' This is suo mote revision admitted by the learned Member, Board of Revenue, West Pakistan against the order of the Deputy Commissioner, Thatta, granting 48,000 sq. Ft. Open Air Cinema and Hotel at Gharo, Taluka Mirpur Sakro.
3. Brief facts of the case are that the respondent Abdul Sattar made an application in 1959 to the Deputy Commissioner, Thatta, requesting for grant of an area of 30,000 Sq. Ft. For construction of an Open Air Cinema in Deh Gharo. After getting report from the Officers concerned, the D. C., Thatta passed orders in April, 1963 granting 30,000 sq. Ft. Plus 18000 Sq. Ft. Of State land from Naclass No, 1 of Deh Gharo, Taluka Mirpur Sakro for construction of an Open Air Cinema and hotel, respectively on payment of the following charges :-
(a) Malkano at the rate of 12 paisa per sq. Ft.
(b) Alter assessm ent 1,0471 per sq. Ft.
(c) Local cess at the rate of 31 paisa per rupee on alter assessment.
' By the same order the D, C. Also converted the land from agricultural head to non-agricultural. The Deputy Commissioner passed these orders under sections 42 and 43 of the Sind Land Revenue Rules after visiting the site. In the year 1965 Mukhtiarkar, M. Sakro, reported to the Deputy Collector, Thatta, that the respondent, despite notice, did not credit the charges of the plots. This report of the Mukhtiarkar, was endorsed by the Deputy Collector to the D. C., Thatta for his information. The Mukhtiarkar also recommended cancellation of the plots on the ground that the area was occupied by the G. M. B. Authorities who had constructed Barrage Mukhtiarkar's office on the same and also proposed for construction of other Government Offices. On receiving this report of the Taluka Mukhtiarkar, the D. C. Made a reference to the Barrage Mukhtiarkar, Gharo, whether the latter had received any approval of the higher authorities for constructing office on the Government land. The B. M. Reported to D. C. That Gharo was a Mandi town which was in the process of development in accordance with the layout plan approved by the Provincial Development Board.
The Barrage Mukhtiarkar further reported to the D. C. That the said plan would be executed by the A. D. C. Through G. M. B. Project Director and that the offices were provided in the aforesaid plan. It also appears that the Mukhtiarkar M/Sakro at that time had also reported to the D. C. After seeing the site, that there was no Naclass No, 1 in the same Deb, He had requested the D. C. For amendment of sanction order on this ground. Subsequently, during April, 1966, the Mukhtiarkar Mirpur Sakro reported to the D. C. That the respondent did not pay the amounts of Malkano etc. Nor had he executed agreement, nor taken possession of the plots under reference. The D. C.
Thereupon issued notice to the respondent for cancellation of the grant. The respondent, in response to the notice from the D. C., made application on 20-7-1966 requesting therein that only an area of 30,000 sq. Ft. Be granted to him for the purpose of construction of Cinema. It appears that at one stage because of certain involvement of the two plots the respondent had put fresh application for grant of some other plots in the near vicinity of the previous plots and the Mukhtiarkar, Mirpur Sakro was asked to select the site in company of the respondent and give his report alongwth the sketch about the new plots. The Mukhtiarkar of Sakro had reported to the D. C.
On the fresh request of the respondent that he had selected another plot of 30,000 sq. Ft. For his requirements from U. A. No, 2 of Deh Gharo, on the other side of the National Highway. The Mukhtiarkar recommended that the respondent may be granted fresh area on permanent basis on payment of necessary Malkano. The A. C., Thatta had also recommended the fresh request of the respondent. The fresh request of the respondent does not appear to have materialized eventually because even fresh area was within the premises of the Mandi Town Gharo.
3. When during March, 1967, the D. C., Thatta, intimated the Mukhtiarkar Saki() that the respondent had credited Malkano amounting to Rs, 6,650. The Mukhtiarkar was directed by the D. C. To obtain usual agreement from the respondent and issue him Ijazatnama. Immediately after giving orders to the Mukhtiarkar, the D. C. Also intimated the R.
0., G. M. B. About the grant of the plots to the respondent and requested him to exclude the two plots from the list of auction schedule since the respondent had paid up the Malkano, assessment and local cess. The D. C. Also requested the R.
0. To adjust these plots in the Master Plan to avoid any subsequent complications. The D. C. Had also endorsed the copy of the letter to the Project Director for his information. The Director, G. M. B.
Project wrote back to the D. C. Questioning the authority of the sanction of these plots to the respondent as according to him the powers to dispose of plots vested in the R.
