' This is an appeal against the order dated 13-3-1985 passed by the learned Additional Commissioner, Sukkur where he cancelled the lease grant of the appellants in respect of 10 years lease in the non-barrage area of Deh Kalhoro Taluka Moro.
2. Facts of the case are given in the impugned order of the Additional Commissioner, Sukkur and need not be repeated.
3. Heard the counsels for the parties and perused the case papers.
4. The counsel for the appellants argued as under:-
(a) That the disputed land was leased out for 10 years from 1981-82 to 1990-91 in favour of the appellants Nos. 1 and 2. Against this lease grant the respondent did not file appeal. Subsequently the Assistant Commissioner with the consent of the appellants Nos. 1 and 2 allowed 50% share in the entire lease to the appellants Nos. 3 to 5. Against this subsequent order the respondent preferred appeal before the Additional Commissioner which was hopelessly time-barred.
(h) That the Additional Commissioner has considered the time-barred appeal filed by the respondent and allowed it and cancelled the entire lease grant of the appellants. The order of the Additional Commissioner is not proper as he had decided the appeal without touching the point of limitation. It was incumbent upon the Additional Commissioner to have first decided point of limitation and then decided the appeal on merits. The counsel referred to PLD 1966 Lah.
132.
(c) That it is an admitted position that the first lease order in favour of the appellants Nos. 1 and 2 was good and no appeal was filed against the lease in favour of appellants Nos. 1 and 2. The appeal was filed against the subsequent order of Assistant Commissioner allowing 50% share to the appellants Nos. 3 to 5, therefore, the Additional Commissioner at the most should have set aside that subsequent order of the Assistant Commissioner and then the lease should have been reverted to the Appellants Nos. 1 and 2. As such the order of the Additional Commissioner is not proper.
(d) That if there is a violation by the lessees in terms and conditions of the lease in that case the remedy is not by way of appeal but the proper remedy was that the respondent should have invoked the jurisdiction of the granting authority under section 24 of the Colonization Act. As such the appeal of the respondent before the Additional Commissioner was not maintainable.
(e) That the respondent himself also got the lease of S. No, 86, 302, 308 and 33% in S. No, 83 by way of transfer therefore his grant is also not proper. The learned Member Board of Revenue is very much competent to cancel the lease of the respondent in exercise of suo motu powers.
(f) That the land is in possession of the appellants who have installed tube-well and also developed the lands.
5. The counsel for the respondent argued as under:- (i)That the lease of the disputed land was leased out to Appellants Nos. 1 and 2 who have surrendered voluntarily 50% share of the lease in favour of appellants Nos. 3 to 5 as such they have violated the terms and conditions of the lease grant.
(ii) That according to provision of relevant lease grant policy, lease is non-transferable and the appellants Nos. 1 and 2 have transferred 50% share of their lease in favour of appellants Nos. 3 to 5.
(iii) That since the appellants Nos. 1 and 2 have violated the terms and conditions of the grant, the learned Additional Commissioner has rightly cancelled the lease grant of the appellants Nos. 1 and 2 also.
(iv) That the respondent had got the lease of the land in open Katchery and not by way of transfer as alleged by the counsel for the appellants.
(v) That the tube-well was installed by appellants Nos. 1 and 2 and the respondent jointly and they have also incurred expenditure jointly.
6. I have considered the arguments of both the counsel. The grant of lease pertains to Katcha land and it is regulated the policy laid down in Government of Sind Land Utilization Department Notification No, KB-1/ 1/30/72/1413/3240, dated 27-3-1973 (hereinafter referred to as the policy).
Para. 13 of the policy lays down that the lessee shall not assign, sub-let or transfer, mortgage or otherwise part with the land and if there is any infringement of condition the Deputy Commissioner has to take action as provided in para. 17 of the policy which reads as under:- "If the Deputy Commissioner is satisfied that the lessee has committed a breach or non- observance of the conditions hereinbefore contained he shall after giving the lessee an opportunity to appear and state his objections;
(a) Impose on the lessee a penalty or;
(b) Order resumption of the lease, after complying with the provisions of section 24 of Colonization of Government Lands (Punjab) Act, 1912."
' Therefore, the grant cannot be cancelled in any other way then in accordance with the procedure laid down in the policy and if the cancellation is otherwise the. Order of the cancellation is illegal and not proper.
7. A judicial order should be an order manifesting by itself that the authority had applied conscious mind to the resolution of the issues involved for their proper adjudication. In the instant case appeal preferred before the Additional Commissioner which was admittedly time-barred. It was for the learned Additional Commissioner to have considered and decided the question of limitation.
There is nothing in the impugned order to suggest that the learned Additional Commissioner was even conscious that the question of limitation arose in the case. This indicates that the impugned order of the Additional Commissioner was not conscientious order.
8. I find that the subsequent order passed by the learned Assistant Commissioner was in conflict with the provisions contained in para. 13 of the policy which is reproduced below:- "The lessee shall not assign sub-let or transfer, mortgage or otherwise part with land."
' The statement of conditions of the policy bad been approved by the Provincial Government in exercise of statutory powers vested in it under subsection (2) of section 10 of the Colonization of Government Lands (Sind) Act, 1912, and therefore, the provisions of the policy constitute statutory instructions have the force of law. The aforementioned order of the Assistant Commissioner allowing the lessee to transfer/relinquish 50% share of the land leased out to him to another person was in violation of the provisions of the policy and hence void and without lawful authority, and such order is nullity in the eyes of law. Sirce the order ibid of the Assistant Commissioner was non- existent, the question of limitation in filing appeal against such order did not arise.
9. It is alleged that the respondent had also got the lease of S. Nos. 86, 302, 308 and 33% in S. No, 83 by way of transfer in violation of the provisions of the policy. Under the circumstances the learned Deputy Commissioner may in exercise of powers vested in him under subsection (2) of section 164, Sind Land Revenue Act call for the record of the above case and if he is of the opinion that proceedings taken or order made should be modified or reversed, he may proceed in accordance with the provisions laid down in subsection (3) of section 164, of the said Act.
10. For the foregoing reasons I set aside the impugned order of the learned Additional Commissioner dated 13-3-1985 and that of the Assistant Commissioner passed subsequently allowing the transfer/ compromise. Since no appeal had been filed against the initial grant the same is restored. This order will however not override the powers vested in the Deputy Commissioner by virtue of the provisions contained in paragraphs 17 of the policy, section 19 of the Colonization Government Lands (Sind) Act, 1912, section 164, of the Sind Land Revenue Act or any other law in force.
11. The petition of appeal is disposed of accordingly subject to the observations contained in paragraphs 6 to 10 of this order.