Ch. Muhammad Iqbal, J. Through this single judgment, I intend to decide the titled writ petition [No.681/2020] alongwith Writ Petition No.3893/2019, Writ Petition No.1734/2016 & Writ Petition No.14962/2016 as common questions of facts and law are involved in these cases. Precise facts of these cases are as under: W.P.No.681/2020 & W .P.No.3893/2019
2. The Punjab Provincial Cooperative Bank Limited [through W.P.No.681/2020] and Abdul Saboor [through W.P.No.3893/2019] have challenged the validity of order dated 07.11.2013, passed by the Member (Colonies), Board of Revenue Punjab whereby the land in question was resumed in favour of the State and the order dated 23.01.2019, passed by the Member (Colonies), Board of Revenue Punjab whereby the review applications of the aforesaid petitioners, filed against the order dated 07.1 1.2013, were dismissed.
3. Brief facts of these cases, as contend ed by learned counsel for the parties, are that land measuring 12 Kanal comprising Khasra No.115/1/2 situated at Chak No.439/EB, Tehsil Burewala District Vehari was leased out to the Central Cooperative Bank Limited Khanewal for 99 years lease for construction of godowns for wheat bins and in this regard order dated 10.06.1969 was issued. The said Bank constructed wheat bins/godowns and rented out the same to the Food Department. The Central Cooperative Bank Limited Khanewal was nationalized in 1976 and started working with the name & style of Punjab Provincial Cooperative Bank Limited (hereinafter referred to as the "petitioner-bank"). The Food Department, in the year 2005, refused to retain the said bins/godowns as tenant, therefore, the Bank leased out the said wheat bins to Abdul Saboor , (hereinafter referred to as the "respondent No.4") for storage of agricultural inputs & outputs. The respondent No.4 in violation of the lease agreement, used the land for commercial purposes. Muhammad Anwar , (hereinafter referred to as the "respondent No.6") filed an application before the Member (Colonies), Board of Revenue Punjab contending therein that as the respondent No.4 was using the land in question as commercial purposes, therefore, the lease in his favour may be cancelled.
The application of respondent No.4 was not decided upon which he filed Writ Petition No.9837/2013 which was disposed of by this Court on 02.05.2013 with the direction to the Member , Board of Revenue to decide the application of the respondent No.4 after hearing all the parties. In compliance of the order dated 02.05.2013, the Member (Colonies), Board of Revenue Punjab, after hearing all the concerned parties, accepted the application of respondent No.6 vide impugned order dated 07.03.2013, cancelled the lease in favour of the petitioner-bank, declared the respondent No.4 as illegal occupant over the state land and resumed the same in favour of the state.
Against the said order , the petitioner-bank and respondent No.4 filed review applications which were dismissed by the Member (Colonies), Board of Revenue Punjab vide consolidated order dated 23.01.2019. Hence, these writ petitions.
W.P.No.1734/2016
4. The petitioner-bank filed an ejectment petition against the respondent No.4, Abdul Saboor , on the ground of violation of the terms & conditions of the rent/lease agreement. The respondent No.4 contested the petition. The learned Special Judge Rent, Burewala vide order dated 13.02.2015 accepted the ejectment petition and directed the respondent No.4 to handover the possession of the demised premises as well as pay arrears of rent amounting to Rs.45,99,500/- to the petitioner-bank. Being aggrieved, the respondent No.4 filed an appeal which was dismissed by the learned Additional District Judge, Burewala on 26.05.2015. The respondent No.4 challenged the orders dated 13.02.2015 & 26.05.2015 through W.P.No.8253/2015 which was dismissed as withdrawn by the respondent No.4 on 03.06.2015 with the plea to agitate his grievance of title in favour of the petitioner-bank before the learned executing Court. The respond ent No.4 then filed objection petition before the learned executing Court which was dismissed on 11.07.2015. The appeal of the respondent No.4 was also dismissed by the learned Additional District Judge, Burewala vide judgment dated 28.01.2016. The respondent No.4 has challenged the aforesaid orders through this writ petition.
