1. SAJJAD ALI SHAH, J.--'This appeal with leave is directed against the impugned judgment, dated 26-4-1984 passed in Constitutional Petitions Nos. 353 and 402 of 1983 by Division Bench of Sindh High Court, Karachi. First mentioned petition was filed by Muhammad Azmatullah Siddiqui and Muhammad Yousuf Qamar Siddiqui, who are respondents Nos. 1 and 2 herein and claim to have purchased the land in dispute from appellant Group Capt. A.M. Morad, in respect of which ejectment order was passed by respondent No.3 on 23-4-1983, purporting to be an order under sections 19 and 32 of the Colonization of Government Lands (Sindh) Act, 1912. Subsequently, on review application of respondents Nos. 1 and 2 herein, vide order, dated 8-5-1983, order of ejectment passed earlier was suspended against which Group Capt. A.M. Morad appellant herein, filed Constitutional Petition No.402 of 1973. By the judgment impugned in this appeal, order of ejectment dated 23-4-1983 has been declared to be without lawful authority and of no legal effort and the other petition was allowed on the ground that no case for suspension or review of order of ejectment was made out. Being aggrieved against the declaration of order of ejectment to be without lawful authority, Retd. Group Capt. A. M. Morad filed petition for leave to appeal and leave is granted, hence this appeal. Briefly stated the facts in the background are as under:------ Appellant herein Retd. Group Capt. A.M. Morad (to be referred hereafter as Group Capt. Morad) was allotted from Kharif 1962-63 agricultural land consisting of Survey Nos. 207 to 211, 219 to 23-1, 242 to 255, 263, 266 and 267 admeasuring 496.27 acres, in deh Uhab, taluka Mirpur Sakhro, District Thatta, in mechanized farming scheme in Ghulam Muhammad Barrage area. Group Capt. Morad appointed respondents No.2 Muhammad Yousuf Qamar Siddiqui (hereinafter to be referred as Yousuf) as his general attorney and executed in his favour power of attorney on 3-5-1980. By this power of attorney, Yousuf was allowed to take possession and cultivate the said land and attend on behalf of Group Capt. Morad Government offices in connection with maintenance and affairs of the said land. Vide Clause (3). Yousaf was authorised to sell, give on lease entire land or portion thereof or to sell the produce if any, and to pay the price to Group Capt. Morad after deducting expenditure and taxes. Yousuf, vide agreement of sale dated 1-6-1980 offered for sale and the said land to respondent No.1 Muhammad Azmattullah Siddiqui (to be referred hereafter as Azmat) for consideration of Rs.7,15.012 at the rate of Rs.1,500 per acre. Part payment of Rs.3,00,000 was made for which separate receipt was executed. Remaining amount of consideration was to be paid within one year and seven months after which sale-deed was to be executed and physical possession handed over to Azmat. In the meantime, possession of the land was to remain with Yousuf. It was agreed that in connection with the payment of remaining instalments towards the price of land to the Government, Azmat shall pay the remaining transfer price. Through Yousuf in lump sum or through instalments before the target date 31-12-1981. If Azmat failed in the payment of instalment then agreement shall stand cancelled. Balance of consideration shall be paid at the time of registration of sale deed. On 17-12-1981, Group Capt. Morad executed second power of 'attorney in favour of Yousuf enlarging the scope of authority by including in it additionally power to mortgage, transfer and give on lease entire land or any portion to any party on any terms and conditions. On 7-5-1982, Group Capt. Morad published notice in daily Dawn offering to sell the said land to any interested party and on the following day another notice was published in daily Dawn dated 8-5-1982, whereby Group Capt. Morad cancelled power of attorney of Yousuf. On 2-6-1982, Azmat filed Suit No.235 of 1982 for specific performance of agreement of sale, in the High Court of Sindh at Karachi against Group Capt Morad as defendant No.1 and Yousuf as defendant No.2. It is stated m the plain; that Azmat has spent large sums of money on the development of land and on account of cancellation of power of attorney of Yousuf, difficulty would be felt it the execution of final sale-deed and there was serious threat of dispossession of Yousuf from the suit land. It is averred in the plaint that Azmat as plaintiff in the suit, is ready and willing to pay the balance consideration of price for execution of the final transfer of land as per terms of the agreement of sale. In the prayer clause of the plaint, declaration is sought that cancellation of power of attorney it favour of Yousuf was illegal.
2. In suit proceedings, application under Order 39, Rules 1 and 2, C.P.C was filed on which order of status quo was passed on 2-6-1982, which was late confirmed on 31-8-1982. In the said order Court also directed plaintiff in the suit Azmat and defendant No.2 Yousuf to submit accounts every two months to the Nazir of the High Court who was appointed as Commissioner with power to enter upon the property in dispute from time to time t9 check the accounts. Aggrieved against the confirmation of order of status quo, Group Capt. Morad filed High Court Appeal No.88 of 1982, which was disposed of on 3-3-1983 by consent order, relevant paragraph from the said order is reproduced as under:--- "We, therefore, by consent, clarify that the order of status quo would not prevent the appellant from having recourse to a Court of law whether Civil or Revenue, for enforcement of his rights, if any or for seeking redress of his grievance. We would also modify the order of the learned Single Judge to the extent that accounts will be submitted to the Commissioner six monthly."
