CH. MUHAMMAD IQBAL, J.--- Through the instant constitutional petition, the petitioner company has challenged, the order dated 23-5-2013 whereby the Senior Member/Member, Board of Revenue, Punjab, Lahore rejected the application of the petitioner for seeking permission to sell 43- acres 7-kanals and 12-marlas surplus acquired land.
2. Brief facts of the case are that in the year 1951, on the request of the petitioner, land measuring 165-acres 1-kanal and 13-marlas was acquired under Land Acquisition Act, 1894 in order to set up a composite Textile Mills Unit and in this respect, a formal agreement under section 41 of the Land.
Acquisition Act, 1894 was executed between the Government of the Punjab and the petitioner Company (Kohinoor Textile Mills Ltd.) on 11-7-1951. Thereafter, a Conveyance Deed was also executed on 12-3-1974, which contained some restrictions of requiring previous sanction of the Government for transfer of the acquired land through sale, mortgage, gift or otherwise.
The petitioner company's first application for seeking permission to sell land measuring 450 kanals surplus land was rejected by the Board of Revenue on 28-8-1989. Later on, the petitioner company again sought permission to sell the land measuring 46 acres 7 kanals 12 marlas, which was allowed subject to certain conditions vide letter dated 8-4-2003. Thereafter, the petitioner company on 30- 9-2004 filed another application before the Chief Minister Punjab for seeking permission to sell additional surplus industrial land measuring 35-acres and 12-marlas in order to settle financial liabilities and facilitate economic revival of Kohinoor Textile Mills Ltd., Rawalpindi, which was turned down on 8-3-2007. Thereafter, the petitioner company again submitted an application before the DCO, Rawalpindi stating that Revenue. Department, Government of the Punjab had already granted permission to sell surplus acquired land measuring 43-acres 7-kanals and 12-marlas but now out of the said land, the company intends to use a piece of land measuring 16-kanals and 15- marlas and sought permission in this, regard whereupon the Additional District Collector, Rawalpindi vide letter dated 8-6-2012 sought guideline whether the permission granted to the petitioner company vide letter dated 8-4-2003 is still valid, from the Secretary (Settlement), Board of Revenue, Punjab, Lahore whereupon the said permission was withdrawn vide letter dated 4-9- 2012. Being aggrieved of the said order dated 4-9-2012, the petitioner company filed a Writ Petition No,25965/2012, which was disposed of vide order dated 13-3-2013 as under:--- "4. Consequently, I am inclined to refer this petition along with its annexures to respondents No,
1. He shall treat this petition as an application, hear the petitioner and all other concerned parties and decide the matter in accordance with law through a reasoned order. The aforesaid shall be done within a period of three weeks from the date of receipt of certified copy of this order. In case the petitioner is aggrieved of any order passed by respondent No,1, it shall be at liberty to avail such remedies as are provided by law.
Later on, the petitioner company filed Crl. Org. No,946/W/2013, which was disposed of vide order dated 13-5-2013 as under:--- "Let a copy of this petition be handed over to the Addl. Advocate-General who shall ensure that the order of this Court is implemented in letter and spirit, under intimation to the Deputy Registrar (Judicial) of this Court, within two weeks."
In compliance of these orders dated 13-3-2013 and 13-5-2013, the Senior Member/Member, Board of Revenue, Punjab, after hearing the petitioner company and perusing the record, dismissed its request for sale of additional surplus land vide impugned order dated 23-5-2013. Hence; this writ petition.
3. It has been argued by the learned counsel for the petitioner that upon granting permission to sell land measuring 43-acres 7-kanals and 12-marlas by the respondents, a vested right accrued in favour of the petitioner and the same could not be withdrawn on the basis of amendment in the rules which, even otherwise, has no retrospective effect; that the impugned order has been passed in violation of law laid down by the superior Courts; that the respondents have no authority to withdraw the permission already granted to the petitioner company; that the petitioner company submitted another application for seeking permission to sell additional surplus industrial land in order to settle financial liabilities and facilitate economic revival of Kohinoor Textile Mills Ltd., Rawalpindi but the same was rejected through the impugned order by the learned Member, Board of Revenue, Punjab, whereby he also withdrawn the permission, already granted to the petitioner company to sell acquired land, as such, the impugned order is illegal and void ab initio; and that the petitioner company by relying upon the permission letter had entered into a valid contract with Faisal Bank Ltd.
