2013 C L C 1261
[Balochistan]
Before Muhammad Noor Meskanzai, J
INAM KARIM and others ----Petitioners
Versus
Haji ABDUL REHMAN and others ----Respondents
Civil Revisions Nos.171 and 189 of 2002, decided on 13th March, 2013.
(a) Evidence ---
----Evidence led on a plea not raised in plaint ---Validity ---Such evidence would not be worth
reliance and would be rejected ---Illustration.
(b) Civil Procedure Code (V of 1908) ---
----O VI, R. 17 ---Amendment of pleadings ---Plea introduced in amended plaint without
permission of court ---Validity ---Such plea would be treated to be beyond pleadings ---
Illustration.
(c) Civil Procedure Code (V of 1908) ---
----O. VI, R.1 ---Qanun -e-Shahadat (10 of 1984), Art.133 ---Pleadings ---Non-appearance of a
party a s witness in support of his pleadings ---Effect ---Mere such non -appearance would not be
fatal, provided case of such party otherwise stood proved from rest of the material available on
record ---Opposite party in such case would be deprived of his right of c ross-examination, thus,
pleadings of such party could not be treated as evidence ---Principles.
Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.
(d) Administration of justice ---
----Lis involving public property and public rights ---Duty of Courts stated.
The courts are the protractors of the public property and public rights, and are required to
realize their inherent obligations. The courts cannot shut their eyes over obliging statements of
delinquent officials of admin istration or an act thereof doing away with the public rights on any
consideration.
Provincial Government through Collector Kohat and another v. Shabbir Hussain PLD
2005 SC 337 rel.
Syed Mumtaz Hussain Baqri for Petitioners.
Abdul Aziz Khilji Addi tional (P.G.) for Respondents.
Date of hearing: 21st December, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J --- By this common judgment, I propose to
dispose of -Civil Revision Petitions Nos.171 and 189 of 2002, arising out of the same judgment
dated 9t h May, 2002 passed by the Majlis -e-Shoora, Kharan. whereby; the appeal filed by the
plaintiffs/respondents was accepted and the judgment/decree dated 2nd February, 2002 passed by
the Qazi, Kharan was set aside.
2. The brief facts, relevant for the dispos al of instant revision petitions are that the
respondents Nos.1 to 7, instituted a suit for Declaration and Permanent Injunction against the
petitioners and respondents Nos.21 to 23 in Civil Revision Petition No.189 of 2002, in the Court
of Qazi, Kharan. I t was averred in the plaint that the plaintiffs are owners of land, boundaries
whereof were mentioned in the plaint. The defendants Nos.1 to 3, on account of planning and
conspiracy got allotted the said lands in favour of defendant No.4, despite of the fa ct that the
land in question is their ancestral property.
3. The suit was contested by the defendants by way of filing written statement, wherein
besides raising certain legal objections, claim of the plaintiffs was resisted on merits as well. The
learne d trial Court out of the pleadings of parties framed following issues: ---
4. Thereafter the parties were directed to adduce evidence in support of their respective
claims. The plaintiffs in order to substantiate their version produced P.W. -1 Muhammad Ami n.
P.W. -2 Haji Abdul Razaq, P.W. -3 Muhammad Shah, P.W. -4 Qadir Bakhsh and P.W. -5 Abdul
Samad. Needless to observe that P.Ws. Muhammad ,Amin and Muhammad Shah are brothers,
who have admitted that their mother is sister of Qari Abdul Aziz one of the plaintif fs. The
learned trial Court after recording statements of P.Ws. dismissed the suit under Order IX Rule 6,
C.P.C. for non -prosecution, however, on filing appeal before the learned Majlis -e-Shoora
Kharan, the case was remanded to the trial Court vide judgmen t/decree dated 27th November,
1997. Thereafter, the defendants Nos.1 to 3 produced four D.Ws. and the official defendants
produced three DWs. Statements of attorneys for the defendants were also got recorded.
