' RANA BHAGWAN DAS, J.--- By this Constitutional petition, petitioner seeks a declaration that he is entitled to the grant of 91-0 acres of land in U.A. No,145 Deh Junnas, Taluka Panoakil under Tubewell Scheme and that the order, dated 26-3-1989 passed by Commissioner, Sukkur Division and the order, dated 25-4-1991 passed by the Member, Board of Revenue, Sindh cancelling the grant of the petitioner and directing the land to be disposed of in favour of sitting Haris are illegal, mala fide, without jurisdiction and of no legal effect. By way of consequential relief he seeks a permanent restraint order against respondents Nos.2 to 4 from disposing of the land in question as directed in the impugned order, dated 25-4-1991 by the Board of Revenue.
2. Facts in a nutshell leading to the institution of the petition appear to be that petitioner obtained Yaksala lease in respect of 143 acres in aforesaid U.A. Number in the year 1959-60 which area was reduced to 91 acres in the year 1966. According to the petitioner he paid yearly lease money and other Government dues from 1960 to 1972 regularly. In the year 1966 the land in question became part of Gudu Barrage Tubewell Scheme and as per decision of the then Government of West Pakistan such lands were to be transferred to the tubewell owners in terms of the Office Memorandum, dated 10th December, 1968 issued by the Board of Revenue West Pakistan which reads as under:- "The Land Utilization Committee in its meeting held on 1st November, 1966, decided that the representations of the tubewell owners were rejected and it was decided that land commanded by tube wells should be disposed of as decided in the meeting of Land Utilization Committee, held in March, 1965 subject to the following conditions:--
(i) The tubewell owners should be charged the highest auction price for land sold in the same or adjoining Deh and not the average price;
(ii) the holding of the purchaser should not exceed 240 acres; and
(iii) if a tubewell owner is otherwise eligible i,e, being Mohagdar, small Khatedar etc., his case may be considered on merits."
3. It is the case of the petitioner that in pursuance of the above policy he applied for the transfer of the land and he was advised vide notice, dated 13-5-1967 to make payment of the price of the land at the rate of Rs,2,500 per acre failing which the land shall be disposed of through public auction.
Petitioner resisted the question of price of the land and prayed for postponement of the price determination till similar land in same Deh in Lot No,2 offered to Molvi Mahmoodul Hassan on his refusal to purchase, is auctioned. It is further his case that by letter, dated 22-11-1967 he was permitted to deposit lease money in the year 1967-68 pending auction of Lot No,2 of the same Deh which was not acceptable to Molvi Mahmoodul Hassan under tubewell scheme. According to him another policy was announced by the Government vide letter, dated 25-6-1970. In the name of petition reference is made to Annexure "P" but the same is not produced while conditions of the grant have been claimed to be as under:-- "(1) 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.
(2) The number of instalments was to be 10.
(3) Other terms and conditions should be same as are applicable to the purchasers of resumed land under Martial'Law Regulation No,64; and
(4) The land was, thus, not to be put to auction as previously decided."
4. Petitioner's case is that he opted to purchase the land in accordance with this policy and desired to deposit instalment towards the price of the. Land but he was assured that the instalments would be received after notices had been issued to the tubewell owners which, however, were never issued. It is the grievance of the petitioner that instead of issuing demand notices for the payment of the instalments towards the price of the land Colonization Officer, Guddu Barrage addressed letter, dated 31-7-1971 to him advising him to deposit lease money for the year 1971-72 which he actually paid. Perusal of the impugned letter, however, tends to show that it was issued on petitioner 'i own application for acceptance of lease money for the said year. In 1971 he approached Agriculture Development Corporation to make final demarcation of the land who accepted his request but Assistant Colonization Officer to whom his application was forwarded did not comply with the direction: On petitioner's own showing in May, 1973 respondents Nos.5 to 12 forcibly, and unlawfully occupied about 80 acres of his land. Furthermore, Additional Revenue Commissioner, Sindh Hyderabad vide his orders, dated 16-2-1974 granted 6-00 acres and 12-20 acres respectively, to respondents Nos.12 and 13 out of his land behind his back and without affording an opportunity of hearing. It appears that at this juncture of time respondent No,5 Ghulam Kadir son of Muhammad Punhal challenged the grant of land in favour of respondent No,12 as well as the petitioner before the Board of Revenue, Sindh who transferred the case to Commissioner, Sukkur Division for disposal which was registered as an appeal and disposed of by order, dated 24-5-1977. Through this order Commissioner, Sukkur Division inter alia held that the petitioner had not installed any tubewell on the land in question; that he had not paid the price of lease money for the period from 1967-68 to 1970-71. Consequently, he held that the petitioner was not entitled to the grant of the lands. Petitioner filed an appeal against this order which was dismissed by the Board of Revenue vide order, dated 6-8-1978 on the ground of limitation as well as on merits. Petitioner assailed such order before this Court in C.P.C. No,D-18 of 1979 which was allowed by a Division Bench remanding the case to the Commissioner, Sukkur Division with the direction to rehear the above appeal after notice to the parties and to dispose of the same according to law. On remand Commissioner, Sukkur Division by the impugned order, dated 26-3- 1989 held that the petitioner had not deposited the sale price as envisaged under the Tubewell Scheme in respect of the disputed land measuring 91-0 acres and as he had not installed any tubewell on the aforesaid land he was not entitled to the grant of land under the tubewell scheme.
