deputy commissioner notification set aside judgement

Illegal notification setaside by high court

زیر نظر رٹ پٹیشن ایک نوٹیفیکیشن کے خلاف فائل کی گئی ۔نوٹیفیکیشن ڈپٹی کمشنر نے جاری کیا تھا ۔ اور نوٹیفیکیشن میں وہ اپنی طرف سے طریقہ کار واضح کر رہا ھے۔ اور یہ اختیارات قانون کے تحت اس کے پاس نہیں ھیں جو نوٹیفکیشن میں لکھے ھیں۔

نو ٹیفکیشن میں کیسز کو اپنے طریقے سے جلدی نبٹانے کی بات ھو رھی ھے اور کمیٹیاں بنانے کی بات ھو رھی ھے۔اور مختلف طریقہ کار واضح کیے جا رھے ھیں۔

رٹ پٹیشن میں ھائیکورٹ کے روبرو نو ٹیفکیشن کو چیلنج کیا گیا۔ اور ھائی کورٹ نے قرار دیا کے نوٹیفکیشن غیر آئینی اور غیر قانونی ہے۔

ڈپٹی کمشنر کوئی نو ٹیفکیشن جاری نہیں کرسکتا جس کی قانون اجازت نہ دیتا ھو۔

اور ہائی کورٹ نے نوٹیفکیشن کو کالعدم قرار دے دیا۔

High Court case law on Illegal notification of Deputy Commissioner

ereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 10239 / 2018 / BWP

Mushtaq Ahmed

Versus

Deputy Commissioner, Rahim Yar Khan and seven others

JUDGMENT

Date of Hearing:

27.09.2021

Petitioner(s) By:

Mr. Mumtaza Mustafa, Advocate

Respondent(s)

By:

Mian Mansoor Ahmad Sheikh, Advocate

Ch. Shahid Mehmood, Assistant

Advocate General

ABID HUSSAIN CHATTHA, J: Through this constitutional

Petition, the Petitioner seeks a declaration to the effect that the

impugned Notification No. DC/PS/194 dated 06.08.2018 (the

“Notification”), whereby, Land Dispute Resolution Committees

(the “LDRC”) have been constituted at Tehsil level for alleged

amicable resolution of land related disputes, is illegal, void and

without lawful authority.

The brief facts of the case are that the Petitioner and

Respondents No. 3 to 8 were involved in civil litigation qua the

determination of their rights as co-owner with respect to land

situated in Chak No. 73/NP, Tehsil & District Rahim Yar Khan.

The contents of the Petition disclose that there are serious

disputes regarding the determination of rights between the

parties. However, this Court does not feel it necessary to describe

the nature and extent of such right and comment upon the merits

of the same for the purposes of decision of this Petition for the

W. P. No. 10239 / 2018 / BWP

reason that it may cause prejudice to the respective rights of the

parties. However, it may be remarked that chronic litigation

between the Petitioner and private Respondents range from

claims of ownership and possession regarding suit property

attracting civil and revenue laws and forums. Suffice is to say

that Respondents No. 4 to 8 filed an application on 04.09.2008

before Respondent No. 2, the Convener of the LDRC for getting

possession of disputed land upon which the Petitioner was

summoned who put his appearance on 10.11.2018 but the

Petitioner was not heard on the ground that the proceedings

before the LDRC are administrative in nature where counsels are

not allowed. For the disposal of lis in hand, it is indispensable to

judicially examine the legality and validity of the LDRC

purportedly set up by Respondent No. 1 (Deputy Commissioner,

Rahim Yar Khan) through the Notification referred supra which

is reproduced as under:-

No: DC/PS/194

OFFICE OF THE

DEPUTY COMMISSIONER

RAHIM YAR KHAN

Dated 06/08/2018.

NOTIFICATION

In order to stop violence, breach of law emanating

from land disputes, and to ensure speedy disposal of such

long standing cases, Land Dispute resolution Committees at

Tehsil Level are hereby notified with immediate effect for

amicable solution of land related disputes with the following

composition and TORs:

Composition:

Assistant Commissioner (Convener)

ii.

Sub Divisional Police Officer (Co-Convener)

iii.

Tehsildar / Naib Tehsildar (concerned)

iv.

Station House Officer (Concerned)

TORs:

To receive complaints regarding land disputes.

ii.

To examine Revenue record.

iii.

To carry out inspection of the site.

iv.

To call the concerned parties for hearing.

To recommend necessary action to the Deputy

Commissioner and District Police Officer, after

W. P. No. 10239 / 2018 / BWP

perusing the record, inspecting the site and hearing

the parties.

vi.

To take action against encroachments on state land.

vii.

To take action on any land related matter referred

by the Deputy Commissioner and District Police

Officer.

viii.

To hold weekly meeting.

ix.

To communicate regular progress of cases to the

Deputy Commissioner and District Police Officer.

Deputy Commissioner

Rahim Yar Khan

--------------------------------------------------

Learned Law Officer was confronted as to what is

the legal backing of the LDRC as no law has been cited therein

under which it had been issued. He relied upon the report and

parawise comments filed by the official Respondents and stated

that the LDRC had been constituted under the Punjab Civil

Administration Act, 2017 (the “Act”). He argued that the Act

was promulgated to institute a comprehensive system of civil

administration in the Punjab for effective administration,

improved service delivery, better coordination, supervision and

regulatory enforcement and for all other ancillary matters.

