Mr. Justice Mushir Alam, CJ.
Mr. Justice Aqeel Ahmed Abbasi.
1. Const. Petition No.D-3078 of 1992
M/s Super Drive-in-Ltd .. ..Petitioner
Province of Sindh through Member (L.U) & others .Respondents
2. Const. Petition No.D-230 of 1993
Faiz Mohd Palari .. .. .Petitioner
Member (L.U) Board of Revenue & others Respondents
Suhail Usman Khan Applicant/Intervnor
Date of hearing : 22.08.2011
Date of judgment : 19.09.2011
Petitioners in C.P.No.D-3078/92 : through M/s Mushtaq A.
Memon and Shahid Ali Ansari,
Petitioner in C.P. No.D-230/93: through Mr. Mian Khan Malik, Advocate
Respondent No.1 : through M/s Sher Muhammad
K. Sheikh and Haleema Khan, AAGs
Respondent No.4 : through Mr. Munir-ur-Rehman,
Applicant/Intervenor : through Mr. Mirza Adil M.
J U D G M E N T
Aqeel Ahmed Abbasi, J. We intend to dispose of both these petitions by a common judgment as both the petitioners claim entitlement of 10 acres land from Na-Class No/105, Deh Thoming, Taluka Karachi East.
2. In both the petitions, the petitioners have claimed some what similar relief in the following terms:
(a) That it may be declared that the orders dated 09.02.1991, 09.02.1992 and 22.10.1992 passed by the Respondents No.3,2 and 1 are passed without lawful authority and the same are illegal, void, malafide and of no legal effect.
(b) Permanent Injunction be issued restraining the Respondents from acting upon the said orders.
(c) Cost of the petition be borne by the Respondents
(d) Any other and/or better relief which this Honble Court may deem fit under the circumstances to grant.
3. However, for the sake of brevity and to avoid repetition we would consider the facts as stated in C.P. No.D-3078 of 1992. Brief facts for the purposes of resolution of the dispute as stated in the above mentioned petitions are that on 5.8.1976, 10-00 acres of land from Na-class No.105, Deh Thoming Taluka Karachi East was granted to respondent No.4 for Drive-in-Cinema. Under an agreement dated 17.5.1980 respondent No.4 transferred the lease-hold rights in favour of petitioners. On 31.5.1980, respondent No.4 moved an application to the Revenue Authorities to transfer the lease-hold rights in favour of petitioners. The Petitioner paid an amount of Rs.45,000/- towards lease money for 4 years viz. 1975-76 to 1978-79 on 2.6.1980. On 5.6.1980, the lease hold rights were transferred in favour of petitioners. The petitioners paid the lease money from 1979-80 to 2005-6 amounting to Rs.3,00,000/- on 8.7.1980. On 9.7.1980, Ijazatnama was issued in favour of the said petitioners and agreement was also executed in favour of the petitioners. On 19.7.1980, permission to raise loan was granted to the petitioners. The petitioners developed the land, constructed boundary walls and raised other construction by investing Lacs of rupees as claimed by petitioner. On 12.2.1984, Commissioner, Karachi on its own directed the Deputy Commissioner, Karachi to cancel the lease of the petitioners. The Deputy Commissioner, Karachi issued Show Cause Notice dated 21.2.1984 to the petitioner, whereafter order dated 02.09.1984 was passed by the Deputy Commissioner, East, Karachi. The petitioners preferred appeal against the aforesaid order which was rejected by the Commissioner, Karachi vie order dated 26.1.1985. The revision and review filed by the petitioners were also dismissed by the Member Board of Revenue vide order dated 27.11.1987. The Constitution Petition No.D-105 of 1988 was filed by the petitioners, which was allowed on 18.2.1988 and the case was remanded to the respondent No.1. After remand, the respondent No.1 heard the revision and passed an order on 10.8.1989 remanding the case to respondent No.3 to decide the case afresh in accordance with the Provisions of Revenue Laws. The respondent No.3 issued notice on 31.12.1990 for appearance of parties before him on 10.1.1991. On 9.2.1991, respondent No.3 passed an order canceling the grant of petitioners and granted the land in dispute to respondent No.4. The petitioners preferred appeal, which was heard and dismissed by the respondent No.2 vide order dated 9.2.1992. The respondent No.2, however, cancelled the grant of respondent No.4 also. The petitioners and respondent No.4 filed Revision Petitions, which were heard by the respondent No.1 and dismissed the same vide order dated 22.10.1992.
