' SHAHNAWAZ TARIQ, J.---Through instant civil revision application, the applicant Municipal Committee, Tando Jam has impugned the judgment dated 29-9-2011 passed by learned Vth Additional District Judge, Hyderabad, whereby he dismissed the Civil Appeal No, 369 of 2010 filed by the applicant against the judgment and decree dated: 18-9-2010 passed by learned IInd Senior Civil Judge, Hyderabad, F.C.S No, 219 of 2007( Old No,219/1995), Arjan Kumar v. Province of Sindh and others.
2. Relevant facts spelt out of the instant civil revision application are that the respondent No,1 Arjan Kumar filed F.C.S No,219 of 2007 for declaration and permanent injunction against the applicant' and respondents Nos. 2 to 13, that on 9-1-1995 he moved application to the then Minister Local Bodies for grant of lease for 99 years in respect of a piece of land admeasuring 2006.66 sq. Yards situated near Naka Bus Stand Mirpurkhas Road, Tando Jam, Taluka and District Hyderabad, and vide order dated 16-3-1995 the said lease was granted directing the applicant to report compliance. The applicant referred the matter to respondent No,2, Secretary Local Government and the then Minister Local Bodies confirmed the case in favour of respondent No,1 as per his order dated 20-4-1995. Thereafter respondent No,1 paid entire lease amount and document of lease was executed by applicant as per agreement dated: 24-4-1995. Subsequently, applicant issued a letter dated 26-4-1995 to respondent No,3 for transfer of said land in favour of respondent No,1 in record of rights, who made necessary entries and applicant also handed over possession of the said land to the respondent No,1, therefore, he become lawful lessee in respect of the said land for a period of 99 years and has been enjoying its peaceful possession.
3. The respondent No,1 filed Civil Suit No, 219/2007(219/1995) against the applicant and others with following prayers:--
(a) Declare that the plaintiff is lawful lessee for a period of 99 years in respect of the suit-land measuring 2006.66 sq. Yards with quarters therein situated near Naka Bus Stand Mirpurkhas Road, Tando Jam, Taluka and District Hyderabad and is entitled to enjoy the same till the expiry of said period of lease without interruption by the defendants or any person on their behalf.
(b) Declare that the orders Nos. SOVMC-111(707/95, dated 3-10-199 & MCTJ/237 dated 4-10-1995 passed by the defendants No,1 and 3 and all subsequent proceedings based thereon including the cancelling the entries in the record of rights from the name of the plaintiff are illegal, mala fide, void, ab initio, ultra vires, without jurisdiction, ex parte and have no legal force and do not exist in the eyes of law.
(c) Restrain the defendants by way of permanent injunction from taking any further action in respect of the suit-land, or transferring the same to some other person or changing the status or structure built thereon or dispossessing the plaintiff from the suit-land and quarters, in any manner either directly or indirectly or through their servants subordinates agents etc.
4. It is further stated that respondent No,4, Rao Abdul Rasheed also filed a Suit No,119 of 1995 against applicant, respondents Nos.1 and 2 for cancellation of lease in favour of the respondent No,1 and status quo order was maintained by the civil court, but in the meanwhile applicant informed respondent No,1 through letter dated 4-10-1995 that the lease of said plot has been cancelled by respondent No,2 vide order contained in letter dated 3-10-1995.
5. Learned counsel for the applicant has contended that the respondent No 1 has not adopted the legal procedure as prescribed under section 45 (4) of Sindh Local Government Ordinance, 1979, and it was mandatory to hold auction of said plot, and the Minister Local Bodies was not empowered to grant said land in favour of the respondent No,l. He further contended that the subject plot was not an open plot as two quarters were already available thereon and said fact was also narrated by the witness of the applicant namely Jamil Ahmed in his statement recorded by the learned Civil Court. The respondent No,1 has no legal character and status over.The subject plot and both the courts below have wrongly considered the claim of the respondent No,1 over the said plot. He further contended that the Secretary, Local Government cancelled the lease orders dated 3-10-1995 and 4-10-1995 being illegal and mala fide, but the respondent No,1 did not avail the remedy from Government of Sindh, as provided under the provisions of Sindh Local Government Ordinance, 1979, and with ulterior motive has filed suit before the trial court bearing No,219 of 2007. The Chief Officer, Municipal Committee was not empowered to execute lease in favour of respondent No,l.
