1. S.A. NUSRAT, J.-- These are to sets of appeals filed by each one of the appellants challenging the judgments passed by a learned judge of the Lahore High Court in chambers, dated 3-4-1973, whereby the Constitution petitions of the appellants were only partly allowed, and the judgments, dated 9-7-1977 passed on Letters Patent/Inter Court Appeals by a Division Bench of the same High Court whereby the appeals . Of the respondents were allowed and the judgments of the learned judge in chambers were set aside.
2. Although the facts in all these appeals are not identical the common question which is involved in each one of these appeals is whether the Punjab Government could resume the leases of the appellants without hearing them.
3. The brief facts of the case in Civil Appeals Nos.182 and 183 of 1977, filed by Sardar Muhammad Aslam Sial are that land measuring 181 Acres 17 Marlas in Chak No.2/14-L village Kassowal, Tehsil and District Sahiwal was originally granted to Sardar Ghulam Hussain on 24-5-1932 on Filly Rating Conditions notified by the Government Notification No. 3979-C, dated 14-tl-1931 for a period of ten years.
4. The stud was subsequently converted in 1934 from Filly Rating Conditions to Horse Breeding Conditions notified vide Government Notification No.2033-C, dated 20-6-1934. During the currency of that grant Sardar Ghulam Hussain Khan died and the land was granted to his son Sardar Sarfraz Khan for ten years with effect from 8-10-1938. On the expiry of the period of ten years a further renewal for three years was made in his favour. Sardar Sarfraz Khan was murdered in 1951 and his son was involved in the case whereupon the grant was made in favour of Sardar Rahim Bakhsh who was the uncle of Sardar Sarfraz Khan. The period of the grant was one year only with effect from 9-6-1951 which was first renewed twice for three years and then for ten years from 9-6-1958 to 8-6-1968. On 24-2-1961 Sardar Rahim Bakhsh died, and the grant was thereafter made in favour of his son Sardar Muhammad Aslam Sial, the present appellant, for the next un-expired period of the tenancy, i.e., from 24-2-1961 to 8-6-1968. The appellant executed a modified lease deed on 8- 10-1962. After or somewhere near the expiry of the remaining period of lease hereinbefore mentioned, the appellant, namely Sardar Muhammad Aslam, applied for the renewal of the lease for another period of ten years on the basis of Condition No.16 of 1934 Conditions. Since, however, according to the Government, the said Condition No.16 had long ago been deleted and was no longer in force, the appellant was informed by the Director of Remount Veterinary and Farms, General Head Quarters, Q.M.G's Branch, vide letter, dated 1-1-1969 that in view of the revised policy the lease was renewed only for half of the area, i.e., four squares for another period of ten years.
5. The appellant felt aggrieved of the said order and, therefore, filed a writ petition in the Lahore. High Court claiming a right of renewal of the lease for a further period of. Ten years. The petition was admitted to regular hearing and an order of status quo was passed in the case with notice to the respondents.
6. The facts in Civil Appeals Nos. 184 and 189 of 1977, filed by Agha Riaz Ali Khan and another briefly stated are that Agha Imtiaz Ali Khan, the predecessor-in-interest of the appellants, was granted a lot of 180 Acres 5 Kanals and 13 Marlas in Chak No.2/14-L, Kassowal, Tehsil and District Sahiwal for a period of ten years with effect from 24-5-1932. The allotment was on Filly Rating Conditions contained in Notification No.3979-C, dated 14-11-1931. On the expiry of the first period of lease in 1945 the renewal was for a period of only three years on modified conditions and periodical extensions thereof took place till Agha Imtiaz Ali Khan died on 4-6-1953. The land was thereafter re- allotted to the appellants, who are his sons for the un-expired period of lease. It was renewed periodically, the last renewal being for the period 1-6-1957 to 31-5-1967.
7. By a letter, dated 16-8-1968 the General Headquarters (QMG's Branch) informed the appellants that under a revised policy it was proposed to terminate the lease with effect from Kharif 1968.
8. However, consequent upon certain appeals on behalf of the appellants, the lease was extended up to 14-6-1971, but the size of the stud was reduced to to squares only in favour of each of the appellants. By another letter, dated 26-4-1969 from the same quarters reduction in the area was sought to be enforced. This was challenged by the appellants by means of a Writ Petition No.735 of 1969 in the Lahore High Court.