However, the plaintiffs did not record their st atements in support of their plaint. The learned trial
Court after hearing the parties and evaluating the evidence vide judgment and decree dated 2nd
February, 2000 dismissed the suit filed by the plaints/respondents Nos.1 to 7. The respondents
Nos.1 to 7 feeling aggrieved of the above referred judgment and decree again preferred an appeal
before the learned Majlis -e-Shoora, Kharan. The latter vide judgment and decree dated 9th May,
2002 set aside the judgment and decree passed by the trial Court and decree d the suit filed by the
respondents Nos.1 to 7, hence instant petitions.
5. I have heard learned counsel for the petitioners, who argued that the learned trial Court
after proper appraisal of material/evidence available on record rightly dismissed the suit filed by
the respondents Nos.1 to 7 because the petitioners failed to record their statements in support of
their plaint, as such, it could easily be said that there is no plaint nor for that matter the evidence
produced were/are sufficient to decree the suit in terms of the plaint. It was next argued that there
is substantial difference in both the plaints i.e. original and amended plaint filed by the plaintiffs.
According to original plaint the plaintiffs did not pray for perpetual relief rather a te mporary
relief was requested for. By filing the amended plaint, plaintiffs claimed the property in question
to be "Shamilat/Noutor". It means that by filing amended plaint in fact, the plaintiffs changed the
very complexion of the suit, and that too, witho ut permission of the Court, as such, on this
ground alone the suit was liable to be dismissed. Learned counsel stressed that the petitioner
No.1 is allottee of the property in question. Learned counsel further contended that P.W.
Muhammad Amin in reply to question No.13 admitted the "Lathbandi" has been made by the
petitioners, whereas P.W.2 states that the plaintiffs have constructed the "Laths" however, have
not cultivated the land, P.W.3 Muhammad Shah, is even ignorant of shares, P.W. Qadir Bakhsh
and Ab dul Samad stated that the property in dispute is settled, whereas the plaint runs contrary to
such assertion. Learned counsel canvassed that the appellate Court by misreading the evidence
and misappreciating the facts of the case illegally and without any rhyme or reason reversed the
decree passed by the trial Court. The property situated within the suburbs belongs to Government
of Balochistan and the respondents have got no concern or connection whatsoever with the
property in question. Neither there is an y documentary evidence nor a single document was
tendered in evidence. The ocular evidence produced by the respondents is contradictory to each
other, thus, there was no occasion for the trial Court to have decreed the suit. The plaintiffs did
not enter in the witness -box in support of their claim and legally, this act on the part of plaintiffs
is quite fatal for the case of plaintiffs and itself sufficient to dismiss the suit.
The learned A.A. -G. adopted the arguments of learned counsel for the petition ers except
the legality and validity of the allotment.
The learned Additional Advocate -General stated that the property was allotted by the
Collector/D.C., Kharan vide allotment order dated 1st August, 1992 with certain conditions,
however, the conditio ns were not fulfilled by the allottee. It was further argued that the Deputy
Commissioner was not competent to allot 32 acres of land, therefore, it cannot be said that there
was any allotment order in favour of private petitioners. The allotment order rel ied upon by the
private petitioners was for the purpose of irrigation on temporary basis and conditional, which
were not complied with and, thus, the property in question undisputedly vests in the State and is
in possession of the Government and should rem ain State land. The allotment order dated 1st
August, 1992 being passed without lawful authority, simply may be ignored. Alternatively while
exercising revisional powers, this Court is required to set aside any illegal and void order passed
by any incompet ent authority.
Mr. Abdullah Baloch, Advocate adopted the arguments of learned A.A. -G. and further
submitted that the impugned judgment passed by the learned Majlis -e-Shoora, Kharan suffers
from misreading and non -reading of evidence.
