1991 PLP 736 (SCMR)

In my opinion, for the purposes of the Regulation, it is the de facto position that counts and not the de jure one except where the validity of the transfer is disputed also by one or the other party to the transfer. Similarly, while interpreting the words `own' and `possess' occurring in paragraph 10 of the Regulation the Land Commissions should always bear in mind the purposes of the Regulation itself." The necessary declaration that the impugned orders of the Provincial and the Federal Land Commission were without lawful authority and were of no legal effect was granted and the writ petition was allowed.

9. Subsequent to the decision of the High Court certain other events have taken place which have been brought to the notice and pleaded. First is the fact that the entire price of the land including a balance of Rs.23,000 was paid after the decision of the High Court and proprietary rights were obtained in the name of Shahzada Alamgir and thereafter the permission of the Government was also obtained under section 9 of the Colonization of Government Lands (Punjab) Act for transferring the land to the respondents/the beneficiaries under the agreement to sell. The other factor or the event which has happened after the decision is that the Martial Law Regulation No.115 inclusive of the paragraph under consideration has ceased to be the law of the land vide decision reported in Qazilbash Waqf v. Chief Land Commissioner P L D 1990 SC 99 from 23‑3‑1990.

10. Mr. Muhammad Nawaz Abbasi, Assistant Advocate‑General has contended that an agreement to sell when the right to sell was not possessed by the grantee, could not be of avail to either; nor could such an agreement amount to transfer for the purposes of the Land Reforms Regulation.

11. Mr. S.M. Zafar, Senior Advocate, the learned counsel for the respondents has on the other hand taken us through the various terms of the agreement to sell and the irrevocable power of attorney executed in lieu of valuable consideration in order to establish that the grantee had done all that he could do and had transferred all the interest that he had for the moment and was likely to obtain in future in favour of the transferee. In such a situation, the transfer had to be recognized and to be given effect to and that has rightly been done by the High Court. He has referred to a number of decisions from the High Court of Sindh to establish that the transfer envisaged in the Land Reforms Regulation need not have all the legal formalities and perfections which are required to alienate property in favour of someone else.

12. So far as the merit of the adjudication is concerned, the judgment of the High Court, if I may say so with utmost respect, has on three material points gone against the established law of the land. Firstly, the High Court proceeded on the assumption that `the grant was made under a scheme by the Governor of West Pakistan as an executive fiat and not under any powers derived from any Act'. This obviously is not a correct assumption because there exists on the statute book of the country since 1895 the Government Grants Act'. The overriding and the compulsive effect of this Act necessitates its reproduction in full. It reads as hereunder:‑‑ ACT NO. XV OF 1895 10th October, 1895. An Act to explain the Transfer of Property Act, 1882, so far as relates to grants from the Government, and to remove certain doubts as to the powers of the Government in relation to such grants. Whereas doubts have arisen as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, and it is expedient to remove such doubts; It is hereby enacted as follows:‑‑

1. Title and extent.‑‑(1) This Act may be called the Government Grants Act, 1895. (2) It extends to the whole of Pakistan.

2. Transfer of Property Act, 1882, not to ap121y to Government grants.‑‑ Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed

3. Government grants to take effect according to their tenor.‑‑‑All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their ' tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding." Section 3 deserves special attention. In this context Condition No.13 of the Grant already reproduced in para. 2 of the judgment acquires an overriding compulsive effect and what such a law prohibited could not be held to have validly happened. The prohibition prevails and any sale, even if the contract of sale be held to be a sale, in present, must in view of such repugnance be held to be void and having no legal existence.

13. The second and an equally important feature of the transaction pleaded as a transfer itself shows that it was indeed not a transfer but it was a contract of sale to take effect after the proprietary rights had been acquired. Till that happened, the future purchaser enjoyed interest in the land only as an attorney of: the Grantee. There was also a provision made in the Agreement with regard to frustration and compensation therefore. The various terms of the contract of sale or the agreement to sell reproduced in the judgment in para.3 indicate that this agreement was subordinate to the terms of the grant, that it was in recognition of it and that no interest in the land as such was claimed except certain rights', relating to land which were to become enforceable after the proprietary rights' had been conferred on the grantee. The grantee himself being not the proprietor but only a purchaser under an Agreement to sell visualized in the form of grant could not confer more rights in the property on the contracting party, the respondents Nos.l to 11 than he himself possessed. He was not permitted to transfer even the rights which he was possessed of in the property.

