' M. MAHBOOB AHMAD, CJ.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question order dated 22-2-1978 of respondent No,4, order dated 18-3-1979 of respondent No,1 and lastly order dated 15-4-1979 passed by respondent No,3.
2. The facts necessary for the disposal of this petition are that in the year 1915, an area of about 7,700 acres was granted by the Government to Major Vanrenen on 20 years lease of horse- breeding conditions. This lease was renewed for another period of 20 years in favour of the said Major Vanrenen. During the currency of the lease, Major Vanrenen died in the year 1938 and after his death, his heirs constituted a private limited company named Renala Estate Ltd. Which took over the lease which was renewed for a further period of 10 years.
3. On 10-6-1970 a deed of lease was executed between the petitioner and the Government whereby the area under the lease was reduced to 3,193 acres 4 kanals and 6 marlas for a period of 10 years commencing from 1-1-1969 and ending on 31-12-1978. A copy of this lease deed has been placed on the record as Annexure 'A'.
4. On the promulgation of the Land Reforms Regulation (MLR 115 of 1972), the Deputy Land Commissioner on 21-6-1972 ordered the resumption of land in excess of the land equivalent to fourteen thousand Produce Index Units. This was followed by another order passed by the Deputy Land Commissioner on 15-11-1972 whereby the entire land was resumed under para. 15 of MLR 115 but the petitioner was granted option to retain the land in terms of the circular letter issued by the Punjab Land Commission on 21-8-1972 till the final decision about the utilisation of the resumed land under para. 19 of the MLR No,115. By its letter dated 22-11-1972, the petitioner exercised his option to continue as lessee.
5. Against the order of the Deputy Land Commissioner dated 15-11-1972 and the revised order dated 21-6-1972, the petitioner filed an appeal which was dismissed on 29-1-1973 by the Land Commissioner, Multan Division, Thereafter a revision under para.5 of the Land Reforms Regulation No,115 of 1970 was filed by the petitioner which was rejected by the Chief Land Commissioner on 13- 7-1973. Still feeling aggrieved, the petitioner filed an application under para. 29 of the Land Reforms Regulation, 1972 (MLR No,115) before the President of Pakistan which was heard by Mr. I.U. Khan, Member, Federal Land Commission, who on 12-6-1975 upheld the resumption but directed that if the Government decides to lease out the land, it will determine as to whether the entire area has to be given on lease or only a portion thereof and after determining the terms and conditions therefor, the petitioner shall be allowed the first option. As already indicated after the resumption of the land under the MLR the petitioner was allowed to remain in possession pending the final decision about the utilization of the land purely on temporary cultivation. On a request made by the Government of Pakistan through the Ministry of Defence, it was decided by the Provincial Government in the Colonies Department that the possession of the entire land be taken over from the petitioner and handed over to the Remount Depot. This is vide Memorandum dated 7-4-1979.
6. It was at this stage that the petitioner had filed the present petition. When the matter came up before a learned Single Judge of this Court, on 28-4-1979 it was observed that the petitioner had not exercised its option in contemplation of para. 19 of MLR No,115/1972 therefore the petition filed by the petitioner could not be proceeded with any further. It appears that pursuant to the orders passed by this Court, the petitioner filed an application exercising the right of first option for the grant of the lease of the resumed land. This application was disallowed by the Board of Revenue vide its order dated 23-5-1983 on the ground that as the Government did not intend to give the land on lease, the request of the petitioner for leasing out the land to it cannot be entertained. In view of this subsequent development, the petitioner was permitted to amend the constitutional petition.
7. The learned counsel for the petitioner in the first instance attempted to argue on the premises that the provisions of MLR No,115 had ceased to be law in view of the decision of the Shariat Appellate Bench of the Supreme Court declaring the same to be repugnant to the injunctions of Islam. In the same breath he also relied upon para. 19 of the MLR itself to claim that the petitioner had the first option to obtain the land on lease after the resumption. In view of the contradictory position taken by the learned counsel, he was asked to clarify his stance as to whether he was relying upon the provisions of MLR 115 or the lease deed executed between the parties to substantiate his contention that the petitioner could not be dispossessed from the land. After some hesitation, the learned counsel for the petitioner submitted that he would rely upon the lease deed only and not on MLR 115. That being so, it is not necessary to examine the question as to whether the petitioner was entitled to grant of lease under MLR 115 of the land resumed under para.15 thereof.
Otherwise also, para.19 of the MLR 115 does not advance the case of the petitioner inasmuch as it only confers the right of option of lease only when the Government decides to lease out the land. In the present case, the Government vide its letter dated 23-3-1983 (Annex `U') had clearly indicated its intention not to lease out the land to any one and therefore the petitioner cannot claim the benefit of Para.19 MLR No,115. Similarly, the reliance of the learned counsel in this context on the order of Mr. I.U. Khan, Member, Federal Land Commission, dated 12-6-1975 (Annexure 'P') is misconceived. A bare reading of this order shows that the Government was directed to decide as to whether it wanted to lease out the land in question or any part thereof in terms of para.19 of MLR No,115 and the petitioner was held to have the first option to obtain the lease only if the Government decides to grant the land on lease and not otherwise. As already observed, the Government finally decided not to lease out the land and therefore the question of first option did not arise at all.
