P L D 1984 Karachi 413 (PLP)

AJMAL MIAN, J.- -Since these two petitions involve common questions of facts, we intend to dispose of the same by this common judgment.

2. The brief facts leading to the filing of the above petitions are that Group Captain (Retired) A. M. Murad, hereinafter referred to as Mr. Murad, was allotted agricultural land, measuring 496-27. acres in the mechanized farming scheme in Ghulam Muhammad Barrage area, hereinafter referred to as the land. It is the case of Muhammad Yousuf Qamar Siddiqui (hereinafter referred to as Mr. Yousuf) that in 1980 he agreed to purchase the land from Mr. Murad at the rate of Rs. 1,000 per acre. Out of the above sale consideration, be allegedly paid Rs. 2,00,000 on 3-5-1980 and further a sum of Rs 1,(,0,000 to Pir Mehfooz. According to Mr. Yousuf he was also to pay the remaining outstanding instalments in respect of the land to the Government. It has also been averred by him that in pursuance of the above sale consideration Mr. Murad executed a general power-of-attorney in his favour on 3-5-1980 and gave possession of the land, inter alia autho rising him to sell the land. It has further been averred by Mr. Yousuf that under the sale agreement dated 1-6-1980. he agreed to sell the land to Muhammad Azmatullah (hereinafter referred to as Mr. Azmatullah) at the rate of Rs. 1,500 per acre plus the payment of outstanding Government dues. It has been further averred that Mr. Azmatullah in consideration of the above sale agreement paid a sum of Rs. 3 lacs on the date of the execution of the above sale agreement and the balance consideration amounting to Rs. 4,50,000 was to be paid within one year and 7 months from the date of the agreement i. e. on or before 31-12-1981. It has also been averred that Mr. Murad executed a second general power-of-attorney dated 17-12-1981 in favour of Mr. Yousuf containing amore exhaustive power. It has further been averred that Messrs Yousuf and Azmatullah have spent a considerable amount on the development of the above land. It is further the case of Messrs Yousuf and Azmatullah that since Mr. Murad on 7-5-1982 had published a notice in a daily newspaper advertising the land for sale and thereafter purported to cancel the general - power-of-attorney on 8-5-1982, Mr. Azmatullah filed a suit No. 235/82 on 2-6-1982 in this Court for specific performance of the above sale agreement against Mr. Murad and Mr. Yousuf. Alongwith the plaint an application under Order XXXIX, rules 1 and 2, C. P. C. was filed. Upon the above application an ex parte status quo order was passed on 2-6-1982, which was confirmed on 31-8-1982. against the above confirmation of the status quo order Mr. Murad filed a High Court Appeal No. 88/82, to which Mr. Azmatullah filed cross-ob jections. The above appeal was disposed of by an order, dated 3-3-1983, where by the order of status quo was modified 'inter, alia providing that Mr. Murad could file legal proceedings for ejecting Messrs Yousuf and Azmatullah from the land. After that Mr. Murad filed an application under section 32 read with section 19 of the Colonization of Government Lands ' (Punjab) Act, 1912 (hereinafter referred to as the Act) on 4-4-1983 before the Revenue Officer, Kotri Barrage, Hyderabad thereinafter referred to as the Revenue Officer) against Messrs Yousuf and Azmatullah for ejectment. The notice of the above application was issued for 23-4-1983 and according to Messrs Yousuf and Azmatullah, the obove notice was not served on them. Whereas according to Mr. Murad the same was served on both of them. The Revenue Officer on 23-4-1983. after hearing the counsel of Mr. Murad in the absence of Messrs Yousuf and Azmatullah passed the im pugned order ordering their ejectment from the land and directing the Barrage Mukhtiarkar concerned to deliver the possession of the land to Mr. Murad or his attorney Mst. Yasmin Choudhary. Though in Const. Pet. No. D-553/82, which has been filed by Messrs Yousuf and Azmatullah against the above impugned order, it has not been stated that in pursuance of the above impugned order the possession of the land was given to Mst. Yasmin Choudhary but Mr. Ali Ahmed Fazeel, the learned counsel for Messrs Yousuf and Azmatullah, while stating the facts of the petition has stated that the possession of the land was given to Mst. Yasmin Choudhary. This statement of Mr. Ali Ahmed Fazeel seems to be in consonance with the Court diary, dated 1-6-1983 of Const. Pet. No. D 353/83, in which while arguing the stay application a request was made by the then Advocate of Messrs Yousuf and Azmatullah Mr. Inamul Haq that Mr. Murad be evicted and the possession be restored. It seems that Mr. Murad filed a suit bearing No. 200/83 on 28-4-1983, against Messrs Yousuf and Azmatullah for accounts, mesne profit and permanent injunctions. Alongwith the suit he also filed an application under Order XXXIX, rules .1 and 2, C.P.C. and obtained status quo order on 28-4-1983. It further seems that Messrs Yousuf and Azmatullah on 30-4-1983 filed a review application against the above order, dated 23-4-1983 before the Reve nue Officer. The above review application came up for hearing on e-5-1983 when Messrs Yousuf and Azmatullah filed an application for withdrawal of the review on the ground that the same was misconceived. However, the Revenue Officer in spite of the above withdrawal application passed an order on 8-5-1963 suspending the above order, dated 23-4-1983, passed by him. Mr. Murad being aggrieved by the above suspension order has filed the second petition, namely, Const. Pet. No. D-402/83 impugning the above order.

