AJMAL MIAN, J.-By this judgment we intend to dispose of the above 10 Constitutional Petitions as common question of facts and law are involved. The petitioners have prayed for identical reliefs in all the above petitions. It may be pertinent to reproduce hereinbelow the reliefs claimed in one of the petitions. The relevant para. Of the petitions, reads as follows; "The petitioner, therefore, prays that this Hon'ble Court be pleased to declare that -
(i) the decision of the Board of Revenue West Pakistan dated 17.6-1970 in respect of the land of the petitioner as per Schedule annexed hereto as Annexure 'C' are still valid and binding on the respondents ;
(ii) the order of respondents demanding highest prevalent auction price, reducing the number of instalments and calling upon the peti--tioner to pay the amount failing which threatened ejectment the petitioner and putting the land to auction are illegal and invalid and not binding ;
(iii) the respondents be restrained by appropriate orders, writs, rules and directions not to implement their illegal decision and be further order and directed to implement the decision of the Board of Revenue West Pakistan dated 17-6-1970 ;
(iv) to restrain the respondents their subordinates and all persons working under their direction from in any manner interfering the petitioner's peaceful use, occupation, cultivation and enjoyment of the land in question ;
(v) any other writ, rule or orders that this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(vi) costs of the petition may be awarded."
2. The relevant facts leading to the filing of the above petitions are that in the year 1956-57 the Board of Revenue West Pakistan launched a scheme known as `GROW MORE FOOD SCHEME'
(hereinafter referred to as the Scheme). Under the Scheme the persons interested to get the agricultural land could apply for allotment on the terms and conditions announced by the Government, which inter alia included the following conditions "(1) Land should be leased out in compact blocks, not exceeding a certain area.
(2) Only food grain crops should be grown on such land.
(3) All State waste lands except these the clearance and breaking of which might accelarate erosion and deplamation should be leased.
(4) The lease should be cancelled if the lessees failed to cultivate the land.
(5) The leases should be given for a prescribed number of years.
(6) The leases could be terminated without compensation, except for standing crops, if the land is required for other public purposes.
(7) No rent in cash or kind should be charged for a certain initial period."
3. It is the case of the petitioners in the above petitions that upon their applications, they were allotted agricultural lands under the scheme, the detail of which is given in one of the annexures to the petitions. It has also been averred in the petitions that after spending lass of rupees, they developed the above barren land and also installed tube-wells. It seems that initially the ;petitioners were given year to year lease. Originally they were exempted from the payment of dhull and revenue charges for about 3 years which period was extended for 5 years. After that the respondents started charging Rs. 4 per acre as lease money besides dhull according to the cultivation. It further seems that on 9-3-1965 the Land Utilization Committee Board of Revenue West Pakistan decided to allow the owners of the tube-wells to purchase the land granted to them under the scheme inter alla on the following terms :-
(i) That they should be charged the highest auction price for land sold in the same or adjoining Deh
(ii) The holding should not extend 240. Acres ;
(iii) If a tube-well owner is otherwise eligible i.e. being Mohagdar, small Khatedar etc. His case may be considered on merits.
4. It seems that some of the lessees under the scheme purchased the land on the above terms and conditions. However, some of the lessees resisted the above decision including the petitioners in the above petitions. It also seems that the Land Utilization Committee held a meeting on 17-6-1970 at 9 a. m. In the Chamber of Member (Land Utilization Committee) Board of Revenue, which was attended as many as 12 the following various high officials:
(2) Mr. Akhlaque Hassan, T. Q. A., C. S. P., Commissioner, Hyderabad Division, Hyderabad.
(3) Colonal Hashim Ali Khan, Director, Welfare and Rehabilitation, Rawalpindi.
(5) Mr. S. M. Hasan, C. S. P., Project Director, Ghulam Muhammad Barrage, Hyderabad.
(6) Mr. Shamim Ahmad, C. S. P., Deputy Secretary to Government, West Pakistan, Finance Department, accompanied. Kh. Abdur Rehman, P. C. S., Section Officer, Finance Department.
