2016 C L C 692
[Balochistan]
Before Muhammad Noor Meskanzai, C.J.
Haji ZAHIR ALI, ADVOCATE ----Petitioner
Versus
XEN/EXECUTIVE DISTRICT OFFICER, PUBLIC HEALTH ENGINEERING
DEPARTMENT KHARAN and 3 others ----Respondents
Civil Revision No.397 of 2009, decided on 30th October, 2015.
Balochistan People's Local Government Ordinance (1 of 1972) ---
----S. 74 ---Allotment of State land ---Competence ---Chairman, Town Committee not competent
to allot state land ---Plaintiff claimed that the suit land, wh ich belonged to Public Health
Department, had been allotted to him by Chairman Town Committee and he had been in
possession of the same and that Chairman, Town Committee during his (plaintiff's) absence, had
interfered in his possession ---Both trial and ap pellate courts dismissed the suit ---Question before
High Court was whether the Town Committee had the authority to allot land measuring more
than six hundred square feet ---Under cl.4 of Notification dated 28th May, 1975 issued by
Balochistan Government, ap plication for allotment of land of Town Committee was to be
referred to District Coordination Committee by Deputy Commissioner for obtaining NOC, which
prerequisite was lacking in the present case ---After issuance of the NOC, the case was to be
referred to Secretary Local Government ---Under cl.7 of said Notification, the only competent
authority for making allotment was the Secretary Local Government ---Other Notifications dated
31st July, 1975 and 7th August, 1975, also did not confer any power of allotment to the
Chairman Town Committee ---Documentary evidence produced by the plaintiff had although
established allotment of the suit land but firstly, the procedure provided under Notification dated
28th May, 1975 had not been adhered to for the allotment, seco ndly, the Chairman Town
Committee was not competent at all to issue any allotment order ---Allotment in question issued
by the Chairman Town Committee at any point of time was absolutely without jurisdiction, ab
initio void and without lawful authority ---Tehsil Nazim concerned had also addressed a letter to
the court and categorically stated that no allotment whatsoever had been issued in favour of the
plaintiff ---High Court observed that Officials were under their prime responsibility to safeguard
each and every inch of the State land allotted to Public Health Department ---Revision petition
was dismissed with cost in circumstances.
Mujeeb Ahmed Hashmi for Petitioner.
Shia Haq Baloch, AAG for Respondents.
Date of hearing; 30th October, 2015.
JUDGM ENT
MUHAMMAD NOOR MESKANZAI, C.J. --- The present petition calls in question the
legality and validity of the orders and decree dated 31st January, 2009 and 25th June, 2009
respectively passed by the Qazi, Kharan and Majlis -e-Shoora, Kharan, whereby the suit and
appeal filed by the petitioner were dismissed.
2. Facts, of the case in brief, are that the petitioner instituted a suit for declaration,
permanent injunction and partly possession of property in dispute, in the court of Qazi, Kharan.
It was ave rred in the plaint that in the year 1980 a plot situated in Kharan Town, measuring
160000 sq: ft: was allotted in favour of petitioner by Chairman Town Committee Kharan, the
latter is in possession of the same without any interruption from any corner. As t he petitioner, in
connection with his education was out of Kharan, as such, the respondents taking advantage of
petitioner's absence started interference in the plot by way of construction hence the suit. The
defendants contested the suit by way of filing written statement whereby the claim of petitioner
was refuted. The learned trial court out of the pleadings of parties, framed issues. To substantiate
his claim, the petitioner/plaintiff produced 07 PWs, exhibited certain documents and himself
entered the witness box. On conclusion of trial, the trial court vide judgment dated 19th October,
1996 dismissed the suit. Feeling aggrieved of the above referred judgment the petitioner filed an
appeal before the learned Majlis -e-Shoora, Kalat at Mastung. The learne d appellate Court vide
judgment and decree dated 26th March, 1997 accepted the appeal and remanded the case to the
trial Court with certain directions. It may not be out of place to mention here that after remand
the petitioner produced two more witnesses, however, during pendency of the suit the plaintiff
and respondent No.1 settled the dispute out side the Court and on the basis of compromise the
suit was decreed by the trial Court vide judgment and decree dated 30th April, 1998. Thereafter,
the petitione r filed an execution application before the trial Court who executed the judgment
and decree in accordance with terms and conditions agreed upon between the plaintiff and
XEN/respondent No.1 in compromise deed. At this juncture, the respondent No.2 filed a n
application under section 12(2), C.P.C. with the prayer to set aside the judgment and decree
dated 30th April, 1998 and to direct the petitioner to implead him as party in the proceedings.
