P L D 1967 Lahore 52 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This petition under Article 98 of the Constitution of Pakistan is directed against the order of the Government of West Pakistan dated the 26th August 1962, cancelling the sale of one‑half square of Lambardari grant in Chak No. 662/G. B., Tehsil Toba Tek Singh, District Lyallpur, in favour of petitioner No.

1. It is prayed that the aforesaid order may be declared as without lawful authority and of no legal effect.

2. The facts giving rise to this Writ petition may be summarized as follows:‑ Sardar Habib Ullah Khan, petitioner No. 1 was appointed as a permanent Lambardar of Chak No. 662/G. B., Tehsil Toba Tek Singh, District Lyallpur on 24th September 1940 and obtained half a square of land as Lambardari grant vide memorandum No. 2121, dated the 22nd of June 1950. Although under the original terms and conditions relating to Lambardari grants grantees were not allowed to acquire proprietary rights and succession to these tenancies was governed by the rule of primogeniture, subsequently, the previous Punjab Government decided to give option of purchasing the proprietary rights to hereditary Lambardars in their Lambardari grants on payment of Rs. 150 per acre, vide memorandum No. 2191‑C, dated the 22nd of June 1950. In continuation of this policy the concession for the acquisition of proprietary rights in Lambardari grants was further made available by the Government to hereditary Lambardars; who were holding the, post on 15th March 1948 and also their successors vide its memorandum No. 2286‑C, dated the 22nd May 1951. The option was to be exercised within one year of the date of the issuance of this memorandum, i.e., before 22nd May 1952. Subsequently another memorandum No. 6714‑C, dated the 28th of December 1953, was issued which liberalized acquisition by hereditary Lambardars. It would be advantageous to reproduce the same: No. 6714 C, Lahore, dated the 28th December 1953. From S. A. Latif, Esquire, P. C. S., Under‑Secretary to Government, Punjab, Resettlement and Colonies Department. To The Commissioner, Multan Division. Subject: Future of Lambardari grants in canalcolonies. Reference: Punjab Government memorandum No. 906‑C, dated the 13th February 1953, on this subject: Memorandum. In supersession of the orders conveyed in the Punjab Government memorandum under reference, Government have decided that Lambardars who were holding the post on the 15th March 1948, having been appointed under rule 17(i) of the Land Revenue Rules and their heirs should, for the purpose of obtaining an option to purchase proprietary rights in Lambardari squares, be treated as hereditary Lambardars in case proprietary rights had by that date been acquired by the tenants in the majority of area of an estate or sub‑division thereof and the estate or sub‑division thereof had consequently ceased to be chiefly or altogether owned by Government. Further, Government would make clear that if tenants have acquired proprietary rights in the majority of area of a sub division of an estate the post of Lambardari of that sub division should be treated as hereditary irrespective of the facts whether the estate as a whole has ceased to be chiefly or Habib Ullah altogether owned by Government or not. (Sd.) Under‑Secretary to Government, Punjab, Resettlement and Colonies, A perusal of this memorandum makes it abundantly clear that a Lambardar appointed under rule 7(2)(i) of the Land Revenue Act and his heirs could be treated as hereditary Lambardars for the purposes of acquisition of proprietary rights, if by the relevant date, i.e., 21st of May 1952, i.e., within one year of 22‑5‑51, as provided in memorandum No. 2286‑C of even date, proprietary rights had been acquired by the tenants in majority of their area of an estate or sub‑division, which had thus ceased to be chiefly owned by the Government. In other words, if the Sub‑Division or path had lost its state complexion on account of the acquisition of proprietary rights by the tenants in the majority of the area in it on 2 2nd May 1952, the Lambardar could exercise the option to purchase proprietary rights in the Lambardari square. 