(7) Mian Tayyab Hassan, C. S. P., Deputy Secretary (Forests) to Govern--ment of West Pakistan, Agriculture Department.
(8) Mr. J. R Shaisani, Conservator of Forests, Agriculture Development corporation. West Pakistan, Hyderabad,
(9) Mr. Ghaus Bux Memon, P. C. S., Colonization Officer, Sukkur Barrage, Sukkur (Hyderabad).
(10) Mr. Zafar Mahmood, C. S. P., Revenue Officer, Ghulam Muhammad Barrage, Hyderabad.
(11) Mr. Muhammad Zubair Qudvai, C. S. P., Colonization Officer, Gudu Barrage, Sukkur.
(12) Lt: Col. M. Sadiq Malik, Director, Project and Co-ordinate. Agricultural Development Corporation, West Pakistan, Lahore."
5. In the above meeting, inter alia it was resolved to dispose of the undisposed of land leased under the scheme to the lessees of the category mentioned in the minutes. 1t may be advantageous to reproduce hereinbelow item No. 4 of the minutes of the above meeting, which reads as follows : "Item No. 4. Grant of land to Tubewell Owners. --The background of this case was explained by the Secretary, Land Utilization Committee. He added that these allottees were lessees on yearly basis only and that any decision to grant them proprietary rights would not be covered by any statement of conditions. The Director Projects Guddu Barrage however stated that practically 1/2 of the allottees had been offered to purchase the Land in accordance with the previous decision of the Land Utilization Committee and that they had paid 1/4th of total price and obtained ijazatnamas. The following decisions were taken :-
(i) The grantees in respect of remaining area shown in Appendix to the working paper should also be required to exercise the option to purchase by 31st August, 1970.
(ii) The price to be charged should be related to the period when the lean was given and should be the average price obtaining in the vicinity during 3 years prior to the date of the lease.
(iii) The. Number of instalments was to be 10.
(iv) Other terms and conditions would be the same as per applicable to the purchasers of resumed land under Martial Law Regulation No. 64.
(v) The land was thus not to be put to question as previously decided.
It was further decided that no reference to the Finance Department should be made on these points."
6. It is the case of the petitioners that in pursuance of the above decision the petitioners approached the respondents for the purchase of the leased land on the conditions quoted hereinabove, but the respondents failed and neglected to transfer the same to them, and, therefore, they have filed the present petitions, and have prayed for the reliefs quoted horeinabove in para. 1.
7. The above petitions have been resisted by the respondents and inter alia it has been pleaded that the Board of Revenue had no authority to revise its earlier decision of 9-3-1965 providing the terms of the transfer of the land quoted hereinabove in para. 3. It was also been averred that since the concurrence of the Ministry of Finance was not obtained, the above decision was in violation of the Government Business Rules. It has also been averred that the petitioners in fact did not take any step towards taking advantage of the above decision, dated 17-6:1970. It has been further averred that the decision of the Board of Revenue dated 17-4-1970 was referred back to theBoard of Revenue Sind for reconsideration as the Finance Department had not agreed to the same and that the back reference same under consideration in the meeting of the Board of Revenue held on 25-1-1971 and 26-1-1971 and by a decision appearing as item No. 22, the Board resolved to suspend the above decision of 17-6-1970 and further directed that the matter be thoroughly enquired into.
8. (a) In support of the above petition Mr. 5. Nasiruddin, learned counsel for the petitioners has urged the following points :-
(i) That the decision dated 17-6-1970 was made by a competent authority and, therefore, the respondents were obliged to transfer the leased land to the petitioners on the terms and conditions provided for in the said decision ;
(ii) That since the petitioners had acquired vested rights to get the land transferred, the above decision could not have been recalled/suspended without hearing the petitioners.
