2001 PLP 2019 (MLD)

(i) The predecessor‑in‑interest of the petitioner had executed a general power of attorney in favour of Muhammad Suleman so that he may manage the land and he had no right to transfer the same to his persons, for which there was no express stipulation in the said general attorney. In support of this submission he relied on 1994 SCMR 818. (ii) That on an undated application purported to have been made on behalf of predecessor‑in‑interest of petitioners, namely, Dost Muhammad, the principal the Collector allowed the transfer of the land in question in favour of Muhammad Yasin and Muhammad Hanif sons of Suleman. According to him, on the day the application was represented the Tehsildar made a favourable report, the very next day it was placed before the Assistant Commissioner and the same day he allowed, the matter was put up before the Collector on 9‑12‑1989 on which the order was passed. The indecent haste in which the entire exercise was undertaken, according to learned counsel, did not reflect bona fide intentions.

4. Learned counsel for the respondent; on the other hand, defended the impugned judgment by submitting that on 27‑2‑1973 the general power of attorney executed in favour of Muhammad Suleman (predecessor‑in‑interest of the respondents) stipulated, inter alia, that the attorney shall have power to mutate, gift and alienate the suit property. According to him a day prior to that i.e. on 26‑2‑1973 an agreement to sell was also entered into between the principal and: the said general attorney in terms, of which the entire suit land was sold to the attorney, the sale price (Rs.25,000) was received by the petitioner, tile possession was delivered and the registration was deferred as proprietary rights of the land in question had not been granted and no transfer could be made without recourse to section 19 of the Colonization of Government Lands Act. The execution of the general power of attorney and delivery of possession and his silence for a period of 16 years i.e. he challenged the order, dated 19‑12‑1989 would show that the agreement, the transfer of possession and the execution of registration general power of attorney were bona fide transactions, and the order impugned is un exceptional. The petitioner it was contended cannot be allowed to resile from the said agreement. In support of the submissions made learned counsel relied on PLD 1979 Karachi 22.

5. Heard.

6. I have given anxious consideration to the submissions made at the bar and the case‑law relied upon by both the counsel.

7. Admittedly the general power of attorney was executed by the predecessor‑in‑interest of the petitioners, namely, Dost Muhammad on 27‑2‑1973 which, inter alia, stipulated as under:‑‑

8. The operative part of the afore‑referred general power of attorney would indicate that the principal (predecessor‑in‑interest of the petitioner. namely, Dost Muhammad) had primarily delegated to the agent the powers to manage the property and after issuance of conveyance deed qua the land the agent was required to have the registered sale‑deed executed in favour of the; principal. The exact expressions are as follows:‑‑

9. The afore‑referred stipulation is succeeded by the vesting of authority in the agent to alienate the land of the principle mentioned in the general power of attorney. However, the attorney being an agent and trustees of the principal has to be watchful of the later's interest in case of alienation, particularly if the attorney wants to alienate the said property in his own favour or in favour of any of his blood relations. The obligations of the attorney in tilts regard have been graphically given by the august Supreme Court in "Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others" (PLD 1985 Supreme Court 341) wherein at page 345 it has been laid down as under:‑‑ "Firstly in case of difficulty (and it will be a case of difficulty if power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain .the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:‑‑ (a) A directs B to sell A's estate. B buys the estate for himself in the name of C.A., on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him. (b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that the wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option."

10. This view was reiterated by the august Supreme Court in "Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818). In the instant case an undated application was presented before the Collector on 2‑12‑1989 allegedly on behalf of the principal, namely; Dost Muhammad but signed only by the general attorney Suleman wherein it was prayed that the land be transferred in the name of Muhammad Hanif and Muhammad Yasin sons of the attorney. The only reason given therein was that the principal was as under:‑‑ There was no mention in the said application about any agreement to sell having been entered into between Suleman, the attorney and Dost Muhammad, the principal. The so‑called agreement dated 26‑2‑1973 was neither referred to in the said application nor presented before the Collector. Even before this Court despite the asking learned counsel for the respondent never placed on record any such agreement.

11. The only two documents which found favour with the Member, Board of Revenue to dismiss petitioner's case are the registered power of attorney dated 27‑2‑1973 and the attested sale agreement dated 26‑2‑1973. It is surprising that if the agreement was executed a day prior to the registered general power of attorney i.e. on 26‑2‑1973 why it was not mentioned in the former (the general power of attorney) document and why it was not presented before the Collector alongwith application praying for transfer of the land in favour of the two sons of the attorney. The agreement appears to be a forged document and that is why it was neither presented before‑the Collector nor before the Member, Board of Revenue and nor even before this Court through a written statement or during arguments.