4. On the other hand, the learned law officer submits that the writ petition is not maintainable under the law; that the petitioner company has not come to this Court with clean hands, who wants to usurp the acquired land by selling the same under the garb to settle financial liabilities and facilitate economic revival of Kohinoor Oextile Mills Ltd., Rawalpindi; that section 43-A of the Land Acquisition Act, 1894, imposed restrictions on the company for selling the acquired land and only the Government has the authority to sanction or grant permission in this respect whereas first alleged permission, not availed of by the petitioner, was not granted by the Government rather the said permission was granted by the Secretary, Board of Revenue without lawful authority and later on, the petitioner company filed many applications with the prayer that permission may be granted to it for selling additional surplus land for settling financial liabilities and facilitate economic revival of Kohinoor Oextile Mills Ltd., Rawalpindi; that Rule 15 of the Land Acquisition Rules, 1983 has been amended in December, 2011 whereby certain conditions were prescribed for the disposal of the acquired land, as such, the impugned order has rightly been passed by the learned Senior Member/Member, Board of Revenue, Punjab, which otherwise is a just and legal order.
5. Heard. Record perused.
6. It is an admitted fact that land measuring 165-acres 1-kanal and 13-marlas was acquired for Kohinoor Textile Mills Ltd. (company) through Government of the Punjab under the Land Acquisition Act, 1894 for setting up a composite Textile Mills Unit and under section 41 of the Land Acquisition Act, 1894, a formal agreement was executed between the Government of the Punjab and the petitioner company on 11-7-1951 (published in Punjab Gazette on 20-7-1951). It was agreed that the petitioner company would not sell, exchange, or otherwise dispose of the acquired land except with the prior approval of the Government and in this regard, Clause (4) of the said agreement is relevant, which is reproduced as under:- "The Company shall not let or hire, lease, sell, exchange or otherwise dispose of the land mentioned above or any part thereof except with the previous permission of the Government."
Later on, a Conveyance Deed dated 12-3-1974 was also executed by the Governor of the Punjab through the Commissioner, Rawalpindi in favour of the petitioner company by imposing the condition that "the company shall not transfer the said land or any part thereof by sale, mortgage, gift or otherwise, except with the previous sanction of the Provincial Government, as laid down in section 43-A of the Land Acquisition Act. Hence it was the contractual obligation of the petitioner company to get permission under section 43-A of the Land Acquisition Act, 1894 read with Rule 15 of the Land Acquisition Rules, 1983. Contrarily, on 8-4-2003, the Additional Secretary, Revenue Department, Government of Punjab, Revenue Department, without lawful authority and without getting permission from the Provincial Government as prescribed under section 43-A of the Land Acquisition Act, 1894 granted permission to the petitioner company to sell the land measuring 43 acres 7 kanals and 12 marlas. The Additional Secretary (Revenue) has no power/jurisdiction to give permission on behalf of the Provincial Government, as such, the order dated 8-4-2003 is a nullity in the eye of law and does not confer any right to the petitioner. Reliance is placed on the case of "Jehan Khan v. Province of Sindh and others" (PLD 2003 Karachi 691). Thereafter, the petitioner filed another application on 30-9-2004 for seeking permission to sell additional surplus industrial land measuring 35 acres 12 marlas in order to settle financial liabilities and facilitate economic revival of petitioner company before the Chief Minister Punjab. The relevant portion of the said application is reproduced as under:--- "Resultantly, after composite consultation with our real estate experts, the management of KTML has decided that the only feasible option to satisfactorily realize the objectives of the Permission would be by adding for sale further portions of the Land to the Earlier Designated Portion. This additional portion (the "Additional Designated Portion" of the Land falls in the Mauzas of Siham, Chohar Harpal, Bokra and Nothia, Tehsil and District Rawalpindi, details of which are as follows:--- Additional Area to be soldKhasra No. Mauza Tehsil and District 9 Marlas 756 Nothia Islamabad 20 Acres, 3 Kanals 8 Marlas260 Siham Rawalpindi 12 Acres 15 Marlas 359 Bokra Islamabad 2 Acres 4 kanals 1 Chohar Harpal Rawalpindi In view of the above, we hereby request the GOPb to grant us its additional kind permission under section 43-A of the Land Acquisition Act, read with the directive of the Chief Executive of Pakistan dated 5 November, 2001, (as amended by a subsequent directive dated 13 November, 2001) to sell the Additional Designated Portion of the Land through relaxing Rule 15(2) of the Punjab Land Acquisition Rules, 1983 and the restrictive terms and conditions of the Conveyance Deed. The kind acceptance of the GOPb to our request for granting us the additional permission to sell the Additional Designated Portion measuring 35 Acres, 12 Marlas would promptly enable us to sell the same at a suitable market price...."
