1994 PLP 30 (SCMR)

4. Ch. Khalil‑ur‑Rehman, learned counsel for the appellant in Civil Appeal No. 1138 of 1990, raised the following contentions:‑ (1) The Government having auctioned the land accepted sale proceeds and delivered the possession is now stopped to annul the transaction. (2) The possession was delivered in accordance with Condition No.9 of Exh. D‑

1. It will be presumed that the possession was delivered after sanction by the Government in accordance with section 114 of the Evidence Act. (3) At the most, the position of the appellant is that of tenants. Once tenants are put in possession, the land can be resumed within three years of the possession and not after that.

5. Ch. M.Z. Khalil, learned counsel for the appellant in Civil Appeals Nos. 1139 and 1140 of 1990, adopted the arguments of Ch. Khalil‑ur Rehman.

6. The auction was made in pursuance of a Notice of sale made by the Government. Conditions have been laid down in the aforesaid notice. Though the parties have not placed on record copy of the said notice but it is a common ground between the parties that the conditions laid down in Exh. D‑1, the auction notice, apply to the present case.

6. The case of the respondent is that unless the Government approves the auctions, an auction‑purchaser cannot. become the owner of the land. This fact is even admitted by the learned counsel for the appellants.

7. In the present case, admittedly, the Government had not granted the sanction of the auction. The learned counsel on behalf of the appellants, submitted that the appellants had paid 1/3rd of the sale price, after the close of the auction, they had to pay the three installments on 15‑1‑1957, 15‑1‑1958 and 15‑1‑1959 and they had paid the full pirce. The possession was also delivered to the appellants as such they became the absolute owner of the land. The Government had no right to rescind the transaction. The learned counsel has relied upon the following commentary of late Mr. Justice Monir in his Law of Evidence, 1974 Edition at page 1254, on section 115:‑‑ "If a man, having a title to an estate which is offered for sale and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that the title is good, the former so standing by, and being silent, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase." The above‑mentioned observation does not attract in the present case. If a functionary of the Government without the approval of Government had delivered the possession that does not bind the Government and the plea of estoppel cannot be raised. In the case in hand, the Government challenged the auction on the ground that auction proceedings were, stayed by the Government. The learned counsel has referred to the statement of Munshi Gul Muhammad D.W.1 who stated that he had not seen the telegram saying the auction of the land. Sardar Ata Muhammad, P.W.2 in Civil Appeal No. 1139/1990 has admitted that he had received the telegram and, therefore, stopped the auction of the other land. The High Court observed in that judgment that "Auction of the land was started at 9‑00 a.m. in the morning and after 15/20 minutes, a telegram was received from the Government to stop the auction. This was done due to some complaint against Sardar Ata Muhammad, the then Colonization Officer". It was further held that "the proceedings of the caution could not be completed within 15 minutes. The auction proceedings appear to have been finalised after the receipt of the telegram". This finding of the High Court is supported by the fact that the appellant deposited the instalments at their own behest and without any demand from the Government. The deposit was accepted on the condition that if Government did not confirm the sale then they would have no claim over the land. 8 Conditional deposit subject to the acceptance by the Government cannot be considered as estoppel. The Government in its letter dated 19‑3‑1959 had not confirmed the sale of the land. The High Court further held that "It appears that the very auction was conducted and finalised in a dubious manner which led to some inquiry against the official conducting the same. Perhaps, the matter relating to approval of auction was delayed due to the said inquiry". It is contended that Government took three years in passing the impugned order. But as stated earlier, due to dubious character of the auction which necessitated the inquiry against the official concerned might have taken three years to pass the order. The learned counsel submitted that the person against whom an inquiry was conducted, was subsequently promoted. The report of the Inquiry Officer is not on the file, therefore, we would not like to make any comment on it. The appellants were allowed to pay the remaining auction money subject to the acceptance of the bids by the Government. The appellant sought permission to deposit instalments so that they might be saved from paying interest as there is a specific condition that if the amount is not paid within the stipulated time interest would be charged from the auction‑purchaser. The Government was the final authority to accept or reject the bid. Unless Government gave final approval, a bidder could not claim ownership of land. The Government is the owner of the land and it is the exclusive prerogative of the Government to accept or reject bid. The payment of the entire price by the appellants of their own and delivery of possession to them did not confer any title. When the application for deposit of the instalments was made, the appellants were informed that the Government had not so far accepted the bid. The learned counsel for the appellant submitted that Condition No.5 is to be read alongwith Condition No.9 (a). According to Condition No.5, the sale is subject to final confirmation by the Government. According to Section 9, possession of the land will be delivered after the acceptance of the auction by the Government. But in case the bid was not accepted, he would not be entitled to retain the possession. We may refer to the Notice of sale published in the West Pakistan Government Gazette dated 24‑2‑1956. The Conditions No.5 and 10 are relevant which are re‑produced hereunder:‑‑ "Condition No.5: The sale will be subject to final acceptance and confirmation by the Provincial Government and no bidder, even though his bid has been accepted as the highest by the auctioneer and the local officer shall be deemed to be the purchaser, or shall be deemed to have any claim with regard to his deposit, if the sale is not confirmed by the Provincial Government other than for the return of such (sum) actually deposited by him. Condition No. 10: "When the successful purchaser has paid the sum or sums mentioned in condition 6 above, he will, thereupon be placed in possession of the land sold by an officer appointed in that behalf by the Collector, and shall furnish to such officer a written acknowledgement of receipt of possession. Provided that Possession will be granted in anticipation of, and without `prejudice to the decision of Government and will in no case entitled " the bidder to receive compensation or to remain in possession, in the event of the refusal of Government finally, to accept the highest bid. Provided also that until the full amount of the purchase money, with any interest or penal interest due thereon, has been paid, and another conditions set forth in this statement have been fulfilled, the purchaser 'shall be deemed to be a tenant of such land under section 15 of the Colonization of Government Lands (Punjab) Act V of 1912."

