' MUHAMMAD QASIM LASHARI (MEMBER-JUDICIAL).- This is an application for revision under section 164 of the Sindh Land Revenue Act, 1967 filed on 4-5-2005 against order, dated 6-4-2005 passed by the learned Executive District Officer (Revenue), Larkana. The application is in time.
2. The facts leading to present controversy succinctly stated are that applicants Muhakmuddin and another person namely Ahmed Ali (not made party) applied for the grant of land comprising S.Nos.733/3, 5, 275 and 278 of Deh Sonharo Bhatti, Taluka Miro Khan on small Khatedar conditions in an open Katchery held by the Defunct Colonization. Officer, Sukkur Barrage on 18-3-1992 Camp at Mero Khan.
3. The erstwhile Colonization Officer, Sukkur Barrage Hyderabad did not allot the land in open Katchery held on 18-3-1992 but referred the matter to the then Barrage Mukhtiarkar Larkana to report eligibility etc. In response, the then Barrage Mukhtiarkar reported that the applicants are the residents of Deh Soonhari Bhatti and are Landless Haris and are eligible for grant of the above land on small Khatedar conditions.
4. The Colonization Officer, Sukkur Barrage Hyderabad in view of the recommendations, granted the land situated in Deh Soonhari Bhatti, Taluka Mero Khan, vide his ex parte order, dated 30-4-1992 which he passed sitting in his office at Hyderabad in the following manner:-- S.No, Name of allottee S. Nos./allotted Area 1 Ahmed Ali son of Noor Muhammad 275, 278 03-06 Acres 2 Muhakmuddin son of Hakimdin 733/3, 5 06-03 Acres
5. Being aggrieved by the above allotment order, Chanesar Brohi filed land grant appeal before the learned Executive District Officer (Revenue), Shandadkot at Kamber which was dismissed being badly time-barred, hence the present application for revision.
6. Heard the parties. Perused the record. The order, dated 30-4-1992 appears to be void for the following main reasons:--
(i) The allotment was admittedly not made in open Katchery which violated Condition No,9(ii) of the statement of conditions notified by Land Utilization Department vide Notification No,SB-III/1- 279/P/1704/89, dated 4-12-1989 (hereinafter referred to as the Land Grant Policy, 1989) which contemplates that the allotment shall be made in open Katchery which shall be held after wide publicity.
(ii) It is laid down in Condition. No,17(3) of the Land Grant. Policy, 1989 that where the land is allotted to Hari or a small Khatedar, he shall pay a sum of Rs,100 as "initial deposit" within "thirty" days of the allotment, failing which the land shall be liable to be disposed afresh. The word "shall" has a pre- emptory meaning and is generally imperative or mandatory. It is word of command, and one which has always or vvhich must be given a compulsory meaning as denoting obligation.
Obviously, the word "shall" is used here in mandatory sense. Therefore, on 31st day of allotment, if the initial deposit is paid the allottee (defined in Condition No,2(b) of the Land Grant Policy, 1989) becomes "grantee" as defined in Condition No,2(g) of the Land. Grant Policy, 1989 and his allotment is converted into "grant" as defined in Condition No,2(f) of the Land Grant Policy, 1989. But if the initial deposit is not paid, .The allottee ceases to be allottee or grantee under the Land Grant Policy, 1989 and he is no more tenant under the Colonization, of Government Lands Act, 1912. In that case (if the initial deposit is unpaid) it becomes mandatory to dispose of the land afresh. The land was allotted to. Muhakmuddin on 30-4-1992 as such the initial deposit was to be paid by him by 30-5- 1992. The allottee did not pay the initial deposit within the stipulated period as such his allotment automatically' stood cancelled w,e,f, 31-5-1992 and the land was to be disposed of afresh. It is strange that Muhakmuddin, who was no more allottee or grantee, deposited a sum of Rs,100 on 5- 11-1992-viz. On 188th day of allotment and on the basis of this illegal deposit of one hundred as initial deposit, sanction was issued by the defunct Colonization Officer, Sukkur Barrage, Hyderabad on 23-5-1993. There was/is-no provision in the Land Grant Policy, 1989 to accept uutial deposit after 30 days of allotment. No one is empowered to accept or to allot the acceptance of initial deposit after the expiry of 30 days. The Board of Revenue, however, by virtue of Condition No,3(2) of the Land Grant Policy, 1989, retains on absolute discretion in the selection and making allotments to the Haris, small Khatedars and Mughadars. The order of the defunct Colonization Officer, Sukkur Barrage, Hyderabad was thus void/ultra vires/coram non judice and without lawful authority having no binding force.