4. Mr. Mushtaq A. Memon, learned counsel for the petitioners in C.P.No.D-3078 of 1992 has vehemently argued that the impugned orders passed by the respondents as mentioned above, canceling the lease of the petitioners are illegal and violative of the mandatory provisions of Section 24 of Colonization of Government Lands (Sindh) Act, 1912. It is contended by the learned counsel that no notice to rectify was ever issued to the petitioners by any of the respondents even when the matter in dispute was remanded by the learned Member, Board of Revenue, with specific directions in this regard. Per learned counsel, under the terms and conditions of the Ijazatnama and the agreement of lease the petitioners were entitled to a period of 5 years for construction over the subject land, however, the petitioners were never offered such period at any time and the lease to the petitioners was cancelled before expiry of such period unilaterally. Learned counsel further submitted that the entire lease amount till 2005-2006 was paid by the petitioners, whereas huge amount has also been spent on the construction of boundary wall and other structures on the subject land by the petitioners. It is contended by the learned counsel that the learned Member Board of Revenue vide his order dated 10.8.1989 set-aside the orders of cancellation of lease, and while remanding the matter to the concerned officer was also pleased to observe that it was incumbent upon the Deputy Commissioner to have given a notice to the lessee for rectification of the condition prior to cancellation the orders passed by the learned Deputy Commissioner on 2.9.1984 as well as the order of the Commissioner dated 26.1.1985 were accordingly set aside and the matter was remanded to the Deputy Commissioner Karachi East to decide afresh after hearing the concerned parties in accordance with the provisions of existing land grant policy and law. However, per learned counsel, only notice of hearing was issued by the concerned Deputy Commissioner, whereas no opportunity to rectify was given in terms of Section 24 of Colonization of Government Lands Act, 1912. In support of his contention, learned counsel has readout the provisions of relevant clauses of lease agreement, the impugned orders passed by the respondents and the notice of hearing 31.12.1990 issued by the concerned Deputy Commissioner after remand of the case by the learned Member Board of Revenue. It has been prayed by the learned counsel that the impugned orders may be set-aside and the matter may be remanded to the concerned authority to decide the matter strictly in accordance with law after complying with the provisions of Section 24 of the Colonization of Government Lands Act, 1912. In support of his contention, learned counsel has placed reliance on the following judgments.
1. The Horticultural Society of Pakistan & another v.Province of Sindh & others SBLR 2005 Sindh 977
2. Shah Muhammad v. Administrator NLR 1993 (Rev) 28 (Lahore)
3. Waryam v. Province of Punjab 2006 MLD 1290
4. Muhammad Khawaja Hassan v. Karachi Development Authority1991 CLC 436
5. Sindh Industrial Trading Estate Ltd. v. Kemia Industries Ltd.1999 CLC 1076
6. Abdul Haq and others v. Province of Sindh PLD 2000 Karachi 224
7. Abdul Haque Indhar and others v. Province of Sindh 2000 SCMR 907
5. Mr. Mian Khan Malik, learned counsel for the petitioner in C.P.No.D-230 of 1993 and respondent No.4 in C.P.No.D-3078 of 1992 has submitted that his client was granted 30 years lease of 10 acres land on 05.01.1978 from Na-class No.105, Deh Thoming, Taluka Karachi for construction of Drive-in-Cinema thereon whereafter the petitioner constructed boundary wall and building on the subject plot. The amount of lease was paid by his client, who is still in possession of the subject land. It is further submitted that vide impugned orders the lease has been cancelled even before the expiry of 5 years period, which was provided for construction of Drive-in-Cinema, whereas no notice has ever been issued by the respondents in terms of Section 24 of the Colonization Act, 1912, whereby the petitioners were entitled to rectify the violation if any. It has been further argued that since no show cause notice in terms of Section 24 of the Colonization Act, was ever served upon his client, therefore, the impugned orders passed are void ab-initio, which may be set aside and the matter may be remanded to the Member Board of Revenue to decide the case of the petitioner in accordance with law after complying with the provision of Section 24 of the Colonization Act, 1912.
