PLJ 2011
[
Present: Ch. Shahid Saeed, J.
MUHAMMAD
KABIR--Petitioner
versus
SECRETARY GOVT.
OF PUNJAB etc.--Respondents
W.P. No. 2178 of
2007, heard on 9.3.2011.
Evacuee Trust
Properties (Management & Disposal) Act, 1975--
----S. 17--Civil
Procedure Code, (V of 1908), S. 11--Res-judicata--Revision
petition can only be filed with the Federal Govt. against the order of
Chairman, an Administration, a Deputy Administrator or an Assistant
Administration of the Evacuee Trust Property Board--No revision can be filed
against the order passed by the Federal Govt. itself--Second revision
petition--A matter could not be agitated through another revision petition,
which had already been decided up to Supreme Court--Second revision petition
was also not maintainable under the principle of resjudicata
as the Section 11 of CPC was fully applicable. [P.
711] A & B
Mr. Nadeem Iqbal Chaudhary,
Advocate for Petitioner.
Mr. Abdus Sattar Goraya,
Advocate on behalf of Respondents Nos. 5 to 14.
Mian Abdus Sattar and Muhammad Sarwar Chaudhry, Advocates on
behalf of Respondents No. 2 to 4.
Date of hearing:
9.3.2011.
Judgment
Through this
single judgment both the Writ Petitions No. 2178 of 2007 and 2243 of 2007 are
being disposed of together as identical question of law and facts is involved
therein.
2. Brief facts of the case are that land
measuring 184 acres Evacuee Trust Agricultural land of Mouza
Ramly Tehsil Khairpur Tamewali District
Bahawalpur was leased out by the department to one Sh.Noor
Muhammad predecessor in interest of Respondents No. 4 to 13 for a period of
five years since kharif 1966 to 1971 and then for
further 10 years from 1971 to 1981. That subsequently a reference for extension
of lease rights was moved by Distt. Officer and
consequently the Evacuee Trust Property Board conducted a detailed inquiry and
referred the matter to the Federal Government for further necessary orders. The
Federal Government vide order dated 18.05.1980 decided that only 12« acres land
out of 184 acres land may be leased out to Mr.Abdul Rehman respondent @ Rs. 350/- per acre per annum for three
years and the remaining land i.e. 171« acres may be resumed by the Board and
leased out in Lots through public auction. That in the light of said decision
the auction was conducted on 10.06.1980. Respondent Abdul Rehman
participated in the auction, but one Khuda Bakhsh made highest bid for lot No. 3 measuring 12 1/2
acres. At this juncture Abdul Rehman challenged the
auction proceedings through a civil suit and then through Writ Petition No.
320/1980. The writ petition was disposed of as withdrawn on 09.12.1981.
Thereafter Abdul Rehman filed another Writ Petition
No. 1/1982 which was decided against him on 17.01.1982. Feeling aggrieved
I.C.A. No. 12 was filed which was disposed of as withdrawn on 15.01.1983. That
in year 1983 the suit land was again scheduled for auction on 08.02.1983 but
due to status quo order passed in
3. Learned counsel for the petitioner contends
that the order dated 11.08.2007 passed by the Respondent No. 1 is illegal,
without lawful authority, against facts and record. Further submits that
Respondent No. 1 in the impugned order has narrated that he has entertained the
revision petition of the respondents in the light of the decision made by the
august Supreme Court of Pakistan but no such direction or observation ever made
in the said order; that the Respondent No. 1 has failed to attend the question
of limitation and erroneously entertained the time barred revision of private
respondents. Further maintains that in the light of the judgment dated
19.03.2011 passed by this Court the Respondent No. 1 was incompetent to
exercise revisional jurisdiction in favour of the respondents; the private respondents have
usurped the trust property since 1981 more than 1 1/2 decades on account of
delay tactics; the Respondent No. 1 has incorrectly held in the impugned order
that the private respondents were not defaulters, as per Article 2/G of the
scheme. Further submits that as per para 6 of the
lease scheme the period of lease shall be three years which will be increased @
10% after every year.
