1986 PLP 1836 (CLC)

SYED ABDUR REHMAN, J.‑‑By this constitutional petition the petitioners have impugned the order dated 11‑5‑1982 passed by Colonization Officer, Guddu Barrage and the order, dated 9‑4‑1985 passed by the Commissioner, Sukkur Division upholding the former order whereby the disputed land was granted to respondent No.5. The facts giving rise to this petition may be briefly summed‑up as under: The agricultural land bearing un-assessed Survey No. 50 of Deh Palaja, Taluka Ghari Yasin, District Shikarpur comprising of 189‑23 Acres was Government Naqabuli land situated within the command of Sukkur Barrage. In 1959‑60, 100 Acres out of this un-assessed number was granted to Raza Muhammad Bhutto. Thereafter, in 1961 the Colonization Officer, Sukkur Barrage issued a Circular inviting offers for permanent sale of a large area of Government land which also included, amongst others, pieces of land from the aforesaid un-assessed survey number 50; one piece marked A, F, H, K and L comprising of 72‑23 Acres and the other piece marked as E comprising of 16 Acres. The circular also contained the conditions on which the land was being offered for sale. Mst. Husan Bano wife of Raza Muhammad Bhutto gave offer for the above piece, A; F, H, K and L of 73‑23 Acres. Since there was no counter‑offer, the offer of Mst. Husan Bano was accepted for the said land and it was transferred to her.

3. So far as the piece marked 'E' comprising of 16 Acres of land is concerned, the respondent No‑5 Mst. Khurshid Bano daughter of Raza Muhammad Bhutto made an offer for it while one Abdullah Bhutto made a counter‑offer for the same. Since the status of Mst. Khurshid Bano as well as Abdullah was the same, the Colonization Officer ordered that this piece of land of 16 Acres marked 'E' be put to a restricted auction between Khurshid and Abdullah. Abdullah Bhutto failed to appear on the date on which the restricted auction was proposed to be held and, therefore, this piece of 16 Acres was granted to Mst. Khurshid Bano respondent No.5. Abdullah filed an appeal before the Commissioner, Sukkur Division only against Mst. Khurahid contesting the restricted suction of the third piece of land marked as 'E' measuring 16 Acres, but surreptitiously contended that this piece should be termed as pieces L a K. The Commissioner held that Abdullah Bhutto belonged to Hari class whereas Mst. Khurshid Bano is a rich woman of higher status and granted piece marked as L & K to Abdullah Bhutto. Against this order of the Commissioner, respondent No.5 Khurshid filed a revision application before the Member, West Pakistan Board of Revenue, Lahore, who rejected the same on the short ground that since the land that was granted to Abdullah Bhutto was the one which was granted by Colonization Officer to Mst. Husan Bano (who was not party to this revision) and the land granted by Colonization Officer to Mst. Khurshid, the respondent No.5 who had filed that revision petition was not touched by the Commissioner hence she had no locus standi to file the revision petition. Thereupon respondent No.5 as well as her mother Mst. Husan Bano filed a writ petition before this Court (C . P . No . 574 of 1966) . The petition was heard by a Division Bench consisting of Mr. Justice Z. A. Channa and Mr. Justice Naimuddin (as he then was). The Division Bench observed that since Abdullah Bhutto had not submitted an offer for the pieces of land marked 'L' and 'K', therefore, he was not entitled to the same and the Commissioner had no jurisdiction or power to grant the same to him and that the grant of these pieces of land to Mst. Husan Bano had also become final as she was the only person, who had recorded offer for the same. There was neither an appeal nor revision against the grant of land to her. In any case, it was observed, that the impugned order was violative of the principles of natural justice as it was passed by the Commissioner without making Mst. Husan Bano a party or giving her a notice. ' It was finally observed that Mst. Husan Bano had a very clear and substantial right in the land granted to her and she could not be deprived of the same unless she had committed a breach of terms of her grant and had been given an opportunity of showing cause against such deprivation. Her not being given such opportunity could not be considered to be a mere technically which was a clog on justice. The Division Bench, therefore, held that the orders of the Commissioner as well as Member, Board of Revenue were without legal authority and, therefore, of no legal effect and accordingly it quashed the same and allowed the petition. The result of the above judgment of writ petition was that the grant of pieces of land marked 'L' and 'K' in favour of Mst. Husan Bano became final and the claim of Abdullah in respect of the same was disallowed. Regarding the third piece of land marked 'E' measuring 16 Acres its effect was that the order of Colonization Officer directing the disposal of the said piece in a restricted auction between Abdullah Bhutto and respondent No.5 Mst. Khurshid and its grant to Mst. Khurshid on the failure of Abdullah Bhutto to appear at the restricted auction was upheld and the order of the Commissioner, dated 22‑9‑1965 and that of Member, Board of Revenue, dated 30‑7‑1966 were declared as without authority and of no legal effect.

