' CH. MUHAMMAD ARIF, J.---This appeal through leave of the Court is directed against the judgment, dated 13-6-1995 of the Lahore High Court in Writ Petition No,3323 of 1981 whereby writ petition of respondents Nos.1 to 4 against the present appellants and A.B.M. Associates Ltd. Through Liquidator (respondent No,5 herein) was allowed and order, dated 17-5-1981 of Colony Assistant/Collector, Faisalabad, was declared to be a nullity in the eye of law, passed on the basis of mala fides and in the exercise of jurisdiction not vested in the Colony Assistant and ineffective against the rights of the (writ) petitioners and respondent No,3 (A.B.M. Associates Limited).
2. The background in which this cause, at this stage has come before this Court, may be detailed in a chronological order under four subtitles for purposes of brevity. As a prelude thereto it may be noticed that out of the parties arrayed here, the appellants and respondent No,5, i.e, A.B.M.
Associates Limited through Liquidator were respondents Nos.1, 2 and 3 respectively, in Writ Petition No,3323 of 1981, which had been brought before the High Court of Lahore by respondents Nos.1 to 4 herein and that A.B.M. Associates had supported the cause of the writ petitioners before the High Court. It may be further noticed that the intervenors were also heard in Writ Petition No,3323 of 19881.
THE DETAILS: A. STATUS OF PROPERTY ON THE EVE OF. PARTITION OF THE SUB-CONTINENT:
(i) Harcharn Singh was owner of the disputed lands which were situated outside the Municipal Limites of the-then District Layallpur, now Faisalabad.
B. AFTER PARTITION:
(ii) Disputed land was resumed by the then District Collector from the date of its abandonment by the evacuee alongwith all the improvements and he also recommended to the Government for its sale to Premier Cloth Mills Ltd., P.C.M. For short on their (PCM) application which was duly recommended by the official concerned on 15-4-1952. A private treaty succeeded the sale which was sanctioned by the Government of the Punjab subject to conditions detailed in Memo. No,5765- C, dated 23-10-1952.
(iii) An undertaking in writing was also obtained from PCM through its Director Mian Allah Bukhsh on 27-10-1952 that the mills will be ' bound to pay the price as fixed by the Government, and pay compensation to the sitting lessees for standing crops.
(iv) The resumption by the Provincial Government was found to be illegal as per Memo., dated 18/20-6-1953 for the reason that the disputed lands had not been divested of the evacuee character attaching to them.
(v) Under the instructions contained in Letter No,5042 Reh. 11-50/ 2699, dated 27-1-1953 which had the approval of the Central Government under section 12(3)(b) of the Pakistan (Administration of Evacuee Property) Order, 1949 under the Land Acquisition Act No,I of 1894 assessing fair compensation thereunder in consultation with the Custodian of the Evacuee Property, Punjab to be paid to him for credit to the evacuee owners' accounts providing further that alternate lands will be provided to the refugees settled thereon.
(vi) 739 Kanals and 16 Marlas out of the disputed lands were made the subject-matter of Notification No,2492-53 under sections 4 and 17 of the Land Acquisition Act, 1894.
(vii) The Land Acquisition Collector estimated the cost of land at Rs,4,41,116 and 13 annas and the mills made the payment by instalments of Rs,25,000, Rs,1,85,000 and Rs,40,000 respectively on 7-1- 1956, 9-4-1958 and 17-4-1958 with the result that a sum of Rs,2,50,000 stood deposited by the later mentioned date.
(viii)The writ petitioners claimed that the Central Government conveyed disapproval for exchange of some evacuee lands, including the land in dispute, with the State land owned by the Provincial Government through letter, dated 3-1-1958 and in that regard Mutations Nos.3471 and 3843 were also attested in favour of the Provincial Government on 21-12-1971.
(ix) District Collector directed through his letter, dated 12-5-1958 addressed to PCM to pay Rs,1,91,116.13 before 25-5-1958 which was challenged through Writ Petition No,361- R of 1958, before the Lahore High Court and was dismissed on 18-4-1960, as having become infructuous.
