Javed Iqbal, J.--This appeal with leave of the Court is directed against the order dated 11.5.2005 whereby CMA No. 198 of 2004 has been allowed.
2. Leave granting order dated 9.12.2004 is reproduced herein below for ready reference to appreciate the legal and factual aspects of the controversy:-- Petitioner seeks leave to appeal against the judgment dated 11th May 2004 passed by the High Court of Sindh, Karachi in J.M. No. 24 of 1982 in C.M.A. No. 198 of 2004.
2. Precisely stating facts relevant for disposal of instant petition are that vide indenture of lease dated 15th July 1969 executed between the President of Pakistan being lessor and M/s Pakistan Fertilizer Co. Ltd. (hereinafter referred to as 'the Company') being the lessee. . The lease of a piece of land measuring 70 acres lying within the limits of Central Excise and Land Customs Department at Mauripur, Karachi for establishment of a Fertilizer Plant for a term of 99 years inter alia with the following two conditions:- "4. The lessee shall use the demised land only for the purpose of installing a plant or complex for producing Phosphatic Fertilizers and related by-products, and shall establish a plant. or complex within a period not exceeding three years from the date of the execution of this deed, failing which the lease shall stand terminated.
5. The lessee will not assign or underlet the demised premises or any part thereof or the rights and privileges hereby granted or any of them to any person nor create a charge on this land in respect of the lessees rights thereto in favour of Pakistan Industrial Credit & Investment Corporation Limited for securing any loans granted by or through that agency without the previous consent in writing of the Government of Pakistan (herein after called the "Government) or the Government Officer for the time being incharge (Collector, Central Excise and Land Customs, Karachi)."
2.It so happened that the Company was liquidated by a Company Judge of the High Court of Sindh, Karachi, as a result whereof its assets including 70 acres lease land was taken over by the Nazir of the High Court of Sindh who was appointed as official liquidator. Assets of the Company alongwith said 70 acres lands was purchased in auction by Abdul Rehman Jinnah S/o A.S. Jinnah being highest bidder. Sale in his favour was confirmed by the High Court of Sindh on 19th February 1989 which was duly registered with the Sub-Registrar. The auction purchaser later on mortgaged the land with National Bank of Pakistan, Nadir Branch Karachi, liability whereof accrued subsequent thereto was finally settled in execution proceedings filed in pursuance of the decree passed in two different suits Bearing Nos. 432/97 and 662/94 before the Banking Court No. III, Karachi respectively.
3.'Meanwhile auction purchaser Mr. Abdul Rehman Jinnah vide agreement dated 25th October 2003 agreed to sell lease hold rights in respect of 60 acres out of 70 acres of the disputed land to M/s Khawaja Amir Ishaque S/o Khawaja Muhammad Raz-a and Syed Rizwan Ahmed S/o Syed Furqan Ahmed. And thereafter auction purchaser approached on 12th January 2004 to the Collector Central Excise and Sales Tax to ascertain the outstanding dues in respect of the property towards annual ground tax for the completion of sale transaction and ultimately deposited an amount of Rs. 13,10,991/-through a pay order with the Collector Central Excise and Sales Tax Karachi on 19th January, 2004. However, the petitioner declined to issue NOC as the execution of the sale- deed of lease hold rights was in violation of Clauses 4 & 5 of the lease deed which have already been reproduced herein above. As such the purchaser submitted an Application No. 198 of 2004 before the Company Judge seeking direction to the Excise Department and Mukhtiarkar Revenue Keamari Town to issue Deh Form II as well as NOC duly countersigned by DDO (Revenue) or alternatively direct the Registrar T Division-X Karachi to register the document which could be entitled the purchaser to acquire, hold, dispose of or enjoy the property etc. 4.The petitioner contested the application, inter alia, on the ground that the land in dispute can only be used for the purpose of installing a plant or complex for producing Phosphetic Fertilizer and related by-products within a period of three years from the date of execution of lease deed failing which the lease shall stand terminated. It was also alleged that the purchaser had no right under the lease deed to bifurcate 70 acres into two portions i.e. 60 and 10 acres, which he did so without the written consent of the Central Excise and Land Customs Department Karachi.