8. However, the main plank of the case of the petitioner is that as per conditions of the grant of lease, the petitioner had the right to obtain renewal of the lease which had expired on 31-12-1978. In the same context, it was argued that the petitioner could not be denied his right of renewal without at least affording him an opportunity of being heard. Reliance in this respect was placed upon a judgment of the Supreme Court in Sardar Muhammad Aslam Sial and 3 others v. Govt. Of Pakistan and 3 others reported as 1985 SCM R 9.
9. After having carefully considered this argument of the learned counsel, we do not find any merit in the same. The terms and conditions on which the lease was granted to the petitioner are enumerated in the registered deed of lease dated 10-6-1970. A perusal of this document shows that it does not grant any right of renewal to the petitioner on the expiry of the lease on 31-12-1978.
The learned counsel for the petitioner was asked to point out any clause in the lease deed which could substantiate his contention. He was unable to do so but submitted that it was implied in para. 19 that the petitioner had a right of renewal. We do not find any substance in this contention of the learned counsel either. There is nothing in clause 19 which could support this argument of the learned counsel for the petitioner. This clause merely entitles the lessor to change the condition of lease if it so desires. There is however no obligation placed upon the lessor to renew the lease at the instance of the lessee. Rather, clause 17 stipulates to the contrary that the tenancy shall be for a further and final period of 10 years i,e. w,e,f. 1-1-1969 to 31-12-1978.
10. Faced with this situation, the learned counsel next argued that the terms of lease are contrary to the conditions prescribed by the Government for similar grants under section 10 of the Colonization of the Government Lands Act, 1912 and are therefore of no legal effect. This argument of the learned counsel is to say the least highly misconceived. The petitioner is a signatory to the lease deed dated 10-6-1970 and remained in possession of the land thereunder all along and not only that he did not ever take any step to repudiate the same or any of the terms and condition thereof. Even in this petition itself, there is no challenge to the lease deed. We may further observe that the petitioner in the above circumstances cannot be permitted to challenge the terms and conditions of the lease deed especially when his entire case is based upon it. To us it is quite apparent that the petitioner is shifting his stand and taking contradictory position with a view to perpetuate his possession over the land on one pretext or the other. This conduct of the petitioner to say the least is highly unfair and disentitles it from claiming any relief from this Court in exercise of its Constitutional jurisdiction. After the expiry of the lease in favour of the petitioner, he had no right whatsoever in the land but unfortunately he has managed to remain in possession thereof without any lawful justification.
11. This contention of the learned counsel that the petitioner should have been granted an opportunity of being heard by the authorities while deciding not to renew his lease is equally without force. As already observed, the petitioner has failed to point out anything in the lease deed which could give even a semblance of a right to obtain renewal. On the contrary, there are clear averments in the deed itself that it was not liable to be renewed after 31-12-1978. That being so, the question of grant of any hearing to the petitioner does not arise. The precedent relied upon by the learned counsel viz. 1985 SCM R 97 is wholly inapplicable to the facts of the present case. In that case, the Supreme Court of Pakistan after consideration of the conditions on which the lease had been granted came to the conclusion that the petitioner there was as of right entitled to have the lease renewed. It was in that context held that the petitioner could not be deprived of his right without having been granted an opportunity of being heard. In the present case however as already observed, there is no right of renewal vesting in the petitioner.
12. Be that as it may, there is yet another equally forceful reason for which the petitioner cannot succeed i,e. That according to clause 21 of the lease deed, any dispute between the parties has to be decided by the Commissioner, Multan Division as an Arbitrator. Clause 26 reads as under:- "In the event of any dispute arising between the parties as to the property and rights hereby reserved to Government or as to any matter in any way relating thereto or as to any of the conditions of the lease or as to any matter or thing anywise connected therewith the said dispute shall be referred to the arbitration of the Commissioner whose decision shall be final and binding on the parties."
' It is to be seen that the clause is all imprisoned and is widely worded and postulates the reference of all disputes connected with the lease to the arbitration of the Commissioner whose decision is also made final between the parties and binding on them as well.
13. It is not denied by the learned counsel for the petitioner that no reference was made by the petitioner to the Commissioner for decision nor is there any reason forthcoming on the record as to why this remedy was not availed of. The petitioner having himself agreed to have the disputes resolved through arbitration, cannot invoke the extraordinary Constitutional jurisdiction of this Court especially when the right which the petitioner allegedly claimed in the land C is based upon the terms of the lease deed itself. We are therefore clearly of the opinion that the Constitutional petition is not maintainable and is liable to be dismissed on this ground as well.
14. For the foregoing reasons, we do not find any merit in this writ petition which is accordingly dismissed with costs.