14. Thirdly, even if the Government Grant Act was not there, the transferee under a contract of sale from one who himself derives interest from a contract of sale, creates no right in the land at all. There is no equitable aspect coming into existence. Such a question came up for consideration before the Indian Supreme Court in the case of Satyabrata Ghose v. Mugneeram Bangur & Co. and another A I R 1954 SC 44 where the following law was laid down:‑‑ "

under the English law as soon as there is a concluded contract by A to sell land to B at certain price, B becomes, in equity, the owner of the land subject to his obligation to pay the purchase money. On the other hand, A in spite of his having the legal estate holds the same in trust for the purchaser and whatever rights he still retains in the land are referable to his right to recover and receive the purchase money. The rule of frustration can only put an end to purely contractual obligations, but it cannot destroy an estate in land which has already accrued in favour of a contracting party. According to' the Indian Law, which is embodied in section 54 of the Transfer of Property Act, a contract for sale of land does not of itself create any interest in the property which is the subject‑matter of the contract. The obligations of the parties to a contract for sale of land are, therefore, the same as in other ordinary contracts and consequently there is no conceivable reason why the doctrine of frustration should not be applicable to contracts for sale of land in India."

15. The Land Reforms Regulation's provisions which apply to the case provide for transfer of land. Neither on the basis of this agreement to sell nor on the basis of the statutes conferred on the prospective Purchaser, as of attorney of the grantee, can the land or possession of it be held to be transferred to the attorney. He has no independent right, and cannot have any, in land so as to be recognized either under the terms of the Grant or under the Land Reforms Regulation. The decision of the Shariat Appellate Bench of this Court in the case of Qazilbash Waqf will not directly affect the adjudication in this case because the Court's order referred to itself in paragraph 7 made the following reservation:‑‑ "The operation of the self‑executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. on 23‑3‑1990.' The provision invoked against the appellants being a self‑executory provision, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitations which can be decided upon by the Court and not the operation of law as such.

16. For the same reason, the subsequent action of the Board of Revenue would not be of avail against the Land Commission because such excess land would vest by the operation of the law in the Land Commission itself divesting the Board of Revenue of its jurisdiction in the matter. The procedural determination of the exact area to be resumed or to be left with the Grantee is a matter that can be dealt with any time by the authorities competent to deal with it.

17. In the circumstances, this appeal is accepted. The judgment of the High Court is set aside and the writ recalled, the Constitution petition filed by the respondents Nos. 1 to 11 against the order of the Federal Land Commission is dismissed. No order is made as to costs. ABDUL QADEER CHAUDHRY, J: ‑‑I agree. RUSTAM S. SIDHWA, J.‑‑‑By virtue of the scheme for the grant by way of sale of State agricultural land in the Ghulam Muhammad Barrage, Guddu Barrage and Taunsa Barrage to distinguished retired and retiring Government servants, as notified by the Board of Revenue in its Notification No.596‑63/ 659‑S(G)V, dated 23‑2‑1963, Shahzada Alamgir was granted 240 acres of land in Lot‑II, Deh Kamoon Shaheed, Taluka Ubaro, District Sukkur, within the Guddu Barrage area. As the grantee elected to pay the price in instalments, under para: 10 of the scheme he executed an agreement in the form set out in Appendix `B' to the said scheme. Appendix B to the scheme is not printed in the paper book of this case. It appears that the said Appendix `B' containing the agreement was first circulated by the Board of Revenue, West Pakistan, under its Memorandum No.596‑63/3537‑S(GN)V, dated 2‑9‑1964. By virtue of para. 3(j) of the agreement, the grantee inter alia covenanted with the Government not to alienate by sale or otherwise the land to any person until the price of the land was paid in its entirety. Para. 4 of the agreement, which is relevant, may be reproduced with advantage as follows:‑