(b) On the other hand Mr. Abdul Sattar Shaikh, learned Additional Advocate-General, appearing for the respondents, has contended as follows
(i) That since the decision dated 17-6-1970 was in violation of Rule 15 of the West Pakistan Government Rules of Business 1962 inasmuch as no concurrence of the Finance Ministry was obtained, it has no sanctity of law ;
(ii) That in any case the above decision was not conveyed to the peti--tioners and was not acted upon and, therefore, the respondents were competent to recall the above decision or to suspend the case.
9. In support of his contention the learned counsel for the petitioners has relied upon the case of Muhammad Ashraf v. Board of Revenue W. P. And another (PLD 1968 Lah. 1155the case of Ali Muhammad and 13 others v. Province of W. P. (PLD 1969 Lah. 951and the case of Karim Dad v. Arif Ali and others (PLD 1976 Lah. 679On the other hand the learned Additional Advocate-General has relied upon Rule 15 of the W. P. Government Business Rules, 1962 referred to hereinabove, section. 20 of the General Clauses Act, the case of Province of West Pakistan v. Alhaj Maulvi Muhammad Yasin Qureshi (PLD 1964 SC 438the ease of Pakistan v. Muhammad Hamayat--ttllah Farooqi (PLD 1969 SC 487) and the case of the Collector of Central Excise and Land Customs and 3 others v.
Azizuddin Industries Limited Chittagong (PLD 1970 SC 439
(i) Reverting to the case reported in PLD 1968 Lah. 1155, it may be observed that in the above case the lessees of the agricultural land under "THE GROW MORE FOOD SCHEME" challenged certain purported clarification in respect of a decision of the Board of Revenue relating to transfer of proprietary rights to the allottees. The above petitions were resisted by the Board of Revenue inter alia on the ground that the petitioners bad alternate remedy and also on the ground that the instructions issued by the Board of Revenue had no force of law. Both the above contentions were repelled and it was held by a D. B. Of the erstwhile High Court of West Pakistan, Lahore Bench that alternate remedy referred to in Article 93 of the late Constitution of Pakistan (1962) had a reference to remedies provided by the statute itself which had created right or obligation in issue and not a general remedy of law e.g. by a suit. It was also held that the instructions issued by the Board of Revenue in connection with the leased land for the transfer of the proprietary rights under the scheme had force of law and were not merely departmental instructions. Consequently, the petitions were allowed to the extent of declaring that the petitioners were entitled to have proprietary rights transferred to them in the lands which were leased to them, subject to the finding by the revenue authorities that they had fulfilled the relevant conditions.
(ii) With reference to the case reported in PLD 1969 Lab. 951, it may be stated that the above case also related to "THE GROW MORE FOOD SCHEME". It was urged by the Board of Revenue before Muhammad Afzal Zullab, J. (as he then was) that the lands allotted under the scheme were concessions and ex-gratis grants and, therefore, no. Right is enforceable. The above contention was rejected, it was held that the above plea was a concept of past and that the allottees under the scheme were entitled to constitutional protection under Article 2 of the Constitution. The Civil revision petition filed by the petitioner arising out of a suit was allowed and the status qua order granted by the High Court was confirmed, which was declined by the trial Court.
(iii) As regards the case reported in PLD 1978 Lab. 679, it may be stated that in the above case also the question of legality of "THE GROW MORE FOOD SCHEME" was examined by Karam Elahee Chauhan, J. (as be then was) and it was held that the allottees were entitled to the transfer of the land on the terms and conditions laid down by the Provincial Government and that the Collector or the Additional Commissioner were not competent to by-pass those statement of conditions and to specify their own conditions. The Civil revision petition was allowed and the case was remanded back to the trial Court with the direction to examine that relief the plaintiff was entitled to.