W.P.No.14962/2016
5. The Province of Punjab (hereinafter referred to as the "respondent No.2") against the order dated 13.02.2015, passed by the learned Special Judge Rent, Burewala whereby ejectment petition of the petitioner-bank was accepted, filed an appeal with the contention that the petitioner-bank is not landlord of the demised premises and the respondent No.2 is real owner/ landlord, as such, the amount of arrears of rent due amounting to Rs.45,99,500/- be given to the respondent No.2 instead of the petitioner-bank. The appeal of the respondent No.2 was dismissed by the learned Additional District Judge, Burewala being barred by limitation vide order dated 06.04.2016. Hence, this writ petition.
6. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
7. Admittedly , the suit land is a state property and under Section 10 (4) of the Colonization of Government Lands (Punjab) Act, 1912, no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passe d by the collector and lessee has taken possession of the land with the permission of the authority . For ready reference, aforesaid provision is reproduced as under:
10. Issue of statements of conditions of tenancies.-
(1) .......
(2) .......
(3) .......
(4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector . After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.
The petitioner bank claims that the letter dated 10.06.1969, issued by the Deputy Commissioner , Multan to Commissioner , Multan Division, Multan is lease agreement in its favour whereas perusal whereof shows that it is merely a formal correspondence intra departmental of ficers which is reproduced as under:- From: The Deputy Commissioner , To: The Commissioner , Multan Division, Multan.
Dated: 10th June 1969.
Subject: Leasing out of State lend Cooperative Societies Department for the construction of Wheat Godowns Through control Cooperative Bank Ltd. Khanewal .
Memorandum, The Assistant Registrar Cooperative Societies, Multan East, has selected State Land for construction of wheat Godowns at Yehari, Lodhran and Bure wala under direction from the Martial Law Authorities, The Assistant Registrar Cooperative Societies, Multan East has accordingly applied for the lease of the following state land for a period of 99 years in favour of the Central Cooperative Bank Limited Khanewal: Name of TehsilName of or Chak Town Detail of State LandArea Required K M Vehari Chak 43/WB Yehari Town.Khasra No.92/4 11 13 Vehari Chak No. 439/E.B (Burewala) Khasra No.1 15/1 12 0 Lodhran Maudi (Lodhran)
(North Eastern Side)Khasra No.956/1 1 0
2. The Cooperative Department may be leased out this State land for the construction of Godowns, in the National interest for 99 years lease. Since the Cooperative Department wishes to rent out these wheat binn after construction to the Food Department or others for the preservation of wheat and will Charge rent, they will gain profit by subletting the buildings. They would thus be governed by the provisions of paragraph 2 (111) of the B.O.
R.o letter no. 2983 -- C dated 16-06-1939.
3. Necessary sanction for leasing out the said area for a period of 99 years on the above conditions may kindly be obtained and communicated. The possession of the said State Land has been ordered to be delivered to the Assistant Registrar , Cooperative Societies, Multan East in anticipation of sanction in the interest of speedy construction of the enter -prize as directed by the Material Law Authorities. -sd- Deputy Commissioner Multan and if the above mentioned letter is presumed as a valid lease agreement in favour of the petitioner-bank, it shows that the land is to be leased out/given to the petitioner-bank for a specific purpose i.e. for construction of wheat bins and permission was also granted to rent it out to the Food Department and others for preservation of wheat. But in this case, the petitioner-bank, without getting permission from the competent authority , sublet the state land to the respondents No.4 who has been using the demised premises for other commercial purposes, which (subletting and utilization for other purposes) is violtive to the stipulation of the agreement. Even the respondent No.4 was enjoying the possession of the state land and using the same for commercial purpose without paying a single penny to the petitioner-bank/government. The respondent No.4 / Abdul Saboor , has been managing all these illegal activities in connivance with the officials of the petitioner-bank and when respondent No.6, Muhammad Anwar , brought all these facts before the Member (Colonies ), Board of Revenue, Punjab who rightly cancelled the lease agreements in favour of the petitioner-bank and resumed the land in favour of the state vide impugned order dated 07.11.2013 and review applications of the petitioner-b ank and respondent No.4 were also rightly dismissed, which just orders do not require any interference by this Court.
