1995 PLP 500 (CLC)

2. The learned trial Court granted a decree to the plaintiff even for possession which had not been claimed but, however, that was granted on the ground that the possession had been taken during the pendency of the suit, as was held entitled to the possession. While granting the decree, the learned trial Court further observed that as the transaction has attained finality as there was no occasion for the defendant to ask for the additional amount for the transfer of the property which had already been finalized. The appellate Court also agreed with the finding of the learned trial Court on the point that once the transaction is complete that cannot be cancelled and dismissed the appeal of the defendant‑petitioner, who challenged the same through the present revision petition.

3. Mr. Muhammad Iqbal Khan Kundi, Advocate who appeared on behalf of the petitioner, Mr. Saadullah Khan, Advocate assisted by Mr. Muhammad Ayaz, Advocate appearing on behalf of respondent No. 1 and Mr. Muhammad Khan Khakwani, Advocate who represented respondents 2 to 4 were heard and the record of the case perused with their assistance.

4. With regard to the proposition that once a transfer has been finalized, the amount has been deposited and which had been acted upon, then it is not within the right of any person to demand an additional amount for the said transfer on the ground that the amount already paid or deposited is less than the actual price of the property or the property is more valuable and that has been disposed of on ax very nominal price, but the main quotations which requires to be resolved is whether the property was validly and legally transferred by a competent authority/person or not and when once it is held that the authority/person who has passed the transfer order on the basis of which the mutation had been attested was not competent or that/he was not having the authority or within his power to transfer the property, then the transferee could not derive any right through the said transfer.

5. At the relevant time the law which was dealing with the various aspects of the Local Councils and matters connected thereto including the dealing with and disposal of the Council's property was the N: W.F.P. People's Local Government Ordinance No: III of 1972 which may be hereinafter called as Ordinance, in which the word `people' was deleted later on, was enforced on y5‑2‑1972. According to section 47(2)(c) of the Ordinance, the Local Council concerned could sell etc. its property with the previous sanction of the Government in the manner prescribed. According to section 9(1)(ii) of the Ordinance Council means People's Municipal Committee and according to section 12 People's Municipal Committee shall consist of such number of members of elected members as may be prescribed by the Government, meaning thereby that the Council in case of Committee is its elected members. Thus it is the 'elected members of the Municipal Committee which could dispose of the property but with the previous sanction of the Government in, the manner prescribed. Section 93 also provides for the temporary arrangement in the absence of the Constitution of the Local Council by providing that `the Government .... may by order empower any person or persons to perform all or any of the functions .... such functions of a Council under this Ordinance as may be specified in the order until a properly constituted People's Local Council for the Local area assumes office in accordance with the provisions of this Ordinance. The period in which the property was allegedly transferred there was no elected members of the Council and the Assistant Commissioner, D.I. Khan had been appointed as an Administrator to perform the functions of the said Local Council. The Administrator after the receipt of the order of the Chief Minister sought the sanction from the Deputy Commissioner, on the assumption that he was the Controlling Authority while there is no, provision of law and the learned counsel for the respondent was unable to show any such provision under which the Deputy Commissioner had figured as Controlling Authority or there is any word by the name of Controlling Authority. It seems that that was done on the mistaken presumption that under the previous laws there was some provisions for the controlling authority which in the time in question were not enforced. The mutation was attested after the endorsement by the Deputy Commissioner with the word `approved'. Under section 4'7(2)(c) of the Ordinance the sale etc. has been conditioned with the words `previous sanction of the Government' in the manner prescribed. Asking the learned counsel for the parties with regard to the prescribed manner it was found that there was no prescribed manner. However, by reading section 47(2) of the Ordinance it by itself a self‑contained law, made provisions for the transfer of the Local Council property as that can be done by the Local Council with the previous sanction of the Government. Though in the instant case, at the relevant time, the function of the Local Council had been given to the Administrator/A.C., D.I. Khan.