The trial Court vide order dated 11th January, 2007 allowed the a pplication under Section 12(2),
C.P.C. and accordingly the respondent No.2 was impleaded. In the meantime the respondent
No.1 filed an appeal before Majlis -e-Shoora, Kharan challenging the order dated 25th
September, 2006 however it became infructuous beca use the judgment and decree dated 30th
April, 1998 was set aside by learned Qazi, Kharan vide order dated 11th January, 2007. It is
worth while to mention here that on failure of petitioner to file amended suit the learned trial
Court dismissed the suit of petitioner under Order XVII, Rule 3, C.P.C., vide judgment and
decree dated 12th February, 2007. Feeling aggrieved of afore mentioned order the petitioner
preferred an appeal before Majlis -e-Shoora, Kharan. The appeal was accepted vide judgment and
decree dated 07th April, 2004 and the case was again remanded to the trial Court with direction
to proceed with the matter in accordance with law. Feeling aggrieved of the order dated 11th
January, 2007 whereby the application under section 12(2), C.P.C., filed by the respondent No.2
was allowed and the judgment and decree dated 30th April, 1998 was set aside, the petitioner
filed Civil Revision No.17 of 2007 before this Court which was dismissed in limine vide order
dated 25th June, 2007. The petitioner still fe eling aggrieved of the order passed by this Court
filed Civil Petition No.72 -Q/2007 before the Hon'ble Supreme Court which too was dismissed
vide order dated 12th October, 2007. Subsequently, the petitioner filed amended suit by
impleading respondents Nos. 3 and 4. The suit was contested by respondents Nos.1 to 3 by way
of filing written statement. However, as the respondent No.4 did not appear, as such, he was
proceeded against ex parte. Thereafter the parties led evidence. The petitioner relied on the
evidence already produced by him, however, the respondents Nos.1 and 2 produced one witness
and the respondent No.3 got recorded his statement through attorney. After recording the
evidence pro and contra and hearing the parties the learned trial Court vide ju dgment and decree
dated 31st January, 2009 dismissed the suit. The petitioner preferred appeal before the Majlis -e-
Shoora Kharan which too met with the same fate vide judgment and decree dated 25th June,
2009, hence instant revision petition.
3. Learned counsel for the petitioner contended that the judgments and decree impugned
herein are result of mis -exercise of jurisdiction. Both the Courts below without appreciating the
facts and circumstances of the case in its true prospective dismissed the suit and appeal. In fact
the petitioner proved his stance by producing trust worthy, confidence inspiring and tangible
evidence but this aspect of the case escaped notice of the Courts below. The respondents utterly
failed to refute the claim of the petitioner but both the Courts below ignored/over looked this
legal position without assigning, any cogent reason.
On the other hand learned Assistant Advocate General strenuously opposed the revision petition
and argued that there are concurrent findings of facts arr ived at by two courts below which
normally cannot be disturbed by this Court unless it is proved that the same are result of
misreading, non -reading, shocking or ridicules. Learned counsel for the petitioner failed to point
out any illegality or irregulari ty in the judgments/decrees impugned. On the contrary, the perusal
of judgments and decrees impugned would reveal that the same were passed after taking into
consideration the entire material and attending all legal as well as factual aspects of the case. The
petitioner failed to prove his stance by producing straight forward, reliable and tangible
evidence, as such, both the courts below had no other option but to dismiss the suit as well as
appeal. The judgments and decrees impugned herein are well reason ed and only general type of
arguments have been advanced by the learned counsel for the petitioner, which too, only to have
some grounds for filing of revision petition.