Learned counsel for the private respondents opposed the submissions made by the
learned counsel for the petitioners and A.A. -G. The learned counsel stated that there is a
conspiracy/connivance between the defendants/petitioners. Non -appearance of the plaintiffs in
support of the plaint is immaterial, because under 'Shariat' there is no such requirement. As far as
objection with regard to amendment is concerned, since no such objection was raised in the
written statement, therefore, said objection, at this stage is of no av ail. As far as question of State
property is concerned, under 'Shariat', the State can claim proprietary rights on the following
grounds: ---
(i) If the property had never remained in the ownership of any person;
(ii) If inhabitants of a town or village do not collect fire wood from the property;
(iii) If the property is not a pasture;
6. The learned counsel for the respondents urged with vehemence that the plaintiffs filed an
application on 8th February, 1996 for amendment of plaint, which is availa ble at page 225 of the
petition. The said application was allowed and in pursuance thereof amendment was made,
therefore, at this juncture, any objection in this regard is of no consequence and deemed to have
been waived because no such objection was raise d in the written statement. The plaintiffs have
produced documentary evidence and merely because a document has not been exhibited as
contemplated by Order XIII, C.P.C. is of no avail because in any case, the documents are
available on record. As far as pr esumption contained in section 50 of the Land Revenue Act, the
same is not available here, as the plaintiffs/respondents are claimant and in possession of the
property. Besides, a committee was constituted by the Government which submitted its report
that in view of provisions of Land Revenue Act, the Government has got no property. As far as
so-called allotment is concerned, there is no allotment at all, as the Deputy Commissioner, under
Land Lease Policy, was not competent to allot lands exceeding five ac res. Neither proper
procedure was adopted nor any document was ever tendered/produced and exhibited before the
Court, proving the factum of a legal and valid allotment. Learned counsel further submitted that
in the vicinity, the Government has made allotme nt by observing all codal formalities. To
substantiate his contentions, he referred to the allotments made for Poultry/Dairy Farm situated
at western side of the disputed property, Kharan, Grid Station, Kharan and Seven Marlas
Scheme, where the Government after observing all the codal formalities has made the allotments.
However, as far as the claim of the petitioners with regard to allotment is concerned, the same is
absolutely contrary to law and of no avail.
7. I have considered the arguments advanced by the learned counsel for the parties and
perused the record of the case. The perusal of the record reveals that the respondents Nos. 1 to 7
filed Civil Suit No.139 of 1997 with the following prayer:
8. According to the case of respondents/plaintiffs, t he property in question is their ancestral
property and adjacent to their cultivable land which are irrigated by the water that flows through
the property in question at the time of rains. It is further the case of the plaintiffs that the property
in quest ion was illegally allotted in favour of the defendants without observing codal formalities
and due process. Furthermore, the Deputy Commissioner was not competent under and Lease
Policy to make an allotment exceeding five acres. To substantiate their claim ,
respondents/plaintiffs produced as many as five witnesses. Since the findings of lower forums
are conflicting, so I would like to examine the issues with reference to evidence on record. A
meaningful analysis and deep appreciation of the evidence produce d by the plaintiffs as a whole
reveals that the plaintiffs have badly failed to prove their case. As far as issue regarding
limitation is concerned, since the respondents/ plaintiffs have called in question the legality and
validity of the allotment made i n favour of petitioners Nos.1 and 2 within the stipulated period
prescribed by Article 120 of Limitation Act, hence both the Courts have rightly resolved Issue
No.1 in affirmative, therefore, the findings are retained.
9. So far issue No.2, is concerned, according to learned Majlis -e-Shoora the issue has been
proved by production of documentary and ocular evidence. It is pertinent to note that no
documentary evidence was ever produced and exhibited, so I am left with ocular evidence only.
This issue has n ot been proved by respondents/plaintiffs. P.W.1 stated that there is no cultivation
on the disputed property rather the property in question is used as water channel for the
cultivable lands. Though, the witness states that Abdul Rehman and his relatives a re the owners
of the property and the same is in their possession, but has failed to state nature of the ownership
and status of possession. P.W.1 stated that the disputed property is barren and waste land. He
further states that the petitioners have const ructed laths, however have not taken any crops.
