' ABDUL SHAKOOR PARACHA, J.---Board of Revenue Punjab, through Secretary Government of the Punjab, Colonies Department has preferred this appeal under section 3 of the Law Reforms Act, 1972, against the judgment, dated 20-3-2006, delivered by a learned single Judge in Chamber of this Court, whereby writ petition filed by Messrs Sethi Straw Boards Mills Ltd., Gujranwala has been accepted and a direction has been given to the appellant to allow the writ-petitioners to deposit already assessed price of the land as claimed by the appellant Deputy Commissioner, Gujranwala through letter, dated 5-7-1997.
2. The facts of the case have been given in the impugned judgment of the learned single Judge, therefore, there is no need to recapitulate the same in this judgment.
3. It is not disputed that through the Letter No,11-15/9066/M/ DRA, dated 16-5-1982 the Deputy Commissioner conveyed the Director of Sethi Straw Boards Mills Ltd., the respondent herein, that the Government of the Punjab vide Letter No,1503-82-IV/1362-CS, dated 26-4-1982 had accorded sanction to the sale of State land measuring 98 Kanals, 6 Marlas situated in village Talwandi Rahwali to Messrs Sethi Straw Board Mills at the rate of Rs,3000 per marla plus 50% penalty for 'encroachment and plus further 10% of the sale price of sale by private treaty. The total sale price of the State land was calculated as under:- 1.Sale price of the State land Measuring 98 Kanal, 6 M @ Rs,3000 per Marla.Rs,58,98,000 2.50% penalty for encroachment29,49,000 3.10% Surcharge: Total5,89,800 94,36,800
4. As per direction of the Board of Revenue, Punjab Lahore the sale price was to be deposited into the Government Treasury in lump sum and within six months from the date of issue of these orders.
A direction was issued to the respondent to deposit sale price of the State land amounting to Rs,94,36,800 into the government treasury under the head '1320-Extra Ordinary Receipt's' in lump sum within six months from the date of the order of the government without fail.
5. It is to be noted that in the year, 1952 Government of the Punjab acquired land measuring 51 Acrs, 2 kanals and 9 Marlas in the area known as Taiwandi Rahwali, Gujranwala to establish industries.
Accordingly land measuring 98 Kanals, 6 Marlas was allotted to Pakistan Industrial Development Corporation (PIDC). The said Corporation established Straw Board Mills at Rahwali which was later on taken over by Messrs Sethi Straw Board Mills in the year, 1955. The appellant decided to sell out the land to Messrs Sethi Straw Mills at the market rate prevalent at that time. Report was called from the Revenue Functionaries and it was found that the land measuring 98 kanals, 6 marlas was falling in Khasra No,1487 to 1493, 1548, 1552 to 1555 and 2886/1551.
6. The controversy regarding reduction of price remained pending with the appellant, but ultimately it is stated that the offer made by the. Government through the letter was withdrawn.
The respondent approached the appellant with a request to allow the respondent to deposit the above stated price, but the said request was not acceded to, but on 5-7-1997 the Deputy Commissioner asked the appellant to deposit the above stated price which was not allowed, resulting in filing of the Constitutional petition.
7. In compliance with orders of this Court the appellant filed report and parawise comments of the writ petition. It is admitted that the Government of the Punjab in the Colonies Department accorded sanction on 26-4-1982 to the sale of the above said land to the Mills on the terms and conditions stated above and the Deputy Commissioner, Gujranwala vide letter, dated 16-5-1982 asked the Mills Management to deposit total price including the penalty and surcharge amounting to Rs,94,36,800 in the Government Treasury to execute the sale-deed. The respondent through an application asked the appellant to reduce the price. It is stated that on receipt of the applications from the Mills Management the earlier sanction was withdrawn on 24-2-1983. Thereafter the case remained under consideration with the appellant when on another application of the Mills Management they were asked to make payment of State land under the Board of Revenue's Memo.
Dated 26-1-1991. Thereafter in pursuance of the application, dated 1-11-2004 to fix the sale price on the basis of the sale price for the year, 1955, it was decided to get willingness of the respondent as to whether they are ready to purchase the land on current market price plus 10 per cent surcharge as per existing policy. On merits, it is stated that the price assessed in the year, 1982 is not relevant now and as per existing policy price of the land will be assessed by the District Price Assessment Committee on current market rate which will be later on considered by the Provincial Price Assessm ent Committee for final approval subject to the concurrence of the Chief Minister, Punjab.
Consequently, the respondent would be asked to purchase land on the price finally approved.
8. After hearing the arguments, the learned Single Judge proceeded to accept the writ petition in the above stated terms, hence this I.C.A.
