1988 PLP 1538 (MLD)

This Writ Petition assails an order dated the 17th of February, 1971, at Annex `D' passed by the respondent‑‑Border Area Committee whereby they allotted the land in question measuring 55 K:inals 5 Marlas to respondent No. 2 Lt.‑Col. Irshad Ahmad. The petitioners' claim was that earlier, owing to their two century old tenancy over it, the Deputy Commissioner, Lahore, offered its sale to them vide his letter dated the 31st of August, 1968; accepting the same they entered into a formal agreement with the Provincial Government to purchase it on instalments and even deposited the first Instalment of Rs. 2111.73 on the 29th of June, 1970, against a receipt (Annex `C'). Their grievance, was that after the Provincial Government had sold the land in dispute in their favour, it was not open to the respondent‑Border Area Committee to allot it to respondent No. 2 by the impugned letter. They referred to a similar instance on the part of the said Committee of misallotting another piece of land occupied by them as tenants, pointing out that they were able to get it successfully set aside in writ petition No. 555 of 1971 decided by this Court on the 27th of August, 1975. Explaining why they failed to includes the present area in that Writ, they observed that they had no knowledge of the impugned allotment earlier as it was made behind their back and that they came to know of it only when they sought to enforce the High Court orders passed in the former Writ. The other reason to assail the allotment was that the Border Area Committee had no authority to deal with the land inasmuch as it was not evacuee property and that conversely being colony land, it vested in the Provincial Government which had already sold it in their favour in recognition of their centuries old tenancy, and even received a part payment in the shape of the first instalment. They asserted, in the context of the sale, that they had not violated any of its terms and, therefore, during subsistence of the contract in their favour, it was not open to the respondents to transfer it to anyone else.

2. It is pertinent to note that while the whole stress laid by the petitioners was to have purchased the land through an agreement with the Collector on behalf of the Provincial Government, he did not choose to file any written statement or comments to controvert it, nor to indicate that it was really made available by the Provincial Government to the G.H.Q. for allotment to Defence Personnel

3. Of course, the Border Area Committee and the allottee under them contested the petition claiming that the land was made available by the Provincial Government under M.L.R. 9 of 1959 for military personnel and that the writ petition filed on the 20th of January, 1976, to challenge its allotment, dated the 6th of November, 1969, was hopelessly hit by laches. The Border Area Committee in a detailed reply denied knowledge of the Collector's letter dated the 31st of August, 1968, (Annex `A') offering the petitioners as tenants to purchase the land by exercising necessary option or his having signed any agreement on behalf of the Provincial Government, or even received the requisite stamp paper to be provided by the petitioners before the 12th of March, 19119. It was maintained by them that the said letter was general in terms without specifically including the names of the present petitioners; that such tenants had failed in writ petition No. 559 of 1971 on account of their failure to exercise option before the 31st of December, 1968; that they fabricated entries in documents showing deposit of the instalment in 1970 a against the deadline of March, 1969 as well as their cultivation of the land; that they would produce the relevant record at the time of final hearing; and that writ petition No. 555 of 1971 was allowed behind their back suggesting as if they could not set up the above‑mentioned pleas before this Court.

4. The background of the case has considerable significance. A similar chunk of land situate in the same village held by the petitioners in centuries old tenancy was allotted to some other people and the same was struck down by this Court primarily on the ground that the Provincial Government had already entered into an agreement to sell the same in favour of the petitioners. Ordinarily even the present area should have been included in the said writ petition but the explanation offered was that its allotment was made behind the petitioners' back and that they came to know of it recently while enforcing the said writ. The explanation sounded true from the entries of the Jamabandi (Annex `B'). The impugned order of allotment (Annex `D') made no mention of the fact if the possession had been delivered to the respondent‑allottee or that the petitioners had been given notice either of the allotment or to vacate the land. The objection as to omitting this land in the former Writ, and laches against the present one has no substance.

