' GUL MUHAMMAD KHAN, J.-The appellant who had been granted an area meansuring 3 kanals 2i marks situate in District Sheikhupura vide a sale-deed dated 30th April, 1959, by the Provincial Government, filed a civil suit on its resumption on account of violation of certain conditions of grant. The trial Court dismissed the suit on 7th April, 1969. An appeal also failed and was dismissed on 23rd October, 1969 and hence this Regular Second Appeal.
2. Briefly, the facts of this case, as they are given in the admitted documents on record, are that Qari Muhammad Amin applied ou 8th March, 1954, to the Provincial Government for the sale of the above land, already allotted to him for a school of oriental languages, as its manager. It was stated that the school could not go on paying the heavy rent. He made a statement before the Revenue Assistant on 24th May, 1954 that he had collected sufficient funds for the purchase and that he had already taken steps to form an association to manage the school. He, therefore, prayed for the sale of the plot measuring about 3 kanals and 21 marlas. On 15th November, 1954, the appellant gave an undertaking that the land shall not be used for any purpose other than the school and that it will neither be let out nor sold.
3. In answer to a querry raised, Qari Muhammad Amin stated that the association had been duly registered, and it had good financial position to raise a good building. This was on 20th December, 1955. On 24th January, 1956, the Revenue Assistant reported after spot inspection about some unauthorised construction. The Qari replied on 13th February, 1956, that the alleged unauthorised construction was of a temporary nature and gave an undertaking that the land, if sold, will not be used for a purpose detrimental to school. On 10th May, 1956 the Deputy Commissioner directed that proceedings under the law, and in the light of the letter of the Government, be taken against the Qari. On 25th July, 1957 one Dr. Inayat Ullah Salimi filed an application of ejectment of the appellant before the Revenue Assistant, Sheikhupura.
4. Parties led evidence. The Revenue Assistant vide his order dated 31st October, 1958 held that the Qari was taking undue:and illegal advantage of the Government property. He, therefore, suggested that the property be resumed and all the rents etc. Received by the Qari be recovered from him.
Despite that, the appellant's application was allowed and sale sanctioned by the Government on 11th April, 1956 (D. W. 7/6). The deed was executed on 30th April, 1959 on payment of Rs, 1,250.
5. Some of the conditions of the sale were as under :-
2. The grant is made only for the purpose of construction of a school of Oriental Languages purpose, (hereinafter called the building) and thereafter keeping it in good order.
7 (1) To commence the construction of the building within six month from the date of the grant in accordance with plans which shall have been previously approved by the Collector ;
(k) To complete the building to the satisfaction of the Collector within eighteen months of the date of grant ;
(1) To maintain the building and its environments thereafter in a proper state of repair, cleanliness and sanitation in accordance with any direction from time to time issued by the Collector and to his satisfaction at all times.
(m) To use the land and the building thereon consistently for the purpose which is indicated in the terms of the grant or is usually subservient thereto and not to use any of them for any purpose whatsoever and not to permit or suffer such usage or the sub-division of the land for the purpose of construction more than one building of the kind referred in clause 2 above.
8. (a) This grant is subject to the provisions of the Colonization of Government Lands (Punjab) Act, 1912, so far as they are applicable thereto.
(b) The grantee shall be, deemed to be a tenant of such land unless and until he has fulfilled the terms and conditions of this grant.
9. If the grantee fails to perform or commits any breach of any of the terms or conditions of this grant, or suffers or permits such a breach or non-performance, the Collector may at any time thereafter determine the grant and resume possession of the land, and may pull down any structure existing thereon, and may sell the materials thereof and retain the proceeds of the sale, whether these rights may have been waived in respect of any earlier default or not, and without prejudice to the powers conferred upon him by the Act or to any other right or claim."
6. The appellant submitted a plan for the construction but it was not approved and the same was rejected in 1959. Later, the Commissioner is said to have approved the same. The appellant then raised certain construction which was in clear violation of the grant as well as the plan. On 14th April, 1980, a notice No, 4388/H. C. C. Was served on the Qari alleging that he had rented out some of the property and also put some of it to commercial use. In his reply, the Qari admitted construction of commercial nature and letting out but stated that it was for the benefit of the school so as to tide over the financial difficulties. He also prayed for exemption.