'However, other functionaries namely Sub-Registrar and Mukhtiarkar (Revenue) agreed to register the sale-deed subject to supply of certain documents. Details whereof are not necessary to be mentioned here.
5.The learned Company Judge allowed the application vide order dated 11th May, 2004. As such instant petition has been filed.
6.Learned counsel for petitioner contended that in terms of Conditions Nos. 4 & 5 of indenture of lease, the auction purchaser Abdul Rehman Jinnah had no right to sell the lease hold rights to the intended purchaser i.e. Khawaja Amir Ishaque and others because the Company had obtained the land only for the purpose of installing a plant or complex for producing Phosphatic Fertilizer and related by-products, therefore this land cannot be used for any other purpose. He further stated that the Company Judge had also erred in law in auctioning 70 acres land considering it to be one of the Company's component without noticing that the Company had got only lease hold right for utilizing the same for a limited purpose. Besides it the Company had failed'to utilize the same within a period of three years, therefore, as per the lease agreement the lease was liable to be determined. According to him since the petitioner had objected to the issuance of NOC by the learned Company Judge, therefore same can be treated notice on behalf of petitioners to the auction purchaser to determine the lease hold rights. It was also contended by him that the company Judge had no jurisdiction under the law to issue direction on accepting an application for issuance of NOC because after having disposed of petition for winding up, it has become functus officio. Besides it the auction purchaser had divided 70 acres plot into two portions i.e. 60 & 10 acres without the consent of the petitioner which is entirely against the provisions of rules and regulation, therefore learned Company Judge of the High Court of Sindh should not have granted any relief to respondent.
7. Learned counsel on caveat opposed the petition and stated that auction purchaser had purchased the lease hold rights in open auction as far back as on 31st' March 1989 and he had been enjoying the proprietary rights in respect of this land as the same was mortgaged by him and no objection was raised by the petitioner in this behalf. No notice for determining the lease hold rights which has been purchased by Abdul Rehman Jinnah was ever issued. The Condition Nos. 4 & 5 being relied upon by the petitioner of the indenture of the lease dated 15th July 1969 were never pressed into service by the owner, therefore, at this belated stage when the property had already changed different hands the lease hold rights cannot be determined. The petitioner department after having received arrears of the rent amounting to Rs. 13,10,991/- is legally and morally bound to issue NOC. Present proceedings are not competent because the matter is already pending on the file of Company Judge of the High Court of Sindh, therefore, petition be dismissed.
'After hearing both the sides and having gone through the record available on record leave to appeal is granted, inter alia to examine respective contentions put forward by the learned counsel for the parties.
'Leave to appeal is accordingly granted."
3. Raja Muhammad Irshad, learned Deputy Attorney General appeared on behalf of appellant and urged with vehemence that the winding up process qua Pakistan Fertilizer Company Limited was finalized on 19.2.1989 and thereafter no further application could have been moved in a past, closed and finalized transaction as such the Misc. Application No. 189 of 2004 in J.M. No. 24 of 1982 moved in the year 2004 after about 14 years should have not been entertained by the learned single Judge of the High Court of Sindh as the Court had become functus officio after final adjudication i.e. winding up of the company. It is next contended that by virtue of indenture of lease executed on 15.7.1969 whereby 70 acres of land situated at Mauripur Road Karachi was leased for a period of 99 years to M/s. Pakistan Fertilizer Company Limited could not have been sold by Abdul Rehman Jinnah, auction purchaser as it was allotted for a specific purpose to M/s. Pakistan Fertilizer Company Limited and exclusively meant for establishing a fertilizer plant. It is also contended that 70 acres of land could not have been bifurcated into two pieces of sixty and ten acres of land in violation of the indenture of lease and therefore, NOC for execution of sale-deed could not be issued as it would be in violation of clauses (4) and (5)of the indenture of lease which aspect of the matter went unnoticed by the learned single Judge in chambers causing serious prejudice against the appellant. It is further argued that the comments furnished by the appellant and arguments made to substantiate the claim have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended emphatically that the learned single Judge in chambers had assumed jurisdiction in the company's matter without taking into consideration that the main J.M. 24 of 1982 was disposed of on 19.2.1989 and without having gone through the relevant record of the main J.M. No. 24 of 1982 and allowed the Misc. application filed by the purchaser namely Abdul Rehman Jinnah. It is also argued that no reliance could have been placed in case Province of Punjab v. Muhammad Yaqoob (1992 CLC 2065) being distinguishable. It is lastly argued that the order impugned being illegal may be set aside.