In revision petition from this order learned Member (Land Utilization), Board of Revenue by a detailed and elaborate order held that as the petitioner did not deposit initial deposit on the eve of the grant; that he had installed tubewell in the adjoining Survey No,269 and not on the lands in dispute; that he was not in possession of the land for the last more than ten years as found by the Commissioner, Sukkur Division which was admitted by the petitioner's attorney and furthermore Tubewell Land Grant Scheme being no longer in existence, he was not entitled to the grant of land as claimed by him.
5. At the hearing Mr. A.M. Mobeen Khan learned counsel for the petitioner vehemently contended that both the Tribunals below have recorded erroneous findings of fact that the petitioner neither deposited the price of the land nor the lease money in respect of his land. He further urged that under the Tubewell Scheme it was not imperative upon the petitioner to instal tubewell on the land 'leased out to him and that the requirement of the policy was that such lands must be irrigated through tubewell water. Lastly, he contended that respondents having not filed any counter- affidavit to the petition, findings of fact as impugned in the petition were absolutely wrong, incorrect and mala fide.
6. Conversely learned counsel for the respondents submitted that no doubt initially the land was granted to the petitioner on lease but he neither paid the price of the land nor lease money as found by the Commissioner, Sukkur Division as well as the Member, Board of Revenue. It was further urged that the petitioner has been out of possession on his own showing at least since May, 1973 and that the land is in cultivating possession of the respondents Nos.5 to 14 who were entitled to the grant thereof as sitting Haries, but by reason of order of interim stay passed in this petition such process was not finalized and in fact they continue to be in cultivating possession of the land.
7. Adverting to the first limb of the argument of the learned counsel it may be observed that petitioner himself has produced copy of notice, dated 13-5-1967 issued by Assistant Colonization Officer, Panoakil requiring him to state within one week of the receipt of the notice whether he was prepared to purchase the lands on, payment of Rs,2,500 per acre as this was the maximum rate at which other land had since been disposed of. He was warned that in case he did not opt to purchase the land within one week's time same shall be disposed of by way of public auction.
Admittedly, the petitioner disputed the quantum of price of the land and did not offer his consent to purchase the land at the rate offered by the respondents. He sought postponement of the determination of the price which appears to have been accepted but later on at no point of time did the petitioner take steps for settlement of the price of the land nor volunteered to pay the same. In order to rebut the finding of fact recorded by Commissioner, Sukkur Division as well as Member, Board of Revenue to the effect that the petitioner did not pay price of the land as well as the lease money from the year 1967-68 to 1970-71, learned counsel referred to a payment receipt for a sum of Rs,1137,50 paid on 11-8-1971 to some Tapedar and relied upon the letter, dated 31st July, 1971 issued on his own application for acceptance of lease money for the year 1971-72 which was permitted to be paid up to 7-8-1971. The letter of the Colonization Officer relied upon by the petitioner does not mention the amount payable towards the lease money nor does the revenue receipt indicate whether the amount collected on 11-8-1971 was towards the lease money. Be that as it may both these documents are not reflected in the order passed by Commissioner, Sukkur Division and we are not in a position to say whether these were produced before the said respondent in the appeal preferred by the petitioner. At any rate, this being a disputed and controvertial question of fact can hardly be embarked upon by this Court in the exercise of Constitutional jurisdiction. Learned counsel vigorously urged and insisted that this Court is competent to set aside the findings of fact recorded by Revenue Tribunals in the exercise of writ jurisdiction as these are contrary to the material on record. He referred to the cases reported as Noora v. Settlement and Rehabilitation Commissioner 1969 SCM R 517, Manzoor Hussain v. Senior Member, Board of Revenue 1986 M LD 144 and Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1408. In Noora's case (supra) Honourable Supreme Court ruled that High Court in writ jurisdiction was justified in reversing a finding of fact which was unwarranted or based upon clear and manifest misreading of evidence. There can be no cavil with this proposition of law but the facts of the case do not warrant any finding by this Court. This view was followed by a Division Bench of this Court in Manzoor Hussain's case (supra) but the facts are altogether different and distinguishable. In Muhammad Farooq Memon's case (supra) a Division Bench of the Sindh High Court observed that a vested right having been created in favour of a party, denial thereof would justify direction by High Court in Constitutional jurisdiction to set right the wrong. Suffice it to say the petitioner, has utterly failed to substantiate the acquisition of any vested right enforcement whereof may be warranted through this petition.