3. Before. taking up the contentions of the learned counsel for the par ties, it may be observed that the case of Mr. Mucad is that he had never agreed to sell the land to Mr. Yousuf and that the latter was not authorised to enter into any sale agreement with Mr. Azmatullah. It is also the case of Murad that since the land of Mr. Yousuf was situated adjacent to this land and as he was going to Canada, he executed the first power-of-attorney in favour of Mr. Yousuf for looking after the land. His further case is that the second power-of-attorney was executed after his return from Canada for the reason that he was to live in Lahore.

4. We intend to take up first the contentions in support of Const. Pet. D-353/83. Mr. Ali Ahmed Fazeel in support of the above petition has contended as follows (i) that the impugned order dated 23-4-1983 was passed without service of proper notices on Messrs Yousuf and Azmatullah ; (ii) that section 32 read with section 19 of the Act could not have been pressed into service for enforcing the private rights or for resolving the private dispute. On the other hand, Mr. S. Ishtiaq Ali, alongwith Messrs Abbas Zia and Shabbir Advocates has urged as under :- (i) that due notice was served before the passing of the impugned order, dated 23-4-1983. (ii) in the alternative factually no notice was required to be served by the Revenue Officer before the passing of the impugned order. (iii) that the impugned order could have been passed on the basis of Mr. Murad's application under section 32 read with section 19 of the Act.

