1989 PLP 3890 (MLD)

(3) ?????? Are the defendants entitled to special costs ? (4) ?????? Relief. However, subsequently the trial Court framed another legal issue which is reproduced below:‑‑ "Whether the Commissioner acted intra vires in ordering resumption ? ??????????? The trial Court held that the Commissioner had no jurisdiction to order resumption of the land and also decided other issues against the appellant/defendant. The suit was decreed by the trial Court vide its judgment and decree dated 22‑6‑1965. Thereafter, the appellant filed an appeal which was dismissed by the Addl: District Judge vide his judgment and decree dated '‑‑4‑1966. Thereafter the present appeal was filed by the appellant.

5. It was contended by the learned counsel for the appellant that the order elated 11‑4‑1962 passed by the Commissioner amounted to an award as contemplated under clause 14 of the terms and conditions of the sale‑deed in favour of Sardar Noor Muhammad Mokal, the original owner of the land. He further submitted that the Collector had rightly resumed the excess land vide his order dated 27‑4‑1963 because the Governor of the Punjab in his order had allowed merely an equivalent area to the original owner. According to the learned counsel the Governor's order Ex. D6 was mis‑construed by the Courts below. It was also pointed out by him that the Collector had only made a recommendation vide Ex. D7 which was never accepted by the Governor. Hence, the respondent could not claim land exceeding 101 Kanals. On the other hand Chaudhry Imdad Ali Khan, Adv. appearing for the respondent contended that clause 14 pertaining to Arbitration was confined to the original sale alone and was not relatable to the subsequent dispute of grant of alternative land. He further submitted that the recommendation made by the Collector was accepted by the Governor as is evident from the words "pleased to accept the recommendation", occurring in Ex.

06. The learned counsel further submitted that the respondent had claimed excess land for surrendering his title in respect of the land owned by him and his quest was accepted for cogent reasons. He was to be granted excess land so as make it equivalent to the highly valuable land originally owned and surrendered by him. Lastly it was submitted that after the grant of proprietary rights auction of the land was totally illegal. The respondent had claimed the price recovered through auction and alternatively wanted additional area so as to compensate him. The learned counsel has referred to a few judgments, out of which Anjuman‑e‑Taleem‑ul‑Islam (Registered Sheikhupura) v. Province of W.P., Punjab Province and two others (PLD 1983, Lah. 294) is relevant.

6. I have considered the arguments raised by the learned counsel for the parties and gone through the record as well as the impugned judgments of the Courts below. The perusal of the record shows that the order passed by the Governor (Ex. 136) was preceded by two important facts; first that Sardar Noor Muhammad Mokal, deceased had made a written application (Ex. D2) requesting for grant of additional area (18‑3/4 Acres) so as to compensate him adequately. On this application his statement was recorded which is incorporated in Ex.D