3. On 4-4-1983, Group Capt. Morad through his daughter and attorney Mst. Yasmin Chaudhry filed application before Revenue Officer, Kotri Barrage, Hyderabad, for order of dispossession against Yousuf and Azmat as contemplated under sections 19 and 32 of the Colonization of Government Lands (Sindh), Act, 1912. Yousuf and Azmat were called absent though duly served at4 their home addresses. According to the process-server, notice against Yousuf was' received by his wife, who refused to put her signature and notice of Azmat was received by his son Asadullah. Revenue Officer, who is respondent No.3 before us, after taking into consideration the relevant record, passed order of ejectment against Yousuf and Azmat and directed that vacant possession be delivered to Group Capt. Morad or his attorney Mst. Yasmin Chaudhry. Barrage Mukhtiarkar was ordered to take necessary further action in the matter. Relevant paragraph from the order passed by Revenue Officer is reproduced as under:----- "The above grant is in tact and running. It was sanctioned under the rules for grant of land in Kotri under West Pakistan Government Gazette Notification No.1387/63-1260-GMB-IV, dated 9-5-1963. Its condition No.25, provides that the grantee, or his heirs, executors and assignees shall not without previous permission in writing of the Revenue Officer, in any way, gift, lease, mortgage, sell, or otherwise encumber the land or any part thereof granted under these rules, unless the whole amount due has been paid, or before the expiry of 5 years from the date of execution of the agreement in case all amounts due have been paid earlier. Thus, the Condition No.25, places embargo on transfer without permission of the Revenue Officer, Kotri Barrage, Hyderabad. There is nothing on this office record to show that the said General Attorney Muhammad Yousuf Qamar Siddiqui, had ever applied for getting permission for transfer of land in question in the name of Azmatullah, or anyone else. Thus, he has sold out the land without prior permission of this Department. The matter regarding sale of land under dispute, or otherwise, is pending decision before the Honourable High Court of Sindh at Karachi, which will be decided on merits."
4. Yousuf and Azmat being aggrieved against the order of ejectment dated 23-4-1983 filed Constitutional Petition No.D-353/83 in the High Court of Sindh. In the said petition, plea was taken that Yousuf had entered into agreement of sale verbally with Group Capt Morad, who agreed to sell the land to him at the rate of 1,000 per acre. In that connection Rs.3,00,000 were paid by Yousuf and it was agreed that balance would be paid towards the instalments of the land to be paid by the original grantee. Group Capt. Morad executed general power of attorney dated 3-5-1980 in favour of Yousuf who took over possession of the said land for the purpose of cultivation. At that time the land was in possession of unauthorised persons and Yousuf had to pay Rs.1,00,000 to Pir Mehfooz, who was looking after the land on the basis of power of attorney executed by Group. Capt. Morad.
5. After taking over possession, Yousuf entered into agreement of sale with his father-in-law Azmat.
6. Remaining facts as stated in the memorandum of petition are same and stated above and need not be repeated. Main grievance of petitioners therein namely Azmat and Yousuf was that Revenue Officer had no jurisdiction to issue notices to them and to order ejectment as they were transferees in possession and their possession was protected under section 53-A of the Transfer of Property Act, which provision makes them entitled for specific performance of the agreement to sell. Further, that the matter was sub-judice in the High Court in suit proceedings. It was prayed in the petition that order of ejectment passed by the Revenue Officer on 23-4-1983 was without lawful authority and of no legal effect. In the said petition on application for interim relief, High Court passed order on 28-4-1983 as under:------ "If the petitioners are in possession, they in the meantime shall not be dispossessed:"
7. Meanwhile on the petition, comments were called for from Revenue Officer, who was named as one of the respondents.
8. Group Capt. Morad filed Suit No.905/83 on 28-4-1983 against Yousuf and Azmat for accounts, mesne profit and permanent injunction. In suit proceedings order of status quo was passed on 28- 4-1983.
9. On 30-4-1983, Yousuf and Azmat filed an application for review before Revenue Officer which was allowed vide order, dated 8-5-1983, whereby order of ejectment dated 23-4-1983 passed earlier, was suspended and its implementation was held in abeyance. Revenue Mukhtiarkar in the same order directed Barrage Mukhtiarkar to collect necessary documents after visiting the site and further hearing in the matter was adjourned to 29-5-1983. Against this order passed on 8-5-1983, whereby order of ejectment passed earlier was suspended, Group Capt. Morad filed C.P. No.D- 402/83 in the High Court of Sindh. Both Constitutional Petitions Nos.353 and 402 of 1983 have been disposed of by common judgment, dated 26-4-1984, which is impugned in this appeal.
10. Constitutional Petition No.353/83 has been allowed declaring order of ejectment dated 23-4-1983 to be without lawful authority and of no legal effect and further order has been passed by the High Court that Yousuf and Azmat (petitioners in that petition) would be restored possession subject to the proviso that they would approach learned Single Judge in Suit No.209 of 1983 (Group Capt, Morad v. Yousuf and Azmat for accounts, mesne profit and permanent injunction in which status quo was ordered on 28-4-1983) for getting that order of status quo modified. High Court in the impugned judgment has further clarified that learned Single Judge (in suit proceedings) may decide the question whether status quo order is to be kept in tact or recalled on the assumption that the above impugned order, dated 23-4-1983 does not exist and that no action taken in pursuance thereof is to be undone.
11. By the impugned judgment Constitutional Petition No.402 of 1983 filed by Group Capt. Morad is allowed on the ground that no case for suspension or review of order of ejectment dated 23-4-1983 was made out.