(iv) Reverting to the case reported in PLD 1964 SC 438, it may be observed that the facts of this case were that the respondent was granted exemption from requisitioning of certain property under section 3 of the East Bengal (Emergency) Requisition of Property Act (XIII of 1948). The above law was amended by the East Bengal (Emergency) Requisition of Property (Amendment)
Ordinance, 1960. After the above amendment, the Government requisitioned the respondent's aforesaid property. The respondent being aggrieved by the above action filed a writ petition, which was allowed by the High Court of East Pakistan and a writ of mandamus was issued for cancelling the requisitioned order. The Government of East Pakistan filed an appeal before the Supreme Court, which was allowed and it was held that the granting of the exemption under the enabling provision of second proviso to section 3 of the East Pakistan (Emergency) Requisition of Property Act, 1948 was in the nature of a subordinate legislative act and what in the absence of an express saving in the amending Ordinance the provisions of section 8 of the Bengal General Clauses Act, 1899 could not have been passed into service. It was further held that under section 22 of the General Clauses Act, 1897, the Govern--ment had the power to withdraw, alter or amend the order of direction or notification granting the exemption.
(v) With reference to the case reported in PLD 1969 SC 407, it may be observed that the facts of the above case were that the respondent was a permanent member of the Madras 'Civil Service, on migration to Pakistan was appointed in the General Administration Reserve on an assurance that he would get a starting salary of Rs. 1,030 per month. Subsequently, a formal office order was issued on 6-11-19.18 fixing his initial pay at Rs. 620 specific mention that it, was without prejudice to his representation for fixation of -his initial pay at a higher level. The respondent representation was turned down by the then Prime Minister of Pakistan on 11-4-1958, but the respondent continued to press his representation and finally, it was accepted by the President of Pakistan on 1-10-1959. An intimation to that effect was issued by the Secretary to the President by endorsing it to the Secretary, Railways and Communication. The President however, on 26-8-1962 withdraw his order of 1-10-1959. The respondent thereupon, filed a writ petition in the High Court, which was allowed and it was held that the subse--quent order of the President of Pakistan was without lawful authority. The Government of Pakistan being aggrieved by the above Judgment of the High Court filed an appeal before the Supreme Court, which was also dismissed. It was held by the Supreme Court Pakistan that an authority competent to make an order has the power to undo it, but it cannot do so once it was taken legal effect and certain rights are created in favour of any individual. It may be advantageous reproduce hereinbelow relevant portion of the above judgment, which reads as follows:- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of General Clauses Act, locus poenitentiae, i. e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass order to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.
In the present case, the order fixing the basic salary of Rs. 1,000 per mensem for the respondent Himayatullah Farukhi was made by the President on the 1st of October, 1959, when the 1956- Constitution had been abrogated and the country was governed by the Laws (Continuance in Force) Order, 1958. Under Clause (ii) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force)(Six Amendment) Order, 1960, it was provided that nothing in that Article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or in any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him that provided by this Article or the rule or enactment. Acting under this provision the President in the exercise of his supra-Constitutional powers fixed the salary of the respondent at Rs. 1,000 per mensem, notwithstanding the fact that his earlier representation for the case purpose had been rejected by the Prime Minister of Pakistan.
The order of the President was duly communicated to the Ministry of Communications and the respondent and its implementation thus ensured became apartof the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the second order on the 26th of August, 1962, revoking the earlier, one, the Constitution of the. Islamic Republic of Pakistan 1962, had been enforced which contained a protective provision in Article 178, thereof, that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, shall not be varied to his disadvantage.
The President's subsequent order was, therefore, void on that basis."
(vi) As regards the case reported in PLD 1979 SC 437, it will suffice to observe that in the above case the question before the Supreme Court was, as to whether the Government can withdraw a notification granting certain concession as to the payment of Central Excise. It was held by the Supreme Court that an executive authority in exercise of the rule-making power or the power to amend, vary or rescind an earlier order cannot take away the rights vested in the citizen by law and that if a person had acquired a vested right of exemption from the levy of excise duty produced or manufactured by him for a period of four years that vested right could not be taken away through an executive action;
10. From the above-cited cases, the following principles are deducible:
(i) That the provisions of THE GROW MORE FOOD SCHEME and the instructions issued thereunder by the competent authority have the force of law and they can be enforced through a Court of law;
(ii) That an aggrieved party can file a constitutional petition to enforce the provisions of THE GROW MORE FOOD SCHEME or instructions issued thereunder directly instead of filing a suit;
(iii) That an authority which is competent to pass an order can also recall, rescind, or vary the same provided such an action does not effect the vested rights which might have been created accrued during the period commencing from the passing of the original order and the date of recalling or amending such order.
