1992 PLP 671 (MLD)

MUHAMMAD ASLAM ARAIN, J.

In these six petitions, the petitioners have challenged the order, dated 20-2-1989, passed by the respondent, Member (U.L.), Board of Revenue, Sindh, whereby the land comprised in the allotment/transfer of the petitioners has been cancelled in exercise of his suo Motu revisional powers vested on him under section 7 of the Colonization of Government Lands Act, 1912 read with subsection (4) of section 164 of the Land Revenue Act, 190,

7. The respondent (Member, Board of Revenue Sindh) had initiated suo 'Motu action to examine the correctness legality and propriety of the orders of the Assistant Commissioner, Karachi (East) dated 21-7-1986, passed by him on behalf of the Deputy Commissioner, Karachi (East) allotting the land to various persons in village Ismail of Deh Doozan, Karachi (East). Since the facts and the grounds of all the petitions are identical and the impugned order, dated 20-2-1989 is also the same, they are being disposed of by this single order. It is the case of the petitioners that various plots of different area situated in Ismail village Sector No.38-A, Scheme No.33, Karachi, were allotted to various persons living in the said village. The allotment was made in accordance with the policy of the Government of Sindh Land Utilization Department, vide Notification, dated 12-1-1980. This Notification is in respect of the grant of Estate land for New Village and the extension of existing Village. The Authority competent to grant Estate land, as per condition No.4 is the Collector or his nominee who shall not be below the rank of Assistant Commissioner. The allotments were to be made on an application to the Collector. The mode of payment is also prescribed in these conditions and it has been provided that after the grantee has paid 25% of the price, he would be issued an allotment order (Sanad). The possession was thereafter to be delivered to the allottees. It is also provided that within 6 months of taking possession of the land, the grantee shall cause to be prepared in respect of the land suitable plans and after the plan is approved, the grantee would proceed to establish the village in accordance with such plan. It is the case of the petitioners in all these petitions that all formalities required under the aforesaid Notification were completed and the allotments were made in favour of various persons. Subsequently, those allottees transferred the plots to the petitioners and others with the due approval of the concerned Authorities. In this respect the petitioners have produced a letter, dated 21st, July, 1986, issued to allottees showing that the plots are allotted to them for 99 years' lease and that they should pay the occupancy price and development charges, at Rs.2 per sq. yard, Rs.50 per sq. yard as development charges and Re.0.50 as annual rent. After this order of the D.C. on application by the petitioners and others, the Assistant Commissioner, Karachi (East) allowed the transfer of various plots from the names of the allottees to the petitioners and others. This order of the Assistant Commissioner is dated 3rd March, 1988. A no dues certificate dated 3-3-1988 is also on the record. After the allotment and the subsequent transfer of various plots, it seems that the respondent (Member, Board of Revenue) issued a show-cause notice dated 19-10-1988, calling upon the allottees/petitioners/transferees to appear before him and show cause why the allotments should not be cancelled as the same were made without approval of the Collector. Persuant to the show-cause notice some of the petitioners/allottees appeared before him and some of them even filed objections to the show-cause notice challenging the jurisdiction of the Member, Board of Revenue who was exercising his suo Motu jurisdiction under the Land Revenue Act as well as under the provisions of section 4, Colonization of Government Lands Act. It may be mentioned that in the impugned order, dated 20-2-1989, the names of the parties in detail are shown including the petitioners and the previous allottees as well as the D.C., Karachi (East), Assistant Commissioner, Karachi, (East) and Assistant City Survey Officer. As many as 158 parties are shown in the order impugned though in fact 160 plots were allotted to various persons. The perusal of the order impugned shows that the Member, Board of Revenue has cancelled the allotments/transfers mainly on the following grounds: -- (i) The plots had been allotted by the Assistant Commissioner, Karachi (East) on behalf of the Deputy Commissioner as his nominee, and no such power as delegated by the D.C. to the Assistant Commissioner. (ii) There is nothing on the record to show that the price fixed had been recovered. (iii) The land was situated in Scheme No.33 of K.D.A. and in a very valuable area, rate of Rs.2 per sq. yard cannot be construed to be price of land for individual. (iv) The allottees were not given possession of the allotted plots with the permission of the Collector. (v) Since the allottees had not legal title over the plots, the transferees/petitioners did not acquire a better title than those persons from whom they have acquired the title. We have heard the learned Advocates at length and also gone through the impugned order and perused the documents placed on record. As stated above, letter, dated 21-7-1986 was issued by the D.C. (East) to various allottees stating that the plot is allotted to them for 99 years' lease and calling upon such allottess to pay the occupancy price development charges and annual rent. Then there is the order of the Assistant Commissioner dated 3rd March, 1988 who allowed the transfer of the plots to various persons as there was no restriction on transfer after payment of the price by allottees. The lay-out plan was prepared by the office of the D.C., Karachi and submitted to K.DA., for approval. The approval was also accorded. The plans for constructions were also submitted to K.D.A. and were duly approved. In most 'of the cases, construction work had started and the inspection report dated 1-6-1989 prepared by the Commissioner persuant to the Court, order dated 2-5-1989 the Commissioner has given the details of constructions over various plots involved in these petitions. A number of other documents have also been produced by the petitioners showing the correspondence regarding the regularisation of Ismail village carried on between the D.C" the Assistant Commissioner, Secretary, Board of Revenue and others. These letters are between 20-1-1980 and 19-2-1987. The learned Advocates appearing for various petitioners have contended as under: -- (a) Individual applicants were entitled to grant of land and upon application (though made jointly) they were allotted the plots and with the due approval after payment of price the same were transferred in a lawful manner. As such, vested rights were created in their favour which rights could not be taken away by the respondent on the ground that the basic allotments were not in accordance with law. They have placed reliance on 1985 SCMR 9, PLD 1987 Quetta, 103, 1985 CLC 2395, PLD 1987 SC 260 and 1989 ALD