4. I have heard learned counsel for the parties and gone through the available recor d
carefully. This case was heard and reserved for judgment, however, while going through the
record in -order to dictate the judgment it surfaced that the amended plaint has been filed with the
signatures of learned counsel for the plaintiff and contents of the plaint have been verified by the
learned counsel under his own signatures, which course is offended to the provisions of Order
VI, Rules 14, 15, C.P.C. The attention of learned counsel for the petitioner was invited to this
irregularity and more than sufficient time was granted to him to meet with this irregularity but
despite affording ample opportunity he failed to do the needful. Notwithstanding this irregularity,
even otherwise, a careful examination of the record reveals that no exception can be t aken to the
concurrent findings of fact drawn by the two courts below. The perusal of record reflects that the
trial Court framed as many as ten issues. The plaintiff produced seven PWs besides recorded his
own statement and exhibited some documents. The t rial Court analyzed the evidence minutely in
a scholarly manner dilated upon each and every issue very exhaustively and rightly drawn the
conclusions. The appellate Court assessed the evidence i.e. ocular, documentary and concurred
with the findings drawn by the trial Court. As discussed hereinabove, the Courts below have
applied judicial mind over the facts of case and resolved all the issues. However, in my
considered opinion issue No.7 is a legal issue and goes to the root of matter, therefore, I would
like to examine it in depth, which reads as under:
5. So far as this issue is concerned, the petitioner claims to have been issued an allotment
order in his favor in the year 1980 by the Chairman Town Committee, Kharan and at the relevant
time the applica ble law was the Balochistan People's Local Government Ordinance, 1972
(Balochistan Ordinance No.1 of 1972). The Government of Balochistan initially had issued
Notification dated 28th May, 1975, which reads as under:
"To,
1) All the Deputy Commissioner/ Project Director, Local Government Department.
2) All the Administrator, District Councils
3) All the Administrator, Municipal Committees.
4) All the Administrator, Town Committees.
5) All the Administrator, Bazar Funds.
6) All the Chief Officer District Councils.
7) All the Chief Officer Municipal Committees.
8) All the Secretaries, Town Committees. In Balochistan.
Subject: ALLOTMENT OF LAND BELONGING TO LOCAL COUNCILS.
The following directives of the Minister, Local Government are repeat ed for
information/guidance and strict compliance: -
1. District Coordination Committee already constituted by the Government, shall
continue functioning till new Committees are formed.
2. All Advisory Committees of the Municipalities shall continue to function till new
Committees are constituted by the Government.
3. Hundreds of applications are being presented for the allotment of land on lease
belonging to Municipalities, Town Committees or District Councils. Applications which
relate to the Municip al lands, should be referred by the concerned Administrators to the
Advisory Committees for examination and issuing of no objection certificates. If the
Advisory Committee grants NOC then the Administrator, concerned may forward the
applications along with his views and recommendations to the Secretary Local
Government.
4. Applications which concern to the landed property of the District Councils;
and Town Committee/Bazar Fund (emphasize laid) should be referred by the Deputy
Commissioners to the District C oordination Committees for consideration and issuing of
NOC and then forward the same to the Secretary, Local Government with his
recommendations.
5. In every District, a District Coordination Committee (except) Marri -Bugti Agency
and Khuzdar District) p ersons from the public to serve on the Advisory Committees will
also be appointed for Fort Sandeman and Usta Mohammad Municipalities. In due course
such Advisory Committees will also be appointed for Fort -Sandeman and Usta
Municipalities.
6. Applications concerning Municipal land, where Municipal Advisory Committees
have not been appointed, should be forwarded by the Administrator of the Municipality
to the concerned Deputy Commissioner/Political Agent. Such applications should be
submitted before the Dis trict Coordination Committee of P.W.P, for examination and
grant of NOC. The concerned Deputy Commissioner/Political Agent may forward the
applications with NOC to the Secretary, Local Government for necessary action.
7. It should be pointed out to all t he concerned that only the Secretary, Local
Government is competent authority to allot land on lease belonging to District Councils,
Town Committees and Municipalities.
8. The above procedure will remain in force till election to Local Bodies takes place
and the elected representatives assume office.
Please acknowledge receipt."
6. As per clause 4, application for allotment of a land of Town Committee to be referred to
District Coordination Committee by the Deputy Commissioner for obtaining NOC. After
issuance of NOC the case is to be referred to the Secretary Local Government. Secondly, as per
clause -7 the only competent authority for making allotment is the Secretary Local Government.
Thirdly, the Chairman Town Committee does not figure at all for th e purpose of allotment.
Similarly, there is another Notification issued by the Government of Balochistan on 31st July,
1975. For the sake of facility the same is reproduced:
"No.6 -131/74 (PLGB). In exercise of the powers conferred under Section 74 of the
Balochistan People's Local Government Ordinance, 1972 (Balochistan Ordinance No.1 of
1972) the Government of Balochistan (Local Government) is pleased to delegate the
powers for leasing out Local Council land on usual terms and conditions as under:
1. The Deputy Commissioner -cum-Administrator, District Councils are delegated
powers to all the District Council land on usual terms and conditions to the extant of 4000
Sq: Feet only in area.