According to P.W.1, the property in question is settled in the name of plaintiffs and the
respondents have dismantled and damaged the laths constructed by the plaintiffs. The statement
of this P.W. is contrar y to the contents of the plaint. Plaintiffs have never stated in their plaint
that they have ever constructed any laths or the property in question has been entered in their
names as owners. Plaintiffs have also not stated in their plaint that the defendan ts have
dismantled/demolished the laths constructed by the plaintiffs. On this score, the statement of
P.W.1 is not worth reliance and rightly rejected by the trial Court. P.W.2 states that the property
is barren, waste land and, used as a water channel fo r the irrigation of cultivable lands of
plaintiffs. He further stated that the property is recorded in the name of plaintiffs. In cross -
examination, he stated that he has seen the father of plaintiffs Aziz Muhammad cultivating the
disputed property. He fur ther states that probably one year ago, construction of laths have been
carried out on the property, however, he does not know who carried out the same. He further
stated that the father of plaintiffs had cultivated wheat crop. The assertion of cultivation is
contrary to his own statement, because in examination -in-chief, he stated that the property in
question is barren coupled with the fact that P.Ws.1, 2, 3 and 4 have also stated that the property
has not been cultivated, same is barren, uncultivable and used as watercourse/channel for the
irrigation of cultivable lands of plaintiffs situated beneath. According to P.W.3, the property in
question is barren and waste land, however, there are signs made by the plaintiffs and he has no
knowledge about the con struction. However, nobody knows what is meant by making signs over
the property, yet it can safely be concluded that there is no embankments constructed by the
plaintiffs on the disputed property. P.W.4 does not state that the plaintiffs have ever cultiva ted or
irrigated the land nor for that matter he states that they have constructed any embankments/laths
on the disputed property. However, in cross -examination, he has admitted that the
embankment/laths have been constructed on the disputed property by th e private petitioners. He
further admits that Poultry Farm has been constructed on the State property which is situated at
western side. According to P.W.4 Haji Abdul Rehman and Qari Abdul Aziz have other relatives
but they are not party in the suit. Accor ding to P.W.4, the property in question has been mutated
in the name of plaintiffs. In examination -in-chief, the witness has stated that his mother is sister
of Qari Abdul Aziz one of the plaintiffs. However, they have got no share in the property as their
father is not a 'Sheroze' by caste. The statement of this P.W. is also of no avail to the plaintiffs
because neither the plaintiffs have taken any crops nor cultivated the land in question as
admittedly according to P.W.4, the property is waste and barren . Similarly, P.W.5 Abdul Samad
states that the property in question has been entered in the same of plaintiffs in Revenue Record.
There is no lath bandi on the property in question as it is used as water channel. He further stated
that the value of the pro perty in question is Rs.1,000,000 (Rupees ten lacs). In cross -examination
he further stated that the state property is situated around the property in question. For the sake of
convenience relevant reply is reproduced: ---
10. The statement of this P.W. t oo does not improve the case of plaintiffs. The perusal of
impugned judgment passed by the appellate Court suggests that the appellate Court in sheer
violation of established principle of Qanun -e-Shahadat Order and Islamic Law analyzed the
statement of P.W s. and gave undue weight to the same, which they did not deserve at all.
Conversely the trial Court after proper appraisal of entire material available on record with
reference to evidence and assigning viable reasons resolved the issue No.2, therefore, I feel no
difficulty in holding that the findings drawn by the appellate Court qua Issue No.2 are perverse,
illegal, contrary to record and based on misreading, and non -reading of evidence and
misappreciation of facts, as such, the same are hereby reversed a nd the findings of trial Court are
maintained and affirmed.