12. Petition for leave to appeal was allowed vide order, dated 15-5-1984 granting leave on the ground that this case involves identical point of law on which leave to appeal has been granted by this Court in the case of Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others 1982 SCMR 729. In the said reported case, leave has been granted to examine whether authorities under the Colonization of Government Lands (Punjab) Act, 1912, did not have the power to direct dispossession of petitioners named therein and delivery of possession to respondents under the provisions of sections 19 and 32 of the said Act because it is contended that the aforesaid sections could not be used for settling private dispute of title. In this connection reference was made to the cases of Atta Muhammad and others v. Mst. Khurshid Begum PLD 1964 Lah. 224; Ali Muhammad v. Hakim and, others AIR 1928 Lah. 121 and Jiwana v. Mst. Sahbi PLD 1954 Lah. 253.
13. Learned counsel for the respondents referred to the cases of Ghulam Rasul and others v.
14. Muhammad Anwar and others 1969 SCMR 254; Abdul Shakoor and others v. A.S. Tasneem and others 1974 SCMR 463 and Muhammad Shafi v. Hayat Khan and others PLD 1978 Lah. 1228.
15. Before an attempt is made to go into examination of the provisions of Colonization of Government Lands (Punjab) Act, 1912, as mentioned in the leave granting order, it would be expedient and proper to ascertain as to under what provisions of law initial allotment of land in dispute was made by the Government in favour of Group Capt. Morad. Order of allotment is available in the record at page 60 of the paper book. This order is dated 5-12-1961 and it further shows that agricultural land ad-measuring 496.12 acres situate in Deh Uhab taluka Mirpur Sakhro with survey numbers specified therein was granted to Group Capt. Morad in Ghulam Muhammad Barrage Project for mechanized farming. The land was provisionally sanctioned at the rate of Rs.250 per acre subject to the condition that initial deposit equal to 10% of the value of the land shall be paid within one week, cultivation shall be done by mechanized means, non-observance of the conditions would render the grant liable to cancellation. 1t is further provided therein that detailed terms upon which this grant was made would be indicated in the Qabooliat which would be executed after crediting amount of initial deposit of 10%. It is stated by the learned counsel for the appellant that Qabooliat was executed on 15-4-1962. Copy of which is available in the record of suit proceedings and was based upon same conditions as have been provided in the rules called Grant of Land (Ghulam Muhammad Barrage Area) Rules, 1963 published vide Notification, dated 9th May, 1963, issued by Land Utilization Department of Government of West Pakistan. The said rules are available in the paper book from page 61 to page 64, made by Governor of West Pakistan under powers conferred upon him under section 62 of the Sindh Land Revenue Code, 1879. It would be pertinent to note that at the time of allotment in 1961, the Colonization of Government Lands (Punjab) Act, 1912 was applicable in parts of Punjab and was extended to the whole of West Pakistan in the year 1969. Rule 10 of the said Rules, which governed the allotment, provides that grantee, having made payments as required in the said rules, shall execute an agreement and shall be entitled to receive Ijazatnama authorising him to occupy the land permanently on the conditions mentioned in the said agreement. Rule 23 provides that grant shall be liable to resumption at any time if it is found that the grantee was ineligible or any provisions of the rules have been contravened. Rule 24 envisages that grantee shall be entitled to full rights of occupancy as recognised by the said code after payment of full occupancy price and fulfilment of all other conditions attached to the grant.
16. Rule 25 provides that grantee or his heirs, executors and assignees shall not without previous permission in writing of the Revenue Officer in any way gift, (case, mortgage, sell or otherwise encumber the land or any part thereof unless the whole amount due has been paid or before the expiry of five years from the date of execution of agreement in case all amounts due have been paid earlier. It is thus very clear that even according to rules, appellant was grantee, who had to make payment of instalments and only after the payment of all instalments and other dues, he would have become entitled to get 1jazatnama and right of permanent occupancy. Secondly, grantee before, acquiring permanent rights of occupancy was not allowed without previous permission in writing of Revenue Officer to gift, lease, mortgage, sell or otherwise encumber the land. This rule 25 is very much similar to section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which was extended to the whole of West Pakistan in the, year 1969.
17. Subsequently, by Province of West Pakistan (Dissolution) Order No.1 of 1970, one unit was dismembered and in consequence old provinces were revived in which the same laws were allowed to be continued in force as provided by Article -19 of the said Order. Therefore, it can be said that in Sindh also after break up of one unit, Colonization of Government Lands (Punjab) Act, 1912, applied in full force as it was saved and made applicable in the manner stated above.
18. Thereafter, in the year 1975, Sindh Adaptation of Laws Order 1975 was passed, whereby the Colonization of Government Lands (Punjab) Act, 1912, was declared to be applicable subject to adaptation whereby word "Sindh" was substituted for words "West Pakistan".
19. In the instant case, appellant Group Capt. Morad who was allotted agriculture land in Dhulam Muhammad Barrage in the year 1961, had not acquired occupancy rights as all instalments were not paid when Province of West Pakistan was dissolved and Province of Sindh was revived, as such his case would be governed by the provisions of Colonization of the Government Lands (Punjab)
20. Act, 1912, which remained in force in Sindh as well. Under the said Act, appellant as purchaser of the agricultural land from the Government became tenant pending payment in full of purchase money as contemplated under section 15 of the Act mentioned above. Respondent No.2 namely Yousuf, claims to have agreed to purchase from appellant in 1980 at the rate of Rs.1,000 per acre and paid Rs.2,00,000 to appellant and Rs.1,00,000 to Pir Mehfooz and in return appellant executed power of attorney in favour of Yousuf on 3-5-1980 allowing him to take possession of the land with power to sell it. Thereafter, Yousuf entered into sale agreement, dated 1-6-1980 with Azmat respondent No.1, at the rate of Rs.1,500 per acre.
