1. ZAFFAR HUSSAIN MIRZA, J.---As Civil Appeals Nos. 19 to 28-K of 1983 arise out of a common judgment of the Division Bench of Sindh High Court, dated 18th November, 1981 disposing of ten separate Constitutional Petitions filed by the respondents therein and involving common questions of fact and law we propose to dispose of these appeals also by this common judgment. Besides Civil Appeals Nos. 199-K and 200-K of 1984 arise out of separate judgments of the Division Bench of Sindh High Court, dated 26th January, 1984 disposing of the Constitutional petitions filed by the respondents therein, in terms of the aforementioned judgment of the Division Bench, dated 18th November, 1981. Therefore, the judgment in question in all these twelve appeals is the basic judgment of the Division Bench, dated 18th November, 1981 and all these appeals shall therefore be governed by the present judgment.
2. Before we could hear the arguments of the learned counsel for the appellants, learned counsel appearing on behalf of the respondents pointed out that except Civil Appeals Nos. 199-K and 200-K of 1984, the rest of the appeals are barred by limitation, and therefore, that question has to be disposed of first.
3. According to the office note on the petitions for leave to appeal in the first ten appeals, the said petitions were barred by two days. On behalf of the petitioners in the said petitions an application was submitted under Order XXXII, Rules 3 and 6 of the Supreme Court Rules, 1980 seeking condonation of the delay of two days in presenting the petitions. However, no orders were passed on this application, as it appears that the question of limitation was not pointed out to the Court at the hearing of the leave to appeal petitions. Learned counsel for the respondents in support of the objection on the ground of limitation has submitted that the appellants were bound to explain the delay of each day, otherwise the appeals are liable to be dismissed on the ground of limitation.
4. Learned counsel for the appellants has, however, referred us to the application for condonation of delay which is supported by the affidavit of the learned Advocate -on-Record who is appearing on behalf of the appellants. It has been stated that application for copies of the judgment delivered by the High Court was made on 31st January, 1982 and copying charges were deposited on 27th March, 1982. Thereafter, the representatives of the appellants were making enquiries practically twice or thrice a week whether copies were made ready, but the copying branch of the High Court did not inform them that the copies were made ready. It was on 3rd June, 1982 that the representative of the appellants was informed about the preparation of the copy of the judgment when immediately court-fee stamps for all the ten copies were supplied for certification of the copies. However, when the clerk of the appellants went to collect the copies, he was informed that the daftry of the copying branch had not attended the office and it was not known whether he had given the copies for certification. The daftry came to office on 6th June, 1982, when the copies were delivered to the appellants' representative. On the next day i.e., 7th June, 1982 all the ten petitions were presented in Court. On these assertions and the fact that court-fee stamps for all the ten petitions were purchased on 17th January, 1982 it has been asserted that the appellants have all along been vigilant and are not guilty of any negligence. The two days delay was not, according to the appellants, due to their fault but due to the absence of the daftry of the copying branch of the High. Court of Sindh. The learned counsel' for the respondents conceded that no counter-affidavit was filed against the affidavit in support of the condonation application. The facts alleged therein, therefore, remain uncontroverted. Consequently, there appears to have been no contumacious delay on the part of the appellants. The delay, if any, is accordingly condoned.
5. Coming now to the merits of these cases, the brief facts constituting the background of these appeals may be shortly stated. Under a scheme called the "Grow More Food Scheme" framed by the Board of Revenue, the respondents in all these appeals were allotted certain pieces of land on yearly lease basis. The Land Utilization Committee of the Board of Revenue in its meeting held on 9th March, 1965, decided to grant the respective allotted lands to each grantee who had installed a tubewell in the Guddu Barrage Area, by way of sale on the following terms and conditions:
(i) That they should be charged the highest auction price for land sold in the same or adjoining Deh;
(ii) The holding should not extend 2.10 acres;
(iii) If a tubewell owner is otherwise eligible i.e. Being Mohagadar, small Khatedar etc. His case may be considered on merits.