6. Learned counsel for the applicant has further contended that the respondent No,4, Rao Abdul Rasheed had also filed, a Civil Suit No,119 of 1995, and status quo order was maintained, but same was, dismissed for non-prosecution. The plot in question was not properly valued by the officials of the applicant and same was granted in lowest price, therefore, the Secretary Local Government has rightly cancelled the lease agreement executed in favour of respondent No,
1. He admitted that the sale price paid by the respondent No,1, was neither refunded to the respondent No,1 nor such offer was ever made through any letter.
7. Learned counsel has further contended that the sale agreement and grant of land in favour of respondent No,1 were in clear violation of provisions of sections 120, 122 and 124 of Sindh Local Government Ordinance, 2001.
8. In rebuttal, learned counsel for respondent No,1 has contended that the applicant Municipal Committee was competent to sale out the plot in question to the respondent No,1, as at the relevant time, all affairs of Municipal Committee were being looked after by the Administrator and the official body was not in existence. Learned counsel submitted that during the period of 1995 when land in question was granted in favour of respondent No,1, the Sindh Local Government Ordinance, 2001 was not promulgated, but Sindh Local Government Ordinance, 1979 was in field.
Learned counsel also contended that the provisions of section 45 of S.L.G.O., 1979 were duly complied with and procedure prescribed therein was duly adopted and the sale price of land was suggested by the concerned quarter for Rs,170 per sq. Yard, but said land was sold out to the respondent at the rate of Rs,400 per sq. Yard by the then Administrator, Municipal Committee. The Administrator had also moved a letter dated 5-4-1995 to the government, and such fact was clearly mentioned in last para of said letter.
9. Learned counsel further contended that the open auction was held by the applicant and one Rao Abdul Rasheed had also participated, but he failed to purchase the plot in question, as his bid was lowest to the bid offered by the respondent No,1., Said Rao Abdul Rasheed had also filed a ,Suit No,119 of 1995 challenging the said process, and learned civil court also passed interim status quo order, but during the existence of status quo order, the Secretary of Local. Bodies in utter violation of the court order had cancelled the sale in favour of the respondent No,1. The sale consideration was received by the applicant and the record of rights of subject land was mutated in favour of the respondent No,1 and such record was produced before the civil court. The suit filed by the respondent No,1 was decreed vide judgment dated 13-12-1997, but thereafter the interveners i,e, respondents Nos. 5 to 13 so also the applicant filed applications under section 12(2), C.P.C., which were dismissed by the trial court, but the dismissal orders were set aside in Civil Revision Applications No,3 of 2004 and 7 of 2004 filed by the respective parties and matter was remanded to the trial court to decide the case afresh after recording their evidence.
10. He further contended that the said plot was admeasuring 1600 sq. Yards, but due to the financial crisis being faced by the applicant, the Administrator moved letter to the concerned quarter for grant of additional land, whereupon few quarters were already constructed, but same were in worst condition. The applicant was provided proper opportunity to adduce evidence and after considering all the documents and evidence of both the parties, the Courts below have concluded the controversy in favour of the respondent No,1, hence concurrent findings of both the courts below cannot be set aside in absence of any gross violation or non-consideration of material facts.
11. I have heard the arguments advanced by the learned counsel for the applicant as well as respondent No,1 and perused the material thoroughly available on record.