6. The real question for determination in this case is whether the procedure within the meaning of section 47(2)(c) of the Ordinance has been correctly adopted and the authority which passed the order for the `transfer of property could do so and this question finds its place in Issues No. 3 and No. 11 as mentioned above. 'The scheme of the law as discussed above is that the matter would be originated or initiated by the Local Council and would be finalised by the Government by giving its approval/sanction.

7. The suit property being a public property its disposal should have been made in the public interest which may be, that the local council may fetch some good price by the disposal of the property and may utilize it for some other good purposes or there may be some scheme of the Government or local council for the welfare of the people, as generally done to provide shelter to the homeless persons and thus if something is done by disposing of the public property then it is to be done with certain objects and in other words it is to be done objectively and not subjectively and in the present case, this had been done conversely and in the opposite direction as the allotment order was made by the Chief Minister and was sent to the council concerned for compliance and thus it was done subjectively to benefit a particular person with a property of more than 9 Kanals for the construction of house at a very low price.

8. In addition to the facts mentioned above, another important question poses itself to be resolved as whether the Chief Minister could be considered as the Government within the meaning of the Ordinance or the Government Would be some other authority or body which could exercise its powers of approval etc. as Government under the Ordinance. The Government which has been defined by the section 2(20) of the Ordinance means the Government of the North‑West-frontier Province. This definition only signifies meaning of the Government with regard to its specifications and in contradistinction with the Federal Government or other Provincial Governments but it has not been pin pointed that which authority or functionary for the purpose of the sanction of the disposal of the property of local council could be called the Government. For this purpose assistance would be sought for the interpretation and meaning of the word Government from other law as general Dictionary meaning would not be sufficient to solve the problem as it requires strict legal interpretation. In this respect a reference will be made to the Constitutional provisions and General Clauses Act, 1897. In the present case at the crucial dates i.e. the date of the application to the Chief Minister, date of endorsement of Chief Minister, the dates of various correspondence and the date of attestation of mutation, the country was governed by the Interim Constitution of the Islamic Republic of Pakistan, 1972.

9. According to section 3(43‑a) of the General Clauses Act, 1897 which defines Provincial Government and according to which: "3(43‑a) Provincial Government: `Provincial Government'‑‑ (a) as respects anything done after the establishment of the Federation of Pakistan but before the fourteenth day of October, 1955, shall mean in a Governor's Province, the Governor, and in a Chief Commissioner's Province, the Federal Government; (aa) as respects anything done or to be done after the thirteenth day of October, 1955, shall mean the Governor, and where the administration of any area vested in the Governor‑General or vests in the President, the Federal Government; (aaa) as respects anything done or to be done after the fourteenth day of August, 1973, shall mean the Chief Ministers and the Provincial Ministers and shall include in relation to functions entrusted to the Federal Government, the Federal Government acting within the scope of authority given to it by the Provincial Government." From which it is evident that the Provincial Government means the Governor, according to (aa). According to section 4‑A of the Act ibid which prescribes the application of certain definition to all Pakistan Laws and according to this section, the definition given to the Provincial Government is applicable to all Pakistan Laws. Pakistan Law has been defined under section 3(37‑b) which states: "3(37‑b) `Pakistan Law'.‑‑`Pakistan' law shall mean any Act, Ordinance, Regulation; rule, order, bye‑law or any other instrument which has or had the force of law in Pakistan or any part thereof; but does riot include an Act of Parliament of the United Kingdom or any Order‑in- Council, rule or other instrument made thereunder." So, by reading the abovementioned provision of law, the Provincial Government before the 13th June, 1973 means the Governor. According to section 3(43‑a) (aaa) quoted above and after 13‑6‑1973 the Provincial Government means Chief Minister and the Provincial Ministers and to certain extent the Federal Government.