21. Now questions that arise for consideration are as to what was the status of Yousuf and whether appellant could sell him the land in question of which he himself was tenant because he had not yet acquired occupancy rights as all the instalments and other dues were not paid. Secondly, could Yousuf further sell the land in dispute to Azmat. Thirdly, whether both the transactions mentioned above, would not be hit by restriction contained in section 19 of the Colonization of Government Lands (Punjab) Act, 1912, for the reason that appellant as tenant could not transfer his rights or interests in the said land without consent in writing of the Revenue Officer by sale because admittedly at that time no such consent in writing was obtained from the Revenue Officer.
22. Mr. Mansoorul Afrin, learned, Advocate Supreme Court submitted that appellant had appointed respondent No.2 Yousuf as his Manager/Agent vide general power of attorney executed on 3-5- 1980 to enable him to take possession and manage the affairs of the land on his behalf as it was not possible for him to look after the land personally for certain reasons and he never intended to sell the land to Yousuf or empower him to sell it to any other person. In any case, there was no consent in writing obtained from the Revenue Officer as is contemplated under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which was necessary for the reason that appellant was still tenant as he had not paid up all the instalments towards the purchase price.
23. In order to appreciate as to what was the intention of legislature and under what policy and with what objects and on what terms and conditions Government lands were allotted, it would be necessary to make reference to the preamble and certain provisions of the Colonization of Government Lands (Punjab) Act, 1912, which is now called as Colonization of Government Lands (Sindh) Act, 1912 (to be referred hereafter as the said Act). According to preamble, the exercise was undertaken to make better provisions for the colonization and administration of Government lands and for that purpose schemes were prepared and people were encouraged to purchase Government lands on instalment basis and till proprietary or occupancy rights were acquired, land would remain with such persons as tenants who were required to carry out improvements in the land to make it properly and effectively cultivable. In that' context terms and conditions were laid down which had to be fulfilled. Under section 10 of the said Act, Government issues statement of conditions on which it is willing to grant land in a colony to tenants. It also provides that no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. Grant can be cancelled if tenant has committed breach of conditions of tenancy or defaulted in the payment of instalment. Section 15 very clearly envisages that a purchaser of the Government land who has been placed in possession of the said land shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled. Section 19 imposes restrictions on transfer of rights or interests of tenant without consent in writing of the Commissioner or such officer as may be empowered by him in this behalf, by way of sale, exchange, gift, will, mortgage or any other private contract excepting a sub-lease for not more than one year in case of tenant who has not acquired a right of occupancy and seven years in case of tenant who has acquired a right of occupancy.
24. Section 19 further-envisages in very unequivocal terms that such transfer or charge made without such consent in writing shall be void and if the transferee has obtained possession he shall be ejected under the orders of the Collector. This section is concerned with two questions which are firstly, that a tenant cannot alienate without consent of the Commissioner and secondly, that such alienation is void. This restriction is to remain operative during the subsistence of tenancy rigths and shall come to an end as soon as proprietary rights are acquired because after acquisition of proprietary rights, statement of conditions would not govern the rights of the person who has become the proprietor. A transfer which is prohibited by section 19 is void as between the parties to the transaction. An agreement reached before any interest is acquired in the Government land is outside the scope of the Act. There is no bar to a person agreeing to transfer or acquire jointly proprietary rights.
25. Section 24 empowers Collector to impose penalty on the tenant for breaches of the conditions of tenancy made by him after giving hearing to the tenant. Section 30 provides that after acquisition of proprietary rights by a tenant, he shall cease to be subject to any statement of conditions issued under the abovementioned Act but would remain bound by other provisions of this Act applicable to the proprietors of the land. Section 32 empowers Collector to dispossess squatters and trespassers and resume possession of the land and all crops, trees and buildings thereupon without payment of any compensation whatsoever.
26. Mr. Mansoorul Arifin, learned A.S.C. For appellant contended that appellant was a tenant when transactions as alleged by respondents took place and those transactions were void for want of consent in writing of the Revenue Officer as contemplated under section 19 of the said Act. He further submitted that within the four corners of the said Act, Government only recognise tenant and recognise no other private party who claims to have transaction with tenant in which rights or interests of such tenant are transferred without written consent of the Revenue Officer. In support of contention he made references to sections 10, 15, 19, 30 and 32 which are mentioned above. He further submitted that even before application of the said Act, when land was granted, appellant was bound with terms and conditions in the Qabooliat and in the Rules of 1963, promulgated by Governor of West Pakistan under section 62 of the Sindh Land Revenue Code, which are similar in substance and form as contained in the said Act, which is applicable now. He further fully supported order of dispossession passed by Revenue Officer on 24-4-1983 against respondents Yousuf and Azmat. According to him that order of eviction has been implemented and acted upon and in consequence possession was handed over to Mst. Yasmin Chaudhry, attorney of appellant and appellant was aggrieved against subsequent order of Revenue Officer which was passed in review suspending his own earlier order of dispossession which was challenged by him in writ petition in the High Court. Mr. Mansoorul Arifin further stated that section 32 will not be attracted in this case because it would apply to trespassers who have unauthorisedly taken over possession of the Government land and in the instant case action could have been taken against the tenant under sections 24 and 25 of the said Act, which empower the Collector to impose penalties on a sitting tenant for breaches of conditions and resume possession of land.
