This is a petition under Article 199 of the Constitution read with the Laws (Continuance in Force)
Order, 1977, calling in question the order dated 10-3-1979, passed by the Deputy Commissioner, respondent No. 1, and the order dated 12-5-1980 passed by the Additional Commissioner, respondent No. 2, in the following circumstances :-
2. Each of the petitioners, was granted lease of 5 acres of agricultural land, situated at Deh Boil, Nacless No. 1, Taluka and District .Karachi vide separate orders dated 12-11-1978 for agricultural purposes on the terms and conditions laid down in the Government Notification No. 1/1130; 72- 1413/3239, dated 27-3-1973, on payment of usual lease money. The lease was for 10 years commencing from 1978-1979.
3. It appears that on publication of an advertisement made in local newspapers by M./s. Ashraf Abbasi Associates, Engineers and Architects for sale of houses to be constructed on the land, respondent No. 1, issued show-cause notices dated 6-2-1979 to the petitioners stating that from the advertisement published in daily Jang dated 25-1-1979 by M/s. Ashraf Abbasi Agencies it was clear that the petitioner intended to transfer the said land for residential purpose, and thus infringed the conditions of the grant of the land in question.
4. The petitioners submitted their joint reply stating that the land allotted to them was for and would be utilized for Wahid Chahi cultivation and they had no intention whatsoever for. Transferring the land for residential purposes.
"They further state as follows :- The Engineers started preliminary work of Tubewell boring at site and we have also deposited money with Agriculture Department for hiring of Bulldozer to develop the land.
5. The Petitioners therefore, claimed that no lease condition had been infringed by them in any manner whatsoever and prayed that the notice be declared as infructuous and invalid. However, the Deputy Commissioner without hearing the petitioners or giving them any opportunity of hearing by the order dated 10-3-1979 cancelled the lease and resumed the land under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Act) holding that their reply to the show-cause notice received from the Petitioners was not satisfactory.
6. Aggrieved by this order the Petitioners filed a constitution petition being C. P. No. 570 of 1979 in this Court but withdrew the same as they had also preferred against the order an appeal under section 1.6 of the West Pakistan Land Revenue Act with Respondent No. 2, which was dismissed by Respondent No. 2 by the order dated 12-5-1980. It was argued before respondent No. 2 that there was no violation of the terms and conditions of the lease and that for the advertisement in the daily Jang given by M/s. Ashraf Abbasi Associates, the petitioners should not be penalized.
7. It appears that one Bashir had intervened the, proceedings before respondent No. 2 and had taken the stand that the grant was not made in open Katchery and the graveyard used by the local villagers had been included in the grant. The Commissioner disposed of the appeal by stating reasons therefore, in two paragraphs and they may be reproduced hereinbelow with advantage "6. I have perused the advertisement which appeared in daily Jang dated 23-1-1979. It is an advertisement made by Ashraf Abbasi who happens to be father of appellant No. 12, Habibur Rehman's. The argument that the appellants were not aware or had no knowledge of conversion of the purpose from agricultural to non-agricultural has therefore, no force. Sufficient opportunity has been given by the learned Deputy Commissioner to the appellants before cancellation of lease.
The appeal is rejected.
7. The intervenor has argued that this grant was not made in open kutchery and that the villagers around this piece of land are not getting drinking water due to stoppage of rain water in this land.
Even the graveyard has been given in this grant. These two points have to be looked into by the learned Deputy Commissioner while disposing of this land afresh. These two basic necessities of the villagers should be safeguarded."
8: Aggrieved by the aforesaid order the Petitioners have preferred this constitution petition..
9. We have heard Mr. Liaquat Merchant Advocate for the Petitioners and Mr M. I. Memon, Additional Advocate-General, Sind for the respondents.
10. It is contended by Mr. Liaquat Merchant that under the terms and conditions of the lease, the same could be cancelled on the breach or non--observance of the conditions mentioned in the Government Notification No. K. B. 1/1/30/70/1413/3239 dated 27-3-1973, and there was no breach whatsoever, of any terms and conditions. It is further contended that even if it is assumed for the sake of arguments that there was any breach, under clause 18 of the terms and conditions the respondents could order resumption of the lease only after compliance of the provisions of section 24 of the Act. It is also contended that respondents Nos. 1 and 2 passed the impugned orders without hearing the Petitioners.