8. Admittedly all the affairs of the state are managed and run by the instrument of written constitution as well laws and functions/ business of each and every department is to be carried out under the well described manifest written jurisdiction and each portfolio has to exercise its powers with the described precincts of its jurisdiction and any transgression whereof would be considered as illegal. Moreover according to Section 23 of the Contract Act, 1872, if any order is passed by any authority beyond its jurisdiction and against the public policy , such order in its inception is nullity in the eyes of law and never convey any absolute title in favour of the beneficiary . For ready reference, Section 23 of the Act ibid is reproduced as under: "23. What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless:--it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy . In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
(emphasis supplied)
With regard to contract against law and public policy , the Hon'ble Supreme Court of Pakistan in a case titled as Hameedullah and 9 others Vs. Headm istress, Government Girls School Chokara, District Karak and 5 others ( 1997 SCMR 855 ) held that:- "From the aforestated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land. Sale of public office cannot be a legal transaction. It is completely illegal and against public policy . Therefore, such an agreement is hit by section 23 of the Contract Act, which makes it void."
(emphasis supplied)
The August Court in a case titled as Maulana Abdul Haque Baloch and others Vs. Government of Balochistan through Secretary Industries and Mineral Development and others ( PLD 2013 SC 641 ) has held as under:- "The competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for. In this view of the matter , in absence of the requirements of rule 98 being fulfilled in the instant case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of law, and therefore, ultra vires the powers granted under rule 98 of BMCR 1970 read with section 5 of the Act of 1948, and thus void. Shorn of relaxations so grant, CHEJV A has no legal sanctity and consequently remains an agreement entered into against the provisions of law , hence not enforceable.
All the key provisions of CHEJV A were made subject to a reliance on relaxations that were illegal and void ab initio, the illegality of the agreement seeps to its root. As such, no operative part of the agreement survives to be independently enforceable and the principle of severability cannot be applied to save any part thereof. The agreement is, therefore, void and unenforceable in its entirety under the law ."
In another judgment titled as Muhammad Arshad Khakwani Vs. I.U.B. and another (2011 MLD 322) this Court has held that:- "No doubt the Statutory bodies are governed under the Act, rules, regulations and statutes which are meant for the said purpose and no one is allowed to supersede the same. The University functionaries are presumed to act under the law and no one can exceed from its domain neither supersede nor deviate. If the provisions of the Act are not complied with then the Institutions cannot run smoothly as is required by the law and the guarantees provided by the Constitution of Islamic Republic of Pakistan, 1973."
9. Now coming to the matter of ejectment of the respondent No.4, admittedly the petitioner-bank filed ejectment petition against the respondent No.4 and the same was allowed by the learned Special Judge Rent, Burewala on 13.02.2015. Against said ejectment order , respondent No.4 filed appeal which was dismissed by the learned Additional District Judge, Burewala on 26.05.2015. He challenged both the above orders in W.P.No.8253/2015 but withdrew said petition on 03.06.2015, as such, the orders of the learned Courts below have attained finality against him. Thereafter , the respondent No.4 filed objection petition before the learned executing Court calling in question the title of the petitioner-bank which was dismissed by the learned executing Court on 11.07.2015 and the appeal of the respondent No.4 was also dismissed by the learned Additional District Judge, Burewala vide judgment dated 28.01.2016. Once a tenant is always a tenant even he could not challenge the title. The question of title of demised premises cannot be settled in execution proceedings as it is settled law that the learned executing Court cannot go behind the decree rather it is duty bound to execute the decree in letter and spirit as per dictum laid down by the Hon'ble Supreme Court of Pakistan in a case reported as Syed Riaz Ahmad Shan and another v. Dayal Singh College T rust Society and another ( 1972 SCMR 237 ) has held as under:- "According to well-settled principles of law the executing Court cannot go behind the decree. Therefore, to permit the petitioners to raise the objection will amount to asking the executing Court to go behind the decree which it cannot."