6. Conversely, the learned Additional Advocate General Sindh, has supported the impugned orders and submitted that since the petitioner violated the terms of the lease, therefore, the lease was rightly cancelled and the land was resumed by the government accordingly.
7. We have heard the learned counsel for the parties as well as learned Addl. A.G. and perused the record. From perusal of the pleadings and the arguments advanced by the learned counsel for the parties, it appears that the main controversy relates to determination of legality or otherwise of the impugned orders, which have allegedly been passed without complying with the provision of Section 24 of the Colonization of Government Lands Act, 1912. It appears that the chronology of events and the facts as stated in the petition have not been disputed by the respondents, however, the impugned orders have been supported on legal plain. It is noted from the record that in the earlier round of litigation the learned Member (RS&EP) Board of Revenue of Sindh vide order dated 10.8.1989 in Revision Petition (Case No.SROR-338 of 1984-85) set aside the order of cancellation of lease of subject land passed by the learned Commissioner, Karachi dated 26.01.1985 by observing that the mandatory provisions of Section 24 of the Colonization of Government Lands Act, 1912 were not complied with by the concerned Deputy Commissioner while canceling the lease granted to the petitioner, therefore, such cancellation order was illegal and void. The matter was remanded to the Deputy Commissioner Karachi East to decide afresh after hearing the concerned parties in accordance with the provision of existing land grant policy and law. On remand, Deputy Commissioner & D.M. Karachi East vide his letter dated 31st December 1990 issued a notice available at page 53 as annexure N whereby the petitioner was intimated the date of hearing before the Deputy Commissioner (East) Karachi for 10.1.1991. It appears that no notice including a Show Cause Notice under Section 24 of the Colonization of Government Lands Act, 1912 was ever issued to the petitioner, whereas the learned Deputy Commissioner (East) Karachi without giving an opportunity to rectify, passed the order dated 9.2.1991, whereby the lease granted to M/s Super Drive-in-Ltd was cancelled with further directions to revert back the above land to original lessee i.e. Faiz Muhammad Palari. Such order was impugned by M/s Super Drive-in-Ltd. before the Additional Commissioner-II, Karachi, who vide order dated 9.2.1992 up-held the order passed by the Deputy Commissioner to the extent of cancellation of lease in favour of M/s Super Drive-in-Ltd., however, set aside the order of the Deputy Commissioner whereby subject land was restored to Faiz Muhammad Palari. It was further directed that the subject land shall be resumed and possession may also be taken by Government after due process of law. Against this order, both the petitioners namely, M/s Super Drive-in-Ltd. and Faiz Muhammad Palari filed revision applications bearing No.SROR-124 of 1992 and SROR No.118 of 1992 before the learned Member (LU) Board of Revenue, Karachi, who vide his impugned order dated 22.10.92 dismissed both the revisions and maintained the order of cancellation of land and its resumption by the Government.
8. In order to resolve the controversy in hand, it will be advantageous to reproduce the relevant clauses of the terms and conditions of Ijazatnama and agreement dated 07.07.1980, as well the provision of Section 24 of the Colonization of Government Lands Act, 1912 hereunder:
Terms and Conditions
(9) The lessees shall construct the drive-in-cinema and other attractive items of amusement and entertainment within a period of 2 years from the date of delivery of possession of plot provided that the Deputy Commissioner may extend the period which in no case shall exceed five years from the delivery of possession of the plot.