12. The attempt by the agent (Muhammad Suleman) to transfer the land of the principal (Dost Muhammad) is hit by sections 16 and 215 of the Contract Act. The relationship between the principal and the agent is that of a trust. In this relationship the agent enjoys the position of dominant inference. He is enjoined under the law not to make a transfer of property of the principal in his own name or in the name of his associates without explicit consent of the principal. In "Mathra Das Jagam Nath v. Jiwan Mal‑Gian Chand" (ILR 1928 Lah. 7), it was observed as under:‑‑ In law as well as in equity an agent for the sale of goods belonging to the principal cannot, while actually selling the property or making settlements for damages on foot of such transactions, make any secret profit for himself or for persons with whom he is associated. The proposition is too elementary to require an elaborate discussion, but it seems to me necessary to emphasize it, as the real nature of the obligations of the agent is often lost sight of by the mercantile community in this province. It is well‑settled that' a person, who stands in a relation of trust or confidence to another shall not be permitted in pursuit of his private advantage to place himself in a situation which gives him a bias against the due discharged of that trust or confidence.

13. The perusal of the relevant file pertaining to the land subject‑matter of this petition which is being kept by Collector's Office Multan, now District Khanewal and was produced by the departmental representative reveals that the principal Dost Muhammad had himself been giving applications for deposit of instalments and praying that conveyance deed be issued. These applications are as under:‑‑ (i) Application is thumb‑marked by him at page 95. (ii) The application dated 12‑5‑1982 which it thumb‑marked by him, at page 93. (iii) Application dated 5‑6‑1982 which again is thumb‑marked by him; and (iv) Application dated 29‑9‑1985 which is signed by him in which he prayed that he was allowed alternative land in lieu of the land which was allotted to Islamabad oustees and that by inadvertence some excess land was allotted which he wanted to surrender as he did not have money to purchase the same and for the remaining he prayed that conveyance deed be issued in his favour. Again there is an application dated 4‑2‑1986 which is thumb marked by him addressed to General Assistant Revenue in which the afore referred prayer was repeated. The afore‑referred application was still pending when respondent's application purported to have been given on behalf of Dost Muhammad, the principal was given to the Collector on which the impugned order, dated 19‑12‑1989 was passed in terms of which permission under section 19 of the Colonization of Government Lands Act for transfer of the land to sons of Suleman was accorded and the file was sent for implementation of the order to the concerned revenue staff. Though the presence of Dost Muhammad, the principal is marked in the order but in the appeal filed before the Board of Revenue he specifically took the plea that he was not present on the afore‑referred date and the order was passed behind his back. When the file was sent to the concerned Tehsildar for necessary action the latter having examined the factual position reported on 29‑4‑1990 that Dost Muhammad had still not been granted proprietary rights and that the latter's name was mentioned only in the cultivation column and that the collector may decide the matter after hearing both the parties. The Assistant Collector summoned the parties for 11‑5‑1990. None appeared and the file was ultimately sent to the Collector who summoned the parties for 24‑7‑1990, 4‑9‑1990, 23‑10‑1990 and 6‑11‑1990 but none appeared. Eventually on 6‑11‑1990 the following order was passed:‑‑

14. The afore‑referred order it appears was not brought to the notice of the Member, Board of Revenue who passed the impugned order. The effect of the afore‑referred order is that the application purported to have been filed on behalf of the principal by Muhammad Suleman, the alleged General Attorney for transfer of the land in question in favour. of the sons of the attorney was dismissed on the said date. Thus the order, dated 19‑12‑1989, was set at naught by the Collector himself before the order could be given effect to in the Revenue Record either in the cultivation column or in the column of ownership. This power was available to the Collector under the principle of locus poenitentiae and in terms of section 21 of the General Clauses Act.

15. Pre‑admission notice was issue to respondent in this case about seven years ago (23‑6‑1994) and till date he has neither filed written reply nor written statement. This was admitted to regular hearing with the consent of learned counsel for the respondent before the arguments but no request was made even at that stage to file any written statement or even a counter affidavit to controvert the averments made in the petition. The non submission of written statement amounts to an admission of the averments D made in this petition. Reliance is placed on the following judgments PLD 1984 Quetta 131, PLD 1978 Lah. 1370 and PLD 1965 Peshawar 105.

16. In. ignoring the afore‑referred subsequent order of the Collector dated 6‑11‑1990, by relying on the alleged agreement to sell dated 26‑2‑1973 which did not exist on record and overlooking the mandate of the law laid down by august Supreme Court in PLb.1985 SC 341 and 1994 E SCMR

818. The learned Member, Board of Revenue has passed the impugned order which cannot be sustained. The same, therefore, is hereby set aside. The petition is allowed with no order as to costs. Q.M.H./M.A.K/D‑23/L Petition allowed.