4. Mr. Sharifuddin Pirzada, learned Sr. ASC duly assisted by Raja Qureshi, learned ASC entered appearance on behalf of respondent and controverted the view point as canvassed at bar by the learned Deputy Attorney General. Mr. Sharifuddin Pirzada, learned Sr. ASC on behalf of respondent highlighted the background and mainly contended that the leasehold rights of the land in question have been sold by Abdul Rehman Jinnah who was competent to do so by virtue of the sale auction certificate duly issued by the Court being the highest and successful bidder. It is also contended that the process of winding up was initiated and finalized at the behest and consent of the Government hence the question of any objection from any quarter does not arise. In order to substantiate his esteemed view it is pointed out by Mr. Sharifuddin Pirzada, learned Sr. ASC on behalf of respondent that the winding up of the company was finalized with the consent of Ministry of Petroleum. It is also pointed out that sale was free from all liabilities and encumbrances pursuant to the order dated 19.12.1989 passed by the learned Court and the lawful rights conferred upon the respondent could have been used in any manner as may be deemed fit and proper. It is stressed time and again that leasehold rights could have been sold by the respondent and no legal restriction can be imposed and therefore, the agreement to sell with Khawaja Amir Ishaque and Syed Rizwan Ahmed (interveners) cannot be questioned as it was being executed pursuant to the title which Abdul Rehman Jinnah had on 25.10.2003 initially conferred upon him vide order dated 19.12.1989 of the Court, Mr. Sharifuddin Pirzada, learned Sr. ASC also referred the Economic Reforms Order, 1972 (President's Order No. 1 of 1972) and pointed out that various powers have been conferred upon the Federal Government by virtue of clause (5) and Article 7F of the Economic Reforms Order, 1972. The Board of Directors entered upon office on 9th September, 1979. It is also contended that the project for which the company was formed was not considered viable economically and finally it was decided by the Ministry of Production, Government of Pakistan in consultation with the Ministry of Finance that the company be liquidated and the letter dated 23.5.1982 containing direction for initiating measure for dissolving the company was issued by the Ministry of Production, Government of Pakistan. It is lastly argued that a line of distinction is to be made between the ownership and leasehold lights which are being sold by Abdul Rehman Jinnah in favour of Khawaja Amir Ishaque and Syed Rizwan Ahmed and no legal bar whatsoever could be imposed in this regard.