2. The Administrators Municipal Committees are delegated -with pow ers to allot the
Municipal land on usual terms and conditions within the following limit: -
(a) Commercial plots 300 Sq: feet.
(b) Residential plots.600 Sq: feet.
3. The applications which are for the allotment of plots be forwarded to the
Government for consideration and disposal in accordance with the instructions contained
in this department letter No.6 -131/74(PLGB) 3552 -3630 dated 28th May, 1975.
This Notification shall come into force with immediate effect."
7. This Notification also does not confer any power of allotment upon Chairman Town
Committee. The documentary evidence produced by the plaintiff irrespective of its legal
deficiencies undoubtedly establishes three facts, the so called allotment order pertains to land
measuring 1,60,000 Sq: Ft: which is more than 3 acres. Secondly, the procedure as contemplated
by the Notification dated 28th May, 1975 has never been adhered to, in any case, the application
for allotment was required to have been sent to the District Coordination Committee fo r grant of
no objection certificate and this prerequisite is lacking in this case. Thirdly, the allotment has
been issued by the Chairman Town Committee who was not competent at all to issue any
allotment order. Finally, there is another Notification dated 07th August, 1975 that also
contemplates the procedure of allotment and the Chairman Town Committee does not figure
therein at all as an authority for the purpose of allotment, which is also reproduced herein below:
"To,
1. All the Commissioners in Ba lochistan.
2. All the Deputy Commissioners/Political Agents in Balochistan.
3. All the Administrators, People's District Councils/Municipal Committees/ Town
Committees in Balochistan.
Subject: ALLOTMENT OF LANDS.
I am directed to refer to this Depa rtment Notification No.6 -131/74 (PLGB) dated
31.7.1975 wherein the Administrators of District Councils and Municipal Committees
have been delegated powers to lease out the Local Council lands. In this connection it
may be noted that the Administrators prio r to lease of lands of even No. dated 28.5.1975.
The relevant portion of the instruction is summarized below for strict compliance.
A. Procedure for leasing out land of Municipal Committees.
(1) Applications for allotment of land on lease belonging to the Municipal Committee
should first be submitted to the Administrator concerned.
(2) The Administrator of the Municipal Committee after examination of the
application should refer these to the Advisory Committee of the Municipal Committee
lease of the l and on lease.
(3) The Administrator may then lease the commercial and residential plots within the
limit of 300 (three hundred) sq. ft: and 600 (six hundred) sq. ft. respectively on the usual
terms and conditions.
B. Procedure for leasing out land of District Council.
(1) Applications for allotment of land belonging to the District Council should first be
submitted to the Deputy Commissioner/ Political Agent.
(2) The Deputy Commissioner/Political Agent after examination of the applications
should r efer to the District Coordination Committee of P.W.P. for grant of "NO
OBJECTION CERTIFICATE".
(3) The Deputy Commissioner/Political Agent may then allot the plot on lease not
exceeding 4000 (four thousand) sq. ft. only in area on usual terms and conditi ons.
It is again emphasized that the above procedure followed strictly.
The above instructions and contents of Notification of number dated 31 -7-75 shall not
apply to Municipal Committee."
8. A conscious application of judicial mind on all three Noti fications undoubtedly reveals
that the Chairman Town Committee has never been vested with the power to make allotment,
therefore, it can safely be concluded that the Chairman Town Committee Kharan never enjoyed
the power to make allotment and any allotment issued by him at any point of time is absolutely
without jurisdiction, ab initio void and without lawful authority. Moreover, Tehsil Nazim Kharan
has addressed a letter to Qazi Kharan and categorically stated that no allotment whatsoever in
favor of petit ioner has been issued, which reads as under:
In the light of above discussion, I find no force in the instant petition, which is dismissed with
cost throughout.
Before parting with the judgment, it is pertinent to observe that this property has been al lotted in
favor of Public Health Engineering Department by the competent authority, as such, it is the
prime responsibility of the official respondents to safeguard each and every inch of State land
allotted in favour of PHE department. The Deputy Commissi oner, Kharan and X.E.N. PHE
department, Kharan to ensure that all the allotted area to PHE Department is safe and secure and
no encroachment has been made. In case of encroachment the Deputy Commissioner, Kharan
along with revenue officials and the X.E.N P HE department along with its officials shall remain
responsible. The copy of this judgment be sent the Deputy Commissioner, Kharan and XEN PHE
department, Kharan for compliance.
SL/13/Bal. Revision dismissed.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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