5. Unluckily the agreement relied upon by the petitioners was not produced by the respondents though they had clearly indicated in Ground (a) of their written statement that they would produce the same at the time of final hearing. Prevarication on the part of the respondents in this behalf was emphasized maintaining that even in the previous Writ. they had adopted a non‑cooperative attitude and the record was finally produced 6y them through the aegis of the Advocate‑General after a lot of hesitation. The assertion of the petitioners was that they had included in the agreement the present land as well. It obviously shifted upon the respondents to produce the agreement as they did previously, to show that this land was not forming subject matter thereof. Obligation to produce the documents on the part of the respondents was redoubled especially with they took up the plea in the written statement that it had been manipulated subsequently. A number of authorities including Moti Lal and others v. Kundan Lal and another AIR 1917 P.C. 1, T.S. Murugesam Pillai v. M.D. Gnana Sambadha Pandara Sannadhi and others AIR 1917 P.C. 6 and Muhammad Hussain v. Secretary of State and others AIR 1939 Lah. 330, were cited to support the contention that an inference shall be drawn against a party which fails to A produce the record in their possession. Nothing substantial was urged against this argument and keeping in view the past conduct of the respondents, they manifestly failed to discharge the onus in this behalf.

6. It was not categorically denied if this land had not been in long tenancy of the petitioners. The Jamabandi (Annex B') clearly establishes their claim. There was no record produced by the respondents to show how the petitioners' tenancy had ended to make the land available for military personnel. On the other hand the option given to them to purchase land comprising their tenancy was pre‑eminently suggestive of the fact that they must have availed it in regard to the entire land situate in this very village. They had a deep attachment with it extending over centuries and apparently could little afford to abandon any part thereof. Further, in case they failed to exercise the option, it did not mean immediate abandonment of the tenancy. Still they had a right to be dealt with under section 7 of the Colonization of Government Lands (Punjab) Act, 1912, read with Chapter VII of the Punjab Tenancy Act, 1887, in order to finally eject them therefrom. What appeared important was that some more time as also proceedings had to be gone through before they were. totally disassociated from the land. No record was produced if any notice contemplated by the two Statutes ibid was at all given to the petitioners. Probably without those proceedings the land could not be shown to be available for defence personnel. The Collector who was respondent to the petition did not throw light on this aspect justifying a conclusion that he had not observed the formalities before surrendering land to the G.H.Q.

7. Counsel for the respondents argued that the option by the petitioners I had to be exercised before the 31st of December, 1968, as per Annex `A' and that the first instalment had to be paid before 12th of March, 1969. For this reason they assailed the authenticity of the Trcasury Challan dated the 29th of June, 1970, (Annex `C') claiming that it was manoeuvred subsequently. The contention was bald without being supported by any document which at least the Collector could easily produce. Non‑committal on his part by itself suggested that this C payment was quite authentic and at least accepted without any demur. Since it was ascribed to an agreement for the sale of immovable property, acceptance of the payment beyond any prescribed date would not necessarily frustrate the contract. Under section 12 of the Specific Relief Act and section 55 of the Contract Act, in contracts for the sale of immovable properties, time is not of the essence of the contract. Acceptance of the consideration amount beyond any designated date would imply that the parties intended to complete the contract notwithstanding the expiry of the time fixed for it.

8. It was contended that there were three copies of the agreement executed with the Government and that at least the one with the petitioners could have been produced by them. They denied having kept any whereas the respondent‑Border Area Committee in their written statement clearly undertook to produce the same. This undertaking would highlight their inability to abided by it. They bought the onus willingly but tailed to discharge it and, therefore, cannot now pass it back to the petitioners.

9. For all these reasons, the writ petition is accepted and the impugned order of allotment is held to be without lawful authority and of no legal effect against the interest of the petitioners. The costs of the petitioners shall be paid by respondent No. 3, namely, the Collector whose attitude in defending the petition had been indifferent. M.Y.H./A‑434/L Petition allowed.