Further stated that the Deputy Commissioner had executive and

administrative power under the said Act to constitute the LDRC.

The Deputy Commissioner can exercise administrative powers

in revenue matters other than the judicial proceedings

simultaneously to facilitate the public and improve service

delivery in the subordinate offices. The LDRC was executive in

nature to deal with the Qabza Group & land grabbers who

deprive poor people from their property, however, the LDRC did

not deal or interfere with any matter sub-judice before any Court

of law. The vital purpose of the LDRC was to redress the issues

of common people at grass root level and ensure justice at door

step.

This Court is of the firm view that the provisions of

the Act have been misconstrued and misapplied in the present

context. The Act does not in any way extend the system of civil

W. P. No. 10239 / 2018 / BWP

administration for the determination of civil rights between the

private parties which are required to be determined by the Courts

of competent jurisdiction. The system of civil administration

including all public functionaries are creation of the law and are

bound by the law. They cannot exercise any power not

specifically conferred by law. Section 10 of the Act provides that

“The Government may constitute Divisional, District or Tehsil

Coordination Committees consisting of such heads of local

governments, members of National Assembly and provincial

Assembly, heads of Division, District and Tehsil administrations

and police and such other persons as may be specified to achieve

the goals of good governance, effective service delivery, public

welfare and better coordination through democratic control and

oversight.” Importantly, power to constitute the LDRC under

Section 10 of the Act is reserved with the Government and not

the Deputy Commissioner. Such Committees are merely

restricted to provide voluntary services to the public and do not

have any legal power and mandate to decide their civil or revenue

cases or determine their rights of civil nature requiring recording

of evidence. It is well-settled that jurisdiction not vested in a

body cannot be assumed even by the consent of the parties.

Similarly, the reliance upon Section 15 of the Act is also

misplaced. The said Section only empowers the Deputy

Commissioner on his own, or on the request of the head of a local

government or head of the District Police, to convene a meeting

for the purpose of maintaining public order and safety of public

and public or private properties in the District. The mandate of

such committees or meetings cannot be extended to subvert the

specific provisions of law providing forums or remedies for the

determinations of civil rights of the people including the Courts

of competent jurisdiction. Rather, even any executive action

taken under any Section of the Act would be subject to judicial

review. The reliance on the provisions of the Act with respect to

W. P. No. 10239 / 2018 / BWP

the constitution of the LDRC is not backed by any law. The

perusal of TOR’s of the LDRC include receiving of complaints

regarding land disputes, examination of revenue record, carrying

out inspection of site, calling the concerned parties for hearing,

making recommendations for necessary action to the Deputy

Commissioner and District Police Officer after perusing the

record and taking action against encroachments on state land etc.

Many such functions are beyond the mandate of the Act itself.

No citizen of Pakistan enjoying fundamental rights and statutory

rights under the Constitution of Islamic Republic of Pakistan,

1973 can be compelled to do anything what the law does not

require him to do. Constitution of such LDRC is, therefore,

beyond the mandate of the Act and against the provisions of the

Constitution. Hence, constitution of the LDRC without any

backing of specific law which confer such functions as were

granted in the Notification is patently illegal. In the case titled,

“Raja Muhammad v. Mst. Shamim Akhtar and 2 others” (PLD

2008 Lahore 408) maintenance allowance fixed by the Family

Court in favour of wife and minor was enhanced by the Chairman

Khidmat Committee, which Committee was found to have been

constituted in exercise of executive powers through a notification

and it was held that every executive action should have backing

of some law and in absence of such law, the said committee

would be illegal and unconstitutional. Similarly, in case titled,

“Ch. Muhammad Idrees, Advocate v. S.H.O., Police Station,

Pattoki, District Kasur and others” (1999 CLC 570) it has been

held that in the matters of civil and criminal nature, Khidmat

Committee had no jurisdiction and lawful authority for taking

any action against one of the parties. In case titled, “Pir Imran

Sajid and others v. Managing Director / General Manager

(Manager Finance) Telephone Industries of Pakistan and others”

(2015 SCMR 1257) it was observed that object of good

governance could not be achieved by exercising discretionary

W. P. No. 10239 / 2018 / BWP

powers unreasonably or arbitrarily and without application of

mind. Such objective could be achieved by following the rules of

justness, fairness and openness in consonance with the

command of the Constitution enshrined in different Articles

including Articles 4 & 25 of the Constitution.

In the instant case, it is evident that the LDRC had

assumed jurisdiction to itself regarding the determination of civil

rights pending between the parties under the garb of amicable

resolution of land disputes which was beyond its jurisdiction

conferred under the law including the Act. Even otherwise, no

legal mandate is conferred upon such LDRC to settle such civil

or criminal cases under any law. The LDRC had no jurisdiction

and lawful authority to decide the civil matter between the

Petitioner and the private Respondents. All orders passed and

actions taken by the LDRC are declared as illegal and unlawful.

Further, in order to prevent further abuse of power, the impugned

Notification is also declared to have been issued without any

lawful authority being beyond the mandate of the Act. The

parties to this lis are free to avail appropriate remedies available

under the law.

Allowed in the above terms.

(ABID HUSSAIN CHATTHA)

JUDGE

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