2‑A. It was on 15th May 1952, that Sardar Habib Ullah Khan petitioner No. 1, submitted an application to Colonization Officer Haveli Project, Multan, through his Sarbarah Muhammad Murad seeking permission to deposit the purchase price of one half square of Lambardari grant along with its residential site. It is pertinent to observe in this context that the area of Toba Tek Singh Sub‑Division lying along the river Ravi known as Pir Mahal extension was at the outset in the jurisdiction of Haveli Project, Multan for purposes of colonization and continued to be so for several years and it was during the pendency of the case of Sardar Habib Ullah that it was detached from the Haveli Project and was attached to Toba Tek Singh Sub‑Division, of the Lyallpur Sub‑Division in whose territorial jurisdiction it actually fell. This, is why the case was dealt with by both these offices at different stages. The position as it finally emerged from the endorsements and noting of the Colonization Office was that proprietary rights could be acquired in the Lambardari square before 22nd May 1952, whereas the application was made by Sardar Habib Ullah on 15th May 1952, i.e., about a week prior to the expiry of the stipulated time. Accordingly a reference was made by the Extra Assistant Colonization Officer to the Commissioner vide his No. 385 of 21st March 1953, in terms of the following direction of the Colonization Officer: "Make a reference to Government that the Lambardar applied in time but failed to' deposit the amount within statutory period, i.e. 21st May 1952. He has shown valid reasons that he had gone to Europe. Since I am bound to carry out the Government's orders strictly, under the circumstances I could not permit him to deposit the amount. However, it is open to Government to allow him to deposit the amount as a special case, as he was absent from the Punjab." Accepting this recommendation the Government issued. This following memorandum No. 3000‑C, dated the 4th of May 1953 (Annexure `A' ) No. 3000‑C. Lahore, dated the 4th May 1953 From Alhaj Hafiz Sardar Ghulam Hassan Khan Leghari, P. C. S., Additional Secretary to Government, Punjab, Resettlement and Colonies Department. To The Commissioner, Multan Division. Subject: Proprietary rights in Lambardari grants acquisition of. Reference: Your memo. No. 1103‑10/5863, dated the 13th April 1953 on this subject. Memorandum: In the circumstances explained by the Extra Assistant Colonization Officer, Haveli Project, Multan, Government are pleased to accept your recommendations and have decided that Sardar Habib Ullah Khan, Lambardar of Chak No. 662/GB., Toba Tek Singh Tehsil; Lyallpur District, should be allowed to deposit the purchase price of his Lambardari grant. (Sd.) G. H. Leghari, Additional Secretary to Government, Punjab, Resettlement and Colonies Department." Consequently on 19th June 1953, the petitioner No. l made payment of Rs. 2,187‑6‑0, by means of a Cheque towards the price of his Lambardari grant, and being already. in possession he ipso facto considered himself to be a full‑fleged proprietor of