27. Mr. Ishtiaq Ali, counsel for legal representatives of appellant Morad, who expired during pendency of the case in the Supreme Court after leave was granted, stated that there was no conflict of interest between his clients and Mst. Yasmin Chaudhry who is not only attorney of deceased appellant but is also his daughter. He adopted the arguments of Mr. Mansoorul Arifin and additionally submitted that action against the sitting tenant can be taken under section 24 of the said Act under which penalty can be imposed by the Collector if he is satisfied that tenant has committed breach of conditions of his tenancy and if such breach is capable of rectification, Collector would refrain from imposing penalty but would require: the tenant to rectify such breach within reasonable time and only in extreme case where breach is such which cannot be rectified then penalty can be imposed and in an appropriate case even tenancy can be resumed.
28. Otherwise in the normal course, tenant shall remain tenant until he acquires proprietary rights and before that stage arrives he can hold on to the land on behalf of the Government as tenant. Mr. Ishtiaq Ali in support of contention has cited the case of Muhammad Ghani v. M.A. Malik & Brothers (1973 SCMR 90), in which finding of the High Court in writ petition declaring ejectment of tenant to be illegal and ordering restoration of possession, was maintained and it was held that tenant, unless and until ejected in due process of law, has right to remain on premises and no one can dispossess him. The 'facts of the reported case are different and in that case tenant had borrowed money from Co-operative Bank which he failed to pay and action was taken against him under M.L.R. 241 for realisation of debt and in that connection shop of tenant was locked up and his goods were auctioned. It appears that by citing this decision Mr. Ishtiaq Ali meant to convey the principle that a tenant can be removed only in due process of law as is provided under that law. There is no cavil with this proposition. In this context Mr. Ishtiaq Ali cited two other cases which are Inam Rabbani v. Mst. Khurshid Begum and others (1976 SCMR 340) and Muhammad Sharif v.
29. Government of Punjab (1981 CLC 1204) in which facts are distinguishable.
30. Mr. Zaheer Qureshi, learned A.S.C. For respondent No.3, Revenue Officer and Respondent No.4 Barrage Mukhtiarkar, has supported the case of the appellant and submitted that section 19 is to be read in conjunction with section 32 of the said Act and the later provision provides procedure. In section 19 for want of sanction in writing, transaction becomes void and if "transferee" has obtained possession, he is liable to be ejected by the Collector. In section 32 Collector is empowered to resume the land if he is satisfied that the person in possession thereof has no right or title.
31. According to Mr. Qureshi, "transferee" mentioned in section 19 comes within the mischief of person who has no right or title as contemplated under section 32 and is, therefore, equated with the trespasser, as such action against him under section 32 is competent. Mr. Qureshi also submitted that permission given to Yousuf by Group Capt. Morad was withdrawn when power of attorney was revoked, as such Yousuf became trespasser. Contention of Mr. Qureshi is not tenable to the extent that for want of sanction in writing as provided under section 19, a person in possession becomes a trespasser liable to eviction under section 32 for the reason that both these remedies are different in nature and would apply in different situations. Section 32 would apply only in respect of squatters and trespassers on the Government land and in such a case, Collector is empowered to resume possession of the land and also of crops, trees and buildings without payment of any compensation.
32. On the other hand it is submitted by Mr. Inamul Haq, learned Advocate Supreme Court for respondents Azmat and Yousuf that they had purchased the land in question from Group Capt.
33. Morad, made part payment of consideration, put into possession, invested money in the development of land and raised crops and paid instalments to the Government. It is further submitted by the learned counsel that possession in favour of respondents Azmat and Yousuf is admitted as is evident from consent order passed in High Court Appeal No.88 of 1982, copy of which is in the paper book at page 103 and further the fact that Court has directed them to submit accounts to Nazir of the High Court who was appointed as Commissioner six monthly. Mr. Inamul Haq raised three contentions. His first contention was that action of Revenue Officers is mala ride for the reason that appellant Group Capt. Morad should have approached Revenue forum but instead of doing so, he approached Deputy Martial Law Administrator as he wanted to take benefit of his position as retired Group Capt. Of Pakistan Air Force. When asked whether such ground was taken in the Constitutional Petition, learned counsel was unable to show it from the memorandum of constitutional petition and did not press further this contention. The second contention was that Revenue Officer passed order of ejectment without giving hearing to respondents Azmat and Yousuf. Our attention has been drawn to paragraph 6 of the: impugned judgment, which shows that as per finding of the High Court, notice addressed to Azmat was received by his son Asadullah on 25-4-1983, and service in respect of him has been held to be valid but not so in respect of Yousuf. Mr. Inamul Haq submitted that procedure of mode of service as laid down in section 24 of West Pakistan Land Revenue Act, 1967 is to be adopted and further in the notice time limit of one month is to be mentioned as contemplated under section 24 of the Colonization of Government Lands (Punjab) Act, 1912. It was so said for the reason that according to the counsel, Yousuf was in possession as attorney of Group Capt. Morad and possession was to be handed over to Azmat at the time of registration of sale-deed. Contention raised by the other side is that Yousuf had become trespasser after power of attorney was withdrawn by Group Capt. Morad by publication in the newspaper. Mr. Inamul Haq in support of his contentions cited three decisions. In the case of Mst. Zainab Bibi and others v. Commissioner, Lahore Division, Lahore and others PLD 1976 Lah. 820, dispute was with regard to Ihatas which were originally allotted to Shah Muhammad and others in the year 1906 and their original numbers were changed in the settlement scheme of 1910/1911.