9. The relevant facts in Civil Appeals Nos. 185 and 187 of 1977 filed by Ch. Muhammad Aslam Sial briefly stated are that Muhammad Aslam, ex-army officer was granted 180 Acres 4 Kanals and 4 Marlas in Chak No.2/14-I, Kassowal, District Sahiwal for a period of three years in 1949. The lease was successively renewed from Kharif 1952 to 15-6-1953, from 16-6-1953 to 15-6-1955, from 16-6-1955 to 15-6-1958 and finally from 16-6-1958 to 15-6-1968, for a period of ten years on satisfactory work.
10. The appellant applied for the renewal of the lease for a further period of ten years under clause 16 of the statement of conditions but instead of granting renewal of tenancy for a further period of ten years by the-Provincial Government, the Government of Punjab by an order, dated 17-1-1970 accepting the recommendations of the Ministry of Defence directed the resumption and reduction of the area of the grant along with similar grants standing in favour of the other persons. The case of the appellant was that he had improved the land with considerable expense and the piece of the land was one of the best lands in the district. He had complied with all the conditions of lease and even according to the respondents he was found to have fulfilled the lease conditions and produced good results. Being aggrieved by the order reducing the area, the appellant filed a Writ Petition No.729 of 1969 in the Lahore High Court.
11. The facts in Civil Appeals Nos. 186 and 188 of 1977 filed by Mst. Zubeda Begum shortly stated are that Sardar Dost Muhammad Khan, the deceased husband of the appellant Mst. Zubeda Begum, was granted lease of 180 Acres 4 Kanals and 4 Marlas to Chak No.2/14-L, Kassowal, District Sahiwal in terms of the condition notified vide Notification No.2033-C, dated 20th June, 1934. Initially the grant was for a period of three years from 22-8-1949 which was later renewed from Kharif 1952 to 15-6-1953 followed by further renewals, the last being from 16-6-1958 to 15-6-1968. Sardar Dost Muhammad Khan, the grantee, died on 8-4-1967. Mst. Zubeda Begum claimed that she was maintaining the said stud and was recommended for the allotment of the same. On 16-8-1968, the General Head Quarters sent a letter to Sardar Dost Muhammad Khan, who was by then dead, informing him that in accordance with the revised policy, dated 4-4-1968 the C-in-C was pleased to decide that, the lease will be extended upto 14-6-1971 and the size of the grant so extended shall be to squares. This order of renewal coupled with the reduction of the size was challenged by Mst.
12. Zubeda Begum by instituting a Writ Petition No.731 of 1969. The petition was admitted and status quo order was passed.
13. The other facts which are common to all the above appeals are that when the writ petitions filed by each of the appellants as mentioned above were pending before the High Court, a statement was made on behalf of the respondents that the impugned orders had been withdrawn and in consequence thereof the petitions filed by the appellants were dismissed as having become infructuous.
14. It appears that while writ petitions were still pending in the High Court, the Government of Pakistan, Ministry of Defence (Army Branch), Rawalpindi, on 10-3-1970, issued a letter No.5804/269/Ram/ C/518-D-3(B) to the Secretary, Board of Revenue (Colonies), West Pakistan, Lahore directing the resumption of the grants immediately on vacation of the stay order by the High Court. The said letter reads as follows.: - ---To The Secretary, Board of Revenue (Colonies) West Pakistan, Lahore.
15. Sub:- Re-allotment of Kassowal Studs.
16. Sir, I am directed to refer to this Ministry letter No. 5804/269/ Rem/C/229/D-3-(B), dated the 7th. Feb., 1970 on the subject and to say that all these four stud-grantees were informed by the Director Remount Veterinary and Farms, General Head--quarters, Rawalpindi, with regard to the Board of Revenue, West Pakistan to that effect vide this Ministry letter No.5804/269/ Rem/C/2359/D-3-(B), dated the 29th September, 1969.
2. These four stud grantees filed writ petitions in the High Court of West Pakistan on the plea that the DRV&F was not legally competent to issue such letters. The High Court accepted the petition, and granted stay orders.
3. On verbal advise of the Government Counsel, letters addressed to the stud grantees by the DRV&F, were withdrawn. It is hoped that the stay orders in all these cases will be vacated in the near future.
4. In view of the fact that the stay orders were obtained on technical grounds only and to discourage litigations by other stud grantees in future, it has been decided that these studs be resumed. It is, therefore, requested that this Ministry letter No.5804/269/Ram/C-2359/D-3(B), dated the 29th September, 1969 be considered as cancelled.