5. We have carefully examined the rival contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the order impugned.
It is an admitted feature of the case that winding up process qua Pakistan Fertilizer Company Limited was finalized on 19.2.1989 and sale certificate to that effect was also issued. It is not understandable that how an application (CMA No. 198 of 2004) could have been moved after 15 years and that too under Section 151 CPC which by no stretch of imagination can be invoked in view of the peculiar circumstances of the case in hand. How and under which provision of law the learned single Judge in chambers has reopened a final and closed transaction without examining the previous orders and more so, exercised the powers of the Company Judge which in this case were not specifically conferred upon him. No separate Bench was constituted to deal with such matters and obviously for the reason that nothing was pending since winding up process qua Pakistan Fertilizer Company Limited was finalized. It is unconceivable that how the learned Judge without having examined the entire previous record set the dispute at naught which could not have been done on an application moved under Section 151 CPC. The learned single Judge heard the application (CMA No. 198 of 2004) in J.M. No. 24 of 1982 on 10.2.2004, 16.2.2004, 19.2.2004, 20.2.2004, 9.3.2004, 16.3.2004, 24.3.2004, 25.3.2004 and final hearing was held on 11.5.2004 whereby the misc. application (198 of 2004) was allowed. It is worth mentioning that the learned High Court has passed the order dated 11.5.2004 on misc. application of the purchaser whereas the order dated 19.2.1989 was passed on J.M. No. 24 of 1982 whereby the matter was finally decided and it became a past and closed transaction. In so far as the provisions as contained in Section 151 CPC are concerned the same could not have been pressed into service for the simple reason that where the jurisdiction of a Court is expressly limited to the decision of particular questions, the decision of other questions must be regarded as impliedly removed from its jurisdiction. The powers as conferred upon a Court under Section 151 CPC can only be exercised with respect to procedural matters and the exercise of such inherent powers must not affect the substantive rights of the parties. In this regard we are fortified by the dictum, as laid down in case Padanz Sen v. State of U.P. (AIR 1961 SC 218) wherein it was held that the inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possess. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party.
Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure." It may not be out of place to mention here that such inherent powers cannot be used when some other remedy is available and more so, it cannot be exercised as appellate powers. The inherent powers as conferred upon a Court under Section 151 CPC applies only to the exercise of jurisdiction where some lis is pending before the Court and does not confer jurisdiction to entertain a matter which was not pending for adjudication. In this regard reference can be made to case Rasab Khan u. Abdul Ghani (PLJ 1986 SC (AJK) 67), Sajjad Ahmad v. Abdul Harneed ( PLD 1998 Lah. 474), Nazar Muhammad v. All Akbar (PLD 1989 Karachi 635), Muhammad Ayub Khan v. Riyazul Hasan (PLJ 1985 Peshawar 22), Commerce Bank Limited v. Sarfraz Autos (PLJ 1977 K 200), Muhammad Ashfaq v. Shaukat Ali (PLD 1976 Lahore 15), Commerce Bank Limited v.
Sarfraz Autos (PLD 1976 Karachi 973), Mian Muhammad Ashfaq Lt. Col.. Shaukat Ali (1975 Law Notes Lahore 725), Ganisons Indus. Ltd. Akhlaque Ahmed (PLD 1974 Karachi 339), Lal Muhammad v. Niaz, Parwara (PLD 1971 Peshwar 157), Karamatullah u. Govt. of West Pakistan (PLD 1967 Lah. 171), Bashir Begum v. Abdul Rehman (PLD 1963 Lah. 408), Sher Muhammad v: Khuda Bux PLD 1961 Lahore 579), Inayatullah Butt. v. Cantonment Board Rawalpindi (PLD 1957 Lah. 583), In re. Subramania Desika (AIR 1958 Madras 284), Muhammad Usman Khan v. Miraj Din (PLJ 1978 Lahore 177). There is no cavil with the proposition that pursuant to the provisions as contained in Section 151 CPC the inherent powers can only be exercised to secure the ends of justice or for the purpose of preventing abuse of the process of the Court and the words "ends of justice" and "abuse of the process of the Court" should be construed with due regard to rest of the provisions of the Code because the main object of Section 151 CPC is to prevent the Court from being rendered powerless on account of any omission' in the Code and empowers the Court to make necessary orders and no other orders. If any authority is needed reference can be made to case Emirates Bank International Ltd. v.
Adamjee Industries Limited (1993 CLC 489). The case in hand has been examined on the touchstone of the criterion as mentioning herein above and we are of the considered opinion that inherent powers could not have been exercised in this case. For the sake of argument if it is admitted that the matter could have been reopened or reconsidered but even then it could have been done only to solve any dispute between Abdul Rehman Jinnah and that of Pakistan Fertilizer Company Limited C being relevant parties during the winding up proceedings. The learned High Court was not at all concerned with any subsequent dispute which has arisen between Abdul Rehman Jinnah and new buyers to whom the land in question was sold by Abdul Rehman Jinnah and any other department of the Government? How learned single Judge in chambers could have interfered, dilated upon and decided the dispute having no jurisdiction at all being functus officio.