34. Subsequently petitioners were found to be in possession and claiming to have constructed Pacca houses on them. The record showed that some of these Ihalas were resumed by the Government in 1946. Respondent No.4 in 1961 managed with Patwari and it was reported by him that petitioners had abandoned possession, so mutation was recorded in his favour. It was held that resumption of Ihatas without notice to allottees was without lawful authority and was in contravention of section 24 of the said Act. In the case of Collector, Sahiwal and others v. Muhammad Akhtar 1971 SCMR 681 it was held that dismissal of Government servant without show-cause notice was void ab initio as defect took place at initial stage, which could not be cured even if opportunity of hearing was afforded at subsequent stage. Reference is also made by him to the case of Sharaf Faridi and others v. The Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404.
35. Mr. Inamul Haq submitted that Group Capt. Morad is pari delicto as he has sold the land to Yousuf and had taken all other steps necessary in this respect to complete the sale. According to him such transaction is evidenced from the documents he has signed particularly two powers of attorney in favour of Yousuf and letter, dated 8-5-1980, copy of which is available in the paper book at page 67. In support reliance is placed by him on the cases of Ghulam Muhammad alias Ghulamoon v. Maula Dad and others 1980 SCMR 31.4 and Rajab Ali v. Mst. Aisha and others 1989 SCMR 135.
36. Lastly Mr. Inamul Haq submitted that his clients respondents Yousuf and Azmat have paid instalments to the Government on behalf of Group Capt.
37. Morad and last instalment was `paid on 22-12-1981. It was also so agreed in the agreement of sale.
38. Reference was made to paragraph-3 of memorandum of Constitutional Petition No.353/83 (at page 43 of paper book), paragraph-12 of counter-affidavit of Yousuf (at page 127 of the paper book), paragraph-12 of memorandum of revision (at page 106 of the paper book) and paragraph- 12 of plaint in Suit No.235 of 1982 (at page 82 of the paper book).
39. In reply, Mr. Ishtiaq Ali informed that by December, 1981 all instalments were paid but Government claimed interest which was not paid. He further stated that proprietary rights can be acquired only when all instalments towards purchase price and interest thereupon as claimed by the Government are paid. This is the requirement in the statement of conditions of grant. Section 15 of the said Act also contemplates that purchaser of Government land shall be deemed to be tenant until full amount of purchase money with interest due thereon has been paid.
40. I do not propose to make any comments on the contentions of the parties raised before us as stated above, for the reason that by the judgment impugned in this appeal, two constitutional petitions have been disposed of during the pendency of the suits involving the same subject- matter which is land in dispute between the parties. In this context it will be necessary to go into the question of what reliefs have been claimed in two Constitutional petitions, which have been allowed by the judgment impugned in this appeal and suits filed by the parties. First in the series of litigation is Suit No.235/82 which has been filed by Azmat who is respondent No.1 before us in this appeal against defendants namely Group Capt. Morad, who is appellant before us and Yousuf, who is respondent No.2 before us and also Revenue Officer and Barrage Mukhtiarkar who are respondents Nos.3 and 4 before us. Copy of the plaint in the said suit is on the record at page 78 of paper book. Perusal of the plaint shows that suit is filed for specific performance of agreement of sale for Rs. 7,45,012.50. This agreement was between Azmat and Yousuf (Azmat is father-in-law of Yousuf). Yousuf claimed to be in possession of Government land purchased by Group Capt. Morad on the basis of power of attorney, which authorised him to sell as well. Subsequently Yousuf entered into agreement of sale with Azmat on 1-6-1980 at the rate of Rs.1,500 per acre. Rs. 3,00,000 were paid as part consideration and it was agreed that instalments to the Government would be paid by the plaintiff on behalf of Group Capt. Morad and Yousuf shall remain in possession as per terms of grant so that the grant should not be cancelled. Thereafter, Group Capt. Morad executed another power of attorney in favour of Yousuf enlarging his scope of authority. It is mentioned in paragraph 15 of the plaint that last instalment of Rs.9,571 was yet to be paid for which time was extended upto 1985. On 8-5-1982, Azmat and Yousuf were surprised to find public notice in daily Dawn whereby powers of attorney in favour of Yousuf were cancelled by Group Capt. Morad. Prayer is made in the suit for specific performance of agreement of sale and declaration that cancellation of powers of attorney in favour of Yousuf by Group Capt. Morad is illegal and such power of attorneys continued to subsist in full force and permanent injunction restraining Group Capt.
41. Morad from interfering with possession of the said agricultural land. This suit was filed on 2-6-1982.
42. Alongwith plaint, there was application under Order 39, Rules 1 and 2, C.P.C. Upon which order of status quo was passed which was confirmed subsequently vide order, dated 31-8-1982, copy of which is available in the record at page 93 of the paper book. In connection with hearing of this application, counter-affidavit was tiled by Yousuf, copy of which is available in the record at page 88 of the paper book. In this counter affidavit stand is taken by Yousuf that Group Capt. Morad agreed to sell the land to him at the rate of Rs.1,000 per acre for total consideration of Rs.4,96,675 out of Rs.2,00,000 were paid and in return power of attorney was executed in his favour by Group Capt. Morad with authority to sell. Yousuf then entered into agreement of sale with plaintiff at the rate of Rs.1,500 per acre. It is averred in the said counter-affidavit by Yousuf that he was in possession and engaged labourers to developed and cultivate the land and purchased two tractors. Perusal of order, dated 31-8-1982, confirming stay in suit proceedings shows that the Court came to the conclusion that in the circumstances it was not proper to disposes Yousuf and plaintiff Azmat who claimed possession through Yousuf, without commenting upon nature, validity and legality of agreement of sale executed in favour of plaintiff. Further in view of rival claims made by the parties and to protect interest of both the parties during the pendency of the suit the Court ordered plaintiff Azmat and defendant No.2 Yousuf to submit accounts every two months to Nazir of the High Court who was appointed as Commissioner to enter upon the property in dispute from time to time and check the accounts. Against this order, Group Capt. Morad filed High Court Appeal No.88 of 1982 and both plaintiff Azmat and defendant No.2 Yousuf filed cross-objections feeling aggrieved against submissions of accounts to Nazir every two months. This High Court Appeal was disposed of vide order, dated 3-3-1983 with consent of parties clarifying that order of status quo would not prevent appellant Group Capt. Morad from having recourse to a Court of law whether civil of revenue for enforcement of his rights, if any or for seeking redress of his grievance. Order impugned in that H.C.A. Was also modified to the extent that accounts would be submitted to the Commissioner six monthly.
