P L D 2004 Supreme Court 271 (PLP)

9.

10. Schedules.‑‑Separate schedule for leases for a period of 3, 4 and 10 years and for different categories of land shall be prepared according to the above instructions and one copy thereof shall be sent to the Commissioner and another to the Board of Revenue. No area included in one schedule be transferred to another except with the prior sanction, in writing of the Board of Revenue:

11. Purpose

12.

13. PERCENTAGES OF CULTIVATION ........

14. SOURCE OF IRRIGATION .........................

15. Lease money

16. Security.‑‑No person shall be permitted to bid in open auction in cases mentioned in clauses 2, 4 and unless the prospected bidder has deposited in the Government treasury, or with the person receiving the bid, an amount of Rs.10.00 per acre (calculated on the total area involved in each case) in advance, in lump sum, to be retained by the Government as security, for due observance of the conditions of the lease. The security deposits shall be refunded (i) if the bid is not accepted, (ii) when accepted, on the termination of the lease, if the lessee has duly observed all the conditions of the lease and has also paid all the amount due to the Government under these conditions and has surrendered peaceably the possession of the land to the Government.

17. Transfer.‑‑The lessee shall not create any charge over or transfer the leased land by way of sale, exchange, gift, will mortgage or otherwise except by way of sub-lease for a period not exceeding one year. Any such transfer shall, be void and shall be considered to be a breach of conditions of the lease.

18. Exchange.

19. Trees.......

20. Succession.

21. Compensation ...................

22. Re‑entry.‑‑The lessee shall surrender the whole or so much of the land as may be required on demand by the Collector in either of the following events:‑‑ (a) If the land of any portion thereof is required for any public purpose; or (b) if it is found that the whole or any part thereof had already been leased or granted to any third person.

23. Penalty.‑‑When the Collector is satisfied that a lessee in possession of the land has committed breach of any of the conditions of the lease, He may after giving the lessee a notice in writing and an opportunity of being heard:‑‑ (a) Impose on him a penalty not exceeding Rs.500.00: or (b) Order the resumption of the tenancy; or (c) If the breach is capable of rectification, allow the lessee to rectify it within a reasonable time not being less than one month.

24. Peaceful surrender.‑‑The lessee shall terminate at the expiry of. the period of lease and shall not be extended. No proprietary rights will be conferred on any lessee under any circumstances, whatsoever. The lessee shall surrender the land peaceably to the Government at the expiry or sooner determination of the lease for breach of conditions or for any other reason.

25. Enhanced rent .............. HUSAN TURAB ALI, Secretary to the Government of West Pakistan Colonies Department.

7. A bare perusal of the above reproduced portions of the notification dated 12‑2‑1969 would reveal as follows:‑‑ (i) The policy for allotment/future lease of all available State Agricultural land free from any encumbrance was made by the Government in exercise of powers as conferred upon it under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912. Notification dated 12‑2‑1969 would have no effect on the previous Notification No.5782‑C, dated 29‑6‑1938 and temporary cultivation conditions published by the Government of Punjab vide Circular No.2664‑C dated 22‑9‑1944. However, Memorandum bearing No.8977‑61/1298‑CGI, dated 6‑5‑1965 was superseded. (ii) In case of any repugnancy the notification dated 7‑2‑1968 shall prevail. The category of land i.e. uncultivated (Banjar Qadim) could have been leased out for a period not exceeding ten years. (iii) The available land was to be leased in open auction to the highest bidder subject to the approval of Collector of the District. (iv) No person in the service of Central/Provincial Government/any Development Authority/a Semi‑Government Institutions/Local Body including their dependants would be eligible to take part for having allotment of such lease. (v) The joint auction was not permissible. (vi) Separate schedule for leases in accordance with its tenure with different categories of land were prepared and restriction was imposed for not challenging the schedule and transfer of the category of land except with the prior approval of Board of Revenue. The open auction for such land was subject to depositing of the amount of Rs.10.00 per acre calculated on the total area involved in each case in lump sum. (vii) A ban was imposed on the lessee for creation of any charge over or transfer of leased land by way of sale, exchange, gift, will, mortgage or otherwise. (viii) The area of land so leased out could have been acquired by the Collector for any public purpose or where it was already found allotted. (ix) In case of breach of condition of lease and after issuance of notice in writing and affording an opportunity of hearing the Collector could have imposed a penalty not exceeding Rs.500.00 or resumption of land subject to a chance of rectification within a reasonable time. (x) After the termination of lease it was required to be surrendered by the lessee.

8. We have no hesitation in our mind, after having an in‑depth 'evaluation of the said notification that it does not find mention for allocation, allotment, leasing of such available State land to the, Armed Forces rather a restriction has been imposed by incorporating para. 8 as mentioned above concerning ineligibility and para. 10 of the notification dated 12‑2‑1969 further removes doubt if any by clarifying that no such land could be allotted to any person who is in the service of Central/Provincial Government/any Development Authority/a semi‑Government Institution/Local Body.