(iii) The allotment was made to respondent No,1 on sniall Khatedar basis which as defined in Condition No,2(k) of the Land Grant Policy, 1989 means a person who holds land less than sixteen acres. Admittedly, as has been written by the Colonization Officer, Sukkur Barrage, Hyderabad in his order, dated 30-4-1992, the respondent No,1 was not a small Khatedar inasmuch as he was landless. As such, the allotment of land to him on the basis of "small Khatedar" was patently illegal.
7. On the other hand, the applicant has produced certificate issued by the Assistant Election Commissioner, Larkana which shows that Muhakmuddin is resident of Deh Detho whereas the land is situated in Deh Sujjawal, whereas Chanesar is resident of Deh Sehwan.
8. It is crystal clear that the defunct Barrage Mukhtiarkar had accepted initial deposit and instalments from respondent No,1, who at the time of accepting such money was not an allottee or grantee. Therefore, the amount of Rs,100 deposited by him cannot be termed as "initial deposit".
Furthermore, the land is claimed to be in possession of Chanesar (applicant) and Muhakmuddin has never been in possession. This fact has been confirmed by the Mukhtiarkar (Revenue) Taluka Sijawal in his letter No,PM/30, dated 15-9-2005 which is reproduced as under:-- "It is submitted that as per Entry No,87 of V.F.VII-B, S.Nos.733/3 and 733/5 was granted to one Muhakmuddin son of Hakim Ali Tunio but entry stands unattested and on the spot the said S.Nos.
Are in possession of Pir Bux Brohi and Chanesar Brohi and never remained in possession of Muhakmuddin Tunio. As regards the S.Nos.275 and 278, it is submitted that both S.Nos. Are Na- Kabuli and Banjer Qadeem."
9. It is thus, proved that Muhakmuddin has never been in possession of the land as such he has never been .a tenant as contemplated by section 10(4) of the Colonization of Government Lands Act, 1912 and he has no right, whatsoever, over the land. For these obvious reasons,the allotment made in favour of Muhakmuddin is void ab initio and it is well-settled law that no limitation runs against a void order.
10. For the aforesaid reasons, it is hereby declared that the allotment made on 30-4-1992 in favour of Muhakmuddin automatically stood cancelled on 31-5-1992 when he failed to pay the initial deposit within the stipulated period of 30 days and by receiving an amount of Rs,100 from Muhakmuddin On 5th November, 1992, the land did not and should not stand restored in his favour.
Consequently, the land in question is State land and may be disposed of afresh in open Katchery as per land grant policy provided that no ban over the allotment/grants is imposed by the Government in Land Utilization Department and that the land in question is free from all encumbrances.
11. This case was partly heard by me at Larkana Camp on 16-8-2005 and with the mutual consent of both the parties- it was fixed for final hearing and orders on 30-8-2005 Camp at Sukkur. The orders could not be announced for want of verification of certain documents and the case was fixed for hearing the parties and verifying the documents on 13-9-2005 Camp at Larkana. The case was finally heard by me and verification of papers was made in presence of parties and with mutual consent of the parties, the case was adjourned to 17-9-2005 at Hyderabad for the announcement of orders which were reserved. The orders are accordingly announced today at Hyderabad in above terms in presence of parties. As usual, this order shall come into effect after the expiry of ninety (90) days to be counted from tomorrow provided no application for review under section 8 of the Sindh Board of Revenue Act, 1967 is filed' within that period. Parties to bear their own costs.
12. Given under my hand and seal of the Court, this 17th day of September, 2005.