(13) If the Deputy Commissioner is satisfied that the Lessees have committed breach or non-observance of the conditions herein before contained, he shall after fiving the lessees an opportunity to appear and state his objection:-
(a) Impose on the lessees a penalty, or
(b) Order resumption of plot, after complying with the provisions of Section 24 of the Act.
Section 24 of Colonization of Government Lands Act, 1912
24. Power of imposing penalties for breaches of conditions.---- When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his Objection.
(a) impose on the tenant a penalty not exceeding one hundred rupees; or
(b) order the resumption of the tenancy:
Provided that if the breach is capable of rectification, the Collector shall not impose any penalty of order resumption of the tenancy unless has
issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice.
9. From perusal of the above terms and conditions of the Ijazatnama/agreement, it appears that the impugned orders of cancellation of lease were passed by the respondents in violation of the above mentioned terms as neither the period provided for construction had lapsed nor any opportunity was given to the petitioners in terms of Section 24 of Colonization of Government Lands Act, 1912 to rectify the breach, if any within a reasonable time.
10. From perusal of the provisions of Section 24, it appears that before passing any order of cancellation, imposing penalty or resumption of the tenancy of the land a show cause notice is required to be issued to the lessee requiring him to rectify the breach within a reasonable time, which shall not be less than one month, to be stated in the notice. From perusal of the notice as referred to hereinabove, it appears that inspite of remand by the learned Member Board of Revenue, the Deputy Commissioner did not bother to issue any show cause notice in terms of Section 24 of Colonization of Government Lands, Act, 1912, whereas only a notice of hearing was issued, which in our view is not proper compliance of the provisions of Section 24. We are of the view that the respondents have not conducted themselves fairly, honestly and in a transparent manner, which is required from any public functionary while discharging their public functions. In the case of Horticultural Society of Pakistan v. Province of Sindh and others SBLR 2005 Sindh 977 a Division Bench of this Court, while setting-aside the order of cancellation of allotment of plot has held as under:-
Be that as it may it is clear from the terms of section 24 of the Colonization of Government Lands Act itself that the breach being capable of rectification, the Collector in the first instant was mandated to grant reasonable time to the petition to rectify the breach. In the event of petitioners inability to do so within aforesaid time he was required to independently apply his mind and decide either to impose a penalty or under resumption tenancy.
11. Reference in this regard can also be made to the case of Shah Muhammad v. Administrator NLR 1993 Revenue 28 and Waryam v. Province of Punjab 2006 MLD 1290.
12. In the case of Abdul Haque Indhar v. Province of Sindh and others 2000 SCMR 907, the Honble Supreme Court while defining the applicability of the principle of audi alteram partem held as follows:-
Principle of audi alteram partem is to be read into the relevant provision if the action is to affect any vested right of a person. Further, adding to these reasons we would observe that if this rider is not placed for applying the principle of audi alteram partem then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is also to be noted that it is high time to ensure that transaction between the individuals vis-ΰ-vis the State are just, fair, open, honest and transparent. Therefore, action of individuals which is not honest and based on malafides may not be allowed to exist merely for the reason that the principle of natural justice was violated.
13. In view of hereinabove, we are of the opinion that the impugned order, including the order passed by the learned Member (L.U) Board of Revenue, Karachi, are not sustainable in law and facts of this case, the same is hereby set-aside and the matter is remanded to the concerned authority, holding charge over the subject matter, with the directions to provide an opportunity to the petitioners in terms of Section 24 of Colonization of Government Lands Act, 1912 and after issuing notice to all concerned, to pass appropriate orders strictly in accordance with law. The petitioner shall approach the concerned authority within fifteen days from the date of announcement of this judgment whereafter the said authority shall conclude such exercise preferably within a period of two months from the date when petitioners approach the respondent.
Since the matter is being remanded and no arguments have been advanced on behalf of the proposed intervenor, whereas the application otherwise has become infructuous. Accordingly, both the petitions stand disposed of in the above terms alongwith listed application.