1985 PLP 108 (SCMR)

NASIM HASAN SHAH, J.-- The Governor of the Punjab acting through the Collector made a grant of land measuring 3 Kanals 21 Marlas situate in District Sheikhupura Town in favour of Darul Aloom -Aisine Sharqia through Qari Muhammad Amin for a consideration of Rs.12,

500. According to the conditions contained in the Deed of Conveyance, the grant was made for the purposes of construction of a School of Oriental language and the land and building thereon were to be used for the purpose indicated in the terms of the grant and not for any purpose. According to condition No. 9 of the Grant, if the grantee failed to perform or commit any breach of any of its terms or conditions, the Collector was authorised to determine the grant and resume possession of the land. The grantee, instead of constructing a School of Oriental language over the land, constructed 17 shops thereon. The area was, accordingly, resumed by the Collector, Sheikhupura, after hearing Respondent No.l in exercise of the powers vested in him under Condition No.9 of the Grant and section 24 of the Colonization of Government Lands Act, 1912, after issuing the necessary show-cause notice. Respondent No.1 unsuccessfully appealed to the Additional Commissioner and then filed a revision before the Board of Revenue, which too was dismissed. He, thereafter, filed a suit for a declaration to the effect that he was the owner of the suit land and the order of the resumption passed by the Collector, Sheikhupura, was illegal and void. The said suit was, however, dismissed. The appeal filed before the learned Additional District Judge also failed but on second appeal before the Lahore High Court, the respondent succeeded. The learned Judges of the Lahore High Court held that after the Conveyance Deed was executed and Respondent No.l conferred proprietary rights over the land, the provisions of section 24 of the Colonization of Government Lands Act did not remain available. Furthermore, in case of a difference arising between the parties, the dispute should have been referred to the Arbitration. The orders of resumption were, accordingly, set aside. Hence this petition for leave to appeal. It has, inter alia, been contended that even if the resumption of the land could not be made under section 24 of the Colonization of Government Lands Act, 1912, it could be made under the terms anti conditions of the Grant that the resort to arbitration was not the only remedy available in this case because under the terms of Deed, resort to this remedy was to be made if there was no other provision for deciding the said dispute. However, in the instant case, such a provisions existed, namely, Condition No.9, which provided, inter alia:,- "If the grantee fails to perform or commits any breach of any of the terms or conditions of grant or suffers or permits such a breach or non-performance, the Collector may at any time after determine the grant and resume possession of the land " Reliance was also placed on Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another P L D 1966 S C 639, wherein it was, inter alia observed that in case of a dispute relating to breach of any condition of the sale, the procedure of arbitration is to be resorted to "if the same has not been excluded by the terms and conditions of the deed". In the instant case, in view of the terms of Condition No.9 such a procedure stood excluded. These submissions require consideration. Leave to appeal is, accordingly, granted. The appeal to be made ready for hearing at an early date. Coming to the stay matter we find that an interim order was passed on 3-4-1983 by the learned Acting Chief Justice directing that till the hearing of the petition, the respondent be restrained from receiving rent from tenants of the shops or burdening the property from any liability or alienating it. Sh.Ghias Muhammad, learned counsel for the respondent No.l, submitted that although the respondents will not burden the property or alienate it in any manner whatsoever they may be permitted to collect the rent on their furnishing adequate security to refund it, in the event of the success of the appeal. This prayer has been opposed by Mr.Tanveer Ahmad, learned Assistant Advocate-General. We consider that the tenants should continue to pay the rent during the pendency of the appeal, but the same should be paid to the Collector, Sheikhupura. Accordingly, the learned Collector is authorised to receive it. He shall deposit the monthly rent in a Khas Deposit Account. In case, the Collector makes default in collecting the rent of any month from any tenant, Respondent No.l can apply to this Court for modification of the above order in the light of the default made by the Collector, in carrying out his assignment. M.Z.M. Leave granted.