3. On 1st January 1962, petitioner No. 1, entered into an agreement of sale of his two and a half squares of land in Chak No. 662/G.B., including one‑half Lambardari square No. 27, with respondents 2 and 3 for a consideration of Rs. 1,50,000 and received an amount of Rs.20,000 as earnest money in this regard. This agreement is Annexure `B', on the file. Earlier, on 24th May 1957, Sardar Habib Ullah Khan, presented an application to the S. D. O. Toba Tek Singh, to whose jurisdiction Pir Mahal extension area had been transferred after its detatchment from Haveli Project, requesting for the delivery of the registered sale‑deed in respect of the one‑half Lambardari square No. 27, of which he had already deposited the price. This led to a fresh enquiry and the application was marked to the Divisional Clerk for report. The application is available on page 14 of the relevant file and by the reverse is an endorsement by the Deed‑Clerk dated 8th June 1957, to the effect that the sale‑deed was not available in the office, that the petitioner could be asked to furnish proof of the deposit of price and Court‑fee, and that a schedule of proprietary and non‑proprietary area in the patti right also be summoned, from the field staff. It transpired that out of the total area of 1,472 acres of the village, 516 fell in the sub‑division or patti of Sardar Habib Ullah Khan Lambardar. Of these, proprietary rights had been acquired by the tenants only in 112 acres as against 404 which were still owned by the Government and of which the tenants held only Habib 0114 occupancy rights. This Schedule is given at pages 17 and 51 of Khan the relevant file. It was then for the first time that the fact of Province of petitioner No. 1's not being a hereditary Lambardar in terms of West Pak. Government memorandum No. 6714‑C, dated the 28th of December 1953 was revealed which was an essential prerequisite for the exercise of the option to purchase proprietary rights in the Lambardari grant. It was thus realised that Sardar Habib Ullah Khan was not qualified for this purpose and the permission to deposit the price of one‑half Lambardari square had been granted under an erroneous impression. The mistake was sought to be rectified by the Deputy Commissioner Lyallpur, who vide his memorandum No. 1998‑C/CA, dated the 23rd October 1957, wrote to the Commissioner, Multan Division seeking his permission to review the order of Extra Assistant Colonization Officer, Haveli Project, Multan, dated the 30th May 1953, under section 15 of the Land Revenue Act. The Commissioner in turn recommended to the Board of Revenue vide his No. 1103/10/51, dated the 1st January 1958 that the orders contained in the Punjab Government No. 3000/C dated the 4th May 1953 allowing Sardar Habib Ullah Khan of Chak No. 662/G.B., Toba Tek Singh to deposit the purchase price of his Lambardari grant be cancelled. This obviated the necessity of reviewing the recommendation of the E. A. C. O. Haveli Project, which was also being contemplated. In the meantime, . Sardar Habib Ullah Khan, submitted several petitions to the Deputy Commissioner, Lyallpur, besides addressing some personal letters to him that the registered sale‑deed may be delivered to him. Finally, it was on 28th August 1962 that the Government vide its memorandum No. 10100/62/5904‑C VII, on reconsideration of the case cancelled the previous orders contained in its memorandum No. 3000‑C, whereby Sardar Habib Ullah had been allowed to deposit the price of lambardari grant and it was directed that the amount already paid by him in this regard shall be refunded to him. This is the impugned order against which the present writ petition is directed, and is reproduced below: "No. 10100‑62/5904‑CVII, Government of West Pakistan, Colonies Department. Lahore, dated the 28th August 1962. From Mr. M. A. Bajwa, C. S. P., Deputy Secretary to Government, West Pakistan, Colonies Department. To The Deputy Commissioner, Lyallpur. Subject: Acquisition of proprietary rights in the Lambardari grant held by Sardar Habib Ullah Khan Lambardar in Chak No. 662/G. B., Tehsil Toba Tek Singh, District Lyallpur. Reference: Correspondence resting with your office memorandum No. 1149‑G‑/CA, dated the 6th August 1962. Mr. M. W. Abbasi, C. S. P., Secretary to Government, West Pakistan, Colonies Department. The Governor of West Pakistan after re‑consideration of the case had decided to cancel the orders contained in former Punjab Government memorandum No. 3000‑C, dated the 4th May 1953. The amount by Sardar Habib Ullah Khan Afzal Lambardar of Chak No. 662/G.B., Tehsil Toba Tek Singh, Cheema, J District Lyallpur, towards payment of purchase price in the grant should be refunded to him. He will however, retain the land on existing terms and conditions till the Lambardari falls vacant. (Sd.) M. A. BAJWA Deputy Secretary to Government of West Pakistan, Colonies Department.