4. It is expressly agreed between the parties as follows:‑ (1) In any of the following events:‑‑ (a) if the grantee commits any breach of or fails to performs any of the terms and conditions of this grant, or suffers or permits such breach or non‑performance, or (b) if the grantee is declared insolvent, or (c) if the grant is attached. Government may thereupon or at any time thereafter re‑enter upon the land and determine this grant: Provided that such termination of the grant shall not prejudice any right of action or remedy of Government in respect of any antecedent breach of this agreement by the grantee. (2) (a) No compensation shall be payable by the Government in respect of the exercise of any rights reserved or conferred by the terms of this grant, except as provided there under:‑‑ (i) ............................................................... (ii) ............................................................... (iii) on resumption of the whole or any portion of the land otherwise than for breach of conditions or for the creation of a public right of way or for construction of a watercourse a proportionate refund of the purchase price, if any, paid and such additional sum, if any, as may be determined by the Collector in accordance with the general principles applicable to the acquisition of land or public purposes. (b) ........................................................ (c) .............................................................. (d) ............................................................... (e) ............................................................... (f) ............................................................... It is, therefore, obvious that the grantee, whilst in possession of the land, did not have the right to alienate it, but had the right of possession, user, peaceful enjoyment and usufruct. In short, he did not have full title of the land. It is the case of the respondents that through the agreement for sale and irrevocable general power of attorney the grantee transferred the land to them and since the grantee was not the owner but only one having possession, the full transfer of possession took place in their favour and thus vide para. (f) of the Clarification issued by the Punjab Land Commission by its letter dated 5‑5‑1972, Shahzada Alamgir, the grantee, was not required to file any declaration under the Regulation regarding the land held under the grant. Para.10 of the Martial Law Regulation (hereinafter to be referred to as `the Regulation') debars a civil servant, who at any time between 1st January, 1959 and two years of his ceasing to be in civil service, had `acquired any land or any right or interest therein, by any means whatever', to own or possess any land exceeding one hundred acres. The words `acquired any land or any right or interest therein' refer to two types of land. The words `acquired any land' referred to land, the full title of which has been acquired. The words `right or interest therein', refer to land, full title of which has not been acquired. The words `a civil servant who had acquired more than 100 acres of land' in para. (f) of the Punjab Land Commission's letter dated 5‑5‑1972, obviously referred to that land of which full title had been acquired by the declarant, which he had transferred to some other person before the promulgation of the regulation. They did not refer to land, in which some right or title had been acquired. If this was intended to be covered, para. (f) would have read `A civil servant who had acquired land or any right or interest therein in excess of 100 acres within the period specified...' Thus para. (f) of the letter does not cover the respondents' case. Even otherwise, with the agreement for sale and the irrevocable general power of attorney in favour of the respondents, the position of Shahzada Alamgir as grantee and one in symbolic possession of the land would still remain, compelling him to file the declaration.

3. The Government Grants Act (1895), applies to the grant in question. Drawing attention to para. 4 of the agreement, it would appear that it has an overriding compulsive effect and would apply according to its tenor. The question remains whether the prohibition prevails and any sale or a contract of sale even if it be held to be a sale in praesenti, must in view of such repugnance be held to be void and having no legal effect. As I read paras. 3 and 4 of the agreement, the whole of the conditions have to be read according to their tenor and it would, therefore, appear that any sale, mortgage or alienation of the land would not give any right to the vendee, mortgagee, or aliened to enforce the same, or give any right to the Government to ipso facto avoid the agreement or treat it as void, for the Government would have the right either to waive the breach, or avoid the grant and resume the land, but without any compensation. Thus, if the grantee transferred whatever rights he had in the grant, before acquiring full title to the land, he did so at the risk of having his land resumed, giving the transferee no legally enforceable title to the land covered by the grant.

4. It cannot be doubted that the lands in the Guddu Barrage area in District Sukkur given to Shahzada Alamgir grantee were in the nature of a grant from the Government of West Pakistan and that on the date of the coming into force of Martial Law Regulation 115, the grantee had not become full owner of the land. Since the grantee could not own or possess land in excess of his entitlement under para. 10 of the Regulation, which entitlement was found to be 100 acres plus 16‑2/3 acres of land on account of a tube‑well, he had to surrender the balance area which was in excess. In the excess area which he surrendered there was inter alia the total land under the grant, which was located in Sindh, which continued to remain with the owner/grantor i.e. the Sindh Government, as the successor of the Government of West Pakistan.

5. The main question that arises is whether the said lands should be treated as vesting in the Government of Sindh (through the Sindh Land Commission) under para.18 of the Regulation for the purposes of being granted free of charge to the sitting tenants, or as remaining vested in the said Government‑as the owner/grantor and as excluded for transfer to the tenants under para.18(4) thereof.

6. Paras. 13 and 18 of the Regulation may be reproduced here with advantage:‑‑ (13) Vesting in Government of excess land‑‑ (1) Land in excess of the area permissible for retention under Part III, shall vest absolutely in Government free from any encumbrance or charge and without payment of any compensation; (2) Any encumbrance or charge existing on land surrendered by a person, which vests in Government under sub‑paragraph (1), shall be deemed to have been transferred to the land retained by such person under Part III; (3) Where any person is in possession of, or is holding land in excess of the area permissible for retention under Part III, so much of such excess land as is in his possession as a lessee or mortgagee or is held by him as the landlord of any occupancy tenant or a Muqairaridar or as an Ala Malik shall not vest in Government but shall, subject to the other provisions of this Regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be and shall be deemed to have so reverted at the commencement of this Regulation.