5. Mr. Ali Ahmed Fazeel in support of his first contention has invited our attention to section 7 of the Act, which inter alia provides that subject to the provisions of the Act, the West Pakistan Land Revenue Act, 1967, Chapter VII of the Punjab Tenancy Act, 1887 or corresponding provision of any other law relating to tenancy for the time being in the area where pro ceedings under the Act are to be taken and the rules thereunder, shall apply to all proceedings under the Act. On the basis of the above provisions of section 7 of the Act, Mr. Ali Ahmed Fazeel has referred to section 24 of the West Pakistan Land Revenue Act, 1967, which reads as follows Sec. 24.--(1) A summons issued by a Revenue Officer shall, if practicable, be served (a) personally on the person to whom it is addressed or, failing him, (b) on his suthorised agent or (c) on adult male member of his family usually residing with him. (2) If service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside to the District in which the. Revenue Officer is employed and the case to which the summons relates has reference; to .land in that District, the summons may be served by :-- (a) sending it by post to the Collector of the District in which that person has his usual residence who shall cause it to be served in accordance with the provisions contained in subsection (1) ; and (b) affixing a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer so directs be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf, and proclamation of the contents thereof for the information of the other persons interested. (4) A summons may, if the Revenue Officer so directs; be served on the person named therein, either in addition to, or in substitution for, any otner mode of service by forwarding the summons by registered post to the person concerned. (5) Where summons is forwarded as aforesaid, the Revenue Officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course or post. It may be noticed that abovequoted subsection (1) of section 24 provides the normal mode of service of summons by serving the same personally on the person to whom it is addressed or failing him on his authorised agent or on the adult male member of his family usually residing with him. It may further be noticed that subsection (2) of section 24 lays down that if service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing the copy thereof at the usual or last known place of residence of the person to whom it is addressed or if that person does not reside in the District in which the Revenue Officer is employed and the case to which summons relates has reference to land in that District, the summons may be served by sending it by post to the Collector of the District in which that person has his, usual residence and thereafter the summons is to be served in terms of subsection (1) of section 24 and affixing a copy of the summons on some conspicuous place in or near the estate wherein the land is situated. It may also be pointed out that sub section (3) deals with the service of the summons in respect of a case in which numerous persons have same interest and it is not reasonably prac ticable to serve all of the persons. The above subsection (3) empowers the Revenue Officer to direct the service of the summons by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the persons interested. It may further be noticed that subsection (4) em powers the Revenue Officer either in substitution or in addition to order the service of the summons by forwarding the same by registered post to the person concerned. Whereas subsection (5) provides that when the summons is forwarded in the manner provided hereinbefore, the Revenue Officer may presume that the summons was served at the time when the ,letter would be delivered in the ordinary course of post.

6. In the instant case, the Revenue Officer sent the notices of the appli cation for personal service through the Barrage Mukhtiarkar as well as under the registered A/D. The notice addressed to Mr. Azmatullah was received by his son Asadullah, whereas the notice addressed to Mr. Yousuf was allegedly received by his wife but she 'declined to sign the copy of the notice. As regards the notices sent under registered A/D post, the notice addressed to Mr. Azmatullah was received on 25-4-1983 i. e. after the date of hearing, whereas the notice addressed to Mr. Y Yousuf was refused. Mr. Ali Ahmed Fazeel has vehemently urged that since the Revenue Officer has not held that Asadullah was residing with his father Mr. Azmatullah, the service on him was not valid and that the alleged delivery of the notice to the wife of Mr. Yousuf also does not constitutes valid service. In furtherance of the above contention he has referred to the following cases :- (i) Gul Muhammad v. Moolchand and others A I R 1933 Lah. 797, in which a learned Single Judge of the Lahore - High Court while construing Order V, rule 15, C. P. C. and Order XLI, rule 21, C. P. C. held that where service of summons to father was effected on his son in the father's absence, but as the son was not residing with the father, the . service was not good. The reliance was placed on the cases reported in A I R 1932 Pat. 150 and (1917) 43 Cal. 447. (ii) Bhomshetti Jinappasheti v. Uma Bai 1897 21 I L R Bom. 223, in which a Division Bench of the Bombay High Court while referring to sections 8 and 82 of C. P. C. (Act XIV of 1882) held that in the matter off service of a summons, the C. P. C. does not take into account the female members of a. defendant's family and does not rely upon the presumption that they will take step informing the defendant of what takes place in his absence.