4. The learned counsel for the petitioner raised the following contentions before us: (i) That under section 15 of the Colonization of Government Lands Act of 1912, the moment a person has paid full amount of the purchase money of the land in his possession, he becomes full owner and since Sardar Habib Ullah Khan, petitioner, had deposited the full price, he had become the full owner of the land. Reliance was placed in this regard on 1940 P L R 529, P L D 1956 Lah. 609, P L D 1964 S C 842 and 28 I C 441. (ii) That the sale had been sanctioned by the Government itself and as such, the Government could not review its order and pass the impugned order, and the only remedy open to the Government in the circumstances of the case was to file a suit against the petitioner. Reliance was placed on 1956 F C 46 and P L D 1964 Lah. 274. (iii) Lastly, that the petitioner had a right to be treated in accordance with law under Article 2 of the Constitution and a suit by him being incompetent under section 36 of the Colonization of Government Lands Act, the only remedy available to him was under Article 98 of the Constitution. Reliance was placed on P L D 1965 Dacca 156.

5. As against this, it was contended by Mr. Altaf Sikandar, the learned counsel for the Province of West Pakistan that since petitioner No. 1 was strictly speaking, not a hereditary Lambardar having himself been appointed, and also because he did not qualify even under the liberalised definition of hereditary Lambardar as contained in Government memorandum No. 6714‑C, dated the 28th of December 1953, as such, he did not qualify himself for the acquisition of proprietary rights in the Lambardari grant and once the mistake had been realised by the Government, it could not be allowed to be perpetuated and the Government was perfectly within its rights to cancel an order passed under an erroneous impression, on the recommendation of the E. A. C. O., which in itself was based on an incorrect report, in which the true facts had been suppressed.

6. We now proceed to examine the merits of these contentions. The first contention raised by the learned counsel for the petitioners is devoid of force as would be clear from the language of section 15 itself, which reads as follows: "

15. Purchaser to be tenant pending payment in full of purchase‑money: A purchaser from Government of land who has been placed Cheema, J in possession of the land by order of the Collector shall be deemed to be tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of conditions of sale issued by the Collector have been fulfilled." A plain reading of the section clearly shows that before becoming a full owner, a tenant of Government land has to fulfil two conditions, firstly, the full amount of purchase money with interest due has to be paid and secondly, other conditions set forth in the statements of conditions for sale have to be fulfilled. In the instant case, the purchase money had undoubtedly been n paid in full, but one of the essential conditions of sale, namely, that the petitioner was not a hereditary Lambardar in the sense that in the majority of the area in his patti proprietary rights had not yet been acquired by the tenants on the relevant date, had not been fulfilled. That being the case, he would still remain a tenant of the land in terms of section 15.

7. The authorities cited by the learned counsel are of no avail to him and are quite distinguishable, having no bearing whatsoever on the instant case. Mst. Milap Kaur v. Hakim Singh (28 I C 441), primarily dealt with application of section 21 of the Colonization of Government Lands Act in a dispute between the reversioners of the original grantee and the widow of his son and grandson respectively over the succession to the tenancy. The second civil appeal was dismissed by their Lordships on two grounds, namely, that section 21 of the Act did not apply as the tenant had died before the Act came into force and secondly, that the widows, i.e., the defendants when they had paid in full the necessary sums to Government became ipso facto owners in their own right of the land in suit. It is thus clear that the point of the non‑fulfillment of conditions was not at issue in this case.

8. Government of the Punjab Province v. Malik Harbhaghwan and others (1940 P L R 519), which was the next authority cited by the learned counsel for the petitioner is equally of no avail to him, as would be clear from the opening sentence in the first head‑note reproduced below: "If a purchaser from the Crown pays the entire purchase price and fulfils the terms set forth in the statement of conditions he becomes a full proprietor of the land he cannot be deemed to be a tenant under the Punjab Colonization of Government Lands Act." This in fact is the substances of section 15 of the Colonization of government Lands Act, though expressed in different words. It is not the payment of the entire purchase amount per se that converts a tenant into x proprietor, but the payment coupled with the fulfillment of conditions of sale, one of which in the instant case was that the purchaser should be hereditary Lambardar which the petitioner did not happen to be. The second head note in this authority, in fact, goes against the petitioner inasmuch as it was held by their Lordships that: "A suit by a vendee from the Government for a declaration that the order of the Collector regarding resumption of property purchased is ultra vires and for perpetual injunction restraining him from interfering with the vendee's ownership and possession is not barred under, section 36, Punjab Colonization of0 Government Lands Act, 1912, or under the provisions of Crown Grants Act, 1895."

