land as also this comparison might further have been influenced by the grounds available for eviction of the tenants in Islam. Such like detailed exercise at lower level and in other forums is necessary for smooth progress and development of not only Islamic jurisprudence but also would resolve the difficult questions of application of Islamic Law as is visualied by the mandate in the Constitution. This aspect relating to proper exercise by the lower forums in a subject like the present one was highlighted in the case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lahore 930. In this case unfortunately the petitioners instead of following proper remedies and going before the next higher forums where all this exercise, it could be hoped and expected, would have been thoroughly done, hurriedly approached the High Court in its Writ jurisdiction. They were wrongly advised to do so.

7. ' Accordingly, without going into the validity of the order passed by the Assistant Collector or the approach of the High Court, we consider it fit to dismiss this petition on the alternate ground that the petitioners should not have approach the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums. The Writ petition being premature could be dismissed on this ground alone. Leave to appeal, accordingly, is refused.