4. In pursuance of the decision of the High Court in the above writ petition, the piece of land marked 'E' measuring 16 Acres was formally again granted by Colonization Officer, Guddu Barrage to Mst. Khurshid Bano by an Auction Sheet and order, dated 11‑5‑1982, showing that it was given in an open auction to her on a bid given by her father Raza Muhammad on her behalf of Rs.500 per Acre.

5. After the decision of the above Constitution Petition No. 574 of 1968 which was decided on 19‑4‑1977 but before the said open auction or order of grant could take place, which took place on 11‑5‑1982, it so happened that the disputed land was transferred from the command of Sukkur Barrage to the command of Guddu Barrage and was treated as land available for disposal. Petitioners who were unaware of all the previous proceedings as well as of the interest of respondent No.5 in this piece of land having come to know that the disputed land was available for disposal applied for grant of the same to the Deputy Colonization Officer, Guddu Barrage, Jacobabad, who granted the land to the petitioners in open Katchery on 12‑9‑1979. The allotment order was issued in favour of the petitioners. After they made the intial deposit, the disputea land was transferred and mutated in their favour in Dukhil Kharij Register. The petitioners were then put in physical possession of the land by the Barrage Authorities and they continued to be in possession. They have spent huge amount over the development of the same. When the open auction or the grant as referred above took place on 11‑5‑1982, the Colonization Officer made a reference to the Commissioner, Sukkur Division, Sukkur that the grant of disputed land to the petitioner be cancelled as the land was treated by mistake as available for disposal while in fact it was not so ailable. Commissioner, Sukkur Division after hearing the parties accepted the recommendation of Colonization Officer, Guddu Barrage by his order dated 9‑4‑1985 and cancelled the grant of the disputed land made in favour of the petitioners. Hence, the petitioners have filed this constitution petition and have prayed as follows:‑ "(a) That it be declared that the order, dated 11‑5‑1982 passed by Colonization Officer Guddu Barrage, Sukkur and the order, dated 9‑4‑1985 passed by Commissioner Sukkur Division are illegal, ab nitio, void, without jurisdiction and of no legal effect. (b) That the permanent injunction may be issued against the respondent restraining them from interfering with the peaceful possession of the petitioners over the disputed land either personally or through their agent or any other authority. (c) That the cost of the petition may also be awarded to the petitioner. (d) Any other relief that this Honourable Court may demand proper in the circumstances of the case may also be awarded to the petitioner." Mr. Muhammad Aslam Bhutto, who appeared for the petitioner contended that at the time when they had been granted this land by the Deputy Colonization Officer, Guddu Barrage, Jacobabad (on 25‑2‑1979) no interest muchless a right or vested right was created in the disputed land in favour of Mst. Khurshid Bano respondent No.5, therefore, the grant of the land to the petitioners by the Colonization Officer, Guddu Barrage, Jacobabad was legal and valid. We do not agree with this contention of the learned counsel for the petitioner. While we are quite conscious of the distinction between mere interest and right or vested right, we are unable to agree with the learned counsel for the petitioners Mr. Muhammad Aslam Bhutto that respondent No.5 Mst. Khurshid had a mere interest in the land granted to her and not a vested right. Section 2 of the Government Grants Act 1895 provides that provisions, restrictions and conditions contained in any grant or transfer of land shall be valid and take effect according to their tenor notwithstanding any rule of law, statute or enactment of the legislature to the contrary. No doubt the grant of land to Mst Khurshid, the respondent No.5 was subject to appeal and revision but the appellate or revisional authorities could interfere and cancel the grant if it was not made in accordance with the terms and conditions of the said grant as set out in the circular of the Colonization Officer, As already shown by us the grant of piece marked 'E' was made by the Colonization Officer to Mst. Khurshid strictly in accordance with the conditions specified in the said circular as no other person except Mst. Khurshid or Abdullah Bhutto, was entitled to this grant and as already shown above, Abdullah did not turn up on the date fixed for restricted auction hence C.O. had no option but to accept the bid of Mst. Khurshid. With regard to the so‑called open auction, dated 11‑5‑1982 it may be pointed out that although Annexure 'H' shows that the land bearing marked 'E' was disposed of in favour of Mst. Khurshid on 11‑5‑1982 by means of an