9. Coming now to the next authority, Ibrahim v. Mst. Rajji and others (P L D 1956 Lah. 609), it may be straight‑way observed that it does not advance the case of the petitioner either. In this case, the question before their Lordships was whether Mst. Rajji, defendant‑respondent, the widow of Karam Din, the original grantee had acquired proprietary rights in the land on 30th March 1943, when she deposited the proprietary dues or on 26th of September 1945, when the formal sale‑deed was executed in her favour. This point was necessary to determine as it affected the validity of the gift of the suit land by Mst. Rajji, in view of the enactment of section 30(a) by Act VI of 1944, which came into force on 12th June 1944. It was held by their Lordships that the acquisition of proprietary rights in the land by the tenant dates from the time of the deposit of the price and not from the subsequent date of the execution of the sale‑deed, and that the tenant became absolute owner from the date of the deposit. The learned counsel for the petitioners seems to have overlooked the significant points of difference between the instant case and the authority relied upon by him. Unlike the instant case, the fulfillment of the terms and conditions of sale was never challenged in the latter authority which is the pivitol point here. This would be clear from the following observation of Muhammad Yaqub Ali, J., who delivered the judgment: "The facts giving rise to this appeal are these: Mst. Rajji, defendant is the widow of Karam Din. She succeeded to the occupancy rights in the suit land and Thata on the death of her son Yusuf Ali: On the 30th of March 1943, she having complied with the terms and conditions of the tenancy prescribed under the Colonization of Government Lands (Punjab) Act, deposited a sum of Rs. 1,009 for the purchase of proprietary rights." It cannot be disputed that the terms and conditions of the acquisition of proprietary rights were never complied with by the petitioner in the instant case, as he did not qualify himself being a non‑hereditary Lambardar as stated earlier. The permission granted to him by the Government to deposit the purchase price was obviously based on a misunderstanding which crept in either inadvertently or was deliberately manoeuvred.

10. The next authority Ilam Din v. Muhammad Din (PLD 1964SC842), is almost identical to Ibrahim v. Mst. Rajji discussed immediately before this. Here too, the question to be determined was whether succession to the estate of the widow of a grantee of land in colony area who had deposited the purchase money for the acquisition of proprietary rights in the tenancy on 4th October 1943, but the sale‑deed m whose favour was executed on 2nd January 1947, was to be determined under section 30(9) of the Colonization of Government Lands Act, which had the effect of affording succession under Custom, or was to be governed by her personal law. The majority view though not subscribed to by Kaikaus, J., was expressed in the following terms: "The reply presented with a great deal of force is that ever since 1915, it had, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the pro perty matures in favour of the purchaser when, transfer having been authorised, the proper dues have been deposited. The point was considered in a judgment of a learned Single Judge of the Lahore High Court in the case of Devi Datta Ram v. Girdari Lal E. S. A. No. 2075 of 1943, decided on the 23rd January 1945, where reliance was placed upon Mst. Milap Kaur v. Hakim Singh 8 P R 1915 and certain judgments of the years 1933 and 1936. Learned counsel appearing for Muhammad Din who is the personal heir of Mst. Zainab Bibi (Ilam Din, the appellant, being the customary law heir of her husband) has been able to show that in latter years, 1938, 1958, 1959, 1960 and 1961 published decisions have been given which affirm the same principle. 'Two of these were delivered by the Board of Revenue, ~viz.. Rehmat Ullah and others v. Muhammad Ismail and others,P L D 1958 W P (Rev.) 77 and Muzaffar Husain v. Nur Ahmad P L D 1959 W P (Rev.)

17. It is argued that, however the case might lie as between the Government and the new proprietor, it is accepted on all hands, by the Revenue Department as well as by the Civil Courts, that proprietary title does pass when the payment has been made in full, sufficiently to be effective in relation to or as against third parties. Accordingly, I would hold without hesitation that the succession here in question does not fall to be determined under section 30‑A aforesaid." The contrary view taken by Kaikaus, J., was expressed as follows: "My conclusions on the first point: (i) There was nothing in the relevant rules saying that on deposit of money, proprietary title would stand transferred and there were on the other hand detailed provisions as to the execution of a sale‑deed and a direction forbidding changes in revenue records before a deed was executed. A number of conditions had to be attached to the transfer. The transfer was by the Government which too in practice acts by deeds and, therefore, apart from section 30(2) of the Government of India Act, 1919, title was intended to pass only when the deed was executed. (ii) Section 30 of the Government of India Act, 1919, was a complete bar to the passing of title except by a deed. It would override any other enactment to the contrary being a constitutional provision so that had there been any provision in rules empowering oral transfer they would e without effect in view of their inconsistency with section 30." It would be clear from this authority that no question of the non- fulfillment or non‑compliance with the terms and conditions of sale was ever raised in these cases and as such, they had no bearing on the instant case.