(x) Yet another writ petition, bearing Writ Petition No,313-R of 1959, was filed by PCM to impugn order of Deputy Rehabilitation Commissioner, Lyallpur/Faisalabad, dated 7-12-1954 calling upon PCM to pay rent @ 4% of 31 lacs which came to Rs,1,84,450 and the same was dismissed on 29-4-1966.
(xi) On further appeal this Court, in Civil Appeal No,6 of 1970, directed PCM on 23-12-1974 to pay rent @ 6% i.e, Rs,4,41,116 and 13 annas alongwith interest. The Mills/PCM made the deposit of result for the years 1953 and 1954 on 2-11-1976 in the Office of the Rehabilitation Commissioner, Punjab, Lahore.
(xii) The Mills/PCM filed a scheme in the Lahore High Court seeking bifurcation which was allowed on 26-3-1976, dividing it into:
(a) Hudaybia Textile Mills (Pvt.) Ltd.
(b) Zulfiqar Associates (Pvt.) Ltd.
(c) A.B.M. Associates (Pvt.) Ltd. C. AFTER TRIFURCATION:
(xiii) On the company remaining unsuccessful in obtaining entry in the column of owners by the Revenue Authorities, it filed Writ Petition No,70 of 1978 which was disposed of by the High Court on 25-7-1978 directing the Revenue Authorities to hear and proceed with the matter according to law.
(xiv) The Board of Revenue, BOR for short was approached under the High Court directions in Writ Petition No,70 of 1978 and it issued Memo. No,888-AQN-Plots/SW/79 on 9-1-1980 directing PCM to contact the District Collector in terms of BOR's earlier directions to him in that behalf. D. THE MAKING OF THE IMPUGNED ORDERS DATED 17-5-1981 (BY APPELLANT NO.2) AND THE LAHORE HIGH COURT LAHORE IN WRIT PETITION NO.3323 OF 1981 ON 13-6-1995
(xv) Order, dated 17-5-1981 was made by the Colony Assistant, Faisalabad directing the resumption of the land in dispute, paras. 5 and 6 whereof read thus:-- "5. The request of the petitioners has been considered. The land in question is State-owned property and the Settlement and Rehabilitation Authorities have no concern, whatsoever, with the disposal of this land. The successor-in-interest of defunct M/s. Premier Cloth Mills Ltd. Have sub-let about 40 acres of land for agricultural purposes and land, it is learnt, is being disposed of for residential purposes, which is a breach of conditions of allotment and is liable to resumption.
Moreover, heavy arrears of rent are outstanding against the defunct Mills and the said Mills has also not paid the price of the land allotted to it.
6. In the circumstances explained above, it is expedient to take action according to law. I, hereby, therefore, resume the land mentioned above from the possession of the defunct Mills Ltd.
Forthwith."
' The other side/respondents herein, successfully challenged the order, dated 17-5-1987 of the appellant-Colony Assistant through Writ Petition No,3323 of 1981 on 13-6-1995.
3. After recounting the progress of the case as above, this Court granted leave on 25-4-1997, relevant excerpts wherefrom contained in paras.8, 9 and 10, read thus:- "8. The learned Judge in Chambers, inter alia, took the view that the Colony Assistant had no jurisdiction to pass the order, dated 17-5-1981 in terms of sections 24 and 30 of the Colonization of Government Lands (Punjab) Act, 1912. With the introduction of Sub Division system in Punjab all the powers under sections 10(3), 20(1), 24, 25, 26 32, 33, 34(1)(2) and (3) of the said Act were delegated to the Assistant Commissioners in Rawalpindi, Lahore, Sargodha, Multan and Bahawalpur Division and District Faisalabad at the time was within Sargodha Division, vide Board of Revenue, West Pakistan Notification No,140/70/282-CV, dated 23-1-1970. It was further held that the Colony Assistant cannot be allowed to exercise powers of Collector and it was only on 14-1-1987 that the Colony Assistant in the Punjab were vested with the powers of Collector under the Colony Act. It was also observed that in terms of the judgment of this Court, dated 23-12-1974, the acquisition proceedings had acquired finality and binding on the parties and the Provincial Government was not only a party but was represented by one of its law Officers. The order of the Colony Assistant was also found to be mala fide."
