PLJ 2022 Cr.C. 692
Contempt Jurisdiction--
----Contempt jurisdiction is meant only for criminal proceedings against respondents, if Court is convinced that contempt of Court is so committed and no direction or amendment in any order can be made in this situation. [P. 697] B
PLD 2014 Lahore 660.
Constitution of Pakistan, 1973--
----Art. 204--Contempt petition--Contempt of Courts Ordinance, 2003--Compliance of order--Land dispute between both parties--Contempt jurisdiction--Petitioner was confronted, during contempt proceedings, how a Settlement Deed arrived at between parties could be executed in contempt petition, however, on request and with consent of parties, matter was adjourned through orders noted above providing opportunities for arriving at an amicable settlement--In High Court's opinion, order in W.P. cannot be taken as a decree, which could be executed by High Court in a contempt petition or otherwise--Even if petitioner's contention that Settlement Deed becomes part of this Court's order is considered, same cannot be enforced, for reason that terms of Settlement Deed were changed materially when petitioner accepted land in in lieu of original land and then raised objection that it was deficient by 17-marlas, which was in possession of third party--Upon going through above cited law and judgments on subject, it become crystal clear that while exercising jurisdiction under Article 204 of Constitution or under provisions of Contempt of Courts Ordinance 2003, Court can only "PUNISH" contemnor and no more--Even if, for a while, this is presumed that Court could look into vires of an order passed in pursuance of its direction--It can only do same with perspective of punishing contemnor--Petition dismissed. [Pp. 696 & 697] A & C
PLD 2014 Lahore 660.
Mr. Salman Ijaz, Advocate for Petitioner.
M/s. Tariq Masood and Hassan Tariq, Advocates for Respondent.
Date of hearing: 24.11.2021.
PLJ 2022 Cr.C. 692
[Lahore High Court, Lahore]
WING COMMANDER (R) GUL ABAS--Petitioner
versus
COL. (R) IHTISHAM ANWAR--Respondent
Crl. Org. No. 2107-W of 2013, heard on 24.11.2021. PLJ 2022 Cr.C. 692
[Lahore High Court, Lahore]
WING COMMANDER (R) GUL ABAS--Petitioner
versus
COL. (R) IHTISHAM ANWAR--Respondent
Crl. Org. No. 2107-W of 2013, heard on 24.11.2021.
Judgment
This petition is pending since 2013 seeking criminal proceedings against respondents for non-compliance of order dated 20.11.2009 in W.P. No. 11786 of 2003, operative part of which is reproduced:
"4. Considering the contents of the application (C.M.No. 1/2009) alongwith which, the above affidavit has been filed, I revisit the order dated 01.04.2009 and instead of the Administrator, the affidavit of the Secretary is accepted. As far as the other objection is concerned that the contempt petitions should be withdrawn after the terms of Settlement are fulfilled, suffice it to say that on the basis of clause-9 of the Settlement Deed, it is very much clear that the petitions shall be withdrawn from the date when the deed becomes operative. Obviously, today is the occasion for the withdrawal as per the petitioner's own promise; therefore, the writ petition and all the petitions in terms of clause-9 of the Settlement Deed are dismissed as having been withdrawn. However, it is made clear that if there is any breach of the terms and conditions of the Settlement Deed or the undertaking given to the Court in the nature of the affidavit, the petitioner may approach this Court afresh in the appropriate proceedings."
[emphasis supplied]
2. Brief facts of the case are that writ petition was filed by the petitioner against respondent-DHA regarding some dispute relating to the land in question and an interim order was passed restraining the DHA from taking possession of the land. This restraining order was followed by four contempt petitions. The writ petition along with contempt petitions were withdrawn in terms of Settlement Deed dated 20.11.2006 arrived at between the parties. However, while passing the order, it was observed that in case of breach of terms and conditions of Settlement Deed or undertaking given to the Court, the petitioner may approach this Court afresh in the appropriate proceedings. Through the titled contempt petition, this Court was approached for alleged non-compliance of the terms and conditions of Settlement Deed and for execution of the Settlement Deed. A development was recorded in order dated 08.09.2017, which is reproduced:
"After arguing the case at some length, it has transpired, from arguments of learned counsel for petitioner, that possession of Khasra No. 142 was offered to the petitioner. Though this Khasra number was not mentioned in the settlement deed dated 20.12.2009 (executed during proceeding before this Court) yet petitioner accepted this offer to resolve the matter. He has also apprised that exchange deed to finalize the settlement has not yet been executed. Petitioner's grievance, now, is that settlement, which attained force of this Court's order, has not been executed in letter and spirit. Firstly; because possession from Khasra No. 141, as settled, was not delivered and in its lieu possession of some land from Khasra No. 142 was offered. The second grievance is that land given from Khasra No. 142 is deficient by 17 Marlas.