5. I am further directed to refer to your letters Nos. 15074-59/ 5509-C(G), dated 6-11-1959 and No.5734/61-1010-C(G), dated 20-3-1962 and to say that the studs of the following stud grantees be resumed immediately on vacation of stay orders:- Name of stud granteesSize of stud (a)Sardar Muhammad Aslam Sial181.0. 1 (b)Ch. Muhammad Aslam180.4. 6 (c)Widow of H/Capt. Dost Muhammad Khan180.3.16 (d)M/s. Agha Fiaz Ali Khan and Agha Riaz Ali Khan180.5.14 Necessary order with regard to resumption of these studs be issued to the Deputy Commissioner, Sahiwal, now under confide nha letter. He may Court er e' erected that he will resume these studs as soon as vacation orders are communicated to him by the Board of Revenue.
6. The period between the date of expiry of the old leases to the date of resumption for the existing sizes of the studs mentioned in proceeding para. No.5 above, will be considered to be governed by terms and conditions of the former lease deed.
7. It is further requested that a copy of instructions issued to the D.C., Sahiwal may be endorsed to this Ministry.
17. Your obedient servant, Sd/_ The above letter was followed by another communication from the same authority, dated 14-7- 1970 addressed to the Secretary, Board of Revenue (Colonies) Lahore, stating that since the stay orders granted by the High Court had been vacated, it was decided that the studs of the appellants be resumed immediately as already mentioned in the earlier letter, dated 10-3-1970 subject however, that the allottees may be allowed to harvest standing Kharif crops 1970. The letter further mentioned that re-allotment orders of the resumed land will be initiated later on.
18. Consequently the Deputy Secretary, Government of the Punjab (Colonies) addressed a letter, dated 17-8-1970 to the Deputy Commissioner, Sahiwal, which read as under:- "The Government of the Punjab is pleased to accept the recommendations of the Government of Pakistan, Ministry of Defence (Army Branch) Rawalpindi, contained in their letter (enclosed) and accord sanction for resumption of stud land immediately as per detail given in the above quoted letter from the following stud grantees:- (1)Sardar Muhammad Aalam Sial.
19. (2)Ch. Muhammad Aslam.
20. (3)Widow of Capt. Dost Muhammad Khan.
21. (4)M/s. Agha Fiaz Ali, Riaz Ali Khan.
22. The grantees may be, however, allowed to harvest standing Kharif Crops 1970."
23. On the basis of the aforesaid letter, the Deputy Commissioner, Sahiwal, then issued a letter to the Tehsildar, Sahiwal, on 4-9-1970, which is reproduced hereunder:- "Memorandum As communicated by the Deputy Secretary to Government Punjab, Colonies, Department, vide his memo. No. 435-70/435-CLI, dated 17-8-1970, the Governor of the Punjab has been pleased to accept the recommendation of the Government of Pakistan, Ministry of Defence (Army Branch)
24. Rawalpindi and to accord sanction for resumption of the stud land immediately from the following stud grantees:- (1)Sardar Muhammad Aslam Sial.
25. (2)Ch. Muhammad Aslam son of Fazal Muhammad.
26. (3)Widow of Hony. Captain Dost Muhammad Khan.
27. (4)M/s. Agha Fiaz Ali Khan and Agha Riaz Ali Khan..
28. All the abovementioned four lessees should be informed accord--ingly. A list of the trees and the particulars of the buildings with Killawise details prepared and furnished to this office within a fortnight without fail. It may please be ensured that adequate arrangements are made for the safety of the trees and the buildings on the land.
29. This may be treated as most urgent."
30. Aggrieved by the above orders, the appellants filed writ petitions in the High Court of Lahore which were allowed by Karam Elahee Chauhan, J., on 3-4-1973. This judgment was challenged by the respondents in Inter Court -Appeals which were allowed by a Division Bench of the said High Court as per impugned judgments, dated 9-7-1977.
31. Leave to appeal was granted to examine the common question of law raised in these appeals whether the Punjab Government could resume the leases of the appellants without hearing them.
