1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of an order of a Division Bench of the former High Court of West Pakistan, Lahore Seat, dismissing a Writ Petition in lirnine.
2. This writ petition was filed by the present appellants to call in question the validity of an order made on the 22nd of September 1964, by the Secretary, Evacuee Property Trust Board (respondent No. 1), whereby a lease granted to the appellants of 166 acres, 6 kanals and 5 marlas of evacuee lands situated in Patti Bal Leela, Nankana Sahib, District Sheikhupura, was purported to be cancelled.
3. It appears that the Evacuee Trust Board; Government of Pakistan, had decided to lease out 5,185 acres of evacuee trust land in Sheikhupura District, which -was of inferior quality for a period of ten years on tube-well system subject to the following conditions :-
(1) The lease should be by public auction.
(2) The lessee can instal a well or a tube-well but he will not be entitled to claim for this period compensation after the expiry of the period.
(3) The lease will be for ten years and will remain value if lease money for every year is paid in advance.
4. This decision was conveyed to the Commissioner and Chairman, Divisional Evacuee Trust Committee, Lahore, by the Board's Memorandum No. XIV/9/(63)/896, dated Lahore, the 16th March 1963.
5. Sometime in 1964, however, some of the tenants on these lands approached the Deputy Commissioner and the Evacuee Property Trust Board with a proposal that if the land was re-- auctioned in small lots it would fetch a higher rent and on this the Deputy Commissioner on the 10th of August 1961, proposed to the Evacuee Property Trust Board that this lot may again be split up into small lots and re-auctioned, so that the tenants in possession may be in a better position to compete in the auction and the Board may also profit by realizing higher rents.
6. This proposal was unilaterally, without any, notice to the appellants, accepted, directions were given for splitting up of the lot into smaller lots and the previous auction proceedings were cancelled by the Board's Memorandum No. XIII/6/64/5235, dated the 22nd September 1964.
7. For this arbitrary cancellation of the lease the appellants invoked the special jurisdiction of the High Court under Article 98 of the Constitution of 1962 on the 7th of October 1964. The High Court called for a parawise comment from the Evacuee Trust Board. The Deputy Commissioner/Chairman, Evacuee Property Trust Committee, Sheikhupura, in his parawise comment admitted the granting of the lease as also the unilateral cancellation thereof, but sought to contend that the appellants had been guilty of breaches of the conditions of the lease by not bringing into cultivation the "Ghair Mazrua" lands during the first year and by failing to pay the rent for the year 1964-65 in advance.
8. It appears that the appellants had paid the rent for 1964-65 after tile filing of their petition in the High Court in two install--ments. The first was paid on 7-4-1965 and the second on 10-6-1965.
9. The reason now given for the cancellation of the lease was, of course, not mentioned in the notice of cancellation, which merely indicated that the cancellation was being made to split the holding into smaller lots to accommodate the sitting tenants, even though they had not joined in the original auction proceedings. Nevertheless the appellants' explanation for the non-payment of the lease money for 1964-65 in advance is that the Evacuee Trust Board refused to accept the lease money until the appellants had obtained an order from the High Court for the maintenance of the status quo during the pendency of the proceedings in the High Court. It was only after this that the Board accepted the payment arid since then the appellants had been paying the lease money for the successive years. In fact, it appears that the Secretary of the Evacuee Property Trust Committee, Sheikhupura, issued a notice in July 1967, calling upon the appellants to instal a tubewell and to pay rents for 1966-67-68 within 15 days. This has also been complied with.
10. The High Court dismissed the writ petition in 1imine on the 25th of November 1965, but leave was granted on the 27th of January 1966, along with an order for the maintenance of status qua pending the disposal of the appeal, to consider two points, namely, (i) as to whether the Evacuee Trust Board had any jurisdiction to cancel the said lease after the lease had been executed on receipt of the stipulated amount and (ii) whether the High Court was right in thinking that the purported cancellation had been, made by the Sheikbupura Committee and, therefore, the appellants had a further remedy by way of an appeal from that order to the Evacuee Trust-Board itself.
11. So far as the second point is concerned, it is clear that the decision to cancel the lease was taken by the Evacuee Property Trust Board, Government of Pakistan, itself and, therefore, the High Court was in error in thinking that a further appeal lay to the Board.
12. It is also clear that the lease could not have been cancelled unilaterally without assigning any reason and certainly could not be cancelled merely for the purpose of enabling the Board to obtain a higher income by re-auctioning the plot in small lots. However, it is unnecessary for us to record any findings on these questions, as the learned counsel appearing for the Evacuee Trust Board has, after obtaining instructions from the Board, stated at the Bar that the order of cancellation may be deemed to have been withdrawn and that the appellants will be allowed to remain in possession till Rabi 1973, the period fixed under the lease, in accordance with the terms thereof.
13. Learned counsel for the appellants, however, prays for costs, but in view of the fair position taken up by the Evacuee Trust Board we make no order for costs.