Any new dispute between Abdul Rehman Jinnah and new buyers namely Khawaja Amir Ishaque and Syed Rizwan Ahmed and any of the department on any point could have been resolved by invoking the jurisdiction of Civil Court or by writ jurisdiction subject to all legal exceptions. There was no moral or legal justification whatsoever available for the learned single Judge to have interfered with in the matter which was already decided in J..M. No. 24 of 1982 filed by Pakistan Fertilizer Company Limited under Section 166 of the Companies Act, 1913 for the winding up of the company i.e Pakistan Fertilizer Company Limited which was done fifteen years back. A notable and alarming feature of the case is that the learned Judge did not bother to see as to whether the Federal Government was impleaded as party or otherwise? and no reason whatsoever was given for such omission having substantial bearing on merits of the case which smacks of mala fides on the part of Abdul Rehman Jinnah as well as the interveners. It escaped from the notice of learned single Judge in chambers that initial agreement was executed between the President of Pakistan and that of Pakistan Fertilizer Company Limited and as such it was necessary to implead the Federal Government as a party.
6.We have also adverted to the Indenture of Lease which was executed between the parties on the terms and conditions as enumerated therein. The relevant clauses of Indenture of Lease are reproduced herein below for ready reference:-- "4. The lessee shall use the demised land only for the purpose of . installing a plant or complex for producing Phosphetic Fertilizer and related by-products and shall establish such a plant or complex within a period not exceeding three years from the date of the execution of this deed, failing which the lease shall stand terminated.
5. The lessee will not assign or underlet the demised premises or any part thereof or the rights and privileges hereby granted or any of them to any person nor create a charge on this land in respect of the lessees rights thereto in favour of Pakistan Industrial Credit & Investment Corporation Limited for securing any loans granted by or through that agency without the previous consent in writing of the Government of Pakistan (herein after called the "Government') or the Government Officer for the time being incharge (Collector, Central Excise and Land Customs, Karachi)."
7.A bare perusal of the Indenture of Lease would reveal that:
(i) the Indenture of Lease was executed between the President of Pakistan and Pakistan Fertilizer Company Limited; (ii)the lease was executed for the establishment of a fertilizer plant based on phosphate and mixtures of phosphate cold with all ancillary and supporting or needed facilities; (iii)the lease was granted for a term of 99 years commencing from the 15th day of July, 1969. It was agreed between the parties that the land shall be used only for the purpose of installation of a plant or complex for producing fertilizer etc. within a period not exceeding three years from the date of execution of the deed; (iv)it was also agreed that in case of failure the lease shall. stand terminated; (v)it was binding upon the lessee that he will not assign or underlet the demised premises or any part thereof;
(vi) it was also agreed that the lessee will not create a charge on this land in respect of the lease rights thereto in favour of the Pakistan Industrial Credit & Investment Corporation Limited for securing any loan granted by or through that agency without having the prior consent. of the Government of Pakistan in black and white; (vii)it was agreed that the Government of Pakistan could resume whole or any portion of the demised premises if so required by the Government for any purpose and lessee shall be bound to deliver the possession forthwith; (viii)the entire dealing qua payment etc. could have been made to the Officer appointed by the Central Government.
It is worth mentioning that no other Ministry including the Ministry of Petroleum was ever mentioned at any place.