0. In view of the orders of the former Sind Government issued in August, 1953. The Project Director cautioned the D. C. That meanwhile the respondent should be informed not to interfere with the land till final decision in that behalf was taken. The D. C. Informed the respondent that in his own interest he should not interfere with the aforesaid plots. However, later on the D. C. Wrote back to the Project Director that the Sind Government orders did not apply to the disposal of the land for nonagricultural purpose although he intimated the Director that the respondent had been advised to restrain from interfering with the plots till the matter was finalised. This has followed up a series of references on the controversy about the competency of the D. C. To dispose of the said plots to the respondent. Ultimately, in November, 1967, the Director (Projects), A. D. C. Reported to the Deputy Secretary. B.
0. R., Lahore, about this controversial case for obtaining necessary orders of the Land Utilization Department on the issue. The points urged by Project authorities for the cancellation of grant of these points are set out as under
(1) That the plots are situated outside the limits of old village Gharo.
(2) That the control of Barani area in Thatta and Mirpur Sakro Talukas of District Thatta and the disposal of land for agri. To non-agri. Purpose remained with R.
0. In view of resolution of 17th August, 1953 and, therefore, the orders of the D. C. Thatta, dated 10th April 1963 are ultra vire.). And without jurisdiction.
(3) That the grantee has credited price of plot at the nominal rate of 12 paisa per sq. Ft. After the lapse of 4 years on 18th March, 1967.
(4) That no specific terms and conditions of the grant with regard to the period for payment of Malkano and raising construction etc. Have been put in the order of the D. C., Thatta.
(5) That the price fixed by the D. C. Is absolutely nominal and has not given any reasons for fixing concessional rates in case of grant of commercial plots to a well-to-do person.
(6) In case of commercial plots at Gharo, it was expected that the price will be latest 20 times more than the rate at which the plot has been granted and interests of Government are involved.
(7) That the plots sanctioned by the D. C. Are interfering with the implementation of scheme of Mandi Town. Plot for Cinema falls near the Administrative Centre and interferes with other plots earmarked for other developmental schemes. Same is the case of plot of hotel.
' It will be pertinent to mention here that the respondent made an application to the Board of Revenue on 7-9-1967 complaining that the Barrage Mukhtiarkar had served him a letter which was issued by the Revenue Officer. G. M. B. Project, that he would stop construction over the plots granted to him. He, therefore, requested that notice may be vacated and he may be allowed to go ahead with the construction. His application was sent to the Director, G. M. B. Project. For remarks. A letter was also addressed to the learned M. B. R. By Mr. A. K. Brohi on behalf of the respondent. The learned Member discussed this case with the Commissioner, Hyderabad, and D. C., Thatta and also asked the Commissioner to send his report. On 10-11-1967 the Commissioner reported that the respondent was unable to make any use of the area formerly granted to him. It was, therefore, wrong for him to insist on equal area but as a matter of moral responsibility, he may be adjusted in the new plan. He, therefore, recommended 2,000 Sq. Yards for Cinema and 1,000 sq. Yds. For hotel at Rs, 6 per sq. Yd. Which was upset price fixed by A. D. C. The A. D. C. Authorities, however, opposed this recommendation on the ground that the D. C. Was not competent to grant the land against the instructions of the Government contained in the G. R. Of 1953, and that the price suggested by the Commissioner was also low because these were the commercial plots which were to be disposed of by open auction. The matter then was referred to the Finance Department and the Law Department. However, before any orders could be passed the learned Member decided to hear the revision on suo motu side under section 164, subsections (1) and (4) of West Pakistan Land Revenue Act, 1967 and take judicial decision. The learned Member heard the arguments of the Advocate for the respondent on different occasions and then one Unit dismembered and the case was transferred to the B.
0. R., Sind.
' I heard Mr. Zafar Hussain Mirza, Advocate on behalf of A. D. C. And Mr. A. H. Pirzada on behalf of the respondent.
' Mr. Mirza contended that the disposal of the grant was under the Land Revenue Code which stood repealed. Under section 37 of the Code it was lawful for the Collector, subject to the orders of Commissioner to dispose of State land in such manner as he may deem fit or as may be autnorized by general rules issued by the Government. Therefore, the D. C. Had to dispose of the plots keeping in view the directions of the Commissioner and the Government from time to time. So far this particular area is concerned, it is a Barani tract in Sakro Taluka outside the command of the Lower Sind Barrage. As there was no possibility of this land being brought under irrigation, the Government transferred this area to the Barrage authorities for developing it on planned basis to the best advantage of the Province. It was also laid down that it was the R.
0. Who was, in future, responsible for the disposal of such lands according to such orders as were issued by the Government. Therefore, he argued that the D. C. Had no jurisdiction to dispose of this land to the respondent and the order was ultra vires and without jurisdiction. While arguing on the factual side, he pointed out that the order of grant was passed on 10-4-1963. The grantee remained silent for nearly 4 years. He did not pursue the matter, nor did he make any payment till 18-3-1967. In fact these plots were commercial in nature and were to be disposed of through auction. The upset price was also Rs, 6 per sq. Yd. Therefore, obviously, grant of this land by the D. C.
