2012 C L C 168
[Balochistan]
Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J
STUDENTS OF GOVERNMENT GIRLS COLLEGE, KUCHLAK ----Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Education, Quetta and 2
others ----Respondents
Constitutional Petition No.577 of 2011, decided on 12th September, 2011.
(a) Constitution of P akistan ---
----Arts. 22(3)(b), 24(1) & 199 ---Suo motu notice, issuance of ---Infringement of
fundamental rights ---Matter of public importance ---State land earmarked for construction
of Government Girls College ---News report about encroachment upon sizeabl e portion of
such land by influential persons ---Such news report could be considered complaint of
girls of Balochistan including of the area concerned and would be deemed an application
submitted by them as aggrieved persons in terms of Art. 199 of the Con stitution having
no other adequate remedy under law ---Record showed that such land belonging to
Provincial Government was leased out to Education Department for a period of 99 years
for constructing thereon such College ---No right could flow from letter of Deputy
Commissioner addressed to Commissioner recommending allotment of some land to
certain individuals, which letter was reported to have been withdrawn ---Photographs
placed on record by Department and letter issued by Executive Engineer would show that
inhabitants of area had recently constructed a metalled road right through centre of such
land without permission ---Such illegal act could not create any right in anyone ---
According to Google Satellite image of such land, same was a continuous whole and
without any road running therein ---Status quo order in respect of such land issued by civil
court in a suit filed by private respondents was neither confirmed nor continued ---Mere
pendency of such suit would not deprive Department of such land in respect wh ereof they
had produced ownership documents ---Executive Engineer had assured construction of
boundary wall around College to ensure against any attempt of land grabbing ---No one
had any right, title or interest in such land, which belonged to Department an d was meant
for College ---People could not be deprived of their fundamental rights guaranteed in the
Constitution merely because they might be unaware of them or might not have
wherewithal to approach High Court ---Encroachment upon such land could be deeme d to
be a denial of access to such College being constructed out of public revenue ---
Department had failed to perform its duty to protect such land meant for use and benefit
of girl students ---Such matter was of public importance and involved taking away and
abridging of Fundamental Rights of a segment of the population ---Inaction on part of
High Court in such matter would have resulted in a public college being deprived of its
valuable property and robbed girl students of benefit thereof ---High Court dir ected
Department to repossess entire land of such College, construct boundary wall around its
parameters and directed Police to provide necessary assistance in case of obstruction,
hindrance or interference by any person.
(b) Constitution of Pakistan ---
----Arts. 25 -A, 34, 37 & 38 ---Right of every man and woman to acquire ability to read
and write and attain knowledge without discrimination ---Mandate of Islam and
Constitution stated.
Surah (No.96) Al -Aalaq of Holy Quran rel.
Arthur Victor along wit h Wazir Ahmed.
Muhammad Azeem along with Syed Lal Muhammad.
Tariq Ali Tahir and Abdul Aziz Khan Khilji, Addl. A. -G.
Azizullah Gharsham, Deputy Secretary, Higher Colleges and Technical Education.
Abdullah, Deputy Director Judicial (Colleges).
Muhammad Hashim, Naib Tehsildar, representative of the Deputy Commissioner,
Quetta.
Muhammad Qasim, Deputy Director Claims.
Tariq Mehmood, Executive Engineer, Muhammad Umar, Sub -Engineer,
Communications and Works Department.
Date of hearing: 12th September, 2011 .
JUDGMENT
QAZI FAEZ ISA, C.J. --- The Registrar of the High Court had put up a note that
it had been reported in the daily Urdu newspaper `Jang' of 9th August, 2011 that a
sizeable portion of the land earmarked for the Government Girls College Kuchlak
("College") is being illegally encroached upon by certain influential persons. The
Registrar further stated that in view of the fact that the girl students may be adversely
affected by the said illegal act of encroachment of the under construction College at
Kuchlak suo motu notice may be taken in the public interest. Accordingly it was ordered
that the matter may be numbered as a constitutional petition and placed in court. Notices
were issued to (1) Government of Balochistan through Secretary Education, (Colleges),
(2) Director Colleges Balochistan Quetta, (3) Board of Revenue Balochistan through
Senior Member, and (4) Deputy Commissioner, Quetta, submit their reports with regard
to the following: ---
(i) Earmarked/allotted area of the Government Girls Col lege Kuchlak with site plan
and revenue entries;
(ii) Whether any portion from the aforesaid area has been encroached or allotted or
there is any proposal to allot the same, and if so, to whom;
(iii) The projected cost of the College and the amounts spent till date;
(iv) The present stage of construction with photographs which should also show the
periphery of the College lands; and
(v) The capacity of the College.
