2008 PLP 2651 (YLR)

MUNIB AHMED KHAN, J.--After hearing the contentions of learned counsel for the parties as well as government officials, who are present in person, and perusing the earlier orders, dated 5-4-2007, 22-5-2007 and 11-1-2008, we have observed that the issue involved in this petition is that the petitioner is claiming the land admeasuring 8 acres out of Na-class 14, situated in Deh Kathore, Karachi which according to him, he has purchased from respondent No.7, Haroon, the original allottee. Mr. Abrar Hassan, learned counsel appearing for the petitioner submits that respondent No.3, Syed Wajahat Abbas Naqvi, is interfering in possession of subject land on the ground that he has purchased the same in open auction through the Banking Court. He submits that the land in question is a grant for a specific purpose and it could not be auctioned nor could be mortgaged as the grantee has no right in perpetuity. Mr. Ahmed Pirzada, learned A.A.-G along with the above-named government officials submits that normally the land is being granted for poultry or other purpose for a specific period on certain terms and conditions, hence ownership of the land cannot be transferred from grantee to any other person while remaining leasehold rights are permitted to be transferred with the permission of SDO (Revenue). He submits that the grant in such a way cannot be considered as transfer of complete ownership under Ijazatnama with terms and conditions but with specific conditional leasehold right and the land is to be reverted back to the government after certain period and that a very nominal amount is charged against such leasehold right. He further submits that government, under the condition of Ijazatnama as well as under land grant policy can cancel such grants, therefore, under these conditions a grantee cannot mortgage the granted land nor any such action on his part will be valid nor will entrust any legal right, hence, the Bank has, acquitted no right through illegal mortgage, nor it can auction the land. We have observed that the land is normally granted under the Government Land Policy including the Land Colonization Act, 1912, for a specific purpose like poultry or on Wahi Chahi basis and for a limited period including 10 years to 30 years etc., and that too on nominal charges, this grant can be considered in the interest of public as well as country just to promote government policy and increase any kind of product and after completion of period, the said land is reverted back to the government. It can also be observed that with this type of land certain terms and conditions remained attached and violation thereof, can result in cancellation of grant. With such type of land permission to construction is not granted by any authority but grantee can raise make shift construction which is necessary to carry out the purpose of grant. In such a situation, no .ownership right is created for the grantee in the granted land hence he has no right to transfer the same to any person or to mortgage with any authority or bank etc. We are also of the opinion that even the leasehold right cannot be transferred to anybody as the original lease is being granted on certain terms and conditions keeping in view, the specific qualification of the original applicant and undertaking to use the land for specific purpose, therefore, the government should be restrained in future from transferring even the residuary leasehold right in the land as the said practice has created a havoc to the actual ownership of government and in multiplying the litigation. If a grantee fails to comply with the conditions of grant then he should return the land and in his failure the government should itself invoke agreed conditions and cause reversion of such land to it and thereafter, may grant to new applicant but transfer inter se between the individual etc., should not be permitted otherwise the gist and very purpose of scheme of grant will fail. It has further been observed that since the grantee has no right, therefore, he .cannot affect any mortgage or charge over the land nor loan can be granted by the Bank etc., against such illegal mortgage and if any such type of loan is granted then it has no validity and it will not be binding on the Lessor i.e. Government of Sindh and will not create any right in favour of mortgagee. In such a situation, the auction-purchase can resort to the Bank or Banking Court for return of amount and the Bank may seek remedy available under the given circumstances. Primarily, it seems to be the duty of Law Department of the Bank, who without realizing the legal position has permitted mortgage of such type of land of the grantee which itself has no right or title in the ownership of the land. In such a situation, the land in petition is under the entitlement of the government, which is directed to resume the subject land as conditions of grant apparently have been violated. The petition is accordingly disposed of in above terms along with the listed applications. It will be also pertinent to observe that in certain land grant matter duration and nature of the grant has been changed from 30 to 99 years and from poultry/Wahi Chahi purpose to commercial and industrial purpose. Obviously this is being done by the government officials by using their sheer powers which is contrary to other existing laws pertaining to the Disposal of Plots and Lands Ordinance as well as Policy of Transparency for the reason that the grantee has not vested right to take unusual and unnecessary benefits by getting the lease extended or the nature of the land converted. We direct that all such type of transfers to be taken care of by the government and be scrutinized so the government may not suffer the loss while in future any extension of lease or change in the nature of lease or for any other act affecting the rights, government should publicize so there may be transparency and equal opportunity to all the citizens for participation to acquire land. Let copy of this order be sent to the presidents of the all banks and to the State Bank of Pakistan for it circulation amongst the concerned organizations. The copy be also sent to Chief Secretary, Government of Sindh and Secretary Land Utilization for information and strict compliance. H.B.T./R-26/K Order accordingly.