1981 PLP 604 (SCMR)

ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 13th of October, 1980, by which a Constitution petition filed by the petitioner in the matter of the grant of tenancy in an area of State agricultural land situate in the Jhang District; was dismissed. The petitioner was the highest bidder at an auction of the leasehold rights for 10 years from 1969 to 1979 and the auction was confirmed by the Divisional Commissioner, but before the formal letter of allotment could be issued by the Collector of the District, the Commissioner recalled his approval in pursuance of a directive issued by the Provincial Governor to the effect that the auction of State lands should be suspended. It appears, however, that the petitioner somehow managed to obtain possession of the land, and has continued to remain in possession since 1969. Aggrieved by the refusal of the Collector of the District to issue a formal letter of allotment, the petitioner invoked the writ jurisdiction of the High Court, but his petition has been dismissed by a learned Judge on the ground that no leasehold rights bad been created in favour of the petitioner, as under subsection (4) of section 10 of the Colonization of Government Lands Act, 1912, it was necessary that a written order should have been passed by the Collector and the petitioner should have taken possession of the land with the permission of the Collector; but these steps were not taken and the order of confirmation passed by the Commissioner was recalled before the issuance of such a written order. The learned Judge has further observed that the Commissioner had power to recall his confirmation order under section 21 of the West Pakistan General Clauses Act, 1956, as the order had not yet been implemented. Leave to appeal is sought on the ground that the learned Judge in the High Court was in error in thinking that no vested legal right had been created in favour of the petitioner, as this was not a case governed solely by the provisions of section 10 of the Colonization of Government Lands Act; and it was, in fact, a case of a contractual obligation having come into existence on the basis of the approval granted by the Commissioner to the highest bid offered by the petitioner at the auction of the leasehold rights. The learned counsel submits that, in these circumstances, the Commissioner was not competent to unilaterally recall his approval to the auction proceedings. We do not see any merit in these submissions. If the petitioner wasp seeking to enforce a contractual obligation, then the proper remedy for him was to invoke the jurisdiction of a civil Court by means of a regular suit. If, on the contrary, he was seeking an effective constitutional remedy by way of judicial review of an executive order, then the question naturally arose whether he had acquired any vested right in terms of the statute under which the leasehold rights were being granted in State lands. The learned counsel concedes that the matter was governed by subsection (4) of section 10 of the Colonization of Government Lands Act, 1912, which clearly stipulates that: "No person shall be deemed to be a tenant or to have any right, or title in the 'land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector". In the present case, it is an admitted position that the Collector had not yet passed a written order and the petitioner had not taken possession in accordance with the procedure outlined in the aforesaid provision of law. B Such being the case, the learned Judge in the High Court was right in holding that the petitioner had not yet become vested with the rights of lessee under the relevant statute. It is well settled that statutory and executive authorities have locus poenitentiae to recall an order if no effective step has been taken in implemen?tation thereof. In the present case no such step had been taken, and, accordingly the Commissioner was acting within the limits of his power to recall the approval previously granted by him for the confirmation of the auction. For the foregoing reasons, the petition fails and is hereby dismissed. Petition dismissed.