32. The writ petitions filed by the appellants were allowed by the learned Single Judge of the High Court in chambers on the ground that even though the appellants had no right of renewal as such still the authorities concerned had a discretion otherwise to renew the leases of the tenants which was implied in the inherent powers of the Provincial Government and other functionaries acting under the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act), and this was amply supported by the various office nothings referred to in the judgment and various references on the point. The fact that there existed such a discretion was not denied before the High Court by the learned counsel for the respondents. In the circum--stances, it was held that this discretion was liable to be exercised in a reasonable and fair manner and where the exercise of such discretion in favour of any particular tenant was being refused on the ground of his allegedly bad record, the tenant concerned was all the more entitled to be given an opportunity to defend himself.
33. After exhaustive reference -to the record produced and the correspondence laid before the learned Judge in chambers it was found that under the Act the authorities concerned to grant leases or renewal thereof were the Provincial Government (Board of Revenue) or other functionaries mentioned therein. However, in the instant cases, it transpired that the said officers had failed to exercise their independent authority inasmuch as they appeared to have acted mechanically on the dictates of the Director, Remount, Veterinary and Farms, as was evident from the letter, dated 10-3-1970 reproduced earlier where the writer of the letter had stated in no unequivocal terms that the studs of the grantees be resumed immediately on vacation of the stay orders and "necessary orders with regard to resumption of these studs be issued to the Deputy Commissioner, Sahiwal, now under con identical letter." The Board o Revenue and the Collector were thus bound to have acted mechanically without applying their own mind to the facts and circum--stances of each individual case and this amounted to failure to exercise jurisdiction vested in the concerned authorities by law.
34. On appeal by the respondents, the above findings of the learned Judge' in chambers were set aside on the ground that the forfeiture of tenancies had taken place by efflux of the with a duty to peacefully surrender the possession to the Collector and as such the authorities in directing the resumption of possession were merely performing a ministerial duty and in the performance of such duty there was no question of acting on dictation or of failure to exercise discretion or a case of improper exercise of discretion.
35. In arguing the appeals, it was contended by Mr. A.K . Brohi, learned counsel for the appellants, that the grants to the appellants were made in accordance with the Special Horse Breeding Grant Conditions bearing No.2033-C notified under section 10 of the Act in 1934. From amongst the said statement of conditions reliance was placed on condition No.16 which reads as follows:- "The tenancy shall in the first instance be for a term of 10 years and if the tenant six months prior to the expiry of that term gives to the Government and to the District Remount notice in writing of his desire to renew the tenancy and provided that the tenant has carried out the conditions of this grant in all respects to the satisfaction of the Government and that the Government desire the tenant to continue to breed horses the tenant shall be entitled to a renewal of the tenancy for a further period of 10 years on the same conditions including this condition of renewal, subject to such modifications as regards the number of brood mares to be maintained by the tenant as the Government may consider to be reasonable at the the of such renewal."
36. In the light of the above condition, according to the learned counsel, the appellants were entitled to the renewal of their tenancies for a further period of ten years on the same conditions including the condition of renewal. It was contended that notwithstanding the demise of the original grantees the leases were in point of fact renewed in favour of the appellants and as such the appellants in each case continued to be governed by the terms and conditions laid down in the statement of conditions issued under section 10 of the Act which were of statutory nature and enforceable. In connection with the appeals of Sardar Muhammad Aslam Sial, the learned counsel referred to a letter of the Secretary to the Government of West Pakistan, Colonies Department, addressed to the Commissioner, Multan Division, bearing No.5734/61--1009-G(G), dated 20-3-1962, the text whereof is reproduced hereunder:- "Memorandum The Governor of West Pakistan is pleased to accord sanction to the lease of 181 Acres and 19 Marlas of State land situated in Chak No.2/14-L (Kassowal Stud) in the Montgomary District, in favour of Mr. Muhammad Aslam Khan, previously held by his late father Sardar Rahim Bakhsh, who died on the 24th February, 1961, for the unexpired period of the tenancy on the existing terms and conditions."
37. It was, however, not denied by the learned counsel that the appellant Sardar Muhammad Aslam Sial had executed a formal lease on 8-10-1952 which to (like the agreement executed by his father) did not contain any renewal clause. According to the learned counsel, as held by the learned Judge in chambers, the appellant Sardar Muhammad Aslam Sial, upon allotment of the land to him after the death of his father, had become a tenant in his own right and so also the others. The letter of the Government, dated 20-3-1962 reproduced above was cited to support this contention.