But the said request of the petitioner company was turned down by the Board of Revenue, Punjab, vide letter dated 8-3-2007 being contrary to the Government policy.
7. The petitioner company challenged the letter dated 4-9-2012 whereby the letter dated 8-4-2003 regarding permission to sell acquired land was withdrawn by the Board of Revenue, Punjab by filing Writ Petition No,25965/2012, which was disposed of on 13-3-2013 to the following effect:--- "4. Consequently, I am inclined to refer this petition along with its annexures to respondent No,l. He shall treat this petition as an application, hear the petitioner and all other concerned parties and decide the matter in accordance with law through a reasoned order. The aforesaid shall be done within a period of three weeks from the date of receipt of certified copy of this order. In case the petitioner is aggrieved of any order passed by respondent No,1, it shall be at liberty to avail such remedies as are provided by law."
In compliance of the said order, the Senior Member/Member, Board of Revenue, Punjab, after hearing the petitioner company turned down its request vide order dated 23-5-2013. The operative part of the said order is reproduced as under:--- "9. I have heard the learned counsel for the petitioner and perused the record of the case. The permission granted by the Government of the Punjab to sell land in question measuring 43 acres, 7 kanals 12 marlas vide letter No,586-2003/307-S.IV, dated 8-4-2003 was not availed of by the, petitioner Company for more than nine years. Subsequently, the Government decided to recall all such approvals which were not so far availed of. The Government also amended Rule 15 of the Land Acquisition Rules, 1983 in December, 2011 whereby certain conditions were prescribed for the disposal of acquired land. Under Rule 15(1)(a), it has been laid down as under:--- "(a) the transferee shall hold land on the same terms and conditions and for the same purpose for which it was originally acquired, as per agreement under section 41 of the Act and the Conveyance Deed executed pursuant thereto;"
The competent authority decided to withdraw the earlier permission granted to the petitioner Company in this respect. The said permission was accordingly withdrawn vide Board of Revenue's letter No,1178-2012/677-SIV, dated .4-9-2012. Under the provisions of the Rules ibid, the acquired land can only be used for the purpose for which it was acquired. Under the amended Rules, the concession to change utilization has been withdrawn and is no longer applicable. In view of the foregoing, it is clear that the petitioner company failed to avail of the concession given to them under the then rules for a period of more than nine years which now stands cancelled under the existing rules as land acquired for specific purpose can only be used for the said purpose and no other. Therefore, I find no cogent reason to accept the petition of the petitioner which is hereby rejected."
It will not be out of place to mention here that as the petitioner company had not availed of the permission granted to it vide order dated 8-4-2003, therefore, when it came to the knowledge that the same was not granted under the law, the same was rightly withdrawn in the light of provisions of section 21 of the General Clauses Act, 1897, which is reproduced B asunder:--- "21. Power to make to include power to add to amend, vary or rescind, orders, rules or bye-laws.- -- Where by any [Central Act] or Regulation, a power to [issue notifications], orders, rules, or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any [notifications], orders, rules or bye-laws so [issued] ". And on the basis of principle of locus poenitentiae. In this regard, reliance is placed on the cases of "The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin" (PLD 1992 SC 207) wherein it has been held as under:--- "Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction."
8. So far as the contention of the learned counsel for the petitioner that Rule 15(1) of the. Land Acquisition Rules, 1983 was amended in December, 2011 while the petitioner company applied for grant of permission to sell the surplus acquired land, much before the said amendment, the same is without any force for the reason that prior to the said amendment, under section 43-A of the Land Acquisition Act, 1894 read with Rule 15 of the Land Acquisition Rules, 1983, no company can sell, mortgage, gift, lease or otherwise except with the previous approval of the Provincial Government, as such, the said amendment is consistent with the Land Acquisition Act, 1894. Hence, there is no question of inconsistency in between the said amended Rule and Land Acquisition Act, 1984.
Further the reason behind the restriction under section 43-A of the Land Acquisition Act, 1894 is that the rights of the effectees, from whom the land was acquired, be secured. The petitioner company itself admitted that they have surplus land, which means that the acquired land is not required to it, as such, under Rule 15(2) of the Land Acquisition Rules, 1983, if the request for grant of permission to sell the acquired land is declined, then the said land should be disposed of as per procedure provided therein.
9. In view of the above, the Senior Member/Member, Board of Revenue, Punjab, has rightly passed the impugned order dated 23-5-2013 and is not called for any inference. The learned counsel for the petitioner has neither pointed out any illegality or irregularity nor detected any jurisdictional defect in the impugned order. Hence, this writ petition is dismissed being devoid of any merits.