Fazal Sher VS Muhammad Asif (W.P No. 1118-P/2017)

-

IN THE PESHAWAR HIGH COURT, PESHAWAR

              • W.P No. 1118-P/2017

  1. Fazal Sher S/O Lal Sher
  2. Akmal S/O Sahib Sher
  3. Shahfiq
  4. Malik Sher
  5. Falak Sher Sons of Noor Sher
  6. Yar Gul S/O Hayat Gul
  7. Syed Jamal S/O Sarwar
  8. Wakeel Khan
  9. Jamsher
  10. Nabi Sher (Sons)
  11. Mst. Guldana
  12. Mst. Wazira D/O Mst. Sahibzadgay
  13. Qadar S/O Muhammad Sher Residents of Mouza Ghari Chandan,
    Tehsil & District Peshawar ----------------------------------------------------- Petitioner

Versus

  1. Muhammad Asif S/O Muhammad Zaman R/O Mohallah Gulshan Iqbal Town, Tehkal Bala, Tehsil & District Peshawar
  2. Muhammad Mustafa Kamal S/O Islam Gul R/O House No.4, Iqra Street, Near Professor Colony, Agriculture University, Peshawar
  3. Malik Mujahid S/O Malik Sher Dil R/O Tehkal Bala Tehsil & Distt Peshawar
  4. Sajid S/O Muhammad Zaman R/O Ghulam Iqbal Town, Tehkal Bala Tehsil
  5. Khan Faraz S/O Muhammad Ashraf
  6. Raees Khan S/O Khan Faraz
  7. Maqbool Khan S/O Rehmat Shah
  8. Tajwali S/O Rasheed Khan
  9. Mst. Chahara Bibi D/O Musharaf Khan
  10. Land Acquisition Collector, PHA, Agriculture University, Peshawar
  11. Collector Land Revenue Peshawar
  12. Patwari Halqa Mouza Ghari Chandan Peshawar
  13. Girdawar Circle, Peshawar
  14. Tehsildar, Circle, Peshawar ------------------------------------------------- Respondents 
WRIT PETITION UNDER ARTICLE 199 OF
THE CONSTITUTION OF ISLAMIC
REPUBLIC OF PAKISTAN, 1973

Respectfully Sheweth

  1. That the petitioners are original owners in Mouza Gari Chandan Tehsil and District Peshawar and are entitled of Shamilat Mouza Ghari Chandan Tehsil & District Peshawar.
  2. That the petitioners since their forefather remain in exclusive possession as hisadaran of Khasra No. 1130. 1131, total meaasuring 444 Kanals 08 Marlas being owners in possession of Shamilat Mouza Ghari Chand Peshawar.
  3. That being in possession the above said tow khasra numbers as hiadaran the entries in revenue record in column of cultivation and khasra Girdawari also maintained in the name of the petitioners or their predecessors.
  4. That recently the provincial Housing Authority acquired the Shamilat land of Mouza Ghari Chandan Peshawar via award No. 138/- 145/LAC/ Ghari Chandan dated 07.02.2014 including Khasra No. 1130, 1131.
  5. That thereafter mutation No. 1894 dated 17.10.2014, was entered and attested in favour of PHA.
  6. That it is pertinent to mention here that according to the said award the mode of compensation was settled as:
    "Compensation will be paid to owners as in Jambandi equivalent to their share. For Shamilat the owner in possession equivalent to their share in total Shamailat land as per Jamabandi and entries in Khasra Gidawari will be paid compensation"
  7. That the then Patwari Halqa entered mutations No.1811 from respondent No.7 in favour of the respondent No.3, mutation No.1812 from respondent No.5 in favour of respondent No.4, mutation No.1813 from respondent No.4, in favour of respondent No.3, and mutation No.1810 from respondent No.9 in favour of the respondent No.1, and fraudulently entered a note regarding possession as was allegedly given in Khasra No.1130 and 1131 and the said entries regarding possession in the above said Khasra number was the result of fraud and collusion in order to usurp the rights of the petitioners.
  8. That similarly, the said mutations without observing the legal codal formalities were compared and attested on 08.05.2013 which is also nullity in the eyes of law.
  9. That afterwards mutation No.1894 which was entered and attested on the basis of award mentioned above, the respondent No.1 to 4 fraudulently and illegally with the collusion of the revenue staff place their name in column No.5 of the said mutation fraudulently showing themselves to be in possession of Khasra No. 1130 and 1131 in order to usurp the rights of the petitioners and collect and get the compensation money of Khasra No.1130 and 1131.
  10. That the petitioner being aggrieved from the above said process and payment of compensation filed reference u/s 30 of the land acquisition Act, 1894 before the respondent No.10.
  11. That the respondent No.10 without following the relevant law and procedure and instead of referring the same to the Referee Court dismissed the same vide order dated 01.02.2017
  12. That the petitioners dissatisfied from the impugned order dated 01.02.2017 have got no other adequate remedy but to file instant writ petition on the following grounds inter alia.
GROUNDS:

A. That the order of the respondent No.10 is against law, facts and material available on file hence not tenable at all.

B. That the learned respondent No.10 have passed the impugned order without jurisdiction and have violated the law laid down by the judgements of the superior courts.

C. That the very order dated 01.02.2017 is based on discrimination, which is illegal, void and not warranted by any provisions of law.

D. That the learned respondent No.10 have failed to follow the law laid down by the superior courts regarding the matter in question as there is no limitation for filing reference U/S 30 of the land Acquisition Act.

E. That it is also worth mentioning that the respondent No.10 was required to refer the reference in question to the referee court for deciding the same on merits.

F. That the learned respondent No.10 has got no jurisdiction to decide the matter of limitation regarding which it is submitted that firstly, in case of reference u/s 30 Land Acquisition Act, there is no limitation for filing reference before the collector, secondly limitation is always a mixed question of law and facts for which recording of evidence is necessary which is the mandate and power of referee court to do so and as the learned Land Acquisition Collector i.e. respondent No.10 has decided the same question by himself vide the impugned order dated 01.02.2017, therefore the same is without jurisdiction and is not sustainable in the eyes of law.

G. That it is also pertinent to note that the petitioners has raised so many intricate objection on the process of acquisition and mode of compensation regarding Khasra numbers 1130, & 1131 total measuring 444 Kanals 08 Marlas acquired by the respondent No.10, for which recording of evidence is necessary.

H. That it is worthy mentioning that as the respondent No.10 is an interested party and the petitioners has also objected his role in acquired to decide the matter in question himself as "one can not sit as a judge in his own cause"

13. That others points will be raised of the time of arguments with the help of case file. 

    It is, therefore, most humbly prayed that on acceptance of the instant writ petition, the impugned order dated 01.02.2017 passed by L.A.C PHA i.e. respondent No.10 may kindly be set aside and direction may kindly be issued to refer the said reference u/s 30 filed by the petitioners to the referee for deciding the same on merits. Or 
    Any other adequate remedy which is not specifically asked for may also be granted


 Petitioners                
Through                  
Abdul Hafeez              
Advocate High Court       
Dated 18.02.2017                                                                                           

CERTIFICATE:
    Certified on instruction of my client that petitioner has not previously moved his Hon'ble Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 regarding the instant matter, thus the case may kindly be fixed before the worthy D.B of this Hon'ble Court.


ADVOCATE             

LIST OF BOOKS:
  1. Constitution of Islamic Republic of Pakistan, 1973
  2. Any other law books according to need
ADVOCATE             


    

---------------------------------------------------------------------------------------------------------------------------
BEFORE THE PESHAWAR HIGH COURT, PESHAWAR


C.M No. 2111-P/2020
               in
Writ Petition No. 1118-P/2017


Fazal Sher -----------------------------------------------------------------------------------------Petitioner
VERSUS
Muhammad Asif and others --------------------------------------------------------------------Respondents

---------------------------------------
APPLICATION FOR SENDING  BACK THE
ORIGINAL RECORD PLACED ON PAGES
NO.12 TO 40 WITH THE MAIN WRIT
PETITION TO THE COURT OF DISTRICT &
SESSIONS JUDGE/ REFEREE JUDGE,
PESHAWAR TO COMPLY AND PROCEED
THE CASE IN THE LIGHT OF ORDER
DATED 15.10.2020
------------------------------------------

Respectfully Sheweth:
  1. That the above writ petition has been decided/ allowed vide order dated 15.10.2020 by this hon'ble court.