"9. Mr. K.M.A. Samdani, learned counsel for the petitioners in Civil Petition No,639-L of 1996 has, inter alia, raised the following questions:--
(1) Whether the Colony Assistant, Faisalabad, who passed a resumption order, dated 17-5-1981, was not empowered at the relevant time under section 24 of the Colonization of Government Lands (Punjab) Act, 1912, to resume the land in dispute and whether the order of resumption, dated 17-5- 1981 was without jurisdiction?
(2) Whether there was anything in the Board of Revenue West Pakistan's Notification No, 140/70/282-CV Revenue, dated 23-1-1970 to suggest, in any manner whatsoever, that it had the effect of divesting the Colony Assistant, Lyallpur of the powers under section 24 of the Colonization of Government Lands (Punjab) Act, 1912, given to him by Notification No,6463/4271-CVI, dated 21-10- 1963 issued by the Government of West Pakistan in pursuance of the powers conferred by section 3 of the Act?
(3) Whether in presence of adequate statutory remedies available by way of review, appeal and revision, provided by sections 163 and 164 of the Land Revenue, Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912, the High Court was right in exercising its Constitutional jurisdiction under Article 199 of the Constitution?
(4) Whether the Governor was within his lawful authority to order the delivery of the possession of the land in dispute, being evacuee before its general exchange, dated 3-1-1958, to the company?
(5) Whether, in consequence of general exchange of 5235 acres of evacuee land, including the land in dispute, with Crown land measuring 7150 acres approved by the Government of Pakistan through letter, dated 3-1-1958 under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 and upheld by the High Court in its judgment, dated 18-7-1990 in Writ Petition No,5494 of 1987, the land in dispute assumed the character of State land and could Government's interest in this land be legally acquired under the Land Acquisition Act, 1894."
"10. Leave to appeal is granted to consider the above questions. Since leave has been granted in Civil Petition No,639-I of 1996, leave to appeal is also granted in the connected Civil Petition No,353- L of 1995, Civil Review Petition No,73-L of 1995 in Civil Petition No,498-I of 1995 shall be heard alongwith the above appeals. The office is directed to fix these appeals during the month of November, 1997."
4. Mr. K.M.A. Samdani, learned counsel appearing for the appellants, has reiterated his arguments reflected in para.9 of the Leave Grant Order, seriatim. According to him, the Colony Assistant, Faisalabad was possessed of the jurisdiction to resume the disputed parcel of land under section 24 of the Colonization of Government Lands (Punjab) Act (V of 1912) and that his such powers could not be held to have been taken back by the Board of Revenue West Pakistan Notification No,140- 70/282-CV Revenue, dated 23-1-1970 in that Notification No,6463/4271/CVI, dated 21-10-1963 issued by the Government of the West Pakistan in pursuance of the powers conferred by section 3 of the Act remain current for the appellant-Colony Assistant. This argument takes good care of the first two points noticed in the Leave Grant Order. While dealing with the 3rd point, it was contended that the learned Single Judge of the High Court was not quite right in not considering appellants' plea that adequate statutory remedies were available to the writ petitioners under the West Pakistan Land Revenue Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912. As regards the pleas at Serial Nos.4 and 5 of para. 9, he was critical of the jurisdiction of the Governor to order the delivery of possession of land in dispute to the respondent-side on the ground that evacuee property could not be dealt with in that manner before its general exchange with Crown land and submitted that in consequence of the general exchange of a large chunk of evacuee land measuring 5235 acres, including the land in dispute, with Crown Land measuring 7150 acres, through letter, dated 3-1-1958 issued by the Government of the Punjab under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 and upheld by the High Court in judgment, dated 18-7-1990 in Writ Petition No,5494 of 1987, the land in dispute assumed the character of State land and interests of the Government of Punjab therein could not be legally acquired under the Land Acquisition Act, 1894.