4. On the other hand learned counsel for the
Respondents No. 5 to 14 states that there is no illegality or irregularity in
the impugned order passed by the Respondent No. 1; the land in dispute was
given to the petitioner on lease only for three years i.e
from Khareef 2007 to Rabi 2010 and the said period has already been elapsed; further maintains
that the petitioner has no locus standi to file the
writ petitions because after Rabi 2010 lease was not extended in his favour; learned counsel further contends that petitioner
has only relied upon Writ Petition No. 349/1989 which was accepted by this
Court on 19.03.2001 but the same was filed by one Khuda
Bakhsh and the petitioner was not party in the said
writ petition, therefore, the petitioner could not get the benefit of the
judgment passed in the said writ petition. Learned legal Advisor appeared on
behalf of the Respondents No. 2 to 4 has supported the arguments advanced by the
learned counsel for the Respondents No. 5 to 14.
5. Arguments heard. Record perused.
6. Admittedly according to Paragraph No. 4 of
the Scheme for the lease of
7. It is pertinent to mention here that after
withdrawal of case from the Hon'ble Supreme Court of
Pakistan the private respondents again preferred a revision petition before
Respondent No. 1 against the order dated 18.05.1980 which has been up-held up
to the august Supreme Court of Pakistan and started a new round of litigation.
The Respondent No. 1 without going through the orders passed by this Court has
accepted the civil petition filed by the Respondents No. 5 to 14. When already
the matter has been decided up to the Hon'ble Supreme
Court of Pakistan then there was no need to entertain the second revision
petition on the same point which has already been decided in Writ Petition No.
349-1989 passed by this Court vide judgment dated 19.03.2001. The Respondent
No. 1 also did not take into consideration this important aspect of the case
that revision petition was barred by time. Moreover U/S 17 of the Evacuee Trust
Properties (Management & Disposal) Act, 1975 the revision petition was also
not maintainable. The said Section is reproduced as under:--
"17.
Revision.
The Federal Government may at any time, of its own motion or otherwise, call
for the record of any case or proceedings under this Act, which is pending or
in which the Chairman, an Administrator, a Deputy Administrator or an Assistant
Administrator has passed an order, for the purpose of satisfying itself as to
the correctness, legality or propriety of such an order, and may pass such
order in relating thereto as the Federal Government thinks fit: Provided that
the record of any case or proceedings in which the Chairman, an Administrator,
a Deputy Administrator or an Assistant Administrator has passed an order shall
not be called for under this section on the application of any aggrieved person
made after the expiration of fifteen days from the date of such order".
8. A perusal of said section reveals that
revision petition can only be filed with the Federal government against the
order of Chairman, an Administrator, a Deputy Administrator or an Assistant
Administrator of the Evacuee Trust property Board. No revision can be filed
against the order passed by the Federal Government itself. Whereas the order
dated 18.05.1980 was passed by the Federal Government upon the recommendation
of Evacuee Trust Property Board. From the careful scanning of whole the record
I am of the considered view that the order dated 11.08.2007 passed by
Respondent No. 1 is illegal and without lawful authority because the matter in
dispute has already been decided in Writ Petition No. 349-1989 passed by this
Court vide judgment dated 19.03.2001. CPLA was filed against the said judgment
which was also dismissed. Hence again the matter could not be agitated through
another revision petition, which has already been decided up to the Hon'ble Supreme Court of Pakistan. The second revision
petition was also not maintainable under the principle of resjudicata.
As the section 11 of CPC was fully applicable.
9. Undeniably the land in dispute was given to
the petitioner on lease only for three years i.e from
Kharif 2007 to Rabi 2010 and the said
period has already been elapsed. It is also established from the record that
the lease period also was not extended by the Federal government of Pakistan
Ministry of Religious Affairs and Minorities Affairs. Petitioner is an
unauthorized occupant over the property in dispute. He is also defaulter and
has retained the property in dispute under the garb of injunctive order passed
by this Court. The petitioner has also no locus standi
to file the Writ Petitions. Hence, the same are dismissed accordingly.
10. It is pertinent to mention here that the
petitioner and Respondents No. 5 to 14 are at equal footing because the lease
period of both the parties has been expired and under the garb of unnecessary
litigation they are trying to retain the property in dispute. Therefore, the concerned
authority/department is directed to resume the total property measuring 184
acres from the petitioner and Respondents No. 5 to 14 and thereafter lease out
the same through public auction. It is further directed that the petitioner and
Respondents No. 5 to 14 also be provided an opportunity to participate in the
said auction.
(M.S.A.) Petition dismissed.