2. On 15th August, 2011 the Secretary Education submitted his comments which
inter alia state d that 14 acres, 2 rods and 29 poles in Khasra Nos.1123 -1124 in Mahal
Monza Samli, Tappa Kuchlak, District Quetta ("the College land") was granted by the
Government of Balochistan to the Education Department for a period of 99 years on lease
vide order dat ed 4th November, 2003. It was further disclosed that Suit No.23 of 2007
was filed by nine residents of New Killi Haji Zai Syedan, Tehsil Samli, Kuchlak claiming
to be the owners of the said land, however, the said suit was dismissed vide judgment
dated 28t h October, 2008 by Civil Judge -III, Quetta. Apparently, such judgment was not
assailed and the same attained finality. It was further stated that the local administration
with mala fide intention and without consulting the Education Department recommended
that 7 acres from the said land be allotted to certain individuals and in this regard the
Deputy Commissioner, Quetta wrote letter dated 19th April, 2011 to the Commissioner,
Quetta Division.
3. That Mr. Tariq Ali Tahir, learned Additional Advocate -General ("A.A. -G.") stated
that, after we had taken notice, the Deputy Commissioner, Quetta, withdrew his earlier
letter vide letter No.1341/RB dated 18th August, 2011. He further stated, that no rights
could flow from the letter of Deputy Commissioner dated 19th April, 2011 as the same
was merely a recommendation and the Deputy Commissioner was not the owner of the
said College land. There is thus no cloud on the title of the Education Department to the
said land. Photographs were also placed on record that showe d a metalled road had been
recently constructed right through the centre of the College land, thereby effectively
reducing the land that would remain with the College in half. Learned A.A. -G. also
placed on record letter issued by XEN, Project Division -11, Quetta which stated that the
road that has been constructed through the said land of the College, "has been constructed
by the inhabitants of the area without any permission/ intimation" and the same was an
illegal act and cannot be deemed to create any r ight in anyone.
4. Mr. Wazir Ahmed son of Sher Ali and Syed Lal Muhammad son of Syed Abdul
Wali, who had appeared on the last date of hearing and are present today, seem to be
interested in the College land and state that the road in -question was recently constructed
but they do not know who constructed the same. They also referred another suit filed
before Civil Judge -IV, Quetta and we had been told that a status quo order had been
passed therein in respect of the College land. Accordingly we had directed the learned
Civil Judge -IV, Quetta to submit a photocopy of the suit file. It appears from the said suit
file that on 6th May, 2010 a status quo order in respect of the said land was passed,
however, the said order was not continued nor confirmed.
5. Mr. A rthur Victor, Advocate on behalf of his senior Syed Ayaz Zahoor seeks
adjournment and states that Syed Lal Muhammad had approached his senior yesterday to
attend to this case, however, as Syed Ayaz Zahoor Advocate is on general adjournment he
seeks time on his behalf. Mr. Muhammad Azeem Kakar files vakalatnama of Mr.
Muhammad Wasay Tareen, Advocate on behalf of Wazir Ahmed and he too, seeks time
as Mr. Tareen is in Karachi. It is surprising to note that Syed Ayaz Zahoor, Advocate who
is on general adjournme nt wants to appear during the period of his general adjournment
and Mr. Muhammad Wasay Tareen, Advocate, at a time when he is in Karachi. In view of
the fact that the last date was 15th August, 2011 and today's date was given in presence of
Mr. Wazir Ahmed and Syed Lal Muhammad, they should have ensured that the
Advocates they wanted to engage would be available on the next date of hearing, which
date was almost a month after the last date. Be that as it may, we permitted both Mr.
Arthur Victor and Mr. Muha mmad Azeem Kakar, Advocates to make submissions on
behalf of their respective clients but they stated they had been authorized only to seek
adjournments on behalf of their respective seniors. We, accordingly, gave an opportunity
to both Syed Lal Muhammad a nd Mr. Wazir Ahmed to address the court. Mr. Wazir
Ahmed stated that a piece of the land was sold by his father in the year 1960 but he does
not remember to whom the same was sold. Syed Lal Muhammad states that he has rights
to the said land but states tha t he does not have any documents in his possession to show
his alleged entitlement. He has referred to Suit No.23 of 2007 and Suit No.57 of 2010, but
he was/is not a party to either suit. In any event the earlier suit was dismissed and the
latter is pendin g, and the mere fact that a suit is pending will not deprive the Education
Department of the College land, in respect whereof they have produced documents to
show their ownership. We also enquired from Syed Lal Muhammad whether he had
initiated any legal a ction in respect of the said College land and he answered in the
negative.
6. Mr. Tariq Ahmed, XEN, C&W Department filed the drawings of the project
constituting the under construction Girls College at Kuchlak and stated that the said
project is being exec uted under his supervision. He further states that he does not know
who constructed the road in question as according to him the same was done overnight.
He has also referred to the Google image of the College land as it existed on 12th May,
2008 which is a contiguous whole, and without any road running through it. He stated
that now that the encroachment has been brought to his notice he will ensure that a
boundary wall is constructed around the College land to ensure against any attempt of
land grabbing. He further states that an amount of Rupees twenty million has been
expended on the said College till date out of the budgeted amount of Rupees eighty
million.
7. The Deputy Director Education (Colleges) Mr. Abdullah Khan stated that the land
belongs to the Education Department and was allotted/leased for the purpose of
constructing and setting up the Government Girls College Kuchlak and no one can be
permitted to encroach upon it or build a road through it and that the timely intervention
by this Court has both helped secure the said land from encroachment and has ensured
that the College is not deprived of its valuable land.