7. A show-cause notice dated 3rd August, 1962, asking the appellant to appear before the Collector was also issued. According to Exh. D. 2, which is a copy of the order dated 7th September, 1962, the Secretary, Board of Revenue, visited the spot in view of a complaint made to the Martial Law Authorities. He informed the Collector on 23rd February, 1962, that the Qari was making a commercial use of the property and the school was just a device to hoodwink the Government to derive maximum personal benefit out of the plot of land. A notice under section 24 of the Colonization of Government Lands Act (V of 1912) was served on the Qari to rectify the breach but he failed. The Collector then called upon the Anjuman to appear and show cause why not action be not taken for the breach of conditions of sale.
8. The Qari appeared and submitted an explanation. He was also beard. His explanation was, however, found not convincing and so was rejected and the property ordered to be resumed. The appellant filed an appeal but the same was rejected by the Additional Commissioner on 12th December, 1962, vide order Exh. D.
3. The Additional Commissioner made an inspection of the spot on 15th November, 1962 and recorded a note dated 19th November, 1962. He also found that the Qari was making a commercial use of the plot and had fraudulently procured the plot on the plea of establishing a school for oriental languages. He, therefore, upheld the order of the Collector. His revision was also dismissed by the Member, Board of Revenue on 1st July, 1963 (Exh. D. 4). The appellant, thereafter, started the civil proceedings referred to above.
9. The lower courts dismissed the suit as well as appeal mainly on the following grounds
(i) the declaratory suit under section 42 of the Specific Relief Act was not maintainable as the appellant had not prayed for possession.
(ii)section 36 of the Colonization of Government Lands Act is a bar against a civil suit ;
(iii) the order of the Collector resuming the grant was valid in view of breach of the conditions of sale. The learned counsel for the appellant took us to the written statement of the respondent to show that the physical possession of the appellant through tenants was admitted. The learned counsel for the respondent was asked to go through it and in view of the clear averments as above, we do not think he could take a different position. In this view of the matter, we hold that the two courts below ran in error in dismissing the suit on that ground.
10. It may further be noted that in case it would have been found as a fact that the appellant was not in possession, the courts below ought to have allowed an opportunity to him to amend the plaint. Reference is made to Karamat All v. Muhammad Yunus Haji (1) wherein the Supreme Court allowed at the stage of appeal before it, to amend the plaint though the suit had become time- barred. It was held in Ahtnad Din v. Muhammad Shafi (2) that a suit cannot fail merely for the reason that consequential relief, by way of possession, had not been claimed and that Court, in such cases, must allow amendment by adding prayer of possession, on payment of appropriate court-fee. This Court also took the same view in Niaz Hussain v. Imdad Hussain (3). The findings of the Courts below on that issue, therefore, cannot be maintained and are reversed.
11. The learned counsel for the appellant also challenged the view taken by the two courts below that the civil court had no jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of civil Court is not to be presumed or readily admitted. There is a plethora of case-law B laying down that despite a clear ouster of jurisdiction of a civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia (4). It was held in Karim Dad v. Arif All etc. (5) that section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or the for corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction. {{FOOT NOTE}}
(1) PLD 1963 SC 161 (2) PLD 1971 SC 762
(3) PLD 1965 Lab. 172 (4) PLD 1958 SC 101
(5) PLD 1978 Lab. 679 {{FOOT NOTE}}
12. Reference be also made to Jewana v. Mst. Sakhi (1) and Government of Punjab v. Harbhagwan and another (2), laying down that section 36 did not oust the jurisdiction of the civil courts in certain cases. The same view was taken in the case of Sardar Habibullah also as referred to in para. 15 below. Thus if it is shown that the order passed cannot be accommodated within the ambit of power of a particular authority, the civil court would intervene. Similarly, the civil court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides.
13. The contention of the learned counsel for the appellant is that the Collector has no power to interfere under section 24 of the Colonization of Government Lands Act, after the proprietary rights have been granted. Reliance is placed on Muhammad Din and others v. Imam Din (3). The. Privy Council in that case ruled that the executive authority cannot super-impose, upon the grant of proprietary rights to a tenant, a condition which is not known to law. They held that withholding free power of alienation is in conflict with the grant of proprietary rights and even a condition of a nature reating an estate unknown to law is bad in law. The condition in that case was that consent of reversioners shall be taken before disposing of the property. The rule deducible from this case is that the Collector has no power in law to impose conditions which have no basis in E the law.
14. In the case of Government of Punjab v. Harbhagwan and another, a learned single Judge of this Court did not agree that the Collector could interfere, after confernment of the proprietary rights.