7. The above Lahore case has no application to the present case as even Mr. Azmatullah has not stated in his petition or in any of the affidavits that his son Asadullah was not residing with him at the time of the service of the above notice. However, it was urged by Mr. Ali Ahmed Fazeel that it was for Murad or for the Revenue Officer to have averred that Asadullah was residing with his father Mr. Azmatullah and that in the absence of any such averment the service cannot be held to be good by serving the notice on Asadullah on behalf of Azmatullah. We are inclined to hold that if a notice or summons is addressed at the residential address to a defendan or opponent and the above notice is accepted by a son of the addressee at the above given address, it will be presumed that he is a male member usually residing with the addressee. It is not uncommon in our society that even married sons continue to live with their parents. We are also of the view that it was for Mr. Azmatullah to have averred that his son Asadullah was not usually residing with him if he wanted to overcome subsection (1) of section 24 of the West Pakistan Land Revenue Act, 1967. We are, there fore, inclined to hold that there was valid service of notice on Mr. Azmatullah as the notice was received by his son Asadullah at his residential address. However, the case of Mr. Yousuf is on different footing for more than one reason, firstly, admittedly copy of the notice was not signed by: his wife as per report on the copy of the notice and, secondly, that sub section (1) of section 24 of the West Pakistan Land Revenue Act, 1967 contemplates service of a notice on adult male member of the addressee) and not on adult female member. In this view of the matter, there was` no valid service of summons on Mr. Yousuf. We are unable to agree with) the contention of Mr. Ishtiaq Ali that since Messrs Yousuf and Azmatullah had same interest, the service of notice on one was good service for the purpose of both. His reliance on subsection (3) of section 24 of the West Pakistan Land - Revenue Act, 1967, is not warranted as the above pro vision is not applicable to the instant case. It may again be observed that in order to press into service subsection (3) of section 24, it is incumbent that the Revenue Officer should apply his mind to the fact of the case and should come to the conclusion that it is not reasonably practicable to serve the summon on the numerous persons having same interest. Apart from the fact that there is no order of the Revenue Officer in the present case that it was not reasonably practicable to serve both Messrs Yousuf and Azmatullah, it is also doubtful, whether the word "numerous' would cover' a case in which there are only two defendants or opponents. Mr. S. Isbtiaq Ali hag referred to the case of Nazar Muhammad and others v. Settlement Commissioner and others (1978 S C M R 311) in which the Hon'ble Supreme Court while declining leave to appeal observed that the maxim, audi alteram partem (no one should be condemned unheard) is not applicable to a case where party after having been served by substituted service does not turn up to contest the case. The above case has no application to the instant case as there was no substituted service in the present case.

8. It was then contended by Mr. S. Ishtiaq Ali that principle of natural justice cannot be pressed into service as Messrs Yousuf and Azmatullah have failed to show that any prejudice has been caused to them as admittedly they were trespasser on the land. In furtherance of his above submission he has referred to the following cases :- (1) Sind Employees' Social Security Institution and another v. Dawoud Cotton Mills Limited P L D 1977 S C 177, in which the Hon'ble Supreme Court of Pakistan repelled the contention that before creating a demand for social security contributions under the West Pakistan Social Security Ordinance, 1965, the affected party was entitled to a notice. (ff) Collector Sahiwal and 2 others v. Muhammad Akhtar 1971 S C M R 681, in which it was held that failure to give show-cause notice prior to dismissal of a Goverment servant in terms of Article 177 (1) (b) of the late Constitution of Pakistan, 1962, was fatal to the dismissal order and that initial defect would remain incurable even if oppor tunity of hearing is afforded at the subsequent hearing. (iii) Mst. Sattan and others v. Group Captain Mansoor Hussaian, Officer Commanding P A F Station, Sargodha P L D 1962 (W. P.) Lah. 151, in which a Division Bench of the Lahore High Court has held that the principles of natural justice cannot be pressed intq service if the law under which order passed did not contemplate any such notice. It was held that section 237 of the Cantonment Act, 1924, as worded does not contemplate that the enquiry mentioned therein must necessarily consist of an opportunity to the person against whom the order was to be passed to show cause against the order proposed to be made.

9. The above Supreme Court case of 1977 has no application to the present case, whereas the second Supreme Court case referred to herein above in fact is against the proposition canvassed at the Bar by Mr. S. Ishtiaq Ali. The Lahore case has also no application as we have held that under section 24 of the West Pakistan Land Revenue Act, 1967, the service of the notice could be made in one of the modes provided therein. It cannot be urged that the impugned order has not caused any prejudice to Messrs Yousuf and Azmatullah as they have been ejected from the land in respect of which they were claiming certain rights.