8. The conditions contained in E.D‑1 and the Gazette Notification dated 24‑2‑1956 clearly stipulate that no right was conferred on the appellants. The Government had not accepted the possession delivered to the appellants in pursuance of a legal order. The possession is not supported by any document conferring legal title: No agreement was executed, therefore, the sale was not complete. The circumstances of the case supports the stand taken by .the Government that it was not bound to accept the bid of the appellants, therefore, no title was passed on to the appellants.

9. The learned counsel has referred to Section 15 of the Colonization of the Government Lands (Punjab) Act, 1912, which provides that "a purchaser from Government a land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the; Collector have been fulfilled." According to this provision, a purchaser in possession of the land shall be deemed to be a tenant until such time the full amount of purchase‑money had been paid by him and other conditions are fulfilled. This provision is not applicable in the instant case as the respondent has not accepted the appellants as purchaser of the land. It may be pointed out that though the trial Court passed a decree in favour of the appellants but he observed that "the Government did not confirm the sale of the land".

10. The learned counsel has referred to Colonization of Government Lands (Punjab) Act, 1912 whereby Government granted proprietary rights in the, land under temporary cultivation to those eligible lessees who were prepared to fulfil the conditions; and relied upon Ibrahim v. Rajji (PLD 1956 (W.P.) Lahore 609). This Act has no relevancy to the dispute under consideration as such the precedent is inapt.

11. We may refer to the judgment of this Court reported as Rehmat Ali v. The Revenue Board, West Pakistan, Lahore (1973 SCMR 342) on which reliance has been placed by the two courts below. The relevant observation reads as under:‑ Sh. Ghias Muhammad learned counsel for the petitioners, has urged that the objection of the tenants having been disposed of the auction in favour of the petitioners should have been confirmed. He has further contended that the respondents have acted arbitrarily and capriciously in cancelling the auction in favour of the petitioners. The contention of the learned counsel has no force. Admittedly, the auction in favour of the petitioners was not confirmed. According to Condition No. 10 of the conditions of auction, it was within the discretion of the respondents to confirm or not to confirm the auction. The matter was considered at a higher level and the authorities concerned came to the conclusion that the auction in favour of the petitioners should not be confirmed."

12. We have come to the conclusion that these appeals have no force and they are consequently dismissed leaving the parties to bear their own costs. AA./H‑177/S Appeals dismissed