open auction but in fact this is not correct. It appears that the office of the Colonization Officer has drawn up. The order of grant on the open auction form in the routine manner in which it has been drawing up the orders of granting lands without taking note of the fact that this was not a case of open auction and that this land was already granted to Mst. Khurshid by Colonization Officer long before the filing of writ petition in a restricted auction between her and Abdullah Bhutto in which Abdullah Bhutto did not turn up. The land mention of open auction on 11‑5‑1982 is, therefore, redundant and does not give any right to the petitioners or for that matter to anybody else to treat it a fresh grant in favour of respondent No.5 Mst. Khurshid. The grant already made in her favour by the Colonization Officer before the filing of writ petition is a valid grant for all purposes as held by the Division Bench of this Court in that writ petition. The rights of a grantee of land specially one whose offer is accepted as is in the case .of respondent No.5 are very valuable. In the first place such grantee has the right to cultivate the land. Further more on payment of the price of land and fulfilment of any of the condition on which the grant has been made he becomes full owner of the land, subject of course to right to minerals, natural gas and any other rights which Government may have specifically reserved to itself while making the grant. The rights of Mst. Khurshid in piece marked 'E' could not, therefore, be taken away merely because this piece of land was by mistake included in a list of the pieces of land available for disposal and that the same was by mistake granted to the petitioners without notice to Mst. Khurshid and without giving her an opportunity of showing cause against the proposed action. Hence on this mistaken inclusion of land in the list and its consequent illegal grant in favour of the petitioners by the Colonization Officer having been brought to the notice of Commissioner, the learned Commissioner was perfectly justified in cancelling the grant of disputed land in favour of the petitioners. The said cancellation order was admitted by the petitioners themselves was passed by the Commissioner after providing these petitioner with an opportunity of being heard and the same therefore, has not been and could not have been called in question on the ground of violation of principles of natural justice. So far as the contention of the petitioners that they were put in possession of the disputed piece of land and that they had spent a huge amount on its improvement and cultivation and that they continued to be in its possession is concerned the respondent No. 5 has denied all these allegations by means of counter‑affidavit filed by Raza Muhammad Bhutto. It has been stated in the counter‑affidavit that the piece of land marked 'E' was throughout in the possession of respondent No.5. Initially it was barren land. It was developed through bulldozers by respondent No.5 after incurring heavy expenditure and is still in possession of respondent No.5. The petitioners intends to take forcible possession of this land under the garb of status quo order granted by this Court. It is, therefore, quite clear that even the fact of possession and development of land by the petitioners has been denied by respondent No.5.There can be no denying to the fact that the order of the Commissioner which has been assailed and impugned in this constitution petition was an order passed by the Commissioner within his jurisdiction. It is a settled law that where a Tribunal has jurisdiction to entertain a matter it does not lose its jurisdiction even if it comes to a wrong conclusion or even if its conclusion on any aspect. is entirely without the support of evidence. The question whether Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has been to enquire or upon the correctness of its findings on these facts, but upon their nature and is determinable at the commencement. and not at the conclusion of enquiry. Reliance in this connection may be placed in a case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others reported in P L D 1973 S ,C

236. It has been held that as follows: ‑ "It is no doubt true. that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide then it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non‑existent in the eye of law; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction." We are, therefore, satisfied that the order of the Commissioner, dated 9‑4‑1985 upholding the grant of land in favour of respondent No.5 passed by the Colonization Officer., Guddu . Barrage, Sukkur on 11‑5‑1982 and cancelling the grant of respondent, dated ‑25‑2‑1979 is perfectly correct, legal, valid and intra wires. These are the reasons for which we had dismissed the writ petition in limine by our short order, dated 3‑3‑1986. A.A. Petition dismissed.