3. Secondly, the request was duly considered by the then Collector Montgomery (now Sahiwal), who made the following recommendation vide Ex.D7:‑‑ "I have personally inspected the site. There is definitely a difference in quality of the land which has arisen on account of the proximity of both the sites. The previous lambardari grant was very close to the main town hardly a few yards while this grant is located at about 3 furlongs from the main city although about a 100 yards from the civil areas. It is of course a suitable site for growing vegetables for the consumption of local city people and would naturally fetch much higher income in comparison to other areas. The previous lambardari land was equally good in this respect. Sardar Nur Muhammad has also seen me in this connection and has stated that in case Government is not prepared to give him the additional area he may be paid compensation upto the extent of money realized by Government by the sale of his lambardari grant in the last auction. He has not submitted any application to this effect. In order to confirm this proposal please obtain a proper application from Sardar Nur Muhammad Mokal. Commissioner should, therefore, be replied that the land proposed is not of the same quality and value as the original grant and the additional area of 6 acres 2 kanals and 15 marlas proposed in compensation of the original grant is quite reasonable and definitely provides compensation for the original grant." It appears that in cases of other land‑owners similar recommendations were made. The said recommendations were forwarded to the Govt. vide Commissioner's endorsement No. 13944, dated 27‑8‑1952. Then the Governor of the Province accepted the recommendations and passed the following order:‑‑ "In the circumstances explained, the Governor of Punjab is pleased to accept your recommendations that Ch. Chiragh Din, Sardar Nur Muhammad Mokal and Sh. Karam Bakhsh Lambardars of Montgomery town, whose lambardari squares have been sold in auction, for residential purposes, in the scheme for the extension of Montgomery town, should be allotted an equivalent area held by them previously, as lambardari grants." 7 The contention raised by the appellant's counsel that the suit was barred in view of the provisions of section 32 of the Arbitration Act as there existed an arbitration clause in the sale‑deed, has no substance. Obviously, the present dispute pertained to the subsequent transaction of exchange. It had nothing to do with the grant of proprietary rights to Sardar Noor Muhammad Mokal regarding his lambardari grant. The proprietary rights were conferred on Sardar Noor Muhammad Mokal on 6‑2‑1952 when the sale‑deed was duly registered in his favour. The chapter of grant of proprietary rights and ownership in respect of the said land was thus closed in 1952. Subsequent transaction of the exchange took place with the attestation of mutation No. 1800, dated 31‑5‑1955. The dispute raised by the appellant pertained to the area in excess of 101 kanals originally granted to Sardar Noor Muhammad Mokal deceased. It was, therefore, outside the purview of clause 14 of the sale‑deed which pertained to original grant and conferment of proprietary rights to Sardar Noor Muhammad Mokal. The Commissioner had rightly held that the provisions of clause 14 of the registered sale‑deed could not be invoked in the present dispute. However, he acted in excess of his jurisdiction, in directing the Collector to resume the excess land from the name of the owner. The said direction could neither be given by him in his capacity as an arbitrator nor as the Commissioner of the Division. To that extent, the order of the Commissioner was without jurisdiction and hence a nullity in the eye of law. There is also considerable force in the arguments of the learned counsel for the respondent that after the execution of the sale‑deed the Government could not resume the grant and unilaterally dispose of the same through auction. It was held in the case of Anjuman‑e‑Taleem‑ul‑Islam (Registered Sheikhupura) v. Province of W.P., Punjab Province and 2 others (PLD 1983 Lah. 294) that the Collector had no jurisdiction to himself cancel the sale and resume the property after the conferment of proprietary rights. In the present case the land belonging to the predecessor‑in‑interest of the respondent was auctioned away without formal resumption. The owner,, therefore, had rightly laid a claim to the payment of the entire auction price. Had he pressed the same he would have succeeded to recover it from the appellant. However, he had alternatively requested for allotment of 1‑1/2 time more land as compared to the original grant. This was accepted by the Government and a formal exchange was effected in the name of Sardar Noor Muhammad Mokal, deceased, through .mutation No. 1800 sanctioned on 31‑5‑1955 (Ex. P4). The possession of the land, given in exchange, was handed over to him. Thus he became an absolute owner of the land and the Collector had no jurisdiction to cancel the exchange or resume the land. The arbitration clause of the original sale‑deed, as held above, could not be resorted to by the appellant. Hence the only legal course open to the Collector was to approach the Civil Court for annulment of the exchange to the extent of the so‑called excess area. The order passed by the Collector under the direction of the Commissioner was, therefore, without jurisdiction and hence a nullity in the eye of law.

8. It was next argued by the learned counsel for the appellant that the Collector had rightly resumed excess land vide his order dated 27‑4‑1963 because the Governor of the Punjab in his order had allowed merely an equivalent area to the' original owner. The copy of the said order is exhibited as D6 on the record of the trial Court. As mentioned above, the order passed by the Governor was preceded to two facts; first, the deceased had himself requested that the Government should give 18‑3/4 Acres of land to him or pay the actual price recovered by the Government through auction of his land; secondly, the request was duly considered by the then Collector, Montgomery, who recommended the case in favour of the respondent and the Governor accepted the said recommendation. Thus, it is evident that the Collector had duly taken into account the loss caused to the deceased owner and made a just and fair recommendation in the circumstances of the case. The deceased owner had himself made an alternative prayer for payment of the price recovered by the Government through auction of the land but the Government opted to allot land in excess of the land originally granted to him. The recommendation made by the Collector left no manner of doubt that the land originally granted was very valuable and that the additional area of 6 Acres, 2 Kanals and 15 Marlas was proposed to be given by way of compensation to the owner. This proposal/recommendation was accepted by the Governor of the Punjab who in his turn ordered allotment of an equivalent area to the owner. Obviously, the word equivalent is used in the context of recommendation made by the Collector. It was rightly urged by the learned counsel for the respondents that the word `equivalent' embodied the idea of value and quality as well. Hence, the exchange ?transaction was not to be based. on mere mathematical equation of the areas. Instead, the deceased owner was to be adequately compensated as he was deprived of his valuable land located in the close proximity of the town. The grant of the additional area was not only covered by the specific recommendation made by the Collector but also by the order passed by the Governor for the grant of an equivalent area to the deceased owner.

9. For the foregoing reasons there is no merit in this appeal which is dismissed leaving the parties to bear their own costs. H.B.T./P‑89/L Appeal dismissed.