9. Before us, Ch. Muhammad Hanif Khatana, learned Additional Advocate-General has argued that there was no sanction for the sale of the State land property in question; however, the learned Single Judge in Chamber has not considered this aspect of the matter therefore the judgment of the learned Single Judge suffers from serious error in law. Further contends that there was only one grant of sanction for permission to sell the questioned land on specific terms vide letter, dated 26- 4-1982 which was withdrawn after failure to comply with the terms vide order, dated 24-2-1983, hence the offer made by the Government of the Punjab for the sale of land in question was never accepted by the respondents so as to make it into an enforceable agreement, even if it is assumed without conceding that there was some kind of agreement between the parties, even then the proper forum for getting the same enforced was before the civil Court of competent jurisdiction within the prescribed period of limitation. He contends that the learned Judge in Chamber could not have exercised the constitutional jurisdiction for settling the disputed questions of fact and assuming the jurisdiction of civil Court. Adds that as per provisions of the Contract Act an enforceable agreement to sell only comes into existence when an offer is made by a competent person which is consequently accepted within the terms of the offer by a competent person, hence in the present case the Government of the Punjab had only made an offer to the respondents to purchase the land in question within specific terms and the respondents never came forward to accept the said offer as it was. This shows that the land in question although under illegal occupation of the respondents remained a subject of negotiation, which has not been settled so far. Therefore, the Government of the Punjab who is the admitted owner of the land in question cannot be forced to sell a valuable piece of land on the choice price of the respondents to the detriment of the public exchequer in the shape of huge financial loss. Further contends that the respondents did not deposit the price of Rs,94,368,19 within the stipulated time; that the letter, dated 5-7-1997 of the Deputy Commissioner was beyond his authority; that the time was the essence of the contract and therefore learned Single Judge could have not accepted the constitutional petition allowing the respondents to deposit the price.
10. Conversely, Ch. Muhammad Yaqub Sidhu and Ch. Imtiaz Ellahi, Advocates, for the respondents Mills contend that the Government of the Punjab accorded sanction on 26-4-1982 to the sale of the State land to the Sethi Straw Mills at the rate of Rs,3000 per marla plus 50 per cent penalty for encroachment and plus 10 per cent surcharge on account of sale private treaty on the expressed condition that the price of land should be recovered in lump sum within a period of six months; the Deputy Commissioner, Gujranwala vide his letter, dated 16-5-1982 asked the Mills Management to deposit the total price including penalty and surcharge Rs,94,36,800 in the government treasury to execute sale-deed. Further contends that the suit for specific performance of the agreement is not the alternate adequate remedy apart from being totally misconceived is also plainly unsound.
Contends that the present one is a case where the State in pursuance of its policy to industrialize the area which was beneficial for the uplift of the economy of the country as a whole offered the land to the industrialists for the accomplishment of the said subject through private treaty by way of sale. He contends that under the law the State could transfer land to welfare institutions even without price therefore it was not in strict sense a case of ordinary contracts or agreement of sale of land under the general law between the parties therefore no question of filing the suit of specific performance could legally arise. In the constitutional petition a direction has been sought to the authorities in the government to perform act of the State of charging the price which it was obliged to perform in accordance with law as such, the writ petition was maintainable.
11. We have heard the arguments of the learned counsel for the parties and perused the record.
Admitted position on the record is that the respondent Sethi Straw Board Mills stepped into the shoes of PIDC and the Industry was established by encroaching the State land measuring 94 kanals and 4 marlas in Khasra Nos. 1487 to 1493, 1548, 1552 to 1555 situated in village Talwandi Rahwali, Tehsil Saddar, District Gujranwala. It is also not disputed that the Government of the Punjab in the Colonies Department accorded sanction on 26-4-1982 to the sale of the above said land to the Mills at the rate of Rs,3000 per marla plus 50 per cent penalty for encroachment and 10 per cent as surcharge on the ground of sale by private treaty on the express condition that the price of the land should be deposited in lump sum within six months. Accordingly, the Deputy commissioner, Gujranwala vide letter, dated 16-5-1982 asked the Mills Management to deposit the total price including penalty and surcharge Rs,94,36,800 in the government treasury to execute the sale-deed in favour of the respondents. Therefore, the argument that there was no sanction of the Government of the Punjab to the sale of the above said land is hereby repelled. As to the argument that the writ-petitioner could have sought remedy by way of specific performance of agreement by filing a civil suit as agreement of sale of the Government land was executed between the parties, we observe that it was not in strict sense a case of ordinary contract or agreement of sale of land under the general law between the parties, therefore, no question of filing a suit for specific performance could legally arise. In the constitutional petition, a direction was sought to the authorities in the Provincial Government to perform act of the State of charging the price which it was obliged to perform in accordance with law as such, the petition was maintainable. Reliance is placed on the case reported as Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Ltd. (PLD 2004 SC 108). The Honourable Supreme Court while interpreting the provisions of section 2 of the Government Grants Act, (XV of 1895) along with section 25 of the Contract Act (IX of 1872) had ruled that State land under Government Grants Act, 1895 could be transferred without price A to welfare institutions or keeping the purpose for which same was to be utilized, such would not in strict sense, be a case of ordinary contract or agreement of sale of land under general law between the parties. It was ruled that general principles of ordinary contract could not be invoked nor question of filing suit of specific performance could legally arise in such cases.
