1997 PLP 1847 (MLD)

SALAHUDDIN MIRZA, J. ‑‑‑This order will also dispose of connected Constitutional Petitions Nos.D-161 and 162 of 1991.

2. One Mst. Nuzhat Perveen, was granted four acres of land on lease for a period of 30 years by respondent No.3 vide order dated 31‑7‑1984. This grant was on the basis of a scheme declared, by the Government vide Notification No.KBI/1/30/72/1413/3236 dated 27‑31973 read with Notification No.KBI/1/ 21/80/1011 dated 30‑4‑1981 as subsequently amended vide Notification dated 17‑6-1985. The land was from Naclass No.26 of Deh Rehri. The lease was for establishing Poultry Farming. The lease order is dated 16‑8‑1984 and is Annexure ' D' to the memo. of petition. Subsequently, Mst. Nuzhat had sold the leased land to one Jalaluddin who, in turn, sold the same to Mian Bashir. Transfer in the name of the petitioner was sanctioned vide Letter No.Rev/8684/86 dated 7‑12‑1986 passed by Deputy Commissioner/Collector, Karachi East (Annexure 'J'). It is the case of the petitioner that the entire lease amount had been paid from the very beginning and there was no violation of any terms and conditions of the lease as laid down in the Ijazatnama. The petitioner claims to have invested substantial amount in developing that land and in raising up necessary construction like servant quarters and show‑rooms etc, and had employed about 30 persons on the site. However, respondent. No.2. (Member, Land Utilization, Board of Revenue, Government of Sindh, Hyderabad) issued a suo motu notice to the petitioner whereupon the petitioner appeared before him on 22‑5‑1989 but the order on the suo motu notice was reserved and, eventually, the petitioner moved an application on 13‑1‑1991 before respondent No.2 for enquiring the fate of suo motu revision whereupon copy of order was supplied to him on 14‑1‑1991 whereby the lease order passed in favour of Jalaluddin, the predecessor‑in‑interest of the petitioner, was declared void and illegal and on that basis the lease order of the petitioner was also declared illegal although no order in respect of the original allottee (Mst. Nuzhat Perveen) was passed. The petitioner claims that he had not violated any of the terms and conditions of the Ijazatnama under which the land was leased to him, that the lease in favour of Mst. Nuzhat Perveen, the original allottee, was not cancelled which rendered the whole action taken by respondent No.2 as void and that the petitioner was bona fide transferee for value and his lease could not be cancelled on the ground of some irregularity, even if its existence were to be conceded, committed by the office of respondent No. 3 a decade ago. The respondents have not filed parawise comments or any counter‑affidavit. Learned counsel for the parties have been heard. Order of allotment dated 16th August, 1994 and Ijazatnama dated 26‑8‑1984 of the original allottee Mst. Nuzhat Perveen are Annexures ' D' and E' respectively. Vide order dated 4th May, 1986 (Annexure ' F') the land in question was transferred from the name of Mst. Nuzhat Perveen to Jalaluddin Khan Leghari. The Ijazatnama in favour of Jalaluddin Leghari is Annexure 'G'. The order of transfer from Jalaluddin Leghari to the petitioner, which is dated 7‑12‑1986, is Annexure 'J' and the Ijazatnama in the name of the petitioner is Annexure ' K' which shows that the lease money has been paid on 24‑12‑1986. The impugned order dated 22‑5‑1989 (Annexure ' V') shows that learned Members, Land Utilization, Board of Revenue, Sindh, had exercised powers vested in him under section 7 of the Colonization of Government Lands Act, 1912 read with subsection (4) of section 164 of Sindh Land Revenue Act, 1967 for examining the correctness, legality and propriety of order dated 7‑12‑1986 of the Deputy Commissioner, Karachi East granting the lease of the disputed land to the petitioner. Learned Member has observed that the Deputy Commissioner/Revenue Officer, Kotri Barrage was to grant lease "after giving wide publicity for a period of 30 years". It appears that learned member was misled into making this observation due to defective language used in Condition No.3(1) in Notification No.KBI/1/30/72/1413/3236 dated 27‑3‑1973 (Annexure B ). What the Government had evidently meant was that the land was to be given on lease for a period of 10 years, subsequently amended as to read "30 years" vide Notification No.KBI/1‑21/80/1011 dated 30‑4‑1991 (Annexure 'B') and the lease was to be given after giving wide publicity‑‑‑but not for 30 years because if the publicity had to be given for 30 years no work could be done at all. The law had simply required that wide publicity would be given before granting lease to the eligible applicants. After making this observation the learned member stated that there was nothing on the record to suggest that wide publicity for disposal of land in question was made as required by law, that the land came within K.D.A. Scheme of Korangi Township, and the establishment of Poultry Farm within the residential area was not desirable and satisfaction of the Director, Animal Husbandry, as per Condition No.6 of the terms and conditions of the lease, had also not obtained. On these grounds, as well as on the ground that "original lessee Jalaluddin" (who was in fact not the original lessee) had no interest in poultry farming because if he had any interest he would not have sold the land to the petitioner, learned Member cancelled the lease of the petitioner.