38. Learned counsel contended that notwithstanding execution of the fresh lease deed, dated 8-10- 1962 by the appellant Sardar Muhammad Aslam Sial, the statement of conditions once issued under section 10 of the Act remained in force and were unalterable. The legislation, according to the learned counsel, contemplated the application of all the conditions embodied in the statement of conditions together and no sever ability was possible. It was further contended that the power to abrogate the conditions was laid down in section 29 of the Act which reads as follows:- "29. Power to abrogate conditions.-- The (Board of Revenue subject to the general approval of the Government) may at any the by notification in the official Gazette, abrogate any of the limitations and obligations imposed upon tenants as part of the conditions of their tenure."
39. According to Mr. Brohi, after the issuance of the statement of conditions under section 10 of the Act, modification in the same, if any, abrogating or limiting the obligations imposed upon the tenants, could only be done by means of at notification in the official Gazette and this having not been done, the execution of any agreements that condition No.l6 of the statement of conditions will be inapplicable, was unauthorised and illegal, and, therefore, not enforceable. Lastly it was contended that according to section 11 of the Act the grant of any tenancy in accordance with any statement of conditions, which may have been or may hereafter be issued by the Provincial Government, under the Government Tenants (Punjab) Act, 1893 or under the Colonization of Government Lands (Punjab) Act, 1912 were deemed to be transfer of land within the meaning of the Crown Grants Act, 1895 and were to be governed by the provisions of the said Act accordingly.
40. In this connection the learned counsel referred to a judgment of this Court in the case of Sub.
41. Muhammad Asghar v. Safia Begum PLD 1976 9 G 485. In the submission of the learned counsel, the appellants, therefore, were possessed of a right of renewal which could not have been denied to then as done by the respondents.
42. These and similar contentions were examined by the learned Judge in chambers, but were not accepted and for good reasons as recorded in the judgment. There is no denying the fact that even according to the statement of conditions of 1934, relied upon by the learned counsel, the renewal of leases was subject to good performance as to breeding of the horses as well as due compliance of the terms and conditions of the grant. The power to resume the tenancy on the expiry of the term which vested in the Government is, therefore; not questionable. The main question, however, is as noted in the leave granting order whether the learned Single Judge in chambers was right in holding that the appellants were entitled to be heard in the matter before the resumption of the lands and the statutory authorities acting under the Act had failed to exercise discretion in their refusal renew the leases on the ground that the tenants had bad record o horse breeding and such an adverse decision was taken in the secrecy o the chambers of the authorities concerned without apprising the concerned tenants and without giving them an opportunity to defend themselves.
43. There is no denying the fact that the land grants had been under the enjoyment of the appellants which were handed down to them through their predecessors-in-interest and by virtue of their long stay on the lands and alleged improvements made thereon they had come to have a valuable interest in the renewal of the leases in their favour. The fact that the appellants had sought renewal of the leases was not disputed and it was admitted before the learned Judge in chambers by the learned counsel for the respondents themselves that there existed power in the relevant functionaries exercising jurisdiction under the Act to grant renewals.
44. The learned Judge in chambers found as fact, on the basis of the record produced before him, that there existed practice as well as precedents of the renewal of leases after the expiry of the term.
45. Besides, as the facts go to show, it was not a case of mere refusal simpliciter grounded as it was on the alleged bad record of the breeders, i.e., the appellants. From the refusal, so reasoned, it is manifest that the requests of the appellants for renewal of their leases had in point of fact been taken up but were however turned down on the ground of their bad record of which they were not given any notice nor provided any opportunity to defend themselves. Such a decision was clear adverse to the appellants and reflected upon their performance as breeders and in that the learned Judge in chambers was right in holding that in this view of the matter the appellants were entitled to be given an opportunity to defend themselves before passing any orders and such an action was clearly against the principles of natural justice, void and without lawful authority. While upholding this finding it is unnecessary to examine the other contention that the impugned orders were otherwise bad as the same were passed on the dictates of the higher authorities by the functionaries exercising jurisdiction under the provisions of the Act.
46. As a result of the above discussion, the judgments of the High Court passed in Intra-Court Appeals, dated 9th July, 1977, are set aside and the judgment, dated 3rd April, 1973 passed on appellants' writ petitions holding that the impugned orders directing termination of leases/refusing to renew or directing that grants should be resumed are without lawful authority with the observations that the authorities concerned were, however, not debarred from deciding each case afresh in accordance with law, is maintained. The appeals are thus disposed of with hosts.