2. Learned counsel for respondent has referred to letter of petitioner (at page 34), to submit that possession of land, to be given under the settlement, was admitted by the petitioner. It is also contended that possession of 17 Marlas in question was taken over by neighbour of the petitioner and petitioner is using respondent's shoulder to recover the same.
3. It is admitted position that settlement has not yet been, finalized. This Court, in order dated 20.11.2009, had already noted that fresh petition could be filed if the settlement would not be finalized in letter and spirit.
The question to be determined under this petition, is whether possession of land from Khasra No. 142 was given to the petitioner.
4. Both the parties are directed to submit revenue record and other documents regarding handing over of the land in question.
To resolve the question, learned AAG, on Court's call, is directed to ensure presence of revenue official alongwith record regarding the land in question on next date of hearing."
[emphasis supplied]
Same was followed by another order dated 07.10.2019, which is also reproduced:
"As per report of Tehsildar one Muhammad Munir alongwith DHA is in possession of Khasra No. 142. Learned counsel for the respondent/DHA has consistently asserted that possession of the Khasra has been transferred. Confronted with this assertion, he explained that settlement has not been implemented in letter and spirit as the petitioner has not transferred the land, under settlement agreement, to DHA, therefore, ownership of this Khasra was not transferred to the petitioner.
At this state, learned counsel for the petitioner is confronted to show how this dispute can be resolved in criminal/contempt proceedings, which are meant to punish the contemnor for defiance of Court's order. He requests for some time to assist the Court.17.10.2019."
[emphasis supplied]
Last order in this regard was passed on 07.10.2021 providing an opportunity both the parties to resolve the dispute amicably. The order, ibid, is also reproduced:
"The case has been again argued in light of the orders dated 08.09.2017 and 17.10.2019, whereafter the revenue record was requisitioned from the concerned Tehsildar to know about the exact position of Khasra No. 142.
2. Learned counsel for the respondent is confronted why respondent should not appear along with record of this case to compare the same with the revenue record for arriving at the exact position of Khasra No. 142 and to see how settlement deed dated 20.11.2006, which has attained status of order of this Court, be complied with. He submits that petitioner is not showing any leniency and preferred to file successive contempt petitions.
Learned counsel for the petitioner has undertaken that petitioner shall cooperate for resolution of the matters.
3. With consent of both the counsel, this matter is referred for amicable settlement to Col. Shahid, Director (Land), DHA, who shall look into the order dated 20.11.2009 in W.P.No. 11786 of 2003 and orders dated 08.09.2017 and 17.10.2019 in this contempt petition and decide the matter on the basis of report of Tehsiidar and their own record, if petitioner does not agree to settle the issue amicably."
[emphasis supplied]
3. Both learned counsel submit that the issue could not be resolved amicably, however, on direction by this Court, Additional Director Land, DHA has passed a speaking order highlighting the reasons for failure of the settlement. The order is reproduced:
"ORDER
1. The queries/demands of the Petitioner were heard and discussed in detail after which it was communicated to the petitioner that possession of land measuring 17 Marla was handed over to the petitioner which was also earlier admitted by him that the possession of complete 28 Kanals land against swap over of his 24 Kanals land was handed over to him by DHA, which rests with him so there lies no justification of claiming land 17 Marla already given to him. (Copy of the land is enclosed herewith).
2. The petitioner has been communicated that the execution of exchange deed could not be finalized due to the reason that since the ownership of both the old Khewats i.e Khewat No. 1 (Ownership of DHA) and Khewat No. 3 (Ownership of petitioner) were merged into one Khewat i.e Khewat No. 1 by Revenue Authorities in the year 2011/2012 hence exchange deed is not possible, thereafter.
3. It was also intimated to petitioner that as per agreement DHA had to make 40 Ft road on western side of his School, however DHA accommodated him and made 70 Ft (35 Ft + 35 Ft) double road alongwith roundabout connecting his School with Barki road, which is being fully utilized without any hindrance. DHA has made this road infrastructures over 150 Marlas of DHA land which is greatly beneficial for the School owned by the petitioner.
In view of the above, requests of the petitioner do not merit consideration, hence, disposed of accordingly."
4. Arguments heard. Record perused.
Settlement Deed were changed materially when petitioner accepted land in Khasra No. 142 in lieu of original land and then raised objection that it was deficient by 17-marlas, which was in possession of third party.
This contempt petition is dismissed with the observation that petitioner may approach the appropriate Court of plenary jurisdiction for execution of Settlement Deed or subsequent events agreed between the parties.
(A.A.K.) Petition dismissed
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