3. We are unable to agree with the reasoning given by the learned Member for cancelling the lease of the petitioner. To begin with, Jalaluddin was not the original lessee and it made no difference if he was not entitled to the lease. After all, the original lessee Mst. Nuzhat was entitled to the lease as nothing against her is said in the impugned order. Nor anything as to lack of interest on the part of the petitioner has been alleged. All that has been stated is that Jalaluddin was the original lessee and since he was not entitled to the lease in terms of the "conditions of lease as laid down by the Government", the petitioner, being his successor, did not derive any better title to the lease. It appears that the learned Member has not properly applied his mind to the facts of this case and had not properly perused the file of the case; otherwise he would not have made such mis‑statement of fact. In the alternative, it appears that the record produced before him was not complete and substantial part of it was missing. There is a presumption under section 114 of the Evidence Act (equivalent to Article 129 of Qanun‑e‑Shahadat) that every official act is done in accordance with law and in view of the mis‑statement of fact made by the learned Member it appears that complete file was not placed before him. This explains the further observations of the learned Member that the record did not show that wide publicity had been done before granting lease. At any rate, learned Member had not made this observation in respect of the grant of lease to the original lessee Mst. Nuzhat Perveen. For the same reason, no credence can be attached to the observation of the learned Member that Director, Animal Husbandry had not been consulted before making the lease to Mst. Nuzhat Perveen. More than anything else, however, it is a matter of surprise that learned Member should consider transfer of land by one lessee to another as a proof that he had no interest in poultry farming thereby disqualifying himself under Condition No.6 of the Policy. This is in our considered view, a very perverse approach to the question. The statement of conditions as per Notification NO.KBI/1/30/72/1413/3236 dated 27‑3‑1973 (Annexure 'A') clearly provide vide Condition No. 18 as amended by Notification No.KBI/1‑21/80/1011 dated 30‑4‑1981 (Annexure 'B'), that a lessee shall be entitled to transfer his right under the "conditions of lease" after he has paid the lease money. Learned Member has himself observed in para. 9 of the impugned order that "the statement of conditions have force of law, having been prepared in exercise of statutory powers." If so, learned Member could not disregard them with impunity and hold that if a lessee exercises his rights under Condition No. 18, he shall be considered disqualified to hold the lease. It appears that the approach of the learned Member was far from judicial. Besides, the petitioner is a transferee for value without notice of any irregularity having been committed while the land in question was transferred by the original lessee Mst. Nuzhat Perveen to Jalaluddin. As we have already discussed above, the record before the learned Member was either not complete or else he had not fully applied his mind to it and therefore the conclusion of the learned Member that any of the conditions of the lease had not been fulfilled by the original lessee Mst. Nuzhat Perveen is without any basis but even if were it to be conceded, for the sake of the argument, that it was so, it was incumbent on the Deputy Commissioner/Collector to look into this aspect and refuse to transfer the lease to Jalaluddin and thereafter in the name of the petitioner. Notwithstanding the powers vested in the Member, Land Utilization under section 7 of the Colonization of Government Lands Act, 1912 read with subsection' (4) of section 164 of Sindh Land Revenue Act, 1967, the petitioner had acquired vested right in the leasehold rights and his lease could not be cancelled for any act of omission or commission on the part of his predecessor or the Deputy Commissioner/Collector and the cancellation of the lease of the petitioner could only have been considered if he had himself committed any breach of the "statement of conditions" as contained in the Notification of 27th March, 1973 (Annexure 'A').

4. Learned Member has also observed that according to Condition No.3(3) no lease could be granted within KMC and KDA limits or within 20 chains of village but it was reported that the land fell within KDA Scheme of Korangi Township. The use of the word "reported" shows that learned Member was not sure whether the land in question fell within KDA or' KMC area. However, what Condition No.3(3) amounts to is that lease could not be granted in respect of a land falling within KMC limit or within arty of the KDA Scheme or within 20 chains of a village but it does not provide that if leased land subsequently comes within the KMC limits or any of the KDA Schemes or any of the neighbouring villages expands to within 20 chains of the leased land, then the lease would be cancelled. In other words, Condition No.3(3) is to be observed at the time of grant of the lease but would have no effect if subsequently the land comes within KMC limits or any of the KDA Schemes or a village expands to within 20 chains of it. It nowhere appears from the impugned order that land in question was within KDA Scheme at a time when the lease was first granted to the original lessee Mst. Nuzhat Perveen in 1984. Any reference to Condition No.3(3) and of its breach is therefore out of the question.

5. For the abovenoted reasons we allow the petition as we find no substance in the impugned order and we are of the view that it cannot be sustained. We would therefore declare that the impugned order dated 31‑12‑1989 is void and illegal. We would further declare that the lease of the land in favour of Mst. Nuzhat Perveen and the subsequent transfer of the land to Jalaluddin and, finally, to the petitioner does not infringe any of the conditions of the "statement of the conditions" laid down in the Notification of 27th March, 1973 under which the lease was granted and is therefore in accordance with the provisions of law and in conformity of Ijazatnama and Notifications of they Government. The Karachi. A.A./B‑5/K Petition accepted.