MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of Writ Petition No,6354 of 1994 and Writ Petition No,20045 of 1998 which are between the same parties and relate to the same dispute.
2. Late Brig. Sahibdad, the predecessor of Mst. Zohra Khatoon and others, was allotted stud land for a period of 10 years with effect from Kharif 1967 to Rabi 1977 on the terms and conditions laid down by the Government of Punjab, Colonization Department's Notification No,4292-83-CL-I dated 9th August, 1983. The lease in favour of the predecessor of the petitioners was thrice renewed and extended for a period of 5 years each time. The last extension expired in 1991, whereafter respondents Nos.3 to 5 refused to renew the lease any further. Thereupon, Brig. Sahibdad filed a writ petition bearing No,4867 of 1992, in which he claimed that the land was allotted to him in lieu of land abandoned by him in Sindh on ownership basis and as such he was entitled to retain its possession. This claim of late Brig. Sahibdad Khan was not accepted by a Division Bench of this Court, which disposed of that petition along with many other petitions on 24-1-1994. From the judgment it appears that the learned Division Bench had come to the conclusion that the eligibility for regrant or extension of lease was governed by the policy decision in the form of Standing Operating Procedure which laid down detailed conditions for the regrant of the land to the tenants.
It was further held that although a tenant whose lease has expired has no right to insist for its renewal yet in law he was entitled to have his case considered in the light of the Standing Operating Procedure and as such right of hearing must be provided to him before refusing to renew the lease.
3. According to the petitioners, the respondents in utter disregard of the judgment of this Court, neither summoned Late Brig. Sahibdad Khan nor issued any orders for regrant of the lease though he duly met the criteria laid down by the Division Bench on the basis of Standing Operating Procedure. It was averred that respondent No,1 has ordered the resumption of the land secretly and behind the back of the petitioners which was violative of the law as also the judgment of this Court and the principles of natural justice. During the pendency of that petition, Brig. Sahibdad Khan died on 23-12-1995 and his widow and four sons were impleaded as petitioners. Subsequently, the land in question was allotted to respondent No,6 who was impleaded as a respondent on an application made by him on 12-8-1998. The petitioners also challenged the allotment in favour of respondent No,6 by filing W.P. No,20045 of 1997.
4. In the written statement filed by the respondents, it has been stated that the tenancy in favour of the petitioners' predecessor was granted on the terms and conditions mentioned in the Notification dated 9-8-1983, originally for a period of 10 years. Thereafter, the lease was renewed from time to time which expired in 1991, where after, the petitioners are in unauthorised and illegal occupation of the land. It was further stated that the petitioners have failed to achieve the results up to the requisite standard and, therefore, the lease in his favour could not be renewed.
5. The learned counsel for the petitioners has contended that respondents Nos.1 to 5 have illegally and unlawfully resumed the land from the name of their predecessor and re-allotted it to respondent No,6 without any lawful authority. He emphasised that in the earlier round of litigation, the Division Bench had directed respondents Nos.1 to 5 to consider the case of the petitioners in the light of the criteria laid down in the Standing Operating Procedure after giving him a reasonable opportunity of being heard but this direction of the Court have been disregarded.
6. The petition has been opposed by Mr. Sher Zaman, learned Deputy Attorney-General for Pakistan, who has appeared on behalf of respondents Nos.1 to 5 and by Mr.Naveed Rasool Mirza, learned counsel for respondent No,6.
7. According to the learned Deputy Attorney-General, the last lease in favour of late Brig. Sahibdad expired in the year 1991 and thereafter he and after his death, the petitioners have remained in illegal occupation of the land in dispute. He submitted that no tenant can insist upon the renewal of his lease. He went on to argue that the petitioners in any case, were not entitled to the exercise of discretionary jurisdiction in view of the fact that that they were illegal occupants of the land. It was further maintained that-there was an arbitration agreement between the parties in the form of clause 54 of the lease-deed and as that remedy was equally efficacious this petition does not lie.
He, however, admitted that no hearing had been granted to late Brig. Sahibdad Khan at the time of resumption of the land but he insisted that the hearing was not at all required in view of the pronouncement of the Supreme Court of Pakistan in Mst. Zainab Khatoon v. Member (Colonies), Board of Revenue, Punjab and others 1998 SCM R 1188.