11. In our view it is not open to the respondents to urge that the scheme has no force of law or that the decision taken by the Land Utilization Committee on 17-6-1970 has no legal effect. It may be pertinent to observe that the meeting held on 17-6-1970 referred to hereinabove was also attended by the two representatives of the Finance Department of the Province and they were consenting party to the above decision. Reverting to Rule 15 o the West Pakistan Government Rules of Business, 1962, it may be observed that the same provides that no department shall, without previous consultation of the Finance Department vary any order other than orders in pursuance of any general or special delegation made by the Finance Department which directly or indirectly affects the finances of the Province or which in particular involves relinquishment, remission of assigning of revenue, actual or potential or grant of grantee against it or grant or lease of mineral, forest or water, power right etc. As pointed out hereinabove the meeting held on 17-6-197 in the Chamber of the Member (Land Utilization) Board of Revenue West Pakistan was attended by as many as 16 high officials referred to hereinabove in para. 4, which included Mr. Shamim Ahmad, C. S. P., Deputy Secretary t the Government of W. P. Finance Department accompanied with Mr. Khawaj Abdul Rehman, P. C. S., Section Officer, Finance Department. It is, therefore, evident that above rule 15 of the Business Rules was complied wit inasmuch as the two officials of the Finance Department were present in the meeting and were party to the decision taken therein. It may be notice that in the above Supreme Court case viz. PLD 1969 SC 413 somewhat a similar plea was raised and it was contended by the Government of Pakistan that the President': order fixing the salary of the respondent suffers from infirmity or not having been made in consultation with the Ministry of Finance as required by rule 10 of the Business Rules (1950), which was no accepted. It may further be noticed that according to the respondents own counter affidavit the decision of 9-3-1965 fixing the terms of transfer of the proprietary rights to the lessees under the scheme was taken by the same Land Utilization Committee of the Board of Revenue. In this view o the matter the aforesaid Committee was competent to revise the terms for the disposal of the remaining land for the reasons recorded in the minute of above meeting. We are also inclined to hold that the respondents were entitled to rescind or to modify the above decision dated 17-6-1970 without affecting the rights/obligations which might have accrued between the date o the above decision and the date of the modification or rescissions. If the petitioners had fulfilled the conditions contained in the aforesaid minute of the meeting held on 17-6-1970, before the operation of the same was suspended by the Sind Land Utilization Committee in its meeting held on- 25th and 26th January (Annexure X3 to the counter affidavit) 1971, a vested right had accrued to the petitioners to have the proprietary rights in the land transferred to them, which right could not have been divested by al unilateral action on the part of the respondents.
12. It may be observed that the petitioners in their petitions have averred that in pursuance of the above decision dated 17-6-1970, they had exercised their option, where as the respondents in para. 7 of their counter affidavit have averred that the petitioners did not take any step towards taking advantage of the said decision. Mr. S. Nasiruddin, learned counsel for the petitioners wanted to produce certain documents during the arguments to indicate that in fact the petitioners had exercised their options in terms of the above decisions dated 17-6-1970, we had declined to take anything onrecord at that stage. In our view it will be proper that this question is decided by the respondent Board of Revenue Sind.
13. We accordingly allow the petitions with no order as to costs ands hold that the petitioners are entitled to have proprietary rights transferred to them in the lands which were leased out to them subject to the finding ti--the Board of Revenue Sind that they have fulfilled the relevant conditions contained in the decision dated 17-6-1970. The cases are, therefore, remanded to the Board of Revenue Sind with the direction to decide the petitioners, entitlement in the light of the discussion contained hereinabove within six months from the date of the receipt of intimation. The respondents are also directed that till the decision of the Board of Revenue on the petitioners entitlement the status quo is to be maintained and the petitioners, possession shall not 6e disturbed.