478. This case-law has been referred in support of their contentions that the petitioners were not given proper opportunity of hearing before the impugned order was passed. (b) The proceedings of case would mean a judicial or quasi-judicial proceedings and since no such proceedings were pending before any subordinate functionary the Member, Board of Revenue could not initiate suo motu proceedings. (c) The Member, Board of Revenue could not revise the actions which were inter-departmental or of the functionaries of the Government. (d) The show-cause notice shows that the allotments were made by the Assistant Commissioner without approval of the Collector and no other aspect of the case could have been considered by the member as has been done by him. (e) The notice should have been given to the Collector to find out whether he had authorised the Assistant Commissioner for allotments of plots or not. This has not been done and therefore, presumption under section 114 of Evidence Act and Article 129 of the Qanun-e-Shahadat would be in favour of the petitioners that all the judicial acts were properly performed. (f) There was no allegation in the show-cause notice of any collusion or fraud between the allottees or the transferees with the functionaries of the Government. All the acts were done in a lawful manner. (g) The allotment of various plots was made in July, 1986 and the transfer in favour of the petitioners was made in May, 1988 but the show-cause notice was given in October, 1988. The issuance of show-cause notice, according to the learned Advocate was illegal and mala fide. (h) A summary of the case giving all the details of the regularisation of the village Ismail was duly approved by the D.C. East on 2-7-1986. (i) The Board of Revenue was kept informed at all stages regarding the correspondence going on between various functionaries and it was with the approval of the Board of Revenue that not only orders of the regularisation were passed but also allotments and transfers were made. Mr. A.A. Mohammadally, the learned Additional Advocate-General appearing for the official respondents has contended before us that the allottees were not given plots in their individual capacity but were given the plots in their capacity as the residents of the village and therefore, allotments were illegal. He has next contended that the Assistant PLD. Commissioner was not authorised to allot the plots in question which he did illegally and that the subsequent transfer was also illegal. He supports the impugned order of the Member, Board of Revenue. We have given our serious consideration to the facts of the case and have also perused number of documents placed on the record of this Court. The respondent had given a show-cause notice to various allottees/transferees to show cause why the plots should not be cancelled as the allotments were made without the approval of the Collector. Instead of restrict inquiry to this aspect of this case, he has travelled beyond the scope or investigation and considered other aspect of the case like non-payment of the price, illegal ' transfer order, lack of jurisdiction of the Assistant Commissioner, fraud and collusion etc. This according to us the learned Member, Board of Revenue could not do. The Assistant Commissioner, who had initially allotted the plots as the nominee of the Deputy Commissioner was neither called by him, nor verified even from the Deputy Commissioner whether he had nominated the Assistant Commissioner for that purpose. The payments made by various allottees/transferees have been proved before us and number of receipts were shown which clearly prove that the concerned agency received the occupancy price as well as the lease money and development charges. The learned Member, Board of Revenue has also not taken into consideration the facts that the orders of the regularisation of the village Ismail were issued by the Board of Revenue itself. He has also ignored the fact that the layout plan was prepared by the office of the D.C. Karachi, for approval of K.DA., which was duly approved. He has also not taken into consideration the fact that on most of the plots transferred constructions were raised, thereby creating third party interest who are bona fide purchasers for valuable consideration. While going through the impugned order we also find that no proper opportunity was given to all the concerned allottees/transferees to put up their case and prove the genuineness of the allotments, transfers, and payments. The Member, Board of Revenue, in our view, exceeded his jurisdiction in passing the impugned order ignoring all the facts stated above. This order if allowed to remain, would prove very harsh to the petitioners and other transferees who have paid the price in most of the cases and acquired vested rights. For these reasons by a short order we had set aside the impugned order and declared it to have been passed without lawful authority and of no legal effect. Respondent No.l, however, will be at liberty to take action according to law, if he so desires after notice to the parties and giving full particulars of all the allegations on the basis of which he initiates such action. Parties to bear their own cost. A.A./M-1508/K Petitions accepted.