11. As far as Issue No.3 is concerned the plaintiffs utterly failed to discharge the burden for a
variety of reasons. Firstly in support of this issue, there is not an iota of evidence. P.Ws.1 to 5
have not stated a single word regarding the factum of 'Nouthor'. Secondly, the claim of 'Nouthor'
of a land by a party carries an inbuilt admission of the fact that property is barren, uncultivated,
unconstructed and waste land, thirdly, without permi ssion by the Collector/Government in an
unsettled area like the one in question any 'Nouthor' would not entitle nor confer any such
claimant proprietary rights. In the original plaint, there is no averment to such effect, but while
filing amended plaint, t he plaintiffs introduced this plea. It may not be irrelevant to mention here
that for introducing such plea, no permission was obtained from the Court. Under such
circumstances, it can safely be concluded that the question of Nouthor is beyond pleadings an d
without permission by the trial Court. Besides, the plaintiffs have failed to prove the issues, thus,
the findings arrived at by the appellate court are not sustainable. To sum up discussion regarding
Issue No.3, I am confident to hold that the observati ons and findings regarding the ownership
and scope of section 50 of Land Revenue Act are not proper, justified and tenable. The appellate
Court was bound to have adhered to the provisions of Article 172 of the Constitution of Islamic
Republic of Pakistan, 1973 and the Land Revenue Act, being a subordinate legislation cannot be
given Constitutional mandate, hence, the findings of the appellate Court are reversed and the
findings arrived at by the trial Court are hereby maintained. I have not been able to per suade
myself to subscribe to the contentions of learned counsel for the respondents that the non -
appearance of plaintiffs in support of their pleadings is not required under Shariat. Admittedly,
the Civil Procedure Code provides a procedure for trial and t he Qanun -e-Shahadat Order being
adjective law is compendium of rules of procedure according to which Court is to record
evidence of parties. In view of the provisions of said Act, the pleadings of the parties could not
be taken as evidence, particularly wh en the maker thereof does not enter witness box. With the
result the second party stands deprived of right of cross -examination and in such eventuality, the
pleadings of the party is to be looked with that prospective. By holding the view, I am fortified
by the dicum laid down in the judgment reported in 2008 SCMR page 236 (Mrs. Anis Haider and
others v. S. Amir Haider and others relevant at page 239), wherein it has been held as under: --
"The only motivating factor for rejection of application was the r eply/written statement of
the arbitrator and his earlier statement, dated 1 -7-1979. This was a novel procedure adopted by
the trial Court and endorsed by the higher Courts in that the pleadings of parties could never be
taken or an evidence particularly wh en the arbitrator was not even examined Court in support of
his written statement muchless his cross -examination by the party desiring so to do."
12. I am also mindful of the proposition that mere non -appearance of the party in support of
its pleading is not fatal, provided case of the party concerned otherwise stands proved from the
rest of the material available on record. The evidence produced by the plaintiffs as discussed
hereinabove is not worth reliance nor is sufficient to prove the case of the pl aintiffs, therefore,
the plaintiffs cannot take benefit of this legal analogy. Similarly, the arguments of learned
counsel for the respondents qua the interpretation of State land are also not acceptable.
13. As far as Issue No.4 is concerned, though the appellate Court has rightly reversed the
findings and resolved the same positively, however, the observations regarding the ownership of
the proprietary rights belonging to the plaintiffs are unsustainable. The perusal of the record
reflects that the Depu ty Commissioner, Kharan violated the mandatory provisions regarding
making of the allotments of State land. The Government of Balochistan while lifting the ban on
the allotment of State lands vide Notification No.490 -8/86-Revenue dated 15th March, 1988 lai d
down certain conditions for purpose of the allotment of State land situated in Urban area. Section
13 of the Notification referred to hereinabove deals with the scope of allotment and
unequivocally prescribes that 70% of the land rural/urban (State land) shall be reserved to cater
the requirements of public building and other projects. For ready reference. Section 13 of the
said Notification is reproduced:
13. Scope of allotment.
(1) 70% of the urban State land shall be reserved to cater the requirem ents of public
buildings and implementation of other projects and shall not be available for allotment to private
persons except the land earmarked for allotment to individuals in accordance with the prescribed
procedure:
Provided that the Commissioner of a Division may seek an exemption of this condition
from the Government may grant such exemption to the extent it may deem fit.
