' Mst. Amir Begum etc. (respondents herein) were allotted separate parcels of land in Chak No,502/G.B., Teh. Samundri, Distt. Faisalabad, under Grow More Food Scheme, for three years in the year 1958-59. The Government framed scheme for the sale/lease through auction of the lands and these parcels were included in the schedule of such lands.
2. Feeling aggrieved, the respondents/plaintiffs filed separate suits for declaration to the effect that they were in possession of the lands under the Grow More Food Scheme, under the said Scheme entitled to acquire proprietary rights and for injunction restraining the appellant/Province from interfering with their possession or leasing out the same to any other person. These were contested on the ground that the lands being situated within 5 miles outer radius of the Mandi Town Mamun Kanjan, the same could not be sold to the respondents/plaintiffs under the terms of the Grow More Food Scheme by private treaty. The parties went to trial on the following among other issues:---
(2) Whether this Court has got jurisdiction to try the suit? OPP.
(4) Whether the orders of the resumption of the suit land passed by the defendant are illegal, ultra vires, void and inoperative for the reasons enumerated in para. 5 of the plaint and the plaintiffs are legally entitled to acquire the proprietary rights of the suit land? OPP.
' The learned Civil Judge, Faisalabad, vide his judgment dated 27-1-1969 and the learned Distt.
Judge vide judgment dated 19-7-1969 answered both the issues in favour of the respondents/plaintiffs with the result that the suits were decreed and the appeals of the present appellant dismissed. So the present Regular Second Appeals.
3. As common questions of law and facts are involved so all the 12 appeals (R.SA. No,96 to R.S.A.
No,107) are being disposed of by a single judgment.
4. Preliminary objection has been raised by the learned counsel for the respondents that the appeals are time-barred. He has drawn the attention of the Court to the fact that the appeals were filed on 6-12-1969 in the first instance and on the said date only two days limitation was left for filing the appeals. Objection having been raised, the appeals were returned to the learned counsel to be re-filed within 14 days. These were filed on 8-1-1970 and when returned to be filed within 14 days these were filed on 23-1-1970. However the learned counsel for the appellant has correctly contended that the objections raised by office were of technical nature which should have been even removed in the office and appeals having been filed within limitation, the return and subsequent late submission would not affect the original and prescribed period of limitation for filing of the appeals. The contention is correct and the objection is rejected.
5. The precise questions that fall for determination are whether the suit lands are situated within the 5 miles of outer raidus of Mandi Town Mamun Kanjan and whether the Civil Court had jurisdiction in the matter. The other findings on the other issues are not under challenge in the present appeals.
6. The conditions governing the concession of sale by private treaty to Grow More Food Scheme allottees are contained in the, letter dated 8-8-1962 issued by the Secretary, Colonies, Board of Revenue. Condition No,4 runs as under:- "The concession of sale does not apply to leased area lying within 5 miles of the outer radius/limits of a Mandi Town Such land could be sold in open auction and should be included in the Schedule."
7. The question of fact has been answered by the two Courts below that it was not proved that the suit lands were situated within 5 miles of the outer radius of Mandi Town Mamun Kanjan. The statement of Mazhar Hussain plaintiff (P.W.2) that the old Mandi of Mamun Kanjan was 8/9 miles from the suit lands goes uncross-examined. But Barkat All Patwari (D.W.1) and Muhammad Iqbal Senior Clerk (P.W.1) have tried to say that the suit lands were within 5 miles outer radius of a new Mandi Town established by the Government at Mamun Kanjan. The two Courts below have also relied upon the letter for sale by private treaty to the Grow More Food Scheme allottees dated 22- 10-1962. This letter does not contain condition No,4 of the earlier letter reproduced above. View was canvassed that the later letter (dated 22-19-1929) not having the condition of 5 miles outer radius of a Mandi Town Grow More Food allottees if otherwise fulfilled the conditions, would be entitled to sale by private treaty. This view seems to have been upheld by the High Court as well as by the Supreme Court as is clear from Ashiq Hussain and others v. Province of Punjab (C.P. Nos.174 to 176 of 1990) decided on 17-7-1990.