8. Mr.Naveed Rassol Mirza, learned counsel for respondent No,6, submitted that on the death of late Brig. Sahibdad Khan, the lease in his favour stood determined and the land reverted to the respondent-Government as the tenancy was not heritable. He relied upon the pronouncement of the Supreme Court of Pakistan in Sub. Muhammad Asghar v. Mst. Safia Begum PLD 1976 SC 435. It may be stated that after the resumption, the land has been allotted by the competent authority to respondent No,6 which was challenged by the petitioners by filing W.P. No,20045 of 1997.
9. It is not disputed that the lease in favour of late Brig. Sahibdad Khan had expired in 1991.
Thereafter he remained in possession of the land without any right or title in the land. In Mst. Zainab Khatoon v. Member (Colonies), Board of Revenue, Punjab etc. 1998 SCM R 1188, the Supreme Court has been pleased to rule that after the expiry of the lease, the tenant cannot insist for its renewal as of right. The relevant observations appearing at page 1192 may be reproduced with advantage:-- "In support of the above petitions, learned counsel for the petitioners have vehemently contended that the Government was not entitled to change the terms of the renewal to the disadvantage of the petitioners while their, applications for renewal were pending. A perusal of above Conditions Nos.49 to 52 of the grants indicates that the Government had reserved the right to issue fresh terms and conditions even during the currency of the lease. Additionally, under para. 2 of Condition No,51 it was provided that "The Government reserves the absolute right regarding future renewal and may not renew the lease without assigning any reason. In such case no prior notice by the Government shall be necessary."
"In this view of the matter the above contention is devoid of any force as the petitioners could not have claimed renewal of the lease as a matter of right. The corollary of the above conclusion is that the Government was free to offer renewal for a lesser area that what was covered in the expired lease. The rationale for reducing ceiling of the area for allotment seems to be that the Government wishes to accommodate more retired Army personnel under the above Scheme."
10. In view of this authoritative pronouncement, it is idle on the part of the petitioners to contend that they had a right to have the lease renewed in their favour and respondents Nos.1 to 5 have acted illegally in resuming the land.
11. It is true that this Court in the earlier round of litigation between the parties (Writ Petition No,4867 of 1992) had directed that the case of late Brig. Sahibdad, the then petitioner, should be examined in the light of the criteria laid down in the Standing Operating Procedure after giving an opportunity to him of being heard. The learned Deputy Attorney-General did not deny that no hearing was afforded to Brig. Sahibdad Khan before resumption of tenancy. It was, however, submitted by the learned Deputy Attorney-General that since the petitioners had no right of renewal as has been declared by the Supreme Court of Pakistan, the judgment of the Division Bench lost its efficacy and they could not insist on the grant of hearing.
12. In the alternative, the learned Deputy Attorney-General argued that even if the order of resumption was void, yet admittedly, the petitioners did not have any right to insist for renewal, which was in the discretion of the authorities concerned. The impugned order of resumption, even if void, should not be struck down by this Court as otherwise it would amount to perpetuating an illegality. He relied upon Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCM R 1462 and S. Mumtaz Ahmad Khan v. Peshawar Development Authority and another 1998 SCM R 2745.
13. The contention raised by the learned Deputy Attorney-General that it was not necessary to grant hearing to the predecessor of the petitioners in view of the law subsequently declared by the Supreme Court in Mst. Zainab Khatoon v. Member (Colonies), Board of Revenue, Punjab etc. 1998 SCM R 1188 does not seem to be correct. The judgment of this Court in W.P. No,7492 of 1992 and other connected petitions was not challenged any further and as such both the parties were bound to act in accordance with the same. The declaration of law by the Supreme Court in a subsequent matter did not have the effect of wiping away the effect of the judgment of the Division Bench which was not subject-matter of the appeal before the Supreme Court. It was so held in Pir Bakhsh represented by his legal heirs . The Chairman, Allotment Committee and others PLD 1987 SC 145.