5. Contrarily, Mr. A. Karim Malik and Syed Jamshed Ali Shah, Senior Advocates appearing on behalf of respondents Nos.2 and 3 respectively, have supported the impugned judgment whole hog. Their case is that the learned Judge in Chamber has considered the case in its various aspects and allowed the Constitutional petition strictly in accorded with the law applicable thereto. They have also supported the decision by the High Court on the strength of this Court's judgment in Civil Appeal No,6 of 1970, dated 23-12-1974 and argued that both the Governments are precluded from taking any decision contrary to the-then decisions by them, reflected in dealing with the disputed parcel of land in the manner in which they did in the past about four decades.
6. Mr. S.M. Masud, learned counsel appearing on behalf of the intervenors has referred to his clients having entered into an agreement of purchase of certain portion of the land which was auctioned by the Court and purchased by respondent No,3, the auction-purchaser, and argued that their right to file appropriate proceedings on the basis of the alleged sale agreement may not be prejudiced.
7. Mr. K.M.A. Samdani, learned counsel for the appellants, has not added anything to his arguments, while exercising his right of reply to the arguments of the learned counsel for the respondents Nos.2 and 3. He has also not argued for or against the claim of the intervenors, as reflected in the arguments of Mr. S.M. Masud, in the preceding paragraph.
8. We have considered the arguments addressed at the bar on behalf of the parties through their respective counsel and have also persued the available material, with their help. The learned Judge in Chamber allowed the Constitution petition vide the impugned judgment, while favourably considering the pleas of the respondents writ petitioners i.e, on the questions of (i) maintainability or otherwise of the Constitution petition in the High Court, (ii) the losing or otherwise of its character as evacuee land and its vestiture in the Provincial Government in view of general exchange Notification, dated 3-1-1958 with the result that the appellant-Colony Assistant/Collector, Faisalabad could make the order impugned in Writ Petition No,3323 of 1981 and (iii) the applicability or-otherwise of Board of Revenue West Pakistan Notification No,140/70/282-CV, dated 23-1-1970 and Board of Revenue Memo. No,2640-83/23461/CV, dated 28-8-1983 directing that Assistant Commissioners, Faisalabad District could exercise the powers of Collector. The resolution of question No,1 (i) above was that in cases where it was argued that there was lack of jurisdiction or where the impugned orders suffer from illegality on the face of record, a writ may be issued even though the right of statutory appeal has not been availed.
9. Reliance in their behalf was placed on Nagina Silk Mills Ltd. v. I.T.O. And another (PLD 1963 SC 322), Premier Cloth Mills v. Sales Tax Officer (1972 SCMR 257) and Salahuddin and two others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others (PLD 1975 SC 244) for holding that writ petitioners before the High Court was maintainable. We also find that appellant's criticism that alleged remedies were available to the writ petitioners under the West Pakistan Land Revenue Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912, is not well founded. It is not denied by the appellants that the question regarding absence of jurisdiction of the appellant-Assistant Collector was raised by the respondents-writ petitioners and the same was attended to by the learned Judge in Chambers strictly within the contemplation of the precedents, mentioned above.