6. It appears that some of the allottees/grantees purchased the land and were granted proprietary rights. Later on, the question arose whether the remaining allottees may also be granted the option to purchase the land and the Land Utilization Committee considered the matter in its meaning held on 17th June, 1970. It was decided that the remaining allottees should also be allowed to exercise the right to purchase the land by 31st August, 1970, inter alia, on the following terms:
(i) The price to be charged should be related to the period when the lease was given, and should be the average price obtaining in the vicinity during 3 years prior to the date of the lease.
(ii) The number of instalments was to be 10.
(iii) Other terms and conditions would be the same as were applicable to the purchasers of resumed land under Martial Law Regulation No. 64.
(iv) The land was thus not to be put to auction as previously decided.
7. It was further decided in this meeting that no reference to the Finance Department should be made on these points.
8. In the events that happened this decision was, however, not implemented by the Government for the reason, inter alia, that it was made in violation of the provisions of rule 15 of the West Pakistan Government Rules of Business, 1962, inasmuch as no concurrence of the Finance Ministry was obtained. Being aggrieved by the refusal of the Government to implement the aforesaid decision the respondents filed separate Constitutional petitions in the Sindh High Court seeking declaration to the effect that the decision of the Land Utilization Committee in the meeting held on 17th June, 1970 was binding on the Government, and the demand of the price for the land in terms of the earlier decision of the aforesaid Committee taken in the meeting held on 9th March, 1965 is illegal.
9. Also consequential relief was prayed for.
10. Learned Judges of the Division Bench, who heard these Constitutional petitions upheld the pleas raised by the respondents and by the consolidated judgment, dated 18th November, 1981 allowed the first mentioned 10 Constitutional petitions. The operative part of the judgment reads as follows: "We accordingly allow the Petitions with no order as to costs and hold that the Petitioners are entitled to have proprietary rights transferred to them in the lands which were leased out to them subject to the finding by the Board of Revenue Sindh that they have fulfilled the relevant conditions contained in the decision dated 17-6-1970. The cases are, therefore, remanded to the Board of Revenue, Sindh with the direction to decide the Petitioners' entitlement in the light of the decision contained hereinabove within six months from the date of the receipt of intimation. The respondents are also directed that till the decision of the Board of Revenue on the Petitioners' entitlement the status quo is to be maintained and the Petitioners' possession shall not be disturbed.''
11. Being dissatisfied, the appellants challenged the judgment in petitions for leave to appeal and leave was granted to consider the contention that the earlier decision of the Land Utilization Committee was approved by the Government as the final authority in this behalf and unless the Government approved the subsequent decision of the Land Utilization Committee, it had no legal sanction, for, the Committee was not competent to revise the decision of the Government or give a decision to the contrary.
12. Subsequently by order dated 21st November, 1984 leave to appeal was granted in Civil Appeals Nos. 199-K and 200-K of 1984 on the basis of the orders passed in the first ten petitions.
13. It may be stated that in the High Court on behalf of the present appellants the Constitutional petitions filed by the respondents were resisted, inter alia on two pleas, namely, (i) that the Board of Revenue had no authority to revise its earlier decision of 9th March, 1965 stipulating the terms and conditions for the transfer of lands to the allottees; and (ii) that since the concurrence of the Ministry of Finance was not obtained, the above-said subsequent decision of the Board of Revenue was in violation of the Rules of Business of the Government. It was also contended that in fact none of the respondents had taken any step seeking to take advantage of the said decision dated 17th June, 1970. The facts brought on the record in this connection were that the subsequent decision of the Land Utilization Committee, dated 17th June, 1970 was referred to the Board of Revenue, Sindh for reconsideration as the Finance Department had not agreed to the same. This reference was deliberated upon in the meeting of the Board of Revenue held on 25th January, 971 and 26th.Fanuary, 1971, wherein decision was taken to suspend the subsequent decision of the Land Utilization Committee, dated 17th June, 1970, so that the matter be thoroughly enquired into. The learned Judge, of the. Division Bench repelled both the contentions advanced on behalf of the appellants.' As to the second contention it was held that in the meeting held on 1711, June, 1970 the Deputy Secretary to Government of West Pakistan, Finance Department, accompanied by a Section Officer, Finance Department, had participated, therefore, there was due compliance with Rule 15 of the Rules of Business of the Government. As to the first contention, learned Judges made the following observations: "We are also inclined to hold that the respondents were entitled to rescind or to modify the above decisions dated 17-6-1970 without affecting the rights /obligations which might have accrued between the date of the above decision and the date of the modification or rescission, it the Petitioners had fulfilled the conditions contained in the aforesaid minutes of the meeting held on 17-6-1970, before the operation of the same was suspended by the Sindh Land Utilization Committee in its meeting on 25th and 26th January (Annexure X3 to the counter-affidavit) 1971, a vested right had accrued to the Petitioners to have the proprietary rights in the land transferred to them, which right could not have been divested by a unilateral action on the part of the respondents.