Now, taking up the first contention, we find that respondent No. 1 in the impugned order has only said that the reply to the show-cause notice received from the petitioners was not satisfactory. He has not found as fact that there' was any breach of the terms and conditions of the lease. There is also no finding whatsoever, that the petitioners had transferred the land to any person for residential purposes in breach of the terms and conditions of the lease. The petitioners in their reply to the show-cause notice had fully explained, what was the position of Messrs Ashraf Abbasi Associates. Therefore, in the absence of any specific finding based on evidence as to breach of any terms and conditions, there was no cause for cancellation of the lease.
Respondent No. 2 has based his order partly on advertisement made by Ashraf Abbasi who happened to be the father of one of the petitioners, which by itself, in our opinion, did not establish any breach of the terms and con--ditions on the part of the petitioners for firstly, there was no evidence that the petitioners had authorised Messrs Ashraf Abbasi Associates to convert the lands for purpose different from the one for which the same were leased secondly, mere advertisement by the father of one of the petitioners would not establish even intention on the part of the other petitioners, or even on the part of the son of Ashraf Abbasi to sell land by converting the same from agriculture to residential. Even if it is assumed for the sake of argument that such an intention was established, 'the intention or advertisement by itself will not complete the breach of the terms and conditions of the lease, for such an action was capable of rectification as discussed hereinafter. In!
Our view the petitioners had satisfactorily explained in their reply to show --cause notice for what purpose Messrs Ashraf Abbasi Associates were engag--ed. Moreover, respondent No. 2 has based his order also on the grounds that the grant was not made in open kntchery that the villagers around the lands p in question were not getting water due to stoppage of rain water in the land ; and that the graveyard had been given the grant. But these were not the grounds mentioned in the show-cause notices.
Now, we would deal with the second contention of MT. Merchant. According to clause 18 of the terms and conditions of lease, the lease could be resumed after compliance of the provisions of section 24 of the Colonization of Government Land (Punjab) Act, 1912, which provides as follows :-- "24: Power of imposing penalties for breaches of conditions.-When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, -he may, after giving the tenant an opportunity to appear and state his objection -
(a) Impose on the tenant a penalty not exceeding one hundred rupees ; or
(b) order the resumption of the tenancy Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order resumption of the tenancy unless he has issued a written notice requiring the tenant to certify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with ,such notice."
According to the above provision respondent No. 1 on breach of the terms and conditions of tenancy after giving the petitioners an opportunity to appear and state his objection either could impose on each petitioner a penalty not exceeding Rs.100 or order the resumption of tenancy only if the petitioners had not rectified the breach of the terms and conditions within a reasonable time not being less than one month, after issuance of notice requiring the tenant to rectify the breach and the petitioners had failed to comply with such a notice.
It cannot be disputed that the advertisement issued even if it is assumed that it was published by or on behalf of the Petitioners could be rectifies by withdrawing the offer as admittedly no land was transferred to any party till then.
Taking up the last contention, it is conceded by Mr. M.
1. Memon, Additional Advocate-General, Sind, that the petitioners were not given any opportunity to be hard by respondent No. 1. He, however, submitted that the Petitioners had filed an appeal before respondent No. 2 and had also submitted their written arguments and therefore, the principles of natural justice were fully satisfied. However, respondent No. 2 has also based his order on the pleas raised by the intervener that the grant was not made in open kutchery, that the villagers around the villages were not getting water due to stoppage of rain water and that the graveyard was given in this grant. As already pointed out, these grounds were not even mentioned in the show-cause notice. Even if it is assumed that the submission of written arguments satisfied the requirements of affording opportunity of hearing, there is still nothing on the record to show that the petitioners were given any opportunity to meet these grounds and it is no body's case that they , were heard thereon. Thus the principles of `audi alteram partem' were also violated, making the order illegal.
We, therefore, allow this petition and declare the orders impugned in this petition to have been passed without lawful authority and accordingly declare them to be of no legal effect.
The petitioners shall also be entitled to costs of this petition.