8. After having gone through the Indenture of Lease the only unescapable conclusion would be that the land in question could not have been used for any other purpose except installation of fertilizer plant and D more so, it could not have been mortgaged for obtaining any loan. It may not be out of place to mention here that the Indenture of Lease was executed in between the President of Pakistan through Ministry of Finance which was never impleaded being a necessary party which has resulted in a huge loss to the Government exchequer. Pursuant to the terms and conditions as enumerated in the Indenture of Lease the Pakistan Fertilizer Company Limited obtained the status of lessee for 99 years but the leasehold rights were not absolute but conditional as pointed out herein above. The lessee was bound that in case of failure of the installation of plant the lease shall be terminated. The leasehold rights were conferred upon the lessee pursuant to the Indenture of Lease which could not have been violated and hence the further transfer of leasehold rights or its sale would be in violative of Indenture of Lease and would have no legal sanctity as well. The Pakistan Fertilizer Company Limited had obtained loan in violative of the terms and conditions as enumerated in the Indenture of Lease and more so, no permission from the Government of Pakistan was obtained in this regard. A careful perusal of the Indenture of Lease would reveal that a conditional title qua the land in question was conferred upon the lessee i.e. Pakistan Fertilizer Company Limited and no superior title could have been conferred upon Abdul Rehman Jinnah the auction purchaser of the land in question. The learned single Judge in chambers had absolutely no authority to make any amendment, deletion, insertion or addition in the Indenture of Lease. We are conscious of the fact that sale certificate was issued on behalf of the Court but it cannot violate or change the terms and conditions of the indenture of Lease without impleading the necessary party i.e. the President of Pakistan through Ministry of Finance by whom the Indenture of Lease was executed. How could the sale certificate bring such a drastic changes in the Indenture of Lease which aspect of the matter went unnoticed by the learned single Judge in chambers? It appears that the sale certificate was neither perused nor examined before its issuance. The Nazir of the Court has absolutely no authority, to mention in the sale certificate that the land in question could have been used for industrial purposes as it was never so stipulated in the Indenture of Lease which was immediately accepted by Abdul Rehman Jinnah and the interveners being beneficial to their interest. There is no denying the fact that Pakistan Fertilizer Company Limited was liquidated but it does not mean that the Federal Government be deprived of the land pertaining to it. How Abdul Rehman Jinnah and the interveners could take benefit of huge amount worth whereof runs into billions by depriving the Government of Pakistan without any legal or moral justification. The auction purchaser and the interveners had no legal right whatsoever to distribute the land between them as it was not an ancestral property and the same was subject to the terms and conditions enumerated in the Indenture of Lease'. We are of the considered view that the legal provisions have been exploited as there was no justification whatsoever to get the matter reopened by invoking the provisions as contained in Section 151 CPC. At this juncture we have also examined the provisions as contained in Article 23 of the Constitution of the Islamic Republic of Pakistan. The word "property" used in the Article means the property in respect of which a right of proprietorship may be asserted." (Raza Kazim v. District Magistrate Lahore PLD 1958 Lahore 706). "It includes every possible interest which a party may have in property, including abstract and concrete rights." (S. M. Transports (Pvt.) Ltd. v. Sankaraswamigal Mutt AIR 1963 S.C. '864). A careful analysis of Article 23 of the Constitution would reveal that property which is illegal to hold is not property "unless there is a transfer of property from one person to another or vesting and divesting of property, there cannot be said to be any "acquisition" or property." (Rajah of Bobbili v. State of Madras AIR 1952 Mad. 203). We are conscious of the fact that the right to hold property includes the right to hold it in any manner that the owner chooses, and also the right to enjoy it. When the right of an individual proprietor of a property is restricted with regard to free user, it amounts to putting restriction on his right to hold that property. The right to free exercise of possession is a right which is pertinent to, or flows from, the right of ownership." (AIR 1952 Cal. 184, Iswari Prosad v. N. R. Sen AIR 1952 Cal. 273, Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472).
We have no hesitation in our mind to hold that Abdul Rehman Jinnah had no legal right to dispose of the land in question as has been done and he was not in a position to confer a better title in favour of the interveners which was never conferred upon him. The provisions as contained in Article 24 of the Constitution of Islamic Republic of Pakistan makes the position crystal clear and it is well settled by now that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution as mentioned herein above any action can be taken by the lessor as may be deemed fit and proper qua the land in question. In this regard we are fortified by the dictum laid down in cases Amar Singh v. Custodian. E.P. AIR 1957 SC 599, Tika Ramji v. State of T.T.P. AIR 1956 SC 676).