14. It may be observed that the Petitioner s in their Petitions have averred that in pursuance of the above decision dated 17-6-1970, they had exercised their option, whereas the respondents in para. 7 of the counter affidavit have averred that the Petitioners did not take any step towards taking advantage of the said decision. Mr. S. Nasiruddin, learned counsel for the Petitioners wanted to produce certain documents during the arguments to indicate that in fact the Petitioners had exercised their options in terms of the above decision dated 17-6-1970, we had declined to take anything on record at that stage. In our view it will be proper that this question is decided by the respondent Board of Revenue Sindh."
15. Mr. RA. Qureshi, learned counsel appearing on behalf of the appellants has not seriously pressed the second contention advanced before the High Court as noted above. He has, however, urged that as laid down in Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 the Government possessed locus pocnitentiae to recall the decision made by the Board of Revenue on its behalf on 17th June, 1970, as the said order had not taken legal effect, inasmuch as it was merely a departmental decision not communicated to the respondents in these appeals. As no vested rights were created, learned counsel contended, there was no fetter placed on the power of the Government to rescind the decision.
16. The principle of locus, poenitentiae (power of receding till a decisive step is taken) is well- recognized and it stipulates that the authority that has the power to make an order has also the power to undo it. But in the cited case the limitations placed upon this power have been pointed out. Following is the enunciation of law laid down in that case: "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights:"
17. There can therefore be no cavil against the proposition advanced by the learned counsel. Indeed, the decision taken by the learned Judges of the Division Bench also does not go contrary to the principle laid down, in that, it has been clearly held that appellants were entitled to rescind or to modify the decision, dated 17th June, 1970, provided that no vested right that may have accrued between the date of the decision and the date when the same was revoked or suspended on 25th and 26th January, 1971 could be destroyed. In this regard there was a dispute between the parties before the High Court on a question of fact which required adjudication. It was asserted by the respondents that they had acted upon the decision by making offers in terms thereof prior to its revocation. This assertion was denied in the counter-affidavit on behalf of the appellants. As the question was to be decided upon a fact finding enquiry, the High Court decided to remit the cases to the Board of Revenue. We find nothing wrong in the High Court having adopted this course of action. It will be for the Board of Revenue to examine the cases in order to find whether the decision was communicated to the respondents or became otherwise effective and whether any of the respondents had taken any steps to ask for transfer of proprietary rights in terms of the decision, dated 17th June, 1970, before 25th and 26th January, 1971. To highlight this aspect we may once again emphasise that the respondents will be entitled to acquire proprietary rights only in case they have taken any steps to seek such proprietary rights in terms of the decision of 17th June, 1970, during the interregnum between the said date and 25th and 26th January, 1971, and not afterwards.
18. This clarification is sufficient for the guidance of the Board of Revenue to decide the cases of the respondents, at an early date.
19. In this view of the matter we find no ground to interfere with the judgment of the High Court.
20. Accordingly, with the observations made in this judgment, these appeals are dismissed with no orders as to costs.