1990 PLP 2016 (CLC)

(b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Application for grant of Sikni land was made on behalf of minor which was initially declined both by the Deputy Commissioner and Commissioner‑‑‑Commissioner, however, subsequently reviewed his order and granted the land to minor for sikni purpose‑ ‑Board of Revenue set aside order of grant and directed authorities to auction the same‑‑‑Order of putting disputed land to public auction was first passed by Deputy Commissioner which was affirmed initially by Commissioner, before retracting the same‑‑‑Board of Revenue confirmed orders of auction first in revision and then in review‑‑‑No one was prejudiced or favoured as a result of such orders‑‑‑Auctioning of Government land normally was unexceptionable unless some vested rights were impinged thereby or the rules and law were transgressed‑‑‑Petitioner's case was not fit for exercise of discretion in Constitutional jurisdiction of Court‑‑‑Petition was dismissed in circumstances. Khaliq Humayun for Petitioner. Jhamat Jethanand for Respondent No.3. Date of hearing: 2nd May, 1990. WAJIHUDDIN AHMED, J.‑‑‑The dispute in this petition pertains to a portion of revenue survey No.78, Ward B, Sujawal Town. It would appear that an application was moved on behalf of the petitioner, who was described as a minor, by his father, Dr. Muhammad Hidayat Fouzi, for grant of an arcs of 2,422 sq.ft. out of the said survery No., describing the same as sikni. While the request for grant was recommended by the Mukhfarkar and City Surveyor, Sujawal, to the Deputy Commissioner, Thatta, and "No Objection" was also obtained from the Town Committee, Sujawal, the Dc puty Commissioner concerned, through his order dated 22‑12‑1986, notified such portion of the referred survey No. for auction, terming the same as commercial. Petitioner's father and guardian, Dr. Mohammad Hidayal Fouzi, on or about 3‑2‑1987 appealed to the Commissioner, Hyderabad Division, but that officer, on 15‑9‑1987, aslo directed that the subject matter of the request "should be disposed of in open public auction". However, for reasons, which are not available on the record, the Commissioner, Hyderabad Division, after making reference to his earlier order dated 15‑9‑1987 but without commenting thereupon, on re‑consideration granted the referred portion of the survey No. to the petitioner for residential purpose at the rate of Rs.5 per sq ft. Acting on the order last mentioned, the Deputy Commissioner, Thatta, granted the land in question, on 3‑10‑1987, to the petitioner. The order dated 27‑9‑1987 was challenged in appeal by one Mst. Khairun Nisa before the Board of Revenue, Sindh. Mr. Syed Sardar Ahmad, Senior Member, Board of Revenue, through his order dated 8‑1‑1989, set aside the grant and directed that the disputed portion being of a commercial nature, be disposed of by open public auction. Review preferred by the petitioner also failed. In this petition the orders of the Senior Member of Board of Revenue are questioned, essentially, on the ground that the area in dispute was of a residential nature and should have been granted to the petitioner. Pre‑admission notices were directed to be issued by this Court on 31‑1‑1990 and respondent No.3 Mst. Khairun Nisa has filed a counter‑affidavit, in reply to which the petitioner has responded by filing a re‑joinder. It is urged by the respondent No.3 that the disputed area is commercial in nature, being situated on the corner of two main roads namely, Thatta‑Sujawal Road and Sujawal‑Tando Mohammad Khan Road. It is also located in front of a plot belonging to the respondent No.3 herself, where she has installed a Petrol Pump, which is currently in operation. We further find that the Senior Member Board of Revenue had duly examined the records and his finding that the disputed area was of a commercial nature is also based on site inspection. It is clear upon the facts of the case that the larger survey No. of which the disputed area is a portion comprises of a good number of improvised sub‑plots. It is not A necessary that if some portions of the larger plot are of a residential nature and have been granted as such, the Government is precluded from treating other portions, if requirements are duly satisfied, to be of a commercial nature. Such are findings of fact and cannot, in routine, be disturbed in constitutional jurisdiction. Besides, matters of policy are also involved and orders of Government functionaries cannot be lightly disregarded if the object and purposel of the same is to ensure the interest of the exchequer. There are yet some other reasons why we have not been inclined to grant discretionary relief to the petitioner. The petitioner was shown to be a minor at the time the request for grant was made. We cannot understand the hurry why efforts should be made so early by or on behalf of a minor to obtain Government land for sikni purposes. At the outset such request was declined, both at the levels) of the Deputy Commissioner, Thatta, and the Commissioner, Hyderabad Division, by successive orders in that behalf, each such officer opting for auction of the disputed area. As observed above, for reasons which are not explicit, the' Commissioner, Hyderabad Division, retracted from his orders dated 15‑9‑1987 within a space of a fortnight, on 27‑9‑1987, re‑calling the orders of auction and' tilting in favour of a grant to the petitioner. This could be done, if at all, on the basis of a well‑reasoned order and on a fuller examination of the case. Administrative authorities are also expected to be consistent. On passing of due orders, if they choose to recall the same requisite reasons ought to be reflected, if; not in the orders themselves, at least, on record. Such is not the case with the subsequent orders of the Commissioner. On the other hand, the Board of Revenue has exmained the case in due detail. The orders of putting the disputed land to public auction were first passed by the Deputy Commissioner, Thatta, affirmed initially by the Commissioner, Hyderabad Division, before retracting the same and have been confirmed by the Board of Revenue, first in appeal and then in review. Plainly no one is prejudiced or favoured as a result of such orders. Auctioning of Government land normally is unexceptionable unless some vested rights are impinged thereby or the rules and law are transgressed. The disputed land having been found to be commercial none of the parties had any preferential right and no legal requirements were impinged. This case, therefore, is not a fit one for exercise of discretion in the Constitutional jurisdiction of the Court, favouring the petitioner. For such reasons as have been recorded above the petition was dismissed v by us on 2‑5‑1990 and with it the application for stay namely Misc. 178/90. Misc. C 177/90, which was for exemption for riling of original documents, was granted subject to all just exceptions. AA./K‑217/K Petition dismissed.