8. But leaving aside this consideration let us see whether any case in view of the condition No,4 of the letter, dated 8-8-1962 is made out in favour of the appellant. The precise condition to oust the respondents/plaintiffs would be that the land lies within 5 miles of the outer radius/limits of a Mandi Town. Before the learned Civil Judge no evidence was led in this behalf. In appeal before the learned Distt. Judge two letters were produced; one dated 30-6-1962 from the Deputy Secretary, Colonies Department, to the Commissioner Sargodha Division and the other dated 13-4-1963 from the Secretary, Colonies, Bpard of Revenue, to Deputy Commissioner, Faisalabad. In the earlier letter, "The Government of West Pakistan is pleased to accord administrative approval to the establishment of a Mandi at Mamun Kanjan " In the latter it was observed, "Mamun Kanjan will be considered as Mandi Town with effect from the date of administrative approval accorded by the Government for the establishment of a Mandi Town...." The precise words in condition No,4 of the letter dated 8-8-1962 are "Mandi Town". In the letter of 30-6-1962 only Mandi is mentioned while in the letter, dated 13-4-1963 Mandi Town is mentioned. There is no term known as Nandi Town' under any law of the Province. In Article 2(50) of the Basic Democracies Order, 1959 "Town" is defined as, "Town means an area declared to be a town under Article 8". Under Article 8(2) ibid, "The Commissioner in the prescribed manner may divide the urban and rural areas of a Thana or Tehsil, as the case may be, within his jurisdiction separately into a number of areas, and declare, by notification in the official Gazette, each such area to be a Town or Union." There is further a proviso that no area which is not included in an urban area shall be declared to be a town. No notification has been brought on the record nor any reference made by the appellant's side to any notification by the Commissioner declaring Mamun Kanjan to be a town. Rather there is evidence on the record that Mamoon Kanjan is a Union Council which would take it out of the definition of a town.
As correctly observed by the learned Civil Judge the declaration of a Mandi (Market) is to be notified in accordance with the provisions of sections 3 and 4 of the Punjab Agricultural Produce Markets Act, 1939. "Market" has been defined in section 2(20)(i) of the Punjab Agricultural Produce Markets Ordinance, 1978 as meaning a building, block of a buildings, enclosure or other area which may be so notified in accordance with rules framed under the Ordinance. No notification or Order under the Agricultural Produce Markets Act, or the Ordinance has been brought on the record to say nor reference made that Mamun Kanjan was a Mandi/Market.
9. In ordinary parlance a Mandi Town would mean an urban area which is also having a grain market where agricultural produce is brought for sale/exchange etc. It would partake of the character of a "Town" to be declared as such under the Basic Democracies Order as well as a "Market" to be so declared under the Agricultural Produce Markets/Act/Ordinance. We have neither any Order nor Notification under the one or the other. So looked it from whatever angle, the appellant has no case attracting the application of Condition 4 of the letter, dated 8-8-1%2. Finding, for the above-added reasons recorded by learned Civil Judge and Distt. Judge is affirmed on Issue No,4.
10. Serious challenge has been thrown to the jurisdiction of the Civil Court. Under section 36 of the Colonization of Government Lands Act, the jurisdiction of the Civil Court would be barred in those matters which are within the authority and prerogative of the hierarchy of the Officers mentioned in the said Act. The sale by private treaty is within the jurisdiction of the Collector etc. under the Act but whether any person has become entitled to a C civil right is within the exclusive jurisdiction of the Civil Courts. The respondents/plaintiffs being the Grow More Food Scheme allottees and fulfilling all the conditions necessary for sale by private treaty have acquired a civil right which of course must be carried into effect' under the Act. Part of the cause of action lies within the jurisdiction of the Civil Courts and so the finding on Issue No,2 is also affirmed.
11. The result is that the appeals fail and are hereby dismissed. The respondents/plaintiffs shall be deemed to have been granted declaration to the effect that they are entitled to the sale of the land under the Grow More Food Scheme by private treaty and injunction as prayed for shall also, be deemed to have been granted. Parties are, however, left to bear their own costs throughout.