10. Adverting to the alternate submission of Mr. S. Ishtiaq Ali that factually no notice was required, it may be observed that he has invited our attention to the difference in the language between sections 24 and 32 of the Act, namely, under section 24 the Collector cannot pass an order against a tenant without providing him an opportunity to appear and state his objections to the proposed action either of imposing penalty or resumption of the land in respect of which breach is committed. Whereas section 32 provides that the Collector may in addition to any other power he may possess, forthwith re-enter upon the land. It was vehemently contended by Mr. S. Ishtiaq Ali that the use of the word "forthwith" negates the requirement of any service of notice.. . In support of the above contention he has referred the case of Kashab Nilknndh Joglakar v. The Commissioner of Police, Greater Bombay and others, in which the Supreme Court of India while considering the words "forthwith" and "as soon as may be" used in sections 3(3) and 7 of the Preventive Detention Act, 1950, pointed out the difference between the above two different terminologies and observed that an Act which is to be done forthwith must be had to have been so done, when it is done with all reasonable despatch and without avoidable delay. Whereas the phrase "as soon as may be" by its very nature is indefinite depending on the facts and circumstances of the case. We are inclined to hold for the reasons referred to hereinbelow that in the instant case the Revenue Officer could not have pressed into service section 32 or section 1 19 for the benefit of a private party for resolving a private dispute between the two private parties. In this view of the matter, the alternate submission of Mr. S. Ishtiaq Ali is of no consequence. However, it will suffice to observe that the factum that section 24 of the Act expressly contemplates providing of an opportunity to the affected tentant before taking any adverse action against him and the passing of any such order and the absence of any requirement of providing opportunity under section 32 of the Act and the use of the word "forthwith" supports the contention of Mr. S. Ishtiaq Ali, but it is not necessary to record any definite finding on the above cotention.

11. Reverting to the main controversy, whether section 32 read with section 19 of the Act can be pressed into service for the benefit of a private party for resolving the private dispute, it may be advantagous to reproduce sections 19 and 32 of the Act, which read as follows :- "Section

19. Transfer of rights to be void.-Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other pri vate contract, other than a sub-lease for not more than one year in the case of a tenant, who has not acquired a right of occupancy and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer of charge made without such con sent in writing shall be void, and if after the commencement of this Act the transferee has possession, he shall be ejected under the orders of the Collector: Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated. Section

32. Power of re-entry in case of squatters and trespassers. When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may in addition to any other power he may possess, forth with re-enter upon the land and resume possession of it and take possession of all crops trees and buildings thereon on behalf of Government without payment of any compensation whatsoever." It may be noticed that above section 19 prohibits the tenant from transferring or creating any charge by any sale, exchange, gift, will, mortgage or other private contract other than sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy and seven l years in the case of a tenant who has acquired the right of occupancy. It further provides that any transfer or charge made without such consent shall be void and the transferee having possession shall be ejected under the order of the Collector. It may further be noticed that the above quoted section 32 empowers the Collector, when he is satisfied that any) person has taken or is in possession of land in a colony to which he has no right or title, he (the Collector) may in addition to any other power forthwith re-enter upon the land and resume possession of it and also take possession of all crops, trees and buildings thereon on behalf of the Government without payment of any compensation whatsoever.