The Hon'ble Apex Court in another judgment reported as Muhammad Ali and others v. Ghulam Sarwar and others ( 1989 SCMR 640 ) observed that:- "It is, however , submitted that the decree was wrongly drawn up by the Civil Court. But it is well-settled principle that the executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity which is not the case here. Reference, however , may be made to Brig. (Retd.) 1 Muhammad Aslam Khan V. The Azad Government of the State of Jammu and Kashmir (1983 CLC 1204 ) and Messrs Haji Ahmed and Co. V . Muhammad Siddique and others (PLD 1965 (W .P.) Kar . 293)."
In another judgment reported as Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others ( 1994 SCMR 22 ), the August Court has held as under:- "5......In the execution proceedings, it was not open to the respondent No.1 to take up the plea which he had not taken before the learned trial Court during the course of the hearing of the suit which was ultimately decreed and the decree allowed to become final. In these circumstances, the respondent No.1 itself is responsible for the decree against it, even though its liability was limited. It is not open to the respondent No.1 ?judgment-debtor now to contend that its liability has not been correctly assessed or determined. If it were permissible, there will be no end or finality to the judgment and decree which had become final. Precedents noted and analysed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to the executing Court to go behind it and re-determine the liability of the parties. In this view of the matter , there is no option but to allow this appeal and hold that the learned Judge in the High Court fell in error in giving effect to the plea of the respondent No.1 which had not been raised before the learned trial Court which granted the decree to the appellants. It may also be noted that the decree has already been executed. There is no good ground in the circumstances to put the clock back. Therefore, the impugned order is set aside."
In another case reported as Irshad Masih and others Vs. Emmanuel Masih and others (2014 SCMR 1481 ), the August Court held that:- "....there is plethora of case-law on the legal point that the executing Court, under no circumstances can go beyond the decree 13 ........This being the undisputed factu al position in the present case, as rightly held by the High Court in its judgment dated 11-11-2002, the order of remand passed by the learned Additional District Judge Sahiwal dated 25- 1-2001 was not sustainable in law, as the executing Court cannot go beyond the mandate of the said judgment and thus the present petitioners had no locus standi to seek execution of either the judgments dated 20-1-1969, whereby their predecessor's suit was disposed of without grant of relief prayed for, or the other judgment of the Supreme Court dated 18-6-1995, dismissing their petition and confirming the judgment of the Lahore High Court dated 8-12-1993. Rather , after the death of Mst. Margret in the year 1996, there was nothing in the said judgments which was executable at the request of the present petitioners. If any case-law is needed to fortify the view regarding limited jurisdiction of the executing Court, reference can be made to the following cases:-
(i) Muhammad Ali and others v . Ghulam Sarwar and others ( 1989 SCMR 640 )
(ii) Mst. Naseem Akhtar v . Shalimar General Insurance Company Limited ( 1994 SCMR 22 )
(iii) Province of Punjab through Secretary Industries v . Burewala T extile Mills Limited ( 2001 SCMR 396 )
(iv) Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) which, respectively lays down as under:- In the case of Muhammad Ali (supra), the Court recognized that it was well-settled principle of law that unless the judgment and decree was patently a nullity , the executing Court could not go behin d the decree and was bound to execute the same as it stands.
In the case of Mst. Naseem Akhtar (supra) it was held that it was an establi shed principle of law that the Court in execution proceedings could not be allowed to embark on an inquiry to determine whether the Court passing the decree had the jurisdiction to do so. The Court emphasized that if such broad discretion was given to executing courts there could be no finality attached to any judgment and decree.
In the case of Province of Punjab v. Burewla (supra) this Court reiterated the above principle by stating that the Executing Court could not travel behind the terms of the decree, nor could it alter the terms or examine its correctness or proprietary .
In the last case of Tauqeer Ahmed (supra), apex Court affirmed that there could be no cavil with the proposition that the executing Court could not go behind the decree and would only be allowed to do so to examine whether the decree or part thereof was executable or in-executable. It was held that only in such a situation was the Court empowered to refuse execution but that only to the extent of the in-executable part of the decree and was bound to proceed with the execution for the rest.
