' Z. A. CHANNA , J.-The dispute in this constitutional petition is in respect of a plot cf land, bearing No, 2889, admeasuring 600 aft. In Ward-B of Sukkur Town, which plot, the Government of Sind, by its order, dated 27-3-1976, had granted on lease, for a period of 99 years, in favour of the -third respondent, at the rate of Rs, 49.50 per yard, plus land rent. By the said order, 6 other persons were also granted lease of other plots of land, but this petition does not seek to challenge their grants.
2. The case of the petitioner, shortly stated, is that the plot in dispute is situated near his house and the houses of his relatives, whereas the house of the third respondent is across a msin road from it.
According to the averments made in the petition, Rajab Ali, the father of respondent No, 3, was originally granted lease of the plot in dispute by the Chairman, Sukkur Municipality, but on appeal by the petitiorer, respondent No,
2. By his order, dated 14-9-1965, directed that the said plot be put to public auction. Thereafter, the third respondent managed to get lease for one year of the plot in dispute from the Sukkur Municipality, whereupon the petitioner again went up in appeal to the second respondent, who, by his order, dated 14-7-1969, re-affirmed his previous order that the said plot be put to public open auction. Subsequently, respondent No, 2 recommended the grant of lease of the plot in dispute, for a period of 99 years, to the third respondent. His recommendations were accepted by the first respondent, the Government of Sind, which by the impugned order granted lease of the plat to the third respondent.
3. We have heard Mr. M. M. Pirzada, who appeard for the petitioner and Mr. Piryani, who represented the third respondent. The first two resporn dents were originally represented by the learned Additional Advocate-General, but subsequently he withdrew from the case on receiving directions that it was for the interested parties to contest the matter before the Court.
4 Mr. M. M. Pirzada has assailed the impugned order on the following two grounds t-
(I) That the plot in question could not be legally leased out to respondent No, 3, as the said respondent does not fulfil the conditions laid down in subsection 5) of section 42 of the Sind People's Local Government Ordinance, 1972, hereinafter referred to as the said Ordinance.
(ii) That the recommendation made by respondent No, 2 to respondent No, 1 to lease out the plot in dispute to respondent No, 3 was mala fide in that it was contrary to the earlier decisions made by respondent No, 2 on two occasions.
5. Mr. Piryani, on the other hand, contended that the so-called order of the Government, which is being impugned in this petition, is not an order at all, but merely an executive direction or action, and consequently cannot be impugned before us in the exercise of our constitutional jurisdiction We find no substance in this contention, for any act or proceedings taken in connection with the affairs of the Federation, a Province or a Local Authority can be assailed before us in the exercise of our constitutional jurisdiction. It was not disputed by Mr. Piryani that the executive direction of the Government granting lease of the plot in question to the third respondent was an 'action' in connection with the affairs of the Province of Sind and was a statutory exercise of power.
6. In order to appreciate the cotentions of Mr. M. M. Pirzada, it would be appropriate to set forth the provisions of subsection (5) of section 42 of the said Ordinance. The said subsection (5) reads of follows :- ) Notwithstanding anything contained in sub section (14) of this section, a Council may grant, sell or lease out land at rates to be fixed in consultation with Government, to-
(1) associations or individuals for establishing, maintaining or exterding educational, religious and charitable institutions for the benefit of the public subject to the condition that if the association or the individual is found not using it for the purpose it was granted. Leased or sold, the Council shall be competent to ccosfiscate such land along with structures, if any without paying any compensation on that account after affording the association or individual, as the case may be, an opportunity to show cause against the action proposed by the Council ;
(if) landholders for adding to their holdings, alignments or small plots of not more than 80 syds. In areas lying adjacent to their plots at a market price likely to be obtained in auction ;
(iii) holders of leases for twenty years or more after the expiry of the lease on the same terms and conditions."
7. Mr. M. M. Pirzada relied upon clause (ft) of the aforesaid subsection and submitted that neither the plot owned by the third respondent was 80 sjds. Or less nor did his plot adjoin the plot in dispute. The first limb of Mr. Plizada's contention, is, in our opinion, erroneous, for more than one reason. What the law requires is not that the plot owned by the prospective lessee should have an area of 80 syds. Or less but that the area of the plot B which he desires on lease and to add to his plot should not exceed 80 syds. It is an admitted position that the area of the plot is less than 80 syds. Being only 600 sft. As such, the only question falling for consideration, so far as the first submission of Mr. Pirzada is concerned, is whether the plot of the petitioner is 'adjacent' to the plot of the third respondent, so as to entitle him to grant of the lease of the plot in dispute.
8. According to the Shorter Oxford English Dictionary, Third Edition, the word 'adjacent' means I "lying near to ; adjoining ; bordering (not necessailly touching)". This word has been defined in Black's Law Dictionary as: "lying near or close to; sometime contiguous, neighbouring. Adjacent implies that the two objects are not widely separate. Though they may not c actually touch." In the ease of Mayor of Wellington v. Mayor of Lowerll Mutt (1), their Lordships of the Privy Council held as follows t- " 'Adjacent' is not a word to which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining, and it includes places close to or near. What degree of proximity would justify the application of the word is entirely a question of circumstances."
9. In the obove case, the Privy Council was considering the question whether the City of Wellington was 'adjacent' to the Borough of Lower Mutt for the purposes of the Newzealand Municipal Corporation Act, 1900. Their Lordships held in that case that there were no circumstances to justify their interference with the decision of the lower Courts that the City of Wellington was adjacent to the Borough of Lower Mutt, although there was a distance of over 6 miles between their boundaries and three other local Divisions intervened. However, as pointed out by their Lordships of thD Privy Council, the question whether one area is adjacent to another area Is entirely a question of circumstances. We have, therefore, to see what are the circumstances in the instant case and whether we should give a narrow or wider meaning to the word 'adjacent' as used in the said Ordioaace. Theis object in view of clause (ii) of subsection (5) of section 42 of the said'
(1) 1904 A C 773 ' Ordinance appears to be to enable landholders of plots to add to their holdings, small plots or alignments. If this be the object, we consider that an area of a plot could be considered to be adjacent to another plot, for th purposes of the aforesaid clause, only if it is so close to it that the plots could be amalgamated. In the instant case, as appears from the Map filed by the petitioner, the correctness whereof has not been disputed by the respondents, there is a main road in- between the plot of the third respondent and the plot in dispute. In view of this circumstance, we are of the opinion that the plot in dispute would not be 'adjacent' to the plot of the third respordent for the purposes of section 42 (5) (ii) of the Ordinance. The Map further shows that there is a street in-between the plot in question and the houses of the petitioner and his relations. We, therefore, are of the opinion that the plot in dispute would also not appear to be 'adjacent' to the houses of the petitioner or his relations. As such, the orders or the decision of the Government granting lease of the plot to the third respondent, in purported exercise of its powers under section 42(5) of the said Ordinance, would appear to be not in accordance with law.
10. Mr. M. M. Pirazia also contended that the second respondent was not legally competent to make a recommendation to the Government, contrary to his earlier two decisions, for the lease of the plat to the third respondent. He was, however, unable to show us any legal bar to the second respondent in making such a recommendation. It is quite possible that the second respondent, when making his recommendations to the Government, may have construed the word 'adjacent' as having a wider connotation than what his predecessors had considered. Be that as it may, locus poenftentiae (power of receding till a decisive step is taken) is always available to the Government and other Executive authorities, -subject to the condition that no vested right or interest is affected thereby (See PLD 1969 SC 407).
11. For the reasons given by us above, we would set aside the impugned order granting lease of the plot in dispute to the third respondent and allow the petition with costs.