  2. That the petitioner as per direction of this Hon'ble Court approached to the District and Sessions Judge, Peshawar for compliance of the Reference under the Land Acquisition Act, 1894 but the court cannot proceed the case for the reason that the impugned order agitated in this writ petition dated 01.02.2017 along with original Reference is attached/ annexed with the main writ petition on pages 12 to 40.

  3. That the petitioner also approached to the Incharge of writ petition who also refused to send the original required record, that there is no specific order for sending the original record to the Referee Court/ concerned quarters.

  4. That in absence of the said record the purpose of the litigation cannot be fulfilled.
    It is therefore, humble prayed that on acceptance of this application, the original record annexed on pages 12 to 40 with the writ petition may kindly be send back to the court of learned District & Sessions Judge/ Referee Court, Peshawar for compliance and proceeding in the light of order dated 15.10.2020

Petitioner             
Through              

Fazal E Haque Kohidamani
Advocate Hight Court,   
Peshawar.             

Comments

Post a Comment

Popular posts from this blog

SECTION 12(2) C.P.C

-
  SECTION 12(2) C.P.C. It is a very important section in the Code of Civil procedure, (C.P.C.) which is usually filed an application by an aggrieved person for setting aside a final judgment, decree or order, which is passed by a court due to fraud, misrepresentation or want of jurisdiction. Hence, it is reproduced section 12 (2) C.P.C. as follows:             “Where a person challenges  the validity  of a judgment,  decree  or order  on the plea of fraud, misrepresentation  or want of jurisdiction, he shall seek his remedy  by making  an application  to the Court  which passed  the final judgment, decree or order and not  by a separate suit”. When did it insert in C.P.C.? It was inserted in the C.P.C. through the Ordinance X of 1980. Grounds of application Fraud, misrepresentation or want of jurisdiction...
Read more

EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY

-
Q)    Equity will not suffer a wrong without a remedy. Discuss ? Q)     Explain the maxim of the equity "ubi jus ibi remedium." ? Answer 1. INTRODUCTION :      Where there is a right, there is a remedy. This idea is expressed in the Latin maxim "ubi jus ibi remedium." While it has been stated that the maxim of the common law that wherever there is a right there is a remedy for its infraction has never been adopted by courts of equity, it has been frequently stated that equity will not suffer a wrong, or, as sometimes stated, a right, to be without a remedy. 2. MEANING OF THE MAXIM:     Equity will not suffer a wrong, to be without a remedy means no wrong should be allowed to remain unrepressed if it is capable of being remedied by the court of justice. 3. EXPLANATION:     In accordance with the maxim, where a statute creates a new right which cannot be adequately enforced at law, equity will contrive remedies and orders t...
Read more

PRESIDENT UNDER 1973 CONSTITUTION

-
Q. Write a comprehensive note on the Powers and Functions of the President under 1973 Constitution of Pakistan. Answer 1. INTRODUCTION:     Parliamentary system was introduced in 1973 Constitution. The Head of the State is called President. He runs the business of the state through the Prime Minister. No doubt, the Present as the symbol of the unity of federation occupies neutral position in the constitution but in order to protect and preserve the dignity of this high office, the President must keep aloof from all political imbroglios. 2. CONSTITUTIONAL POSITION OF PRESIDENT:     The President is only a constitutional head of state. The Constitution declares that the President shall act in accordance with the advice of the Prime Minister. 3. POWERS AND FUNCTIONS OF PRESIDENT: I. Legislative Powers: Summoning of Parliament: The President has the power to summon both Houses of Parliament in a joint sitting to meet at such time and place as he thinks fit. Ri...
Read more