There also the grantee of State land was under a condition to build a residential house on the land and not to use the house for any other purpose. He installed certain machinery therein. The Deputy Commissioner served a notice under section 24 asking him to remove the machinery within a specified time. The plaintiff brought a civil suit for a declaration that order of resumption passed by Collector was ultra vires. The Court held that plaintiffs were not tenants but owners of the plot purchased by them and resumption by the Collector was illegal. It was further observed that the remedy of the Government, in case of breach of any of the conditions of sale, was a suit in a civil Court or the enforcements of arbitration clause, if it was there in the sale deed.
15.. A Division Bench of this Court in Habibullah Khan v. Province of West Pakistan (5) observed that before becoming a full owner, a tenant of Government land has to fulfil the condition of payment of full price and other conditions of sale and so the Government could, on the principle of locus poenitentiae, withdraw its earlier order as the execution of sale-deed had not been completed. The learned Judges relied on the earlier part of section 15 of the Colonization of Government Lands Act in this regard. This status of a tenant, lasts till full amount has been paid. Rather, section 16 goes further to say that even if a tenant has procured an allotment by deceipt, he shall not be proceeded against after the expiry of 3 years. The intention appears' to be to provide a period of limitation and save tenants from harassment. {{FOOT NOTE}}
(1) PLD 1954 Lah. 253 (2) 1940 P L R 529
(3) AIR 1948 P C 33 (4) PLD 1967 Lab. 52 {{FOOT NOTE}}
16. The learned counsel for the respondent has mainly relied on sections 15 and 30 of the Colonization of Government Lands Act, 1912 and section 3 of the Crown Grants Act, 1895. Section 15 treats the purchaser duly placed in possession of the demised land, by the Collector as a tenant, till the entire purchase money has been paid and conditions set forth in the statement of conditions of sale fulfilled. The intention of the section is that before executing a sale-deed and conferring proprietary rights, it is the duty of H the Collector to see that the purchase money has been paid and the conditions of sale in the statement of conditions fulfilled. Reference be made in this regard to the case noted in para. 14 above, which does go to show that the Collector has no jurisdiction to intervene after the conferment of proprietary rights, even though there has been breach of some conditions of the sale-deed.
17. Section 3 of the Crown Grants Act, 1895, reads as under "All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
' The argument founded on the provision, by the learned counsel for the respondent, is that despite conferment of proprietary rights, the conditions of sale remain operative and can be pressed into service. The question is, would all sorts of conditions stipulated in the sale-deed have that effect or is it some certain conditions ? Section 30 of the Colonization of Government Lands Act supplies answer to it. It lays down that notwithstanding anything in the statement of conditions, a tenant who has acquired proprietary rights in any land, shall in respect of such land, cease to be subject to any statement of conditions issued under the Act, provided always that he shall in respect of such land, be bound by the conditions set out in Schedule 11 of the Act as well as the other provisions of law applicable to proprietors of land.
18. Thus section 3 of the Crown Grants Act and section 30, when read together, go to lay down that notwithstanding the conferment of proprietary rights such a person shall be bound only by the conditions in the Schedule II/ and all the other conditions of the Act which apply to proprietors and not tenants. It is admitted that none of the conditions included in Schedule II and no other conditions concerning proprietors of land in the Act have been violated. The question thus is, are the conditions mentioned in the sale-deed and particularly those reproduced in para 5 above inter vires and if so can the Collector exercise his power under section 24 of the Colonization of Government Lands Act, on their breach, after the conferment of proprietary rights ?
19. The Privy Council in the case of Muhammad Din referred to in para. 13 above struck-down conditions which were alien to law. In pursuance to rule laid down in that case and section 15, the respondent must show that the conditions in para. 5 above do fall under section 30. In Fareed v.
Mst. Sughran Bibi (1) a Division Bench of this Court held that sections 20 and 21 of the Colonization of Government Lands Act have no application, where the proprietary rights have been acquired and the tenancy has ceased to exist. The learned Judges further observed that on acquiring proprietary rights, the holder was subject to limitations provided in section 30-A of the Act.