43. After the disposal of High Court Appeal as mentioned above, Group Capt. Morad filed an application before Revenue Officer, Kotri Barrage, under sections 19 and 32 of Act of 1912, for restoration of possession to him. This application was allowed vide order, dated 23-4-1983 copy of which is available on the record at page 50 of the paper book. Azmat and Yousuf did not appear and were held to be duly served. Consequently their ejectment was ordered with direction to Barrage Mukhtiarkar to deliver vacant possession to Group Capt. Morad or his attorney Mst. Yasmin Chaudhry. It is submitted on behalf of appellant Group Capt. Morad that order of ejectment was complied with and possession of the disputed land was restored to his attorney Mst. Yasmin Chaudhry on 26-4-1983. It is very important to note here that order of ejectment was passed on 23-4-1983 and Group Capt. Morad filed Suit No.209/83 on 28-4-1983 in the High Court of Sindh against Azmat and Yousuf for accounts, mesne profits and permanent injunction and filed application for interim relief on which order of status quo was passed on the same day i.e. 28-4- 1983. On the same day (28-4-1983) while Group Capt. Morad filed Suit No.209/83 and obtained order of status quo, Azmat and Yousuf filed C.P. No.353/83 in the same High Court impugning order of ejectment dated 23-4-1983. On the same day i.e. 28-4-1983, C.P. No.353/83 came up before the Court without any urgent application (as it appears from the order sheet of the original record) and order was passed in it calling for comments from respondent No.1 (Revenue Officer) to reach within three weeks. On stay application order was passed as under:----- "In the meantime if petitioners are in possession they shall not be dispossessed."
44. It is apparent that as per record of Suit No.209/83 and order of status quo therein, possession was with Group Capt. Morad restored to him on 26-4-1963.
45. Azmat and Yousuf not content with the orders passed in their favour in C.P. No.353/83 on 28-4-1983, perhaps for the reason that they knew that they were not in possession, filed review application before Revenue Officer on 30-4--1983, which was allowed vide order, dated 8-5-1983, whereby ejectment order was suspended. It was so done in spite of the fact that review application was withdrawn on 8-5-1983. Main grievance of Yousuf and Azmat in C.P. No.353/83 was that order of ejectment was passed behind their backs and by filing review application before Revenue Officer that grievance came to an end as hearing wag allowed to them. Group Capt. Morad filed in the High Court of Sindh C.P. No.402/83 on 14-5-1983, impugning order of suspension. Copy of order, dated 8--5-1983, "hereby Revenue Officer has suspended order of ejectment, is on the record at page 108 of the paper book. Perusal of this order shows that Yousuf submitted before the Revenue Officer that he was still in possession of the land in dispute. Revenue Officer after hearing contentions of both the parties, examined report submitted by Barrage Mukhtiarkar including letter No.513, dated 27-4--1983 and 555 dated 4-5-1983 regarding delivery of possession of disputed land on 26-4-1983 to Mst. Yasmin Chaudhry, attorney of Group Capt. Morad and he observed that there was nothing to show whether Haris of the land had been ejected from the disputed land or not or the situation of law and order had been created. Yousuf could not produce documentary evidence in support of his contention that Haris had not been ejected and so requested for further time to produce documents and also to engage counsel to give proper replies to the contentions raised by counsel of Group Capt. Morad. Mr. Ishtiaq Ali, Advocate for Group Capt. Morad also informed the Revenue Officer about filing of Suit No.209/ 83 and obtaining of order of status quo therein. In such circumstances, Revenue Officer suspended order of ejectment passed by him on 23-4-19.53 and directed that Barrage Mukhtiarkar Mirpur Sakhro to hold in abeyance implementation of order of ejectment and further to collect and submit necessary documents after visiting the site personally. Matter was adjourned to 29-5-1983 for further hearing. This order was interim in nature and final order was not passed. Before this order was passed by Revenue Officer, C.P. No.353/83 was filed on 28-4-1983 against earlier order of ejectment. In the circumstances stated above, the question as to who was in possession and whether possession was restored to Mst. Yasmin Chaudhry on 26-4-1983 assumes more importance in view of several orders of status quo by the Courts and assertion of Yousuf that his Harts had not been dispossessed. Fact cannot be ignored that vide order, dated 3--3-1983,' High Court Appeal No.88 of 1982 was disposed of with consent of the parties allowing Revenue forums to determine question of possession as authorised under the said Act of 1912. When this was done, Revenue Officer should have been allowed to decide this complicated question of fact with regard to possession, which had become more complicated on account of several suits filed by the parties. It may be mentioned here that one more Suit No.176/83 has been filed in the High Court by Amoon son of Noor Muhammad and others in respect of possession of land in dispute and they as Haris also claim to have obtained order of status quo.