12. It has been vehemently argued by Mr. Ali Ahmed Fazeel that neither section 19 nor section 32 of the Act could have been pressed into service in order to cause the eviction of Messrs Yousuf and Azmatullah. On the other hand, it was vehemently contended by Mr. S. Ishtiaq Ali that since the alleged transaction was in violation of section 19 of the Act, the status of Mr. Yousuf or Mr. Azmatullah in relation to the land was of that trespasser therefore, they could have been ejected under section 32 read with section 19 of the Act. Mr. S. Ishtiaq Ali has referrred to a number of cases in order to demonstrate that any transaction in violation of sec tion 19 is void and cannot be enforced. He has also referred to some cases to point out distinction between a power-of-attorney coupled with interest and a power-of-attorney not coupled with interest. Since the par ties are litigating by way of suit. in this Court, in our view it will not be proper on our part to deal with the merits of the above con tentions as we do not wish to pre-empt the decisions in the pending two suits referred to hereinabove. It will suffice to observe that even Mr. Murad in his letter, dated 8-5-1980 addressed to Mr. Yousuf had admitted the factum that the latter had spent a lot of money on the land and paid a sum of Rs. 1,00,000 to Mr. Pir Mehfooz on his behalf, the relevant por tion of the above letter reads as follows :- "I am sorry I am leaving without saying good bye to you. You spent a lot of money including the one lakh for Pir Mehooz. Please keep an account and keep in touch with me." In our view, the only question which requires determination in this petition is as to whether section 32 read with section 19 of the Act could have been pressed into service at the behest of a private party for resolving the private dispute which was sub judice before this Court in the form of suit No. 235/82 which was filed by Mr. Azmatullah on 2-6-1982 against Mr. Murad and Mr. Yousuf as observed hereinabove. Mr. Ali Ahmed Fazeel has referred to the following cases :-- (i) Ali Muhammad y. Hakim and other A I R 1928 Lah. 121, in which a Full Bench of the Lahore High Court held that section 32 of the Act is obviously intended to protect the right of Government and embraces the cases of trespasser or squatters against the Government and that the Collector cannot intervene under the above section in a dispute between private persons. It may be advantageous to reproduce hereinbelow the relevant observation from the above judgment of the Full Bench, which reads as follows :- "The only argument which has been seriously advanced before us, and which requires consideration, is that founded upon section 32 of the Act that section runs as follows :- When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector, may, in addition to any other powers he may possess, forth with re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of the Government without payment of any compensation whatsoever. It will be observed that the Collector is empowered by the Legislature to re-enter upon the land and resume possession of it on behalf of Government. The words "re-enter" and "on behalf of Government" make it clear that the section applies only to those cases in which Government is entitled to the possession of the land, but a trespasser has- interested with that possession. ' The matter being simple, R is not necessary for Government to bring against the trespasser an action of ejectment which is neither cheap nor an expeditious remedy. The Legislature has accordingly provided a summary remedy for recover ing the land, and the Collector, acting as the agent of Government is authorised to remove the trespasser from the land and obtain possession of it on behalf of Government. The section is obviously intended to protect the rights of Government and embrace the cases of trespassers of squatters against Government. The Court must, no doubt, give effect to the language of the statute, which either by express words or by plain and necessary implication, takes away the jurisdiction of the or jinary Court. But it is a well established doctrine that a statute interfering with the established state of law must receive a strict construction, and that when its language is doubtful, the Courts should lean against an ouster of jurisdiction of the ordinary tribunals. Neither the language of the section, which to my mind is not open to any ambiguity or doubt nor any principle of law can warrant the contention that the Collec tor should intervene in a dispute between private persons and that the civil Courts should be debarred from adjudicating upon it. My answer to the question submitted to the Full Bench is, there fore, in the affirmative." iii) Atta Muhammad and others v. Mst. Khurshed Begum P L D 1964 (W. P.) Lab. 224, in which a Division Bench of the Lahore Higti Court reiterated the above earlier view of the Full Bench and observed as follows :- "The language employed in this section clearly shows that the power vested in the Collector is to safeguard the interest of the State and to save State land from illegal occupation by squatters and trespassers. The section is not intended to be operated for the benefit of one pri vate party contending against anther. In other words, any dispute regarding title between two private parties cannot be adjudicated upon under section 32 referred to above. That question is one which can only be dealt with by a civil Court. As authority for this view, one may refer to Ali Muhammad v. Hakim A I R 1928 Lab. 121, and Jiwana v. Mst. Sahbi P L D 1954 Lah. 253."