11. Coming now to the next contention that the sale had been sanctioned, by the Government itself and as such it attained finality and the order could not be rescinded, we have not been able to appreciate as to how the authority Shahbaz v. The Crown (P L D 1956 F C 46), is helpful to the petitioner. In fact, it appears to us that it weakens his case rather than advancing it. In this case, one Shahbaz Khan was sentenced to death under section 302 by the Sessions Judge. The High Court upholding the conviction commuted the sentence to transportation for life. On an application by the brother of the convict the Punjab Government under section 401, Cr. P. C., Unconditionally remitted his remaining sentence and directed that he should be released on the Independence day, i.e. on .14th August 1954. On 13th August 1954, this order of release was cancelled. An application for issuance of a writ in the nature of a habeas corpus was filed in the High Court and the learned Chief Justice held that section 21 of the General Clauses Act applied to the case and that an order passed by the Provincial Government under section 401, Cr. P. C, was subject to modification or re‑call provided it had not been acted upon. It was further observed that if the previous order had been carried into effect, there was no locus poenitentiae left and no occasion for exercise of the powers under section 21 of the General Clauses Act would arise. Shahbaz convict then filed an appeal by Special Leave from the judgment of the High Court. The appeal was dismissed and the High Court's view was upheld by their Lordships of the Supreme Court. It was observed by their Lordships as follows: "Apart from the question whether the provisions of section 21, General Clauses Act (X of 1897) applied or not to orders passed under section 401, Cr. P. C., Government must, in the nature of things, possess power to recall such orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute of regulation. Locus poenitentiae i.e., the power of receding till a decisive step is taken, is left with Government it the unconditional order has not been carried into effect. Till then, there is no reason to restrict the power to modify or cancel such an order. It would be abundantly clear from the above observation of their Lordships that apart from the reasons of the non‑fulfillment of the conditions of sale, the Government even otherwise on the principle of locus poenitentiae could withdraw its earlier order as the execution of the deed of sale in this case had not yet been completed.

12. The next authority relied upon by the learned counsel is Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (P L D 1964 Lah. 274), a Full Bench authority, in which the question for consideration before the five learned Judges, namely, Muhammad Yaqub Ali, now Judge of the Supreme Court, Inam Ullah Khan, the present Chief Justice, Waheed‑ud‑Din, Anwarul Haq and Muhammad Daud Khan, JJ., was the scope and true import of section 3 of Act XII of 1957 and whether this section had completely, taken away the jurisdiction of the Custodian to declare any person or property as evacuee who or which was not treated evacuee. immediately before the 1st of January 1957, or is it still open to him to declare the person or properties as evacuee without any limitation." In this case, the Custodian Evacuee Property on 8th of February 1960, exercised suo motu powers of revision and set aside the order of the Additional Custodian, which declared the property in dispute as non‑evacuee. The leading. judgment was delivered, by Waheed‑ud‑Din. Ahmad, J. and three learned Judges Muhammad Yaqoob Ali, Muhammad Daud Khan, and one of us (S. Anwarul Haq) agreed with the conclusion reached by him in paragraph 18 of that judgment. It is thus clear that the three learned Judges were rather cautious in not expressing their full agreement with the various conclusions arrived at by Waheed ud‑Din, J., or the observations made by his Lordship by way of obitor dicta in the judgment, in which it was observed that ordinarily it was open to the Custodian in exercise of revisional or review powers to treat an order obtained by fraud as a nullity, but he could not so recall an order procured by fraud, in cases covered by section 3(1) of Act XII of 1957. In the first instance, it would be wrong to treat the powers of the Government as being at par with those of the Custodian, which is a tribunal or special jurisdiction created by statute for a limited purpose, and as such, there could be no parity of reasoning on this basis. Secondly, as stated earlier this view cannot be understood to have been endorsed by the other learned Judges and thirdly; even this view was not expressed in absolute and unqualified terms as would be clear from the following observations made by our learned brother Waheed‑ud‑Din Ahmad, J.: "It is thus perfectly clear that so long as a judgment or order stands or is not set aside it is valid and becomes inoperative only after it is established that it was obtained by fraud. Fraud being a mixed question of law and fact can only be established in an elaborate enquiry. I have no doubt that in ordinary cases the Custodian can investigate this question in his revisional or review jurisdiction. But in those cases which are covered by section 3(1) of Act XII of 1957 the Custodian is not competent and has no jurisdiction to enter upon any such enquiry. In clause (2) of this section the Legislature has specifically saved certain class of cases from the purview of subsection (1) but the cases involving the question of fraud do not find any place in it. It is, therefore, not possible in such cases to treat an order which is obtained by fraud on a different footing from an order which is otherwise illegal or bad." We are thus clearly of the view that this authority is likewise of no avail to the petitioner and is not applicable to the facts of the present case.