14. Having discussed the above two legal points involved in this review petition, when we revert to the facts of the case we find that not once, but twice the litigation in respect of the disputed land granted to deceased Arora before his death in the year 1933 had gone up to the level of apex Court and was finally decided in terms of the two judgments of the apex Court dated 10-12-1991 and 18-6-1995. In such circumstances, the order of this Court dated 22-10-2009, regarding which now review has been sought is nothing but a reiteration of the conclusions in the earlier two rounds of litigation. Thus, any request for review in substance will not be a simplicitor request for review of such order , but for the earlier judgmen ts too, which have been squarely made basis by the Court in its order dated 22-10-2009, as the only ground for dismissal of the appeal. It is important to reiterate that the Court dealing with a review petition and re-examining the order passed during execution proceedings, is constrained not only by the limited scope of exercise of jurisdiction of review , but also by the settled principle of law that the executing court cannot go behind the decree."
Reliance is also place on the judgment of the Apex Court reported as Muhammad Tariq Khan Vs. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818). And lastly the learned Islamabad High Court in a judgment reported as Allied Bank Limited Vs. Messrs Fazal Vegetable Ghee Mills and others (2019 CLD 441) has held that:- "14. Following the principles laid down in the Ghulam Muhammad case Supra, the august Supreme Court has consistently held that an executing Court cannot extend its jurisdiction to go behind the decree and question its correctness. Reference may be made to the cases "Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another" [1972 SCMR 237], "Muhammad Ali and others v. Ghulam Sarwar and others" [1989 SCMR 640], "Mst. Naseem Akhtar and 04 others v. Shalimar General Insurance Company Ltd. and 02 others" [1994 SCMR 22], "Fakir Abdullah and others Vs. Government of Sindh through Secretary to Government of Sindh, Revenue Department Sindh Secretariat and others" [PLD 2001 SC 131], "Allah Ditta v. Ahmed Ali Shah and others" [2003 SCMR 1202 ], "Rehmat Wazir and others v. Sher Afzal and others"
[2005 SCMR 668] and "Muhammad Ali v. Zakir Hussain" [PLD 2005 Lahore 331]. Two judgments have referred to exceptions to the established rule an executing court cannot look beyond the decree or look into the judgment, and the same are as follows:
(i) When the decree is silent regarding what property was the subject matter of execution, then only in such an eventuality the executing court can look into the judgment in order to find the said property . 2003 SCMR 1202 .
(ii) The executability of a decree can be questioned by the executing court if it is satisfied that (a) the decree is a nullity in the eyes of the law, (b) it has been passed by a Court having no jurisdictio n (c) the execution of the decree will not infringe the legal rights of the decree holder , if refused to be executed or (d) the decree has been passed in violation of any provision of law . PLD 2001 SC 131 ."
10. As held in the preceding paragraphs of this judgment that the Member (Colonies), Board of Revenue Punjab rightly cancelled the lease in favour of the petitioner-bank and resumed the land in favour of the state as the original lessee violated the terms and conditions of the lease agreement and unauthorized sub-lessee/ the respondent No.4 was using the state land for commercial purpose in connivance with the officials of the petitioner- bank whereas the said land was actually reserved for agricultural purposes, as such, instead of petitioner bank, the Govt. of Punjab is entitled to recover the amount of arrears of rent granted by the learned Special Judge Rent, from the sub lessee respondent No.4, resultan tly, the order dated 06.04.2016, passed by the learned Additional District Judge, Burewala is set aside, the appeal of the respondent No.2, the Province of Punjab, is accepted and the Province of Punjab is hereby held entitled to recover the arrears of rent from the respondent No.4, Abdul Saboor .
11. For what has been discussed above, this writ petition [No.681/2020] titled "Punjab Provicial Cooperative Bank Ltd. Vs. Member (Colonies) Board of Revenue Punjab Lahore. Etc." as well as Petition No.3893/2019 titled "Abdul Saboor Vs. Member Board of Revenue etc." and Writ Petition No.1734/2016 titled "Abdul Saboor Vs.Punjab Provincial Cooperative Bank etc." are hereby dismissed whereas Writ Petition No.14962/2016 titled "Province of Punjab Vs. Addl. District Judge etc." , filed by the Province of the Punjab, is allowed.