P L D 2012 Balochistan 186
Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J
Sardar MUHAMMAD ANWAR JAFFAR and another ---Petitioners
Versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Petroleum and
Natural Resources, I slamabad and 2 others ---Respondents
Constitutional Petition No.281 of 2009, decided on 15th May, 2012.
Constitution of Pakistan ---
----Art. 199 ---Constitutional petition ---Petitioners contended that they were owners of the
land on which their forefat hers had lived for four/five hundred years, and contended that the
Government could not carry out surveys for oil and gas exploration on the said land ---
Validity ---Petitioners had not attached any impugned order or notification with the petition
and had fa iled to attend the specific query of the court ---Grievance of the petitioners was
addressed to a private company wherein the objection was not against carrying out alleged
exploration activities but instead they sought to negotiate with the said company ---Petitioners
were not aggrieved persons and if at all they were aggrieved, they had other adequate
remedies provided under law to establish their title over the property and thereafter to protest
against any ingress on the same or illegal encroachment there of---Constitutional petition, on
its face, involved disputed questions of facts which could not be resolved by the High
Court in its constitutional jurisdiction ---Constitutional petition was dismissed.
Date of hearing: 15th May, 2 012.
ORDER
QAZI FAEZ ISA, C.J. ---This petition was filed on May 5, 2009 and it was listed for katcha
peshi on May 14, 2009 of which date the order sheet reads as under:
"The learned counsel for the petitioners contended that the respondents have star ted
exploration of oil in the area and on our query as to whether any document has been attached
with the petition, the learned counsel seeks time to place certain documents on record.
Date in office after one week."
2. On the next date of hearing (May 27, 2009) the counsel for the petitioners sought
time, where after, adjournments were sought and on March 16, 2010 notice was issued to the
respondents. The above order dated May 14, 2009 for placement of any document showing
that exploration of oil had c ommenced in the area has remained unattended till date.
3. After filing of the petition C.M.A. No.1025 of 2009 was filed seeking to add another
37 persons as petitioners, "since the landed property as well as adjacent land i.e. Shamilat
which is in posse ssion of the petitioners over which exploration of oil and gas has been
commenced..."
4. It is case of the petitioners that, "the petitioners tribesmen are living in Tehsil Drug
since their forefathers i.e. 4 to 5 hundred years" (paragraph 3 of the petit ion) and that "a grand
Jirga of the aforesaid Tribesmen were held under the Chairmanship of petitioner No.1"
(paragraph 4 of the petition) where it was decided to nominate the petitioners to file the
petition. It is alleged that, "the land of Tehsil Drug b elongs to above seven tribes and no inch
of land belongs to the Government" (paragraph 5 of the petition) and as such the Government
of Pakistan could not carry out survey in respect of the lands belonging to the petitioners'
tribes and other tribes for th e purpose of exploration and production of oil and gas. In
paragraph 7 of the petition it is contended that, "the respondents in order to carry out the
survey work neither informed nor consulted the petitioners, who are Sardars of their
respective tribes."
5. Learned counsel for the petitioners stated that the petitioners and those sought to be
joined as parties are the owners of the subject land upon which survey has been carried out
without complying with the applicable law, which according to the learn ed counsel for the
petitioners is the Land Acquisition Act, 1894 and only after the provisions of the said law are
complied with and compensation paid to the petitioners and the other persons who are sought
to be joined as petitioners, can the respondents proceed with the survey of the land.
6. Malik Sikandar, the learned Deputy Attorney General ("DAG") opposed the petition
on the following grounds:
(1) That the petitioners have not attached any impugned order or notification and has
filed the petition upon surmises and conjectures;
(2) That there is no evidence of any purported survey having been carried out, and
(3) That the petitioners do not fall within the definition of 'aggrieved' persons under
Article 199 of the Constitution of Pakistan and th at the Article 199 is otherwise not attracted
as the petitioners have "other adequate remedy" at law.
Mr. Tariq Ali Tahir, learned Additional Advocate General ("AAG") whilst adopting the
arguments of the learned DAG further added that the Government of B alochistan has not
been arrayed as a party and that the Commissioner, Zhob Division at Loralai or District
Coordination Officer Musakhail (respectively respondents Nos.2 and 3) cannot be
categorized as Government of Balochistan. It is next contended that t he petitioners have not
established their title and disputed question of facts are involved in the petition, which cannot
be resolved by this court in its Constitutional jurisdiction. The learned DAG and AAG stated
that without filing of comments/replies t hey are prepared to proceed with the petition and will
be relying on the aforesaid legal objections.
7. We having heard the learned counsel and gone through the documents filed by the
petitioners. Admittedly, the petitioners have not attached any impugn ed order or notification
with the petition and have also failed to attend to the specific query of the court as noted in
the order dated May 14, 2009 above. The petition primarily relies upon the letter written by
petitioner No.1 as Chief of Jaffar Tribe a nd called upon respondent No.6 to enter into
negotiations with the "grand Jirga" and to resolve the matter "in consultation with the grand
Jirga [at the] earliest". We inquired from the learned counsel whether any reliance can be
placed on such letter in t he light of the System of Sardari (Abolition) Act, 1976 (Act XL of
1976) whereby vide Section 3, the "System of Sardari shall stand abolished." It would also be
useful to reproduce the preamble of the said Act as under:
"Whereas, the system of Sardari, p revalent in certain parts of Pakistan, is the worst remnant
of the oppressive feudal and tribal system which, being derogatory to human dignity and
freedom, is repugnant to the spirit of democracy and equality as enunciated by Islam and
enshrined in the Co nstitution of the Islamic Republic of Pakistan and opposed to the
economic advancement of the people."
Moreover, the grievance of the petitioners was addressed to a private company, wherein
objection was not to carrying out the alleged exploration activi ties, but instead seeking to
negotiate with such foreign company. The only other document attached with the petition is a
letter written on behalf of the Commandant Loralai Scouts (respondent No.4) which was in
response to an "application number nil dated nil", however, copy of such application has not
been attached with the petition. The respondent No.4 however denied allegations contained in
the said application and concluded by stating, "it is suggested do not misled govt.
official/agencies."
8. We agr ee with the learned DAG and AAG that the petitioners are not aggrieved
persons and, if at all they are aggrieved they have other adequate remedy provided by law to
establish their title over the property and thereafter to protest against any ingress on the same
or illegal encroachment thereof. Furthermore, the petition on the face of it involves disputed
question of facts, which cannot be resolved by this court in its constitutional jurisdiction.
Therefore, the petition is dismissed in limine but with no or der as to cost.
K.M.Z./34/Bal Petition 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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