' SABIHUDDIN AHMED, J.--- The petitioner appears to be aggrieved by the cancellation of allotment of a plot measuring about 30 acres which was allotted for establishment of Horticulture Garden, adjacent to Safari Park. Scheme No.136, K.D.A., Karachi, out of Na Class No.187, Deh Okewari, Taluka Karachi East. The cancellation was effected by the respondent No.1, though no specific order of cancellation appears to have been passed and the land in question was thereafter allotted to the respondents Nos.2 to 7 who intended to construct residential and commercial buildings thereon.
An application was preferred by respondent No.2 seeking to join the City District Government, Karachi as a party and Mr. Manzoor Ahmad, learned Legal Advisor, City District Government, Karachi, states that the C.D.G.K. Also has interest in the land in question on the ground that the land in dispute was part of the land allotted to Safari Park. Indeed if the C.D.G.K. Does have a claim it could assert so through proper legal proceedings, but we do not think there is any justification for joining them at this stage of this petition. C.M.A. No.4356 of 1998 is, therefore, dismissed.
2. The basic facts appears to be that 30 acres of land was allotted to the petitioner through an allotment order of the then Deputy Commissioner East dated 8-9-1982 pursuant to an allotment order of the Land Utilization Department, Government dated 9-8-1983. It seems that possession was handed over to the representative of the petitioner No.1 society under Mashirnama dated 19-9- 1982 and this fact was also confirmed by the then Deputy Commissioner East through his letter dated 2-2-1984 to the Commissioner, Karachi, forwarding a receipt obtained from the petitioner.
3. On 2-9-1989 a notice under section 24 of the Colonization of Government Lands Act was addressed to the petitioner requiring them to show why the lease should not be cancelled as the petitioner had failed to develop the land within the required time nor paid lease money. The petitioner submitted a reply dated 30-9-1988, stating that some development work had been undertaken and explaining that lease money could not be deposited because the petitioner had not been finally informed what was exact amount which was to be determined with the concurrence of the Finance Department. A letter requiring so was issued by the Land Utilization Department along with the letter, dated 9-8-1983.
4. It appears that the petitioners were required to appear for hearing before the Deputy Commissioner on 19-11-1989 vide letter from the Deputy Commissioner dated 18-11-1989. According to the petitioner despite such short notice appearance was made but no order whatsoever was passed either at that time or conveyed the petitioner on any subsequent occasion. In fact only on 19-3-1990 the petitioner addressed a letter to the Governor complaining that they had received no communication from the respondent No. 1 . However, they came to know of the fact that the land had been allotted to the respondents Nes.2 to 7 when on 23-4-1991 when respondent No.2 entered upon the property claiming himself to be a valid allottee. The petitioner approached the police and an entry dated 25-4-1991 made in the station diary regarding admission, and made representation to the concerned Authorities but to no avail.
5. The petitioner after failing to obtain redress from the executive Authorities approached this Court, without availing remedies of appeal and revision under Revenue Law and we were somewhat doubtful about the maintainability of this petition. However, learned counsel for the petitioner drew our attention to the copy of the comments prepared by the legal cell on behalf of Land Utilization Department Board of Revenue, dated 23-5-1991 addressed to the Solicitor to the Government of Sindh, where it has been acknowledged in para.5 that the lease was cancelled by the then Chief Minister of Sindh on 7-11-1989. The facts stated above have not been disputed by the petitioner. In the circumstances learned counsel appeared to be right in contending that so-called hearing on 19-11-1989 was simply an eye wash and nothing more. Indeed this contention could not be refuted by the learned Additional Advocate-General.
6. Miss Minhas also contended that the show-cause notice was itself defective inasmuch as there was no provision in the lease in favour of the petitioner requiring the land to be utilized for the purpose for which it was allotted within one year. She pointed out that the lease in question gave the petitioner a five years period for doing so. Nevertheless we are not inclined to attach importance to this error inasmuch as the notice was issued more than five years after such allotment.
7. Nevertheless, the next contention of learned counsel appears to carry more weight. She argued that under section 24 of the Colonization of Government Lands Act whenever a breach of conditions of tenancy had been committed by tenant, the Collector could either impose a penalty or order resumption of the tenancy. However, whenever the breach was capable of rectification neither of the two measures could be employed before calling upon the tenants to rectify the breach within a reasonable period of not less than 30 days. She argued that there was ample authority for the proposition that failure to raise construction with a prescribed time does not normally entail forfeiture of lease and inter alia relied upon Haji Noor Muhammad v. Karachi Development Authority 1975 Kar. 373 and Asif Ali v. Deputy Commissioner 1982 CLC 833.
8. 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 instance was mandated to grant reasonable time to the petitioner 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 order resumption of tenancy. He failed to perform both the statutory obligations and proceeded to act under dictation from the Chief Minister. Even the elementary principles of natural justice were denied. Accordingly we are constrained to hold that the cancellation of lease was mala fide, void and inoperative.
9. Mr. Khalilur Rehman, learned counsel for the respondent No.5 contended that the allotment in favour of the petitioner was itself void, or having been issued by the Governor and not by the Provincial Government, however, we pointed out to learned counsel that since in 1982, when the allotment was made the Governor was also performing the executive Authority of the Province, no objection of such score could be taken.
10. We also consider it pertinent to refer to another disturbing aspect of the matter. Indeed there was no dispute between the parties as to the factum of possession being delivered to the petitioner in 1982 and a number of documents on record confirm the said position. However, the petitioner had asserted that the amount required to be paid by them was never communicated and therefore, they could not be held responsible for not paying the lease money. In a zealous attempt to justify such non-communication one Muhammad Alam then the Deputy Secretary (LU- II) in the Board of Revenue sworn an affidavit contending that possession had never delivered.
Initially the learned A.A.-G. Attempted to justify this position by contending that only formed possession letter might have been given to the petitioner not accompanied by delivery of physical possession. However, subsequently realizing the position in the light of other material on record he conceded that the affidavit was false. Indeed it is not disconcerting to note that senior officials of the Government make false statements on oath without verifying facts and such a tendency seriously affects the credibility of the Government. Since the matter is more than 10 years old we are not inclined to initiate any proceedings but would like that this aspect of the matter be brought to the attention of the Advocate-General and the Chief Secretary to the Government for taking appropriate corrective steps.
11. For the foregoing reasons, we would allow this petition and declare that the cancellation of the allotment in favour of the petitioner to be without lawful authority. The appropriate authorities however, are always at liberty to take such action as is strictly contemplated by law in case they so desire. Likewise the respondents Nos.2 to 7 as well as the City District Government may assert their rights and interest in accordance with law.