14. However, the matter did not rest there. As has been pointed out by Mr. Naveed Rasool Mirza, learned counsel for respondent No,6, on the death of the tenant, the tenancy automatically stood determined and the land reverted to the Government which was under no obligation to re-allot the same to the heirs of the original tenant as the tenancy was specifically stated to be not heritable. In this connection a reference may be made to the terms and conditions under which the petitioners were granted tenancy which were laid down in the Notification bearing No A 292-83-CL-I, dated 9- 8-1983. Clauses 50 and 51 read as under:-- "50. Determination of tenancy..--The tenancy granted on the conditions set forth in this statement shall stand determined---
(a) on the expiry of the lease under clause (a);
(b) on the death of the tenant;
(c) on resumption of the tenancy under section 24 of the Act; or
(d) on inability of the tenant to continue his tenancy and reside permanently on the stud.
51. Disposal of land on death of tenant.--(1) If the tenant dies during the period of tenancy the land.
Shall revert to Government and may be granted to any one of his heirs considered to, be fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease or to some other tenant subject to such compensation to be paid to the estate of the deceased as may be determined by Government on the recommendations of Ministry of Defence, Government of Pakistan.
(2) Government shall in no case be under any obligation to grant the tenancy to the successors of the deceased tenant.
15. As is obvious from the above, on the death of tenant the tenancy shall stand determined and on his death the land reverts to the Government which may grant it to any of his heirs or to some other tenant subject to such compensation as may be determined by it. Sub-clause (2) of clause 51 expressly states that the Government shall in no case be under any obligation to grant tenancy to the successor of the deceased tenant. It is obvious, therefore, that the tenancy is not heritable nor has the legal heirs of the deceased tenant any right of regrant of the land to them. In somewhat similar circumstances in Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 it was observed by the Supreme Court that:-- "We have heard the learned counsel for the parties and according to the statement of conditions issued under subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912, published vide the Development Department Revenue Notification No,2965-C dated 22nd July, 1941 (as amended by Notification No,2838 dated 1st of July, 1942), the tenancy is granted for a fixed period only and is renewable from time to time. It is also laid down that the tenancy terminates and lapses on the expiry of the lease and the demise of the tenant. In view of these express stipulations the tenancy in dispute was not heritable and on the death of Mst. Inayat Begum her tenancy had lapsed and stood terminated.. ..."
16. In view of the above authoritative pronouncement, it becomes absolutely clear that on the death of late Brig. Sahibdad Khan, the tenancy stood terminated and the petitioners who are his legal heirs cannot ask for the renewal of the lease as of right. It is also to be maintained that even the lease in favour of late Brig. Sahibdad Khan had expired in 1991 and for that reason also the petitioners as his legal heirs could not insist that they be granted lease in his place. In this view of the matter, the direction given by the learned Division Bench of this Court to the respondents in its judgment on 24-1-1994 that late Brig. Sahibdad Khan should be granted hearing while deciding the question of renewal of his lease, lost its efficacy in the changed circumstances.
17. The learned Deputy Attorney-General has also drawn the attention of this Court to the fact that during the pendency of these petitions, after this Court had clarified that the temporary injunction issued in this case had lapsed after 6 months in view of Article 199(4-A) of the Constitution, the petitioners concealing the fact that two Constitutional petitions on their . Behalf were pending before this Court approached the Civil Court by filing a civil suit in which almost the same dispute has been raised and managed to obtain temporary injunction from the said Court. This conduct of the petitioners clearly disentitle them for the grant of relief in the discretionary jurisdiction of this Court.
18. The learned counsel for the petitioners has, however, submitted that in the suit only the issue raised was about compensation payable to the petitioners. There is no merit in this contention. A perusal of the plaint as a whole shows that the petitioners had pleaded that they were entitled as of right to the allotted land in question which had been illegally and unlawfully granted to respondent No,6. Additionally, so far as the compensation is concerned, there is an arbitration clause in the lease deed itself, which provides for reference of the dispute to the arbitration of the Commissioner concerned.
19. It follows from the above, that the petitioners have no right to remain in possession of the land nor can they insist that the lease in favour of late. Brig. Sahibdad Khan which expired in 1991 be granted to them as the tenancy is not heritable. Furthermore, in view of the conduct of the petitioners in filing a civil suit and suppressing that there were two petitions pending on this subject, also disentitle them to the grant of any relief in the exercise of discretionary jurisdiction of this Court. In view of what has been stated above, both these petitions are dismissed leaving the parties to bear their own costs.