9. We may point out that even Section 7 of the Contract Act, 1872 hardly renders any assistance to the case of interveners as the title of Abdul Rehman Jinnah (auction purchaser) is disputed as after three years the land 11 in question should have been reverted to the Government of Pakistan as the initial purpose i.e. establishing a plant of fertilizer could not be achieved. Abdul Rehman Jinnah (auction purchaser) by no stretch of imagination can sell leasehold rights in violation of the Indenture of Lease as mentioned hereinabove. We have also adverted to the provisions as contained in Section 57 of the Contract Act, 1872 and in our considered view the learned single 1 Judge in chambers had no authority whatsoever to pass any order in violation of the terms and conditions as enumerated in the Indenture of Lease having no legal authority to get it changed.
10. In the same wake of events it has been observed that the learned single Judge in chambers was conscious of the fact that he had become functus officio and therefore he observed that "as a matter of principle, I would agree with the learned counsel that once the company had been wound up, its' assets sold and the money received therefrom distributed amongst its creditors, the proceedings initiated under the Companies Ordinance for winding up of the company as in the present case would come to an end. Thereafter any further dispute with regard to the property would give a fresh cause of action to the auction purchaser which could only be agitated through a separate proceeding." and after concluding so the assumption of jurisdiction appears to be without any legal base wherein Khawaja Amir Ishaque and Syed Rizwan Ahmed (the interveners) or Abdul ehnian Jinnah (auction purchaser) are involved would give them a new cause of action, cognizance whereof could not have been taken on an application simplicitor moved under Section 151 CPC and its disposal in a casual and cursory manner by ignoring the nature of dispute. It must not be lost sight of that the learned single Judge in chambers has held that the property in question continues to be vested with the Federal Government but ignored the fact that the Federal Government was never impleaded as a party. The learned single Judge in chambers could have examined the Indenture of Lease to find out the necessary parties, impleadment whereof was essential to set the controversy at naught. It is not known what prevailed upon the learned single Judge in chambers to resolve the dispute without impleading of the Federal Government. Besides that the learned single Judge in chambers has absolutely no legal authority whatsoever to declare clause (4) of the Indenture of Lease as redundant which has been declared in oblivion of the fact that lease deed was executed by the President of Pakistan through Ministry of Finance and the Pakistan Fertilizer Company Limited, how it could have been done without affording proper opportunity of hearing to the Federal Government. The fact that land in question could not be got redeemed by the Federal Government within a period of three years would not confer the right of ownership or leasehold rights to Abdul Rehman Jinnah and its subsequent sale to Khawaja Amir Ishaque and Syed Rizwan Ahmed (the interveners). For the sake of argument if it is conceded as held by the learned single Judge in chambers that clause (4) of the Indenture of Lease became redundant how clause (5) of the Indenture of Lease can be kept intact? The reasoning given by the learned single Judge in chambers that 'while bifurcation of the property and sale of such portions does not come within the meaning of assigning or under letting the same to any person or for that matter creating a charge thereon as postulated in Clause 5 of the lease deed the fact remains that where such transactions which fall short of an outright sale have been prohibited without the sanction of the Federal Government by necessary analogy sale of the property or any of its bifurcated areas should also have the sanction of the Federal Government. Consequently I would hold that the auction purchaser would have to obtain such sanction both for the bifurcation of the property and its sale to the purchaser. However having said as much I would also direct the Government of Pakistan that once it is approached by the auction purchaser for the necessary bifurcation/permission to sell it shall act reasonably in the matter in accordance with past precedents and where such permission is refused cogent reasons should be given for the same," seems to be fallacious, arbitrary and non-convincing. On one hand all the rights have been conferred upon the auction purchaser and interveners and on the other they have been directed to approach