12. Perusal of record reflects that admittedly the plot in question was granted to the respondent No,1 for the period of 99 years vide order dated 16-3-1995 by the Minister Local Bodies. It has also transpired that during said period, the Administrator of Municipal Committee was empowered to manage, administer and supervise all affairs of Municipal Committee. The letter dated 5-4-1995 issued by Administrator, Municipal Committee to the Secretary, Local Government (annexure- 137/B) indicates that in para-2 of the said letter it is clearly stated that the site of subject plot was visited and admeasured which is an open plot admeasuring 1600 sq. Yards, whereas the adjacent plot whereupon M.C. Staff quarter were constructed, but due to heavy rains, it requires re- construction, but the M.C. Is financially so weak that even salaries of the staffs could not be paid since last six months, and if quarters will not be reconstructed same will fall down and change the shape of main open plot. It is further stated that Taluka Mukhtiarkar was requested to assist the value of the land in question and Mukhtiarkar ha.; informed that private plot has'been sold out in the vicinity at the rate of Rs,80 to 90 per sq. Yards. The Administrator had suggested that the plot may be sold at the rate of Rs,127 per sq. Yards and the covered area of municipal quarters admeasuring 400 sq. Yards also be sold on double rate of the then cost of open plot in the interest of Council. It is further come on record that the permission was accorded and finally vide letter (137/D) written by the Chief Municipal Officer to Mukhtiarkar for mutation of said plot in the name of the respondent No,1, confirming that the lease money has been received by the applicant. It has further transpired that the procedure of auction was legally adopted and said fact was admitted by the respondent No,4, Rao Abdul Rasheed who had participated in the said auction as per terms of the land revenue act, but being aggrieved/unsuccessful in said auction had filed Suit No,119 of 1995 against the respondent No,1 and applicant.
13. For appropriate and just conclusion of the controversy, the relevant portion of letter dated 5-4- 1995 issued by the Administrator, M.C. Tando Jam addressed to the Secretary, Government of Sindh, Local Department and Katchi Abadi Department, Karachi, referred supra, is reproduced as under:- "It is submitted that the site of above plot was visited and admeasurwed. There are quarters of staff of Committee, Tando Jam besides the open plot situated near Naka Bus Stand, HyderabadMirpurkhas Road, on northern side. As a matter of fact open plot admeasures 1600 sq.
Yards only whereas applicant has included the areas of staff quarters of M. C. Staff also, which being in use of M.C. Staff, could be spared because of dangerous conditions due to heavy rains, and require reconstruction and as the Committee is financially so weak that even salaries of staff, could not be paid since last 6 months, quarters will not be constructed but will fall down and changed in the shape of open plot, which admeasures about 400 sq. Yards, and will not come into definite and proper use of Municipal Committee, Tando Jam.
' It is further submitted that Taluka Mukhtiarkar concerned was requested to assess the value of the land in question. The undersigned calculated the rate of above land keeping in view the local position of other plots for Rs,110 per sq. Yards whereas the Mukhtiarkar has informed that private plots have been sold at the rate of Rs,80 to 90 per sq. Yard.
' In the light of facts stated above, it is suggested that open plot measuring 1600 sq. Yards may be sold at rate of Rs,127 per sq. Yards and that of covered area with quarters of Municipal Committee, Tando Jam measuring about 400 sq. Yards may be sold on double rate than that of cost or otherwise of open plot, in the interest of council."
14. Director Local Government Hyderabad Division endorsing the letter' dated 5-4-1995 sent by Administrator M.C. Tando Jam has issued letter dated 17-4-1995 to the Secretary, Local Government and Katchi Abadi, Karachi. The operative part is reproduced as under:-- "The case is regarding the lease of 2006.66 sq. Yards, on 99 years lease basis for which the Hon'ble Minister, Local Government, Public Health Engineering & Rural Development, has allowed lease.
However, the cost of constructed quarters, in what so ever condition, may be worked out properly and recovered in addition to the proposed cost of plot and that too, in relaxation of section 45(4) of Sindh Local Government Ordinance, 1979. The Government may kindly consider the case in accordance with the policy in vogue."
15. Itt the 'case of Dilawar Khan, v. Mehrun Nissa (2011 YLR 872(b)), it has held that concurrent findings of fact by courts below, High Court could not set aside such findings without establishing that same were perverse, erroneous or result of misreading or non-reading of material evidence on record.