13. Coming now to the next contention, Article 2 of the Constitution reads as follows: "2.‑(1) To enjoy the protection of the law and to be treated in accordance with law and only in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. (2) In particular (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." It cannot be denied that it is the fundamental right of every citizen of the State or every other person for the time being in Pakistan, to be treated according to law, and accordingly, no action detrimental or prejudicial to the property of the petitioner could be taken except in accordance with law. The question for consideration, therefore, is, whether, the re‑call by the Government of its previous order and the cancellation of the sale of land allowed in favour of the petitioner is, or is not according to law. From the discussion held earlier in the judgment we are of the view that the Government was perfectly within its rights to correct a position which had arisen on account of an error of omission or commission, which had somehow crept into the case. It is not disputed from the facts as they are found that Sardar Habib Ullah Khan was not qualified to acquire proprietary rights in his Lambardari grant as he was not as hereditary Lambardar at the relevant time for the reasons that in the majority of the area of his patti, the tenants had not acquired proprietary rights and as such it still retained its State complexion. We are in no manner of doubt that the powers exercised by the Government in the instant case were used in accordance with law, inasmuch as under section 15 of the Colonization of Government Lands Act, Sardar Habib Ullah Khan petitioner had not fulfilled the conditions of sale. Haji Ghulam Zamin and another v. A. B. Kkondkar and others (P L D 1965 Dacca 156), the Full Bench authority cited by the learned counsel for the petitioners, is irrelevant for the purposes of this case. In that case their Lordships struck down Inter Provincial Trade Ordinance (IV of 1964), on the ground that this piece of legislation by leaving everything to be done by the Central Government was an "undisguised annihilation of its Legislative powers by the Legislature and the delegation of these powers to the executive was unjustifiable being contrary to the known principles and standards of separation of powers.

14. While discussing the Government of the Punjab Province v. Malik Har Bhagwan and another, one of the authorities relied upon by the learned counsel for the petitioners, we pointed out that their Lordships had held that a declaratory suit was not barred by section 36 of the Colonization of Government Lands Act. A similar view has been expressed by a Division Bench of this Court in Jiwana v. Mst. Sahbi (P L D 1954 Lah. 253), Shabbir Ahmad, J., who delivered the judgment, observed as follows: "It is clear that the Civil Courts would ordinarily have jurisdiction to decide whether or not the act purporting to have been done in the exercise of powers conferred by Act V of 1912 could be validly done under the Act and on the language of section 36 of the Act it cannot be held that that jurisdiction had been taken away from the Civil Courts by that section. Nor does section 36 of Act V of 1912 divest the Civil Courts of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912 will have on the rights of the parties before it." Having indicated this, we would refrain from giving a definite finding on this issue as it is not necessary to do so for the purpose of the disposal of the instant case, inasmuch as the petitioner's case is not being dismissed on the technical ground of the availability of an efficacious alternate remedy but has been considered and disposed of on merits.

15. For the 'foregoing reasons, we see no merit in this petition which is hereby dismissed. The parties are, however, left to bear their own costs. A. H. Petition dismissed.