(2) Wherever the State lands are available within the limits of a Municipal
Corporation/Municipal/Town Committee after cater ing to the requirements of lands in sub -clause
(1) above for public purpose, such land shall be transferred to the concerned local body for
residential/commercial purposes at the prevailing market price to be recovered in a manner from
the transferee as th e Government may decide;
Provided that no such land would be utilized by the local body without preparing a proper
scheme and bye -laws for its allotment duly approved by the Government;
Provided further that 75% per cent plots would be of size 200 sq uare yards or less in the
housing scheme and no residential plot would be more than six hundred square yards and a
commercial plot more than 100 square yards.
(3) In the housing scheme so prepared and approved or which have already been approved by
the Government, the area of plots would not be more the area prescribed under these conditions.
(4) No State land available along a provincial/national highway within the limits of a local
council shall be allotted by lease to any private individual for resi dential or commercial
purposes.
(5) All State lands falling within 5 miles of the limits of M.C./M.E. and within 3 miles of
limits of Town Committee would be reserved for future expansion of the town, and will be
available for Housing and commercial purp oses after taking case of public purposes according to
the schemes approved by the Government."
14. The perusal of subsection (2) of section 13 of the Notification reveals that after retaining
land catering to the requirements of subsection (1) for public purposes, the rest of the land shall
be transferred to the concerned Local Body for residential/commercial purposes at the prevailing
market price. Furthermore, the said section provides a mechanism qua the size and measurement
of the land sought to be allotted. Nevertheless, the lands available near the Provincial/ National
Highway shall not be allotted by means of lease to any private individual as contemplated by
subsection (4) of section 13, besides the State lands falling within five miles of th e limits of
MC/NC and within three miles of limits of Town Committee shall necessarily be reserved for
future expansion of the Town. The learned Majlis -e-Shoora in its judgment while referring to the
application submitted by the private respondents has cat egorically mentioned that the property in
question is situated within town area and at a distance of one kilometer from the Court of Qazi.
For sake of facility, the same is reproduced;
Keeping in view the legal position with reference to subsection (5) of section 13 supra,
there was no occasion for the Deputy Commissioner, Kharan to have made the allotment in
question. Whereas, admittedly the property in question as per its description given in the plaint is
situated near both the high ways i.e. Quetta K haran Road and Kharan -Panjgur -Karachi Road.
Without prejudice to the above stated situation, even the Deputy Commissioner was not
competent under the law to have issued the so -called allotment orders. The Government of
Balochistan through a Notification da ted 17th September, 1988 has introduced a mechanism for
the disposal of the State land/leases. For ready reference, the operative portion thereof is
reproduced: ---
No.FD/R)VI -20/88. In supersession of all others instructions issued by the Government
or any officer empowered in this behalf and in partial modification of the existing rules for the
disposal of State Land (leases) the Government of Balochistan is pleased to substitute the entries
at S.No.19 to 26 -A of Part -A of Part -II under the heading "Rev enue Department" in Second
Schedule appended to the West Pakistan Delegation of Powers of Re -appropriation Rules, 1962
by the following entries which shall have effect notwithstanding anything contained in these
rules or any other Law for the time being in force: --
S. No. Nature of Powers To whom
delegated Extent.
19. (1) To sanction long
lease of State land for
agriculture purposes. (1) Collector Upto five acres of irrigated
land and 10 acres of un -
irrigated land in each case
subject to the conditions
contained in Lands
Allotment Policy, and the
ceiling limit under land
Reforms.
15. The perusal of above referred Notification leaves no room for doubt that the Deputy
Commissioner/Collector, Kharan was not competent to have made the allotment of State land in
excess of five acres, in case of irrigated land and ten acres of un -irrigated lands. Since,
admittedly the so -called allotment has been issued for a land measuring 32 acres was beyond the
jurisdiction of Collector, Kharan and, thus, the same is without legal authority, competence,
jurisdiction, seisin, hence ab initio void. Apart from the above stated situation, the Balochistan
Assembly has declared all the allotments illegal issued from March, 1988 up to 18th August,
1993 through legislation termed as 'Balochistan Cancellation of illegal Allotments of State Land
Act, 1996'. For the sake of facility, sections 1 to 5 and 7 of the said Act are reproduced: ---
"No.PAB/LEGIS vi(1)/93, dated 15 -10-1996. --- The Balochistan Cancellation of Illegal
Allotments of State Land Bill, 1994 having been passed by the Provincial Assembly on 2nd
October, 1996 and assented to by the Governor of Balochistan is hereby published as an Act of
the Provincial Assembly: --
Preamble. --- Whereas it has been found that large scale allotments of State lands have
been made in the Province of Balochistan, in contravention of the Land Lease Policy.