13. On the other hand, Mr. S. Ishtiaq Ali has placed reliance on the following cases :- (i) Muhammad Sharif v. Government of Punjab etc. 1981 C L C 1204, in which a learned Single Judge while hearing a civil revision inter alia referred to P L D 1982 Lab. 457, and held that the. Collector could press into service section 32 of the Act against the person in possession claiming through the allotee for ejecting him or for causing delivery of the land in dispute to the new lessee, the above Lahore case is distinguishable as the possession was to be given to the new lessee. (ii) Abdul Aziz etc. v. Deputy Commissioner/Collector, Rah myarkhan P L D 1981 Lah. 457,. in which a learned Single Judge of the Lahore High Court took the view that section 32 of the Act could be pressed into service even in case in which there is a private dispute between the parties. It may be,advantagous to reproduce hereinbelow the relev ant observation which reads as follows :- "The learned counsel has also argued that the Collector was acting only under section 32 of the Colony Act, which is meant to deal with the cases only of trespassers and cannot be applied for the benefit of a private party. It is stated that the petitioners No. 1 and L are tenants of this land and cannot be termed as trespassers. I am afraid under the amended provisions of Land Reforms Act, 1977, petitioners 2 and 3 cannot be treated as tenants. On the other hand, the Collector in his order, dated 29-10-1977 has very clearly held the permission of the Commissioner under section 19 had not been obtained. Section 19 itself gives the powers to Collector to eject a person who has been transferred the rights in violation of section

19. Whether the application initially moved before the Collector was made under section 32 or under any other provisions of law' is not important because the Collector was competent to act in the circum stances of the case under any provisions of the law applicable to the facts of a case. The order of the Collector, therefore, did not suffer from want of authority." (iii) Ghu!am Rasool and others v. Muhammad Anwar and others 1969 S C M R 254, in which the Hon'ble Supreme Court of Pakistan declined to grant leave against the judgment of a Division Bench of the erst while High Court of West Pakistan dismissing a second appeal in limine against the judgment of the trial Court and the District Judge, whereby it was held that the transaction in favour of the petitioner in contravention of section 19 of the Act was void against the Government and that the petitioner was not entitled to obtain an injunction from the Court on the basis of the alleged sale agreement. In the above case the petitioners the alleged purchasers were ejected through the Collector but they re-entered up the land, whereafter the petitioners instituted a suit in which inter alia injunction was sought. While declining the leave, it was observed by the Hon'ble Supreme Court that it has been consistently held that the transfer prohibited by section. 19 of the Colonization of Government Land (Punjab) Act, 1912, is void even as between the parties to the transaction. (iv) Abdul Shakoor and 2 others v. A. S. Tasneem and 2 others 1974 S C M R 463, in which the Hon'ble Supreme Court declined leave against the order of refusal to grant injunction prayed for by a sub- lessee in a suit on the ground that above subletting was in violation of section 19 of the Act.

14. It may be observed that the above Full Bench and the Division Bench cases of the Lahore High Court relied upon by Mr. Ali Ahmed Fazeel clearly support his contention that section 32 cannot be pressed into service in respect of private dispute. Whereas one of the two Lahore cases of the learned Single Judges relied upon by Mr. S. lshtiaq Ali lends supports to his contention, the other case is distinguishable as the possession of the land was given to a new lessee. But the two Supreme Court judgments declining to grant leave to appeal do not contain any discussion on the controversy in issue except that the narration of the facts in the body of the judgments, indicated that the persons claiming in violation of section 19 of the Act were ejected by the Collector.

15. We are inclined to bold that neither section 19 nor section '02 can be pressed into service with the object to hand over the possession of the land to a tenant/allottee who himself might have committed breach of the terms of the grant and section 19 of the Act. We are further inclined to hold that a person in possession of land in violation of section 19 can be ejected from the land by the Collector but the ejectment should be fool the benefit of the Government and not for the benefit of the person) who might have himself committed the breach of the above provisions. We are further of the view that under section 32 the Collector is entitled to re-enter upon the land and resume the possession if he is satisfied that any person bas taken or is in possesion of the land to which he has no right or title. This section 32 also has been provided for to protect the interest of the Government and not to provide a forum to a private party to resolve dispute. Under the above section the re-entry upon the land of the Collector is on behalf of the Government to protect the interest of the Government and not to protect party's interest.

16. For the aforesaid reasons we are of the view that the impugned order, dated 23-4-1983, is not sustainable in law and, therefore, it is declared) asi being of without lawful authority and of no legal effect. Since we have held that the above order is without lawful authority and since in execution' of the above order Messrs Yousuf and Azmatullah were ejected from the) land we would order the restoration of possession of the same subject to the proviso that Messrs Yousuf and Azmatullah would approach the learned Single Judge in suit No. 209/83 for getting status quo order modified. However, we may clarify the learned Single Judge may decide the question, whether status quo order is to be kept intact or to be recalled on the assumption that the above impugned order, dated 23-4-1983 does not exist and that an action taken in pursuance thereof is to be undone. Petition is allowed with no order as to costs.