the Government of Pakistan which appears to be contradictory as the learned single Judge in chambers could have very conveniently impleaded the Government of Pakistan to know its point of view instead of making the above observations: 11.We have also examined CMA No. 198 of 2004 which inter alia enumerates that pursuant to the title conveyed to the purchaser (Abdul Rehman Jinnah) on 25th October, 2003 entered into an agreement with Khawaja Amir Ishaque and Syed Rizwan Ahmed (interveners) to sell 60 acres of land out of 70 acres and retained 10 acres for himself which is not a correct picture of the events as no title could have been conferred upon Abdul Rehman Jinnah on 25.10.2003 as mentioned in CMA No. 198, of 2004. In fact everything has been done which was not provided under the Indenture of Lease. We are of the considered view that Abdul Rehman Jinnah (auction purchaser) was not legally entitled to sell sixty acres of land pertaining to Government of Pakistan and retained 10 acres of land for his own use. It was neither the ancestral property nor inherited by Abdul Rehman Jinnah and as such its disposal in such a manner cannot be declared lawful. We have also adverted to the prayer clause of CMA No. 198 of 2004 which is reproduced herein below for ready reference:-- "In view of the aforesaid it is respectfully prayed that the Collector Sales Tax and Excise, Karachi/Mukhtiarkar Kuamari Town, Karachi be directed to issue Form II as well as N.O.C. duly countersigned by D.D.O. (Rev.) or alternatively direct the Registrar T Division-X Karachi, to register the document which could entitle the present purchaser to acquire, hold and dispose of and enjoy the property, Conveying the spirit of the Order of Sale made by this Hon'ble Court in favour of the titled purchaser in the aforementioned proceedings."
12.A bare perusal of the prayer clause would indicate that whatever had been demanded or prayed for could not have been granted by the learned single Judge in chambers while exercising his powers under Section 151 CPC which have been misconstrued and misinterpreted. We have also examined the winding up application preferred on behalf of Pakistan Fertilizer Company Limited (J.M. No. 24 of 1982) wherein it has been admitted in a categoric manner that amongst the principal assets of the Petitioner Company are some of the plant and machinery which were imported and are lying idle and a plot of land measuring 70 acres situated within the limits of Central Excise & Land Customs Department at Maurpur in Karachi Taluka, Karachi District was acquired from the Federal Government on lease for a term of 99 years commencing from 15th July, 1969." In view of the categoric admission that land in question was leased out in favour of Pakistan Fertilizer Company. Limited by the Government of Pakistan how it could have been sold or leasehold rights transferred in favour of the interveners by the auction purchaser. It is an admitted feature of the case that Ministry of Finance and Ministry of Petroleum have decided for liquidation pursuant- to the direction of Ministry of production, Government of Pakistan but it would have no bearing on the Indenture of Lease which could not have been changed except that of lessor himself i.e. Government of Pakistan which was never impleaded as a party. Even otherwise the Ministry of Finance and Ministry of Petroleum had never suggested that in violation of the Indenture of Lease the land in question could have been sold or its leasehold rights could be transferred. It is not known how Abdul Rehman Jinnah (auction purchaser) has become the owner of the land merely on the basis of sale certificate which was issued by the Nazir which fact was never examined by the learned single Judge in chambers. It transpired from the scrutiny of record that the total liability of Abdul Rehman Jinnah comes to rupees three crores fifty lacs whereas the leasehold rights have been transferred in lieu of rupees twenty eight crores and he had earned a net profit of rupees 25 crores which should have been gone to the Government of Pakistan as Abdul Rehman Jinnah had no better title than that of Pakistan Fertilizer Company Limited to whom the land in question was leased out for specific purpose.
'In sequel to above mentioned discussion we are of the considered opinion that the learned single Judge in chambers had no authority to resolve such a controversial issue by exercising his jurisdiction under Section 151 CPC and without impleading the Government of Pakistan as necessary party. In such view of the matter the appeal is accepted and the order impugned being unlawful is set aside. The parties concerned may approach to the forum concerned for the redressal of their grievances, if so desired.