18. Grant of land to tenants.‑(1) Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to ‑the other provisions of this paragraph, be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971‑72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub‑paragraph (1) of paragraph 12, to the tenant who is shown in the Revenue Record to be in cultivating possession of it in the year immediately preceding such declaration: Provided that no land shall be granted to tenants who, but for the making of this Regulation, would have entitled to inherit land from any of the persons from whom land has been resumed under this Regulation. (2) Where a tenant who is entitled to the grant of land under the said sub‑paragraph (1) already owns any land, he shall be granted only so much land under the said sub‑paragraph which together with the land already owned by him equals an area of a subsistence holding. (3) Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant during Kharif 1971 and Rabi 1971‑72 it shall be granted to such tenant or other persons, owning less than a subsistence holding, and on such terms and conditions, as the Government may determine: Provided that Government may utilize any such land for such public purpose as it may deem fit. (4) Nothing in this paragraph shall apply to orchards, or to any State land granted on instalments where any instalment in respect of such land remains unpaid:'

7. Para. 13(3) of the Regulation treats land in excess of the area permissible for retention under Part III of the Act, which is in the possession of a declarant as a lessee, or mortgagee, or as a landlord of An occupancy tenant; Muqarraridar or Ala Malik, as not vesting in the Government, but as reverting to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be; the reversion taking effect from the date of the commencement of the Regulation. The case of a grantee under a grant which provides for the transfer of State land subject to payment of a price, which has not been paid in full, is not covered by para.13(3). However, the same would appear to be covered by para. 18(4), which states that nothing in this para. would apply to orchards or to any State land granted on instalments where any instalment in respect of such land remains unpaid. It is an admitted position that the total instalments in respect of the land held by Shahzada Alamgir as a grantee had not been paid when the Regulation came into force. It is therefore, obvious that the said land would not vest by operation of the law in the Sindh Land Commission as to dives the Government of Sindh of its jurisdiction in the matter. The procedural determination of the exact area to be resumed or to be left with the grantee fell within the competence of the Land Commission, but no sooner any such area which fell for resumption related to State land granted under a Government grant, the said area did not vest with the Land Commission to be granted free o: charge to the tenants under para. 18, but reverted to the Sindh Government as the owner/grantor. Even under the earlier Martial Law Regulation 64, if the leased area surrendered by a person was State land, it reverted to the Government and the sitting tenants were not entitled to proprietary rights thereto See Talib Din v. The Chief Land Commissioner (P L D 1984 SC 453).

8. The grant in the instant case was by way of sale of agricultural land, i.e. one intended to confer proprietary rights on the grantee. There are various types of grants, some are resumable grants; some are non‑resumable. A service grant where some benefit accruing out of land is granted to a grantee so long as he remains in service, which terminates after his service ceases, is a resumable grant. A horse breeding or cattle breeding grant, where land is offered to the grantee on certain conditions for a limited period, which grant automatically ceases on the expiry of the stated period, is also a resumable grant. A grant by way, of sale of State land, where land is allotted to the grantee for the purpose of breaking the land and bringing it under plough, subject to certain conditions regarding payment of the price, which, when fully paid, proprietary right to the land is conferred on the grantee basically is a non‑resumable grant. There are also various other types of non‑resumable grants. In almost all these types of grants there is a condition that the grantee shall not alienate by sale or otherwise the land to any person during the tenure of the service or the limited period of the grant stated or until the price of the land is paid in its entirety. Had the Martial Law Regulation not intervened, the grantee in the instant case would have paid the full price, secured the proprietary rights to the land and transferred the same to the respondents. I mention this in view of the subsequent development that has taken place in respect of the land in question.

9. It appears that subsequent to the decision of the High Court in this case, the Colony Officer, without waiting for the decision of this Court; in the appeal riled by the Chief Land Commissioner, Punjab, received the balance price of .the land from the respondents and transferred the land covered by the grant in favour of the respondents. The respondents have in turn sold the land to others. In view of the decision of this Court, whether the transfer orders will be recalled or the transfer will be allowed to stand, it is not very clear. However, I assume the Board of Revenue, Sindh, will recognise the equities arising out of the agreement for sale made by Shahzada Alamgir in favour of the respondents, in view of the special nature of this grant and the peculiar circumstances of this case, and will permit the transfer to go through in favour of the respondents, in aid of justice. With this observation, I would agree with the final order proposed by my learned brother that this appeal be accepted and the judgment of the High Court be set aside. M.BA./C‑74/S Appeal accepted.