8. We therefore have no hesitation to hold that the said land admeasuring 14 acres, 2
rods and 29 poles in Khasra Nos.1123 -1124 situat ed in Mahal Mouza Samli, Tappa
Kuchlak, District Quetta is owned by the Education Department, Balochistan and is meant
for the Government Girls College Kuchlaq and no one else, including Mr. Wazir Ahmed
and Syed Lal Muhammad, has any right, title or interest therein.
9. Mr. Abdul Aziz Khilji, learned A.A. -G., has referred to the following opening
verses of Surah (No.96) Al -Aalaq of the Holy Quran: ---
"Read! In the name of thy Lord and Cherisher, Who created
Created man, out of a clot of congeal ed blood
Read! And thy Lord is most Bountiful
He who taught (the use of) the pen
Taught man that which he knew not"
He further states that the aforesaid verses do not distinguish between men and women and
applies to every human being and to acquire the ability to read and write and to attain
knowledge is mandated by Islam upon every believer. Learned A.A. -G. has rightly
referred to the first command of Almighty Allah, applicable to all, both men and women
that mandates reading, writing and the acquisitio n of knowledge. Articles 25 -A, 37 and
38 of the Constitution of Pakistan also state as much. The Constitution of Pakistan also
proscribes against discrimination on the basis of sex (Article 25(2)) and encourages the
"full participation of women in all sph eres of life" (Article 34).
10. That in view of the fact that the publication in the newspaper has been found to be
correct in material respects the same can be considered to be reflect the anguish and
complaint of the girls of Balochistan in general and o f Kuchlaq who may or would seek
admission to the College when it has been constructed and ready for use. Such news
report therefore can be deemed to be an application submitted by them, who undoubtedly
would be aggrieved persons, in terms of Article 199 of the Constitution. The people
cannot be deprived of their Fundamental Rights as enshrined in the Constitution merely
because they may be unaware of them, or may not have the wherewithal to approach this
court. We are further satisfied that no other adequat e remedy is provided by law to them.
One such Fundamental Right is to be assured of access to the said educational
institutional that is being constructed out of public revenues (Article 22(3)(b)) and if
nearly half of the land of such institution is being encroached upon it can be deemed to a
denial of access to the whole. Moreover, the owner of the said land, the Education
Department of the Government of Balochistan, did not take any step when from under its
proverbial nose almost half of the College land was bifurcated and encroached upon, and
thus violated its mandate and disregarded its duty to the public. By permitting, by design,
neglect or incompetence, encroachment and illegal land grab of its property, which was
meant for the use and benefit of gir l students, it failed to perform its duty. Such an act
whereby it and thus the girl students were deprived of valuable property violated another
Fundamental Right; the protection of property enshrined in Article 24(1) of the
Constitution.
11. In our opinio n suo motu notice was justified to be taken in this case as the matter
was of public interest and involved the taking away and abridging of Fundamental Rights
of a segment of the population. Inaction on our part would have resulted in a public
college bein g deprived of its valuable property, which in turn would have robbed and
dispossessed girl students of the benefit of a sizable portion of an educational institution
that was being constructed out of funds provided by the public exchequer. To ensure that
the Constitution is and remains a living document the Fundamental Rights stipulated
therein must be provided for the benefit of all. It would be a sad day if the poor, the weak,
the disenfranchised, women, children, students or girls cannot share in the ben efits that
our Constitution provides. Sadder still the day when the dishonest and the corrupt can
encroach upon, grab and or convert to their private use public land. Therefore in
appropriate cases, like the present one, if a matter is brought to the atten tion of this court
we would look to the substance of the powers that the Constitution provides in its Article
199 and may make appropriate declaration and pass requisite orders.
12. We accordingly in exercise of powers conferred under Article 199 of the
Constitution dispose of the matter of the Government Girls College Kuchlaq in the
following terms: --
(1) The Education Department of the Government of Balochistan is directed to re -
possess the entire land of the Government Girls College Kuchlaq and is furthe r
directed to remain vigilant that no attempt at encroachment or land grab of the
College land is made; and
(2) The Executive Engineer or any other officer of the Government of Balochistan
who is executing the project of constructing the Government Girls C ollege
Kuchlaq is directed to ensure that boundary wall is constructed around the
parameters of the College land, and if any person(s) obstructs, interferes with or
causes any hindrance the police to provide necessary assistance. He is further
directed to report compliance when the College land has been reposed and College
land secured to the Registrar of this Court, who will put up the matter in Chambers
for consideration. In case it is considered necessary the matter may be re -listed for
passing of furthe r orders.
Office is directed to send a copy of this order to (1) Secretary Education (Colleges),
Government of Balochistan, (2) Secretary Communications and Works Department,
Government of Balochistan, (3) Director -General (Colleges), Government of Balochi stan,
(4) Deputy Commissioner Quetta, Government of Balochistan, (5) Executive Engineer of
the project of the under construction Government Girls College Kuchlaq, Government of
Balochistan and (6) the SHO Kuchlaq, for information and compliance.
S.A.K./125 /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,
let us know.