9. We have examined the case of respondents on the criterion as laid down in the said notification. There is no denying the fact that in April, 1993 pursuant to an application moved by Abdul Karim (respondent No. 1) to Deputy Commissioner/Collector, Bahawalnagar for grant of proprietary rights being landless tenant, the land in question was leased out at the report of Assistant Commissioner after holding a comprehensive inquiry and recording of his findings in his favour by means of order dated 5‑6‑1993 which is reproduced hereinbelow for ready reference:‑‑

10. Now the land which was already leased out after completion of all the mandatory formalities as enumerated in the notification dated 7‑2‑1968 could not have been declared as "land available", hence the question of its further allotment (without getting it cancelled which aspect of the matter has been discussed in the latter portion of this judgment) by means of order dated 19‑8‑1995 does not arise. The respondents are admittedly landless tenants to whom land measuring 96 acres, 7 Kanals, 11 Marlas was leased out in accordance with the then prevalent policy and physical possession was also handed over which could not have been cancelled by one stroke of pen without affording them proper opportunity of hearing as envisaged in para. 23 of the notification dated 7‑2‑1968 which is id grave violation of the principles of natural justice, fairplay and equity. How the respondents could have been deprived from a major chunk of their land without following the prescribed lawful procedure. Sardar Muhammad Ghazi, Learned Advocate Supreme Court has laid much stress on the notice issued to the respondents, which according to him amounts to cancellation of the land in question, which is reproduced hereinbelow for ready reference:‑‑

11. We have carefully examined the contents of the notice which reveal that it was a notice for the payment of instalment and on the basis whereof the inference that instalment was not deposited and lease should be treated as cancelled would be baseless having no substance whatsoever. The issuance of notice to respondents hardly renders any assistance to the case of appellant who has absolutely no concern with this aspect of the matter. It is worth mentioning that all such allotments were governed by the provisions of the Colonization of Government Lands (Punjab) Act, 1912 read with General Colony conditions applicable to the temporary cultivation leases published by Government of Punjab by means of Notification No.2664‑c dated 22‑9‑1994 read with the notification dated 7‑2‑1968 and the so‑called cancellation was not in accordance with the provisions enumerated in the relevant law and policy formulated thereunder and published by means of notification as mentioned hereinabove. Even for the sake of arguments if it is admitted that the land in question was cancelled still the question would be as to whether it could have been allotted without order of resumption of land by the District Collector or Assistant Collector, the answer would be in negative. No such resumption order was passed.

12. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court on behalf of official respondents failed to point out any such resumption order and could not explain satisfactorily how the respondents had failed to satisfy the conditions of allotment as contemplated in notification dated 7‑2‑1968. The Deputy Collector/Collector had acted not only capriciously but in an arbitrary manner which can be cited as a classic example of abuse of authority. He had performed his duties in a casual and careless manner and his indifferent approach is highly condemnable. How the land could have been allotted in view of the status quo order passed by Member, Board of Revenue qua the said land which makes it abundant clear that' the land in question was not "land available" for 'the purposes of allotment. The allotment was also in violation of Condition No.5 of the notification dated 7‑2‑1968 as mentioned above. In view of the above glaring illegalities, highhandedness and arbitrariness of the revenue authorities the order dated 19‑8‑1995 has rightly been declared as unlawful. We are not persuaded to agree with Sardar Muhammad Ghazi, learned Advocate Supreme Court for appellant that the scope‑of Article 199 is limited and such‑like controversy could not have been dilated upon and decided by the High Court while exercising Constitutional jurisdiction for the simple reason that record was crystal clear and accordingly the controversy being not ticklish and complicated could have been decided. It is well settled by now that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights or the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress". (Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538(FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar.599 (FB). It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v. Hameeda Begum 1986 SCMR 1561, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party". (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive.

13. It is brought to our notice that a few hundred acres of land has already been allotted in favour of Brig. Muhammad Bashir (appellant) who should be satisfied instead of approaching different forums to get land in dispute allotted in his favour which could not have been allotted to him. I don't' know whether it would be relevant or not but I can't help quoting a para. from John Steinbeck's "Grapes of Wrath" which is as under:‑‑ "And the great owner, who must lose their land in an upheaval, the great owners with access to history, with eyes to read history and to know the great fact: when property accumulates in too few hands it is taken away. And that companion fact: when a majority of the people are hungry and cold they will take by force what they need. And the little screaming fact that sounds through all history: repression works only to strengthen and knit the repressed. The great owners ignored the three cries of history. The land fell into fewer hands the number of the dispossessed increased and every effort of the great owners was directed at, repression. The money was spent for arms for gas to protect the great holdings, and spies were sent to catch the murmuring of revolt so that it might be stamped out The changing economy was ignored, plans for the change ignored, and only means to destroy revolt were considered, while the causes of revolt went on." (Emphasis provided). It is high time that we should learn lesson from history. What would happen otherwise need no comments.

14. The judgment impugned being well based and unexceptionable does not warrant interference. The appeal being meritless is dismissed. There shall, however, be no order as to costs. M.H./M‑1/S Appeal dismissed.