8. Taking up second limb of the argument of the learned counsel that both the Tribunals below erred in law by disentitling the petitioner for not installing the tubewell on the lands in question and installing the same Qabooli land Survey No,269 bordering the lands in dispute, it may be observed that unfortunately neither the petitioner's counsel nor the counsel for respondents have placed on record the Tubewell Land Grant. Policy, salient features whereof are only reflected in the judgment of the Sindh High Court reported as Muhammad Ismail v. Government of Sindh PLD 1982 Kar.
833. These salient points of the scheme have already been reproduced in the narrative of this judgment and need not be repeated. Fact of the matter however, remains that tubewell owners were required to be charged the highest auction price for the land sold in the same or adjoining Deh and not average price. Obviously such price was worked out and offered to the petitioner who did not avail of the same and after seeking postponement of determination of the price of the land slept over the matter till the grant was cancelled on the application of one of the respondents. Idea underlying the scheme appears that uncultivated lands may be granted to tubewell owners for irrigation of such lands on tubewell water rather than depending on irrigation water as at the relevant period of time canal irrigation system had not developed so far and Guddu Barrage Scheme was in the offing. In the absence of the entire scheme it is difficult to say that the policy of law made it incumbent upon the tubewell owner to instal it on the lands sought to be granted but the idea of the policy being to procure water through tubewell object be achieved if the source of water for irrigation was procured from tubewell irrespective of its actual location. This view finds support from the letter, dated 14-7-1975 addressed by Mr. Mir Makhdoom Ali, Colonization Officer, Guddu Barrage, Sukkur to the Deputy Secretary (Land Utilization) I, Board of Revenue, Sindh in response to the queries regarding the grant of land to respondent Ghulam Kadir and others. In this letter the Colonization Officer who subsequently rose to the Office of Member, Board of Revenue categorically stated that under the scheme for grant of land under the Tubewell Scheme, it was not a prerequisite condition that tubewell must be installed in the lease land but the condition was that the area of lease was cultivated under tubewell water irrespective of the fact that the tubewell has been installed in Qabooli Survey No,269 of the petitioner which also bordered the lease land. We are inclined to the view that the opinion expressed by this Officer is in consonance with the object and spirit of the policy and to this extent the impugned orders suffer from an error of law but nothing turns out on such finding as the petitioner was even otherwise found ineligible to the grant.
9. Averting to the submission of the counsel for the petitioner that as no counter-affidavit was filed by the respondents, averments made in the petition must be deemed to have been accepted by the respondents, we are not inclined to agree with this bald statement of the learned counsel as in the case in hand quasi-judicial orders passed by the Tribunals created under the Sindh Land Revenue Act are impugned as being without lawful authority and of no legal effect. Since this Court in the exercise of extraordinary jurisdiction ordinarily interprets the law and confines its findings to the questions of law arising in a case the proposition advanced at the bar cannot be entirely accepted. Even otherwise the impugned orders having been authored by public functionaries performing functions in connection with the affairs of the State, no counter-affidavits are called for on the part of such respondents who do not occupy the same office after the passage of a long time. Proposition canvassed by the learned counsel may be relevant in interlocutory applications or in a suit involving appreciation of factual position but not in matters raising pure question of law.
Reference to observations in Muhammad Farooq Memon's case (supra) do not appear to be relevant in the facts of the case in hand.
10. There is another aspect of the case. On petitioner's own showing 18 acres, 20 Ghuntas of land having been allotted by the authorities to respondents Ghulam Kadir and Allahwarayo i,e, respondents Nos.12 and 13 in 1974 while 80 acres of land has been allegedly forcibly occupied by the respondents with the result that he is not in actual possession of land for the last more than twenty-five years. There appears on record a copy of an order, dated 19-4-1974 passed by Additional Member, Board of Revenue, Sindh, Hyderabad on the application of respondent Ghulam Kadir son of Punhal which inter alia recites that the petitioner has sold away the disputed land to one Mahmood Hassan which circumstance finds support from the fact that all along Mahmood Hassan has been espousing the cause of the petitioner in his capacity as general attorney. Even this petition was filed through said attorney which apparently indicates that petitioner through, power of attorney has divested himself of the right, interest and title to the land, if any, in favour of said Mahmood Hassan. Petitioner himself did not appear before the Revenue Authorities or before this Court at any stage to agitate his right which circumstance coupled with the fact that he has been out of possession for more than a quarter century would lead to an inference that equities would ,not lean in his favour.
11. For the aforesaid facts and reasons there is no merit in this petition which is hereby dismissed with no order as to costs. At the conclusion of the D hearing today by a short order petition was dismissed. Aforesaid are the detailed reasons for the conclusion.