And whereas such illegal allotments are required to be cancelled in the public interest.
And whereas it is expedient to provide for the cancellation of such illegal allotments of
State land for the resumption thereof:
It is hereby enacted as follows: --
1. Short title, extent and commencement. ---(1) This Act may be called the Balochistan
Cancellation of Illegal Allotmen ts of State Land Act, 1996.
(2) It shall extend to the whole of Balochistan except the Tribunal Areas.
(3) It shall come into force at once and shall be deemed to have taken effect on the 13th day
of January, 1994.
2. Definition. ---In this Act, unles s there is anything repugnant in the subject or context: --
(a) "Authority" means the Member Board of Revenue Balochistan;
(b) "Board of Revenue" means the Board of Revenue constituted under the Board of
Revenue Act, 1957;
(c) "Government" means the Government of Balochistan;
(d) "Illegal allotments" means allotments declared as illegal allotments by and under this
Act.
(e) "land Lose Police" means the policy notified under Notification No.940 -8/86-Rev., dated
15th March, 1988 issued by the Govern ment; and
(f) "Revenue Officer" means and includes the Revenue Officer as classified and defined in
the Balochistan Land Revenue Act, 1967.
(3) Illegal allotments. ---Notwithstanding anything contained in any other law, rules or
instructions for the tim e being in force, all allotments of State land made during the period
between 15th March, 1988 and 18th August, 1993, both days inclusive, in contrvention of the
Land Lease Policy by whatever authority of the Government, including a Revenue Officer, are
hereby declared to be illegal allotments:
Provided that the provision of this section shall not apply to any allotments made in
favour of a Federal or Provincial Government Department, for a public purpose.
(4) Cancellation of Illegal allotments. ---(1) All illegal allotments shall stand cancelled
forthwith.
(2) In consequence of cancellation of illegal allotments the Revenue Officer concerned shall
correct the Revenue Record accordingly through its revenue staff in the district; or in whose
custody the Revenue Record is kept and maintained.
(5) Resumption of Land. ---(1) All State land, whose illegal allotments stands cancelled under
this Act, shall stand resumed in favour of the State, and the Revenue Officer of the District
concerned shall take posse ssion thereof forthwith.
(2) The Board of Revenue shall refund the sale proceeds or lease money to the allottees, if
any when, claimed by them.
(6) -------------------------------------------------------------------------------
(7) Bar of Jurisdictio n.--- (1) Any order passed or proceedings taken by the Board of
Revenue, or any Revenue Officer, under this Act, shall not be called in question in any Court.
(2) Any proceedings pending in any Court against Government or the Board of Revenue for
claim o n account of illegal allotment of State land, shall abate on under this Act and the rules
made thereunder."
16. There is no cavil with the fact that the documents pertaining to the allotment in favour of
petitioners in Civil Revision No.189 of 2002 have neither been produced before the trial Court
nor tendered in evidence or exhibited. Since pleadings of the parties do not qualify the standard
and status of evidence, therefore, on mere assertion in the written statement that the property in
question has b een allotted to private respondent No.1 is of no avail. The appellate Court has
rightly observed that on account of non -production of any such document, it can justifiably be
inferred that no legal allotment order is available and in existence. Even if any allotment order
has been issued, the same automatically stood cancelled with effect from 13th January, 1994 by
operation of law i.e. Balochistan Cancellation of Illegal Allotments of State Land Act, 1996. In
view of such legal position, written statement filed by the official respondents to the extent of
admission of allotment in favour of private respondent No.1 loses its significance, validity and
legality.