Was at a ridiculously low price and was against the instructions of the Government. There was also a plan for development of Gharo town. There was already a provision in the Master Plan for a cinema and hotel. Therefore, grant of land outside the plan for the same purpose by the D. C. Was not proper. Hence this grant was not sustainable both on the point of law and on the facts.
' Mr. A. H. Pirzada, on behalf of the respondent, argued that this case was to be considered on two points :-
(i) Whether the grant was legal or illegal, and (ii) whether the grant was proper or improper. So far as the first point was concerned, if the grant was illegal then there was no way out but to cancel the grant. If the grant was improper then this Court had powers to regularize the grant on such terms and conditions as may be deemed proper. So far legality of the grant was concerned, he argued that the powers of grant of land vested in the Collector under rules 42 and 43 of the Land Revenue Rules. These were statutory powers and could not be divested by any resolution of the Government. There should be an amendment in the rules by the Government which power vests with the Government under rule 19 of Land Revenue Rules. The G. R., of 1953 relates only to agricultural land and not for land for commercial and residential purposes. Had this G. R. Of 1953 been enough for the purpose of divesting the D. C. Of his statutory powers and investing the R.
0. With those powers, then there was no necessity of issuing notification on 13-9-1963 authorizing the R.
0., G. M. B., Hyderabad to exercise all the powers under rules 42 and 43 of the Sind Land Revenue Rules for the disposal of Sikni plots in G. M. B. Area for proper execution of the Master Plan. The legal position being such this grant to respondent could not be deemed as illegal. So far as propriety of the order was concerned, a show-cause notice was issued by the D. C. On 30-5-1966, and the explanation of the respondent was accepted by the D. C. It was, therefore, that on 14-3-1967 he accepted payment. So far inadequacy of the price was concerned, the Advocate undertook that the respondent would be prepared to pay 12 annas per sq. Ft. As against 12 paisa as per sq. Ft. The price on which plot was originally granted. So far as the arguments of the A. D. C. That these plots were not in accordance with the Master Plan, he pointed out that already a provision was made for grant of a hotel and a cinema house in the Master Plan at different places. Therefore, in all fairness, those plots may be granted to respondent in lieu of the plots that had been granted to him and were not in accordance with the plan.
After going through the record and hearing the arguments of the Advocates at length, I find that the Government had issued resolution in 1953 empowering the R.
0. Lloyd Barrage Scheme to dispose of these land for non-agri. Purpose. Section 37 of the Land Revenue Code makes it very clear that the Collector had to exercise the powers of grant of land subject to the instructions of the Commissioner and the Government. The G. R. Of 1953 clearly shows that these powers were taken away from the Collector and given to the Revenue Officer. It is not necessary to issue any notification as contended by Mr. Pirzada. This G. R. Has force of law and Collector was bound to act in accordance with this resolution. So far notification of 1963 is concerned, its issuance was very necessary for different reasons. Before the construction of G. M.
Barrage, it was the R.
0.. Sukkur Barrage who had jurisdiction over the areas subsequently A commended by the G. M.
Barrage. Barani tracts of Taluka Thatta and Mirpur Sakro were also under the jurisdiction of Sukkur Barrage for the purpose of disposal of land as contemplated in the G. R. Of 1953. Somewhere in 1959, when the G. M. B. Was completed, new Officer was appointed separately for the Barrage. The R.O., Sukkur Barrage naturally lost jurisdiction over that area and, therefore, a separate resolution or a notification of the Government was necessary for purpose of investing the R.
0., G. M. Barrage, with powers under rules 42 and 43 of the Sind Land Revenue Rule for the purpose of disposal of Sikni land too. It was, therefore, that the Government issued notification in September, 1963. There is thus no conflict whatsoever between the resolution of 1953 and the notification of 1963 as contended by Mr. Pirzada. The position being such, I feel that the D. C. Was not competent to dispose of these plots. There was already a Master Plan and Cinema and hotel were provided in the Master Plan and the D. C. Should have left it to the A. D. C. Authorities to dispose of these plots.
Moreover, even after the grant of these plots the learned Deputy Commissioner was aware or was supposed to be aware of the notification of September, 1963 and that he came to know that the original grantee had failed to execute agreement, he should have not accepted the Malkano after lapse of so many years. I, therefore, allow the suo motu revision and cancel the order of grant made by the Deputy Commissioner in favour of the respondent.
' Since the respondent has also suffered and has remained under suspense for so many years, the A. D. C. Authorities should consider the desirability of granting the reserve plot for cinema in the Master Plan to the respondent at the prevailing market rate in consultation with the Board of Revenue.