16. In the case of Muhammad Rashid Ahmed v. Muhammad Siddique, (PLD 2002 SC 293), it has held that concurrent finding of facts, scope of revisional jurisdiction, such finding could be interfered with by High Court in exercise of revisional jurisdiction, where it was proved that Appellate Court either had no jurisdiction to decide the matter or had declined to exercise jurisdiction vested in it or acted illegally or with material irregularity.
17. In the case of Haji Muhammad Din v. Malik Muhammad Abdullah, (PLD 1994 SC 291), it has held that concurrent finding of fact of two courts below could not be disturbed by High Court either in second appeal or in revisional jurisdiction, unless Courts below while recording finding of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse. Jurisdiction of High Court to interfere with concurrent finding of fact in revisional jurisdiction was narrower; it could only interfere with the orders of subordinate Courts on ground that Court below had assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Court below had acted with material irregularity affecting its jurisdiction in the case, High Court under revisional jurisdiction can only correct jurisdiction errors of Courts below.
18. In the case of Abdul Rahim v Mrs. Jannatay Bibi and others, (2000 SCM R 346), it has held that in revision jurisdiction of High Court, petitioner was legally obliged to make out a case for exercise of its jurisdiction by the High Court and was burdened to prove that either the appellate forum was not possessed of the jurisdiction to decide the matter as same had done or that the said forum had declined to exercise jurisdiction vested in it or that it had acted in the exercise of its jurisdiction illegally or with material irregularity, absence of any of the three conditions forthcoming in a given case, revisional forum could ill-afford to reverse the findings of the appellate forum.
19. Admittedly, at the relevant time the Government of Sindh had appointed Administrator to manage, control and supervise the affairs of Municipal Committee, Tando Jam. Considering the financial collapse of Municipal Committee, Tando Jam particularly its failure to pay salaries of the staff for six months and after calling the prevailing market value of the subject land from concerned Mukhtiarkar through letter, the Administrator by approaching the concerned quarter of government, had accorded the permission which itself was sufficient for sale and execution of lease in favour of the respondent No,1, as the Administrator was permitted by the Minister for sale of the plot in question and consequently, the said plot was sold out through an open auction.
20. It is an important aspect of the controversy that the applicant has never filed any suit for cancellation of lease agreement which was admittedly executed by the Chief Ministerial Officer of applicant before the competent authority. The learned counsel for the applicant has frankly admitted that the sale consideration paid by the respondent No,1 was neither refunded to him nor such offer was ever made through any letter. From perusal of the evidence adduced by the parties as well as the documents brought on record, it has prima facie established that the procedure envisaged in section 45(4) of SLGO, 1979 was duly adopted, and sale of subject plot was concluded in accordance with the mandatory procedure of the law.
21. It is another important aspect of the controversy that the applicant has been claiming that the plot in question was an amenity plot, but during the long litigation, the applicant has never produced the relevant record to establish its claim before any judicial forum, therefore, the verbal claim of the applicant neither can be believed nor considered and it can easily be concluded that the applicant has raised said-plea with ulterior motive only to defeat the case of the respondent No, 1.
22. It has also transpired that both courts below have properly examined and discussed the evidence adduced by the parties supported with their documents in respect of their claims. It is well-settled law that concurrent finding could not be interfered without establishing that same were invalid, erroneous or result of misreading or non-reading of material evidence available on record, or courts below had no jurisdiction to decide the matter.
23. Consequently, the learned counsel for the applicant has failed to point out any illegality or infirmity in the, impugned judgments of courts below, therefore, impugned judgment dated:, 29-9- 2011 passed by learned Vth Additional District Judge, Hyderabad, and the judgment and decree dated: 18-9-2010 passed by learned IInd Senior Civil Judge, Hyderabad, do not call for any interference by this Court while exercising revision jurisdiction, and the same are maintained.
Accordingly, the instant civil revision application. Being devoid of merits stands dismissed.