12. Section 2 of the Government Grants Act (XV of 1895) insulates all grants and all transfers of land or any interest therein, made by the Government from the checks of the provisions of Transfer of Property B Act. Section 3 of the Act ibid protects the terms of such grant from the provisions of any other law. We extract the said two provisions hereunder:-- "Section 2---"Transfer of Property Act, 1882, not to apply to Government Grants.---Nothing in the Transfer of Property Act, 1882, contained shall apply or deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of any person, whomsoever, but every such grant and transfer shall be construed and taken effect as if the said Act had not been passed."
"Section 3---Government grants to take effect according to their tenor.--All provisions, restrictions, conditions and limitations, contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment to the contrary notwithstanding."
13. It is true that the words 'grants' and 'tenor' have not been defined in the Grants Act, 1895, but it is quite evident that the words have been used in the Act in etymological sense and, therefore, they should get their widest import. In the Black's Law Dictionary the word `grant' is shown to have meaning: (i) to bestow, to confer upon someone other than the person or entity which makes the grant; (ii) to give or permit as a right or privilege." In the Concise Oxford Dictionary the word 'tenor' means the actual wording of document.
14. The combined effect of the above two sections of the Government Grants Act is that terms of any grant or terms of any transfer of land made by a Government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the Government to enforce any condition or limitation or restriction in all types of grants made by the Government to any person. In other words, the rights, privileges and obligations of any grantee of the government would be completely regulated by the terms of the grant, even if, such terms are inconsistent with the provisions of any other law. Reliance is placed on the case from Indian Jurisdiction titled as Messrs Hajee S.W.M. Mohamed Jamaluddin Bros., and Co., v. Government of Tamil Nadu (AIR 1997 Supreme Court 1368).
15. The above provisions of sections 2 and 3 of the Governments Grants Act have been interpreted by the Division Bench of this Court in the case reported as Lt. Col. Muhammad Amin Khan and others v. Government of West Pakistan and others (PLD 1966 (W.P.) Lahore 111), wherein, the purpose of enactment has been stated that the Government Grants Act, 1895, was enacted for the purpose of clarifying doubts as to the extent and operation of the Transfer of Property Act, 1882, and the power of the Government to impose limitations and restrictions upon grants. The whole purpose of the enactment, as would be evident from a bare reading of it, is to make it abundantly clear that no provision contained in a grant would become ineffective or lose its validity simply on account of its running contrary to any provision of any law for the time being in force.
16. In the case of Bilal Nasir v. The Province of Punjab and another (1991 M LD 708 Lahore) it was ruled that, "Transfer of land by Federal Government/Provincial Government to be regulated by law, and the restrictions, conditions and limitations attached with grant/transfer of land. It follows inevitably therefore that the condition in the sale deeds in plaintiffs' favour namely that they would use the property in suit for residential purposes only was a valid condition and that the Government was within its right to require the plaintiffs to abide by that condition or to violate that condition at the peril of the building being demolished." In the said referred case the vendee obtained the plots for residential purposes and obtained sanction of the plan for commercial purposes and raised a commercial building at the site. The suit was filed by the vendee and ultimately the matter came in revision before this Court. It was observed that the vendee cannot construct commercial building in violation of the grant.
17. On the touchstone of the above stated provisions of the Government Grants Act, and the case- law, we have examined the impugned order. The grant was sanctioned on 26-4-1982 to the sale of the above said land to the Mills on the above said terms and conditions. The Deputy Commissioner, Gujranwala asked the Mills Management to deposit the total price including penalty and surcharge Rs,94,36,800 in the government treasury to execute the sale-deed in favour of the respondents.
Instead of depositing the amount within 6 months in accordance with the grant of the Government of the Punjab, the needful was not done. On the contrary, the respondent moved an application to the Government for reduction of the amount. In the meanwhile, the sanction was withdrawn. In this view of the matter, the respondents did not abide by the terms of the grant and lingered the matter till the unauthorized letter, dated 5-7-1997 was issued by the Deputy Commissioner through which a request was made to the respondents to deposit the price in question into the government treasury under the proper head of account, failing which the recovery of the outstanding amount was to be made according to law.
18. To our mind, the letter, dated 5-7-1997 was issued beyond the jurisdiction of the Deputy Commissioner, Gujranwala, because the tenor of the grant vide letter, dated 16-5-1982 made it obligatory for the Mills Management to make total price including surcharge Rs,94,36,800 within six months of the letter. Now, in 2007 in compliance with the impugned order, dated 15-3-2007 passed in the constitutional petition the respondent cannot be allowed to purchase such a valuable land on nominal price of Rs,94,36,800. Though the respondent has deposited the amount in compliance with the interim order, dated 22-4-2008 passed by this Court in I.C.A., but this deposit is subject to the decision of the present I.C.A.
19. For what has been discussed above, this appeal is allowed. The impugned order, dated 20-3- 2006, passed in the writ petition by the learned Single Judge in Chambers of this Court, is set aside.
The direction given to the appellant to allow the writ-petitioner to deposit already assessed price of the land as claimed by the Deputy Commissioner, Gujranwala, through letter, dated 5-7-1997 is not sustainable. The amount already deposited by the respondent be refunded. The writ petition filed by the respondent stands dismissed. No order as to costs.