17. In the light of above discussion, it can safely be concluded that findings on issue No.4 are
retained with above observations.
18. As far as issue No.5 is concerned, since findings of learned Majlis -e-Shoora on issue
No.4 has been resolved against petitioners in Civil Revision No.171 of 2002, therefore, no
question of tenancy rights over the pr operty in question does arise and this issue is resolved
against petitioners.
19. Admittedly, adjacent to the property in question, the Poultry Farm Kharan is situated and
the Grid Station, Kharan and Seven 'Marla' Scheme Kharan lie from the North to Sou th
therefrom and allotments have been issued in favour of incumbents by the Government of
Balochistan after observing all the codal formalities, which prove the fact to the hilt that the
property in question and the other as mentioned hereinabove, situated in suburb and adjacent are
the State property, are required to be protected by the Administration of Kharan. In the written
statement, a reference regarding the proprietary rights of State qua the above mentioned
properties and the other situated in the s uburb and adjacent therewith has been made. However,
the said documents were not annexed with the petition and the Revenue officials at Kharan, for
the reasons best known to them after observing a great reluctance produced the documents by
showing that ill egal encroachment has been made upon the State property and particularly on
Seven Marla Scheme.
20. The available record reflects that the allotment of land for Poultry Farm has been made in
the year, 1989, whereas land for Grid Station was allotted in t he year, 1987 and Seven Marla
Scheme was introduced in the year 1987, land was allotted and construction of houses for
shelterless widows was carried out and the same do exist till now.
21. I am constrained to hold that both the lower forums have failed to discharge their legal
duties. The courts are the protectors of the public property and public rights and, are required to
realize their inherent obligations. He courts cannot shut their eyes over obliging statements of the
delinquent officials of admin istration or an act thereof doing away with the public rights on any
consideration. Reliance is placed on the judgment reported in PLD 2005 SC page 337 (Provincial
Government through Collector Kohat and another v. Shabbir Hussain relevant at page 343),
wherein it was held as under: ---
"Likewise the learned Presiding Officers are also required to exercise caution when they
are dealing with matters relating to public property and public interest of which the Courts of law
are the final custodians. It is tr ue that we have never leaned in favour of giving of preferential
treatment to the Government departments or agencies but then we are equally obliged, while
granting relief, to ensure that public interest is not permitted to be jeopardized and public
proper ty is not allowed to be squared through mere collusion of some representative of a
Government agency."
22. Before parting with the judgment, I feel it inevitable to issue direction to Senior MBR,
Commissioner Kalat Division and the Deputy Commissioner, K haran to ensure that the land
reserved for the said scheme along with the other State lands situated at Kharan are secured, in
case of any encroachment by anybody, positive action should be taken and all the encroachments
should be removed there and then. In case, Kharan Administration fails to perform its legal
obligation and save the State property from being encroached and grabbed, the Chief Secretary,
Government of Balochistan shall take legal action against the delinquent officials. Since the so -
called allotment order dated 1st August, 1992 have been declared ab initio void, by operation of
law as discussed vide Para 16 as contemplated by section 3 of the 'Balochistan Cancellation of
Illegal Allotments of State Land Act, 1996'. Furthermore, the Deputy C ommissioner and
Revenue Officer of District Kharan are under legal obligation to resume the possession of the
property in question as directed by section 5 of the said Act. In the written statement the
admission of the allotment by the official defendants, is contrary to the provision of Act, 1996
and is otherwise void for want of jurisdiction, therefore, the Chief Secretary Government of
Balochistan is directed to move the NAB authorities for filing reference against all the officials
who were in one way o r other involved in the process of illegal allotment. Resultantly, the
judgment/decree passed by Majlis -e-Shoora, Kharan is set aside and the petitions stand disposed
of in the above terms with no order as to cost. The Registrar is directed to send copy of this
judgment to the Chief Secretary and Senior Member Board of Revenue. The latter is directed to
submit compliance report within one month after receipt of this judgment through Registrar of
this Court for my perusal in Chamber.
SAK/43/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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