' SYED ASGHAR HAIDER, J.--- Respondent NO,3 got published an advertisement in the Daily "Jang" regarding auction of lease rights of the disputed property. The petitioner participated in the auction proceedings and being highest bidder was granted lease rights of the disputed property.
The petitioner duly complied with the conditions and was, therefore, handed over possession of this property. Respondent NO,2 filed an appeal against the grant of lease rights to the petitioner, the same was dismissed by respondent NO,3. Aggrieved thereof respondent NO,2 filed a revision petition under section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 to the Federal Government. It was adjudicated by. Respondent NO,1 who allowed the revision petition, set aside the auction proceedings and the order of the Administrator and awarded lease rights on extension basis to respondent NO,2. Hence the present petition by the petitioner.
2. Learned counsel for the petitioner contended that the petitioner obtained lease rights qua the disputed property pursuant to the auction proceedings in accordance with law, he was highest bidder, paid the requisite dues and was handed over possession and is in possession since then.
The impugned order is bad in law and is violative of sections 18 and 18(a) of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975. Father of respondent NO,2 expired in 1990 and his lease rights were to expire in 1992, till then respondent NO,2 retained the property on these basis as ordained as by section 18(ibid). Thereafter, the disputed property was put to repeated auctions, respondent NO,2 participated in these auctions and he was granted lease rights on said basis, therefore, holding him qualified for lease rights in terms of section 18(a) is illegal as the amendment to section 18 (ibid) incorporated by section 18(a) was made on 12-4-1994, earlier to which the lease rights of the father of respondent NO,2 had lapsed. Therefore, the provisions of section 18(a) are inapplicable to the present controversy. Further the impugned order has been passed without judicial application of mind and has, in fact, referred to an order passed in another proceedings and reasons based on that order. There absolutely is no reasoning for passing the impugned order in terms of the present controversy on independent basis.
3. Pursuant to the direction of this Court respondents Nos.1, 3 and 4 filed parawise comments, wherein they vigorously defended the impugned order for the grant of lease rights on the basis of extension, in consonance with the provisions of section 18(a) of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, as incorporated in 1994, amending section 18 (ibid).
According to the respondents after incorporation of amendment in section 18 and the effect thereof respondent NO,1 was bound to grant extension in lease rights and, therefore, the order of auction of lease rights was illegal and thus., set aside.
4. Learned counsel for respondents Nos.1, 3 and 4 also vehemently argued that the petition is not maintainable as exclusive jurisdiction in this context vests with respondent NO,1 and, therefore, the impugned order is in consonance with law and is also in harmony with the scheme enacted, the order for auction was bad and without jurisdiction as it is proved from record that respondent NO,2 is successor of the deceased lease-holder and, thus, was entitled to the grant of lease rights (on extension basis as incorporated in section 18(a) and exercising revision jurisdiction error of law committed by respondent NO,3 was rectified. To fortify his contention the learned counsel relied on the following precedents:--
(i) Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst.
Akhtar Sultana PLD 1976 SC 410, (ii) Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139, (iii) Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCM R 1313,
(iii) Safdar Javed and another v. Lahore Development Authority through Director-General and 3 others 2005 CLC 1584.
5. Counsel for respondent NO,2 also defended the impugned order and stated that he was entitled to lease rights of the disputed property which were rightly granted by respondent NO,
1. The learned Standing Counsel by and large adopted similar arguments.
6. I have heard the learned counsel for the parties and perused the impugned order. Record reflects that father of respondent NO,2 was lessee of the dispute land, he had been granted lease rights of this land and could hold them till 1992, he expired in 1990. At this juncture it would be relevant to point out that the lease rights were at this point in time governed by the provisions of section 18 of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975.
7. Amendment to section 18 was enacted on 12-4-1994, by incorporating section 18(a), according to this enactment respondent NO,1 was bestowed with the powers to grant extension of lease rights to the successors of a deceased lessee subject to the fulfillment of the conditions contained in section 18(a).
8. As section 18(a) of the Scheme was incorporated on 12-4-1994, therefore, its benefit could not be granted to respondent NO,2 because his father expired in 1990 and his lease rights lapsed in 1992, almost two years earlier to the incorporation of section 18(a). Further respondent NO,2 accepted this position as he repeatedly participated in the auction proceedings for lease rights of this land and obtained these rights on auction basis. Therefore, he himself clearly accepted the fact that the benefit of the provisions of section 18(a) of this Scheme was not available at the relevant time (1992) and, therefore, did not raise issue in this context.
9. Right to obtain lease rights on the basis of extension as incorporated by section 18(a) was agitated for the first time, after the petitioner was granted lease rights pursuant to the auction proceedings referred earlier for the period Kharif, 2006 to Rabi, 2009 by filing an appeal with respondent NO,3, he took cognizance of the matter, considered the claim and assertions of respondent NO,2 and rejected them. Aggrieved thereof respondent NO,2 filed a revision petition before respondent NO,1, who accepted the same, annulled the auction proceedings and awarded lease rights on extension basis to respondent NO,2. This precise order is under challenge in these proceedings.
10. It is a settled proposition of law that subordinate delegated legislation is not retrospective unless a power to this effect is incorporated, this is not the case in the present matter. Reference Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. AIR 1956 All. 35, therefore, benefit of incorporation of section 18(a) could be available only to the successors of the deceased lessee who were holding lease rights on 12-4-1994, any transaction which culminated earlier thereto, could not be reopened and questioned, the persons who were not in possession of lease rights earlier to the said date could not claim any benefit as they were governed by the provisions of section 18 of the Scheme, which contemplated that lease rights could be awarded to the successors of the deceased lessee for the un-expired period of lease rights, in which category respondent NO,2 falls.
11. It is also worthwhile to mention here that respondent NO,1 adverted to the proceedings taken by the Chairman, Evacuee Trust Property Board, in similar matters and referred to and dilated in detail upon proceedings in this context. Every matter has its own features and peculiarities, as to whether the present matter and the referred matter were wholly identical is not decipherable from the contents of the impugned order. Respondent NO,1 was required to take stock of the facts of the present controversy, the order of the Administrator and give reasons for upsetting the challenged order. This is conspicuously missing.
12. Lastly the learned counsel for the petitioner placed on record copy of S.R.O. NO,14(KE)2006, dated 3-2-2006, according to which powers to grant extension rights under section 18(a) have now been bestowed upon the Administrator (respondent NO,3). This position could not be controverted by the learned Standing Counsel or the counsel for the respondent-Department, thus, award of lease rights by respondent NO,1 himself is also without jurisdiction.
13. Lastly adverting to the objections of the learned counsel for the respondents qua non- maintainability of this petition in view of exclusive jurisdiction granted to respondent NO,1, the contention is without any force as this Court has ample powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, to direct any person performing functions in connection with the affairs of the Federation, Province or a Local Authority to refrain from doing anything which he is not permitted by law to do, or to do anything by law he is required to do. It is absolutely clear from the above discussion that lease ' rights granted to the father of respondent No,2 were governed by section 18 of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, and not by section 18(a) (ibid) as held by respondent No,1, therefore, the order in question is illegal and not tenable in law as such respondent No,1, did not exercise jurisdiction as required by law, therefore, the order can be interfered into by this Court under Article 199(a)(i) of the Constitution of the Islamic Republic of Pakistan, 1973, hence this petition is maintainable. The precedents referred to by the learned counsel for respondents Nos.1, 3 and 4 are distinguishable on facts and deal with propositions extraneous to the present controversy, hence are inapplicable. Resultantly, this petition is allowed and the impugned order is set aside with all consequences. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.