10. After having the meaning of Government according to General Clauses Act, now recourse will be had to the Constitutional provisions which would be more proper for the purpose i.e. for the definition of Government. As already stated at the relevant time, the country was governed by the Interim Constitution of 1972 and according to Article 102 of the Constitution ibid the executive authority was to be exercised by the Governor which is reproduced, below:‑‑ ' "

102. Executive Authority of Province.‑‑(1) The executive authority of a Province ‑shall be exercised by the Governor, either directly or through officers subordinate to him, but nothing in this Article shall prevent the Federal or Provincial Legislature from conferring functions upon subordinate authorities, or be deemed to transfer to the Governor any functions conferred by any existing law on any Court, Judge, or Officer or any local or other authority." And under Article 103 of the Constitution, 1972 there was a Council of Ministers called to be the Governor's Council of Ministers headed by the Chief Minister for the purpose of aiding and advising the Governor in exercise of his functions. According to Article 106 of the Constitution ibid all the executive functions of the Provincial Government shall be expressed to be taken in the name of the Governor and the orders made or the instrument executed in the name of the Governor shall be authenticated in the manner specified under the rules to be made by the Governor and the Governor has been given further powers to make rules for more convenient transaction of the business of the Provincial Government. The Governor in exercise of the powers given under Article 106 of the Constitution framed N.‑W.F.P. Rules of Business, 1972' and according to the definition of Government under the rule 2(1) the Government means the executive Government of the N.W.F.P. In other words the Government would be the authority or functionary which could exercise the executive powers of the Government. Here under the Constitution of 1972 Article 102 the exercise of executive authority, which is residuary of the powers of judiciary and the legislature, was given to the Governor. Though in the Constitution of 1973 before its amendment by the Presidential Order of 1985, the meaning which can be derived from Article 129 of the Constitution of 1973 would be the Chief Minister and the Provincial Ministers and which is for ready reference i.e. reproduced:‑‑ "Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister." In Article 102 of the Constitution of 1972 such clause or words are missing from which the meaning of the Provincial Government is to be derived and which would be the one other than the Governor.

11. From the above narration it is quite clear that the Government, for the purpose of answering the question, in the instant case was the Governor and not the Chief Minister. What to speak of the sanction of the Governor E even the order was not issued in his name in compliance of Article 106 of Constitution of 1972 which could be authenticated by the Chief Secretary, other Secretary etc. as mentioned in rule 7 of Rules of Business, 1972 and which was done through a letter Exh. DW. 1/1 from the Chief Secretary on behalf of the Governor for demanding the deposit of the real and proper price of the property and which was complied with by Muhammad Hussain in respect of the property measuring 2‑1/2 Kanals and thus the allotment order was rectified by the sanctioning authority but the same is missing in the case of respondent Habib‑ur‑Rehman due to ‑ his non‑compliance of the proper orders. .

12. Thus sanction of the Government is lacking which is an essential and prerequisite condition for the proper transfer/sale of the property of the Local Council. So, looking at the case from this angle then the very transfer of the property by the order of the Chief Minister is void ab initio as under the Constitution and the relevant laws it was the Governor who was the executive head of the Government of the Province who could accord sanction for the transfer of the property and without his sanction any transfer or alienation is illegal. Though subsequently the Governor had asked for the payment of the additional amount and by depositing the same by the respondent the transfer could be validated as that could amount to a sanction provided the condition laid down by the sanctioning authority had been complied with as done by Hussain Bakhsh, though he is not before the Court but his case is distinguishable from the case of the respondent Habibur Rehman.

13. The learned counsel for the respondent has referred to some authorities on the principle of locus poenitentiae which, are not applicable to the point involved in the case. He contended once the transaction has been completed the same cannot be rescinded or cancelled on the ground of non‑payment of additional amount. There is no cavil with this proposition but the transfer was not done by a competent authority in accordance with law. As regards the possession, it can be granted when the possession has been taken during the proceedings of the case. There is also no cavil on this point. The suit of the plaintiff failed mainly on the ground that the transfer in his name which was subsequently cancelled was void ab initio and thus he cannot claim through a declaratory suit that he is the owner of the property. Resultantly this revision petition is accepted, the judgments and decrees of the two Courts below are set aside. Parties are left to bear their own costs. AA./1657/P Revision accepted.