46. For facts and reasons stated above, I am of the view that interference should not have been made in the Constitutional petitions by the impugned judgment and the Revenue Officer should have been allowed to bring the proceedings to a finale. So far question of possession of disputed land is concerned particularly when such order was interim in nature and not final. Secondly question of title is pending adjudication in Suit No.235/82 filed by Azmat in which order of status quo was passed and confirmed. That suit and other sutis should be allowed to be disposed of in the ordinary course. Party aggrieved against final order of Revenue Officer can seek remedy according to law.
47. In this appeal leave was granted to examine the question whether authorities under the Colonization of Government Lands (Punjab) Act, 1912, did not have the power to direct dispossession under sections 19 and 32 of the said Act in view of the contention that aforesaid sections could not be used for settling private dispute of title between the parties. In the case of Atta Muhammad and others v. Mst. Khurshid Begum PLD 1964 Lah. 224. Mst. Khurshid Begum rightful heir of deceased tenant Jalal filed suit for possession against collaterals of her father by offering them payment of zar-i-malikana which they paid to the Government. Suit was resisted on many grounds including the ground of bar under section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Suit was decreed and in appeal objection was raised that question of cancelling the sale in favour of defendants in the suit or their ejectment could be dealt with by Collector under section 32 of the Act for the reason that jurisdiction of the Civil Court was barred. It was in this context that the High Court held in appeal that the language employed in section 32 clearly shows that power vested in the Collector is to safe-guard the interest of the State and to save the State land from illegal occupation by squatters and trespassers. This section is not intended to be operated for the benefit of one private party contending against the other. In other words any dispute regarding title between two private parties cannot be adjudicated upon under section 32 referred to above. Question of powers of Revenue Authorities to dispossess under sections 19 and 32 of the Colonization of Government Lands (Punjab) Act, 1912 has been examined in detail in the connected Civil Appeal No.374-K of 1981, which has been heard alongwith this appeal by this very Bench. In reaching the conclusions references were made to the following cases; Ali Muhammad v.
48. Hakim and others AIR 1928 Lah. 121; Preman v. Hardit Singh and others AIR 1930 Lah. 835; Nand and others v. Bhagati Singh AIR 1932 Lah. 32; Waryam Singh v. Sundar Singh and others AIR 1936 Lah. 576; Dalip Singh and others v: Jagat Singh and others AIR 1938 Lah. 721; Allah Ditta v. Jhanda and others PLD 1951 Lah. 244; Jiwana v. Mst. Sahbi PLD 1954 Lah. 253: Atta Muhammad and others v. Mst.
49. Khurshid Begum PLD 1964 Lah. 224; Wajid Ali and others v. Board of Revenue, Punjab and others PLD 1982 Lah. 716: Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 Supreme Court 70; Mst. $egum Bibi and others v. Abdul Sattar 1987 SCMR 1; Abdur Razzaq v.
50. Assistant Registrar, Co-operative Farming Society, Sahiwal and others 1981.SCMR 1064; Abdul Shakoor and others v. A.S. Tasneem and others 1974 SCMR 463; Ghulam Rasul and others v.
51. Muhammad Anwar and others 1969 SCMR 254; Ghulam Muhammad alias Ghulamoon v. Maula Dad and others 1980 SCMR 314; Rajab Ali v. Mst. Aisha and others 1989 SCMR 135; Akhtar Ali and others v. Muhammad Hanif and another 1989 SCMR 604; Said Ali Shah v. Muhammad Shafi 1989 SCMR 1594 and Muhammad Shafi and others v. Hayat Khan and others PLD 1978 Lah. 1228. Relevant paragraph containing conclusions in the judgment in the connected Civil Appeal No.374-K of 1981 is reproduced as under:---- "Consistent view in the case law cited above is that a tenant cannot transfer his possession without sanction in writing by the Commissioner as required under section 19 and on that ground the transaction will be void. This restriction will apply to all such contracts or agreements which are entered into by the parties for transfer of possession after such tenancy rights were acquired.
52. Agreements entered into before acquiring tenancy rights for acquiring proprietary rights will not be affected. Agreements entered into by the partners allowing one of them to acquire rights in the purchase of Government land will not be hit by the restriction. Limitation in section 19 is with regard to alienation and not regarding an agreement to alienate. If there is agreement for transfer of proprietary rights and in the meantime transferer has 'done whatever is required to do to complete the sale including receiving all consideration and handing over of possession and in the meantime all formalities have been completed in acquiring proprietary rights including payment of instalments and interest etc. Then transferer will not be allowed to take the cover behind section 19 of the said Act in order to non-suit the purchaser as held in the case of Ghulam Muhammad alias Ghulamoon v. Mauladad 1980 SCMR 314. Upshot of the discussion made above is that disputes with regard to title between private parties are to be settled and adjudicated upon in the Civil Courts and raising such plea cannot stop Revenue Authorities from performing their functions under sections 19 and 32 of the said Act unless stay order is brought from the Civil Court."
53. In the light of conclusions drawn in the judgment of connected Civil Appeal No.374-K of 1981 and for the facts and reasons mentioned above, I set aside the judgment of the High Court impugned in this appeal and in the result both Constitutional petitions stand dismissed. Consequently Revenue Officer is directed to pass final order with regard to possession as contemplated within the frame- work o: Colonization of Government Lands (Sindh) Act, 1912. Proceedings under the suits shall continue as allowed under the law. Since complicated issues were involved which were vehemently contested on behalf of the parties, there will be no order as to costs. Appeal is allowed.