17. We now take up the other connected petition, namely Coast. Pet. No. D-402/83 in which the only controversy is whether the Revenue Officer could suspend the order on 8-5-1983 in spite of fact that Messrs Yousuf and Azmatullah filed an application on 8-5-1983 for withdrawal of their review application on the ground that the same was misconceived. Since we have held that the order, dated 23-4-1983 is without lawful authority and of no legal effect the suspension of the above order in view of the above finding is of no consequence. However, the parties may go in appeal against our judgment, we, therefore, intend to take up the contentions of the learned counsel for the parties in respect of the above controversy. 1.8. Mr. S. Ishtiaq Ali in support of the petition has contended that at the relevant time there was no provision in the West Pakistan Land Revenue Act for filing a review and that even otherwise no case for review was made out. On the other hand, Messrs Ali Ahmed Fazeel and Inamul Haq, Advocates have contended that under section 21 of the General Clauses Act the Revenue Officer could suspend the order.

19. Mr. S. Ishtiaq Ali has referred to the Sind Land Revenue (Amendment) Ordinance (Ordinance XI of 1980), whereby inter alia section 163 of the West Pakistan Land Revenue Act, 1967, which provide a review was omitted. The above Ordinance was gazetted on 28-7-1980. It is, therefore, evident that on 8-5-1983, the Revenue Officer had no power under the West Pakistan Land Revenue Act, 1967, to entertain a review. It is true that under section 21 of the General Clauses Act, 1897, and under section 20 of the West Pakistan General Causes Act, 1956, it has been provided that when by any Act or Regulation a power to issue noti fications, orders, rules,or bye-laws is conferred then that power include a power exercisable in the like manner and subject to like sanction and conditions (if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued, In the instant case, even if it i1 to be conceded that under the General Clauses Act the Revenue Officer could suspend the order dated 23-4-1983 in our view no case of suspension was made out. It is an admitted position that the High Court had seized of the matter in Const. Pet. No. D-353/83, in which the above order, dated 23-4-1983 was impugned. It is also an admitted position that Messrs Yousuf and Azmatullah, who had filed the above review application on the date of hearing i. e. in 8-5-1983 filed an application for withdrawal of the same on the ground that the same was misconceived. The Revenue Officer with out concluding that the above order, dated 23-4-1983 was without jurisdiction or was in violation of any provision of law suspended the above order for reasons foreign to a around for suspension of an order. It may be advant agous to reproduce hereinbelow para. 20 of the above order, dated 8-5-1983, which reads as follows :- "From the documents produced by the parties, it appears that both of them have gone in the Hon'ble High Court wherein they have been granted status quo on 2-4-1983. It also appears that in suit No. 235/82 the applicant Muhammad .Azmatullah Siddiqui has filed an application under section 3 of Contempt of Court Act v. Group Captain A. M. Murad and other defendants and the Revenue Officer Kotri Barrage, Hyderabad and Mst. Yasmeen Choudhary the con temner. Keeping in view all the above and the various orders of the Hon'ble High Court produced by the parties during the course of arguments in order to avoid multiplicity of litigation, the order, dated 23-4-1983 shall stand suspended and the implementation is held in abeyance in the meanwhile the Barrage Mukhtiarkar, Mirpur Sakro Gharo should collect and submit necessary documents after visiting the site and from the office of Taluka Mukbtiarkar, Mirpur Sakro in person, till then the matter is adjourned to 29-5-1983 for further bearing."

19. From the abovequoted para. of the impugned order, dated 8-5-1983, it is evident that no case for suspension or review of the order, dated 23-4-1983 was made out. We would, therefore, allow this petition with no order as to costs and declare the impugned order, dated 8-5-1983 as being without lawful authority and of no legal effect. ltl. z. M. Petition allowed.