20. In Allah Ditta v. Jhands (2) a Division Bench observed that it might have been possible for the Government, during the continuance of {{FOOT NOTE}}
(1) PLD 1961 B J 52 (2) PLD 1951 Lah. 244 {{FOOT NOTE}} ' tenancy, to take any objection to the cultivation or possession of a part of the land under the grant but no such objection could be taken after the acquisition of proprietary rights, for the simple reason, that apart from the right of the Government as detailed in Schedule II, the statement of conditions do not apply. Even the Board of Revenue seems to have taken always a view in accord with the judgments referred to above. In Abdul Rashid v. Syed Ihsan Ali Shah (1), it was decided that the petitioner had acquired proprietary rights in its holding according to section 30 of the Colonization of Government Land Act, read with conditions contained in Schedule II, the Government can reserve, a right of the public, only to use the existing thoroughfare but cannot sanction another path through that holding, as the Government would not be within its right to sanction a new path.
21. In view of the above, the conditions 8, 9 and 11 must also be attended to. Condition 8 says that the grantee shall be deemed to be a tenant subject to the provisions of Act V of 1912, so far as they are applicable, unless and until he has fulfilled the terms and conditions of the grant. One's attention is, therefore, again directed to section 30 discussed above which negates it. Condition 9 empowers the Collector to determine the tenancy and resume possession if there is a breach of any term and condition. Condition 11, however, provides that in case any question, difference or objection whatsoever arises between the Government and the grantee, the same shall be referred for arbitration to the Commissioner. Be that as it may, the question is, can the Collector, even in a case of violation of a valid condition, take action himself ?
22. This proposition also seems to have been taken care of. Sections 4 and 15 of the Act V of 1912 treat a person a tenant till he has paid the full price as is also clear from para. 155 of the Colony Manual Vol. II. According to para. 155-A, on the execution of the sale-deed, the purchaser ceases to be governed by the conditions incompatible with those actually included in the sale-deed.
23. Para. 155-A of the Colony Manual already referred to above also refers to the above conditions.
It lays down that in such a case "the legal view is that the re-entry clause is subject to the arbitration clause, so that if a dispute arises as regards Government's right to re-enter then the dispute or difference shall be referred to the arbitrator". The para. Further goes on to say that it will be the arbitrator's decision and not that of the Collector which will be final and conclusive between the parties. The manner of reference is also provided and it is clarified that designated arbitrator is to be addressed as such and not as a servant of the Government. The award of the arbitrator is then to be lodged in the local revenue or civil court so that the actual ejectment may proceed on normal lines. The para. Concludes by stating "From the above it is clear that the alleged breaches of conditions embodied in such grants by way of conveyance are to be treated on different lines from breaches of conditions of a tenancy governed directly by section 24 of the Colonization of Government Lands Act. It is thus evident from the above that the Collector proceeded unlawfully in resuming the grant or taking possession of the land. Similarly, the other higher authorities failed to correct the unlawful act of the Collector. The matter must have been referred to the arbitrator after the Collector was convinced that there is a violation of a condition of sale. {{FOOT NOTE}}
(1) PLD 1959 Rev. 95 {{FOOT NOTE}}
24. A similar situation, presenting itself to the Supreme Court, attracted the following observations in Anjuman-e-Ahmadiya v. Deputy Commissioner, Sargoda (1).
"Under section 30 of the Colonization of Government Lands Act, 1912, it appears that a person, who has under the rules issued by the Governmeat acquired proprietary rights in any Government land, is to be bound in respect of such land by the conditions set out in the Schedule II of the Act itself and other provisions of the Act applicable to proprietors of land. Under paragraph 155-A of the departmental instructions, referred to in the said Schedule, on completion of the purchase and execution of the conveyance, the parties cease to be governed by any conditions incompatible with those actually incorporated in the instrument itself. Such a grant being a Crown grant is to be read, according to its tenor, any statute or law to the contrary, notwithstanding. This Schedule also indicates that the right of re-entry of assumption can only be exercised where a breach of any of the conditions of the sale has taken place and that too after the dispute, if any, has been referred, following the procedure therein prescribed, to arbitration, if the same has not been excluded by the terms and conditions of the deed. In the present case, however, the deed itself provides in paragraph 11-A (earlier quoted) that whenever there is a dispute or difference, there shall be an arbitration."
For the reasons given above, it is held that the Collector had no jurisdiction to himself cancel the sale and resume the property after the conferment of proprietary rights. He should have either approached the civil Court or enforced the arbitration clause of the agreement. The result is that this appeal is accepted and the judgments and decrees of the courts below are set aside and the suit of the appellant is decreed with costs throughout. {{FOOT NOTE}}
(1) PLD 1966 SC 639 {{FOOT NOTE}}