10. As regards the next question. (ii) above, the impugned judgment has dealt with the same, in extenso, in para.
26. This paragraph is couched in the following words:-
11. "Even if it be assumed, that the property had lost its character, and had vested in the Provincial Government even then the Colony Assistant, Faisalabad on 17-5-1981 had no powers under sections 24 and 30 of the Colonization of Government Lands (Punjab) Act, 1912 to pass the impugned order of resumption. With the introduction of Sub-Division system in Punjab all the powers under sections 10(3), 20(1), 24, 25, 26, 32, 33, 34(1) (2) and (3) of the above Ac were delegated to the Assistant Commissioners in Rawalpindi, Lahore. Sargodha, Multan and Bahawalpur Division and District Faisalabad at that time was within Sargodha Division, vide Board of Revenue West Pakistan Notification No,140/70/282- CV, dated 23-1-1970 and, as such, the Colony Assistant was denuded of its powers of Collector. He was only to act as Staff Officer of the Deputy Commissioner and was not supposed to exercise the powers of Collector. The Deputy Commissioner, Faisalabad requested the Board of Revenue vide his Memo. No,452/G/HVC, dated 26-5-1981 for delegation of powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 to Colony Assistant. Faisalabad but the Board of Revenue, vide its Memo No,3640-83/23461/CV, dated 28-8-1983 directed that Assistant Commissioners, Faisalabad District can exercise these powers in their respective jurisdiction. The Board of Revenue further directed that Colony Assistant cannot be allowed to exercise powers of Collector. It was only on 14-1-1987 that Colony Assistants in the Punjab were vested with power of Collector under the Colony Act and the impugned order having been passed by the Colony Assistant assuming himself to be the Collector under the Colony Act was without lawful authority and without jurisdiction and the impugned order suffered from lack of jurisdiction in the authority passing the order and was a nullity."
' The learned Judge, in Chambers also made a reference to this Court's judgment, dated 23-12-1974 holding that the execution proceedings had already been completed and observing that the same could not be reopened and was binding between the parties. Moreover, the resumption order of the appellant-Assistant Collector was held to be mala fide and incapable of being sustained. The resurrection of the matter at the level of the appellant-Assistant Collector, after a period of more than 29 years of the delivery of possession to the respondents/writ petitioners was also resolved against the appellants by relying on Ahbab Cooperative Society v. Commissioner (PLD 1978 Lah.
273); Faiz Ali v. Rafia Jan (PLD 1956 Lah. 94), Rehmatullah v. Muhammad Ismail (PLD 1958 (W.P.) Rev.
77), Mazhar Hussain v. Noor Ahmad (PLD 1958 (W.P.) Rev.17), 11am Din v. Muhammad Din (PLD 1964 SC 842) and Zafar Ullah Khan v. Abdul Rehman (1984 MLD 1574). It was held that the orders of this Court in Civil Appeal No,6 of 1970 were to be given effect to by the learned Judge in Chambers in obedience to the Constitutional dictate in Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Learned counsel for the appellants was not in a position to point out any defect or inaccuracy in the view taken by the learned Judge in Chambers in that regard, as well.
10. As regards the next question (No,(iii)-above), the observations made in paras. 30 and 31 of the impugned judgment read thus:-- "30. Respondents Nos.1 and 2 never claimed the disputed property to be the ownership of the Provincial Government in view of the exchange finalized on 3-1-1958. It was most probably for the first time that they referred to the same in the impugned order and while passing the orders the Colony Assistant also acted in disobedience of the orders/directions passed by the Board of Revenue, Punjab wherein the Deputy Commissioner was directed to effect the mutation of ownership in the name of the petitioners and, therefore, the order is also declared to have been passed in excess of jurisdiction vested in the Colony Assistant, amounting to insubordination.
"31. The concession of acquiring the land for the petitioners to establish cloth mill could not be withdrawn after a period of almost 29 years. I do not agree with the learned counsel for the respondents that the disputed land stood transferred and was State land under the exchange letter, dated 3-1-1958. The Federal Government as also the Provincial Government having given their consent to the acquisition of the disputed property for the petitioner-company, in the public interest, the land was not available to them for exchange.
' Both the Federal as well as the Provincial Government were thus estopped by their own acts, contract and agreements/notifications from treating the disputed property as one included in the schedule of exchange lands. Reliance is placed on "Alnoor Textile Mills Ltd. v. Collector of Customs"
(1990 ALD 356), Province of West Pakistan v. Muhammad Yasin (PLD 1964 SC 430), "Muhammad Nawaz v. Federation of Pakistan and others" (1992 SCMR 1420)."
' Even these peculiarities of the case of the respondent-writ petitioners have not either been criticised or shown to be suffering from any error, on behalf of the appellants.
11. It will not be out of place to mention that the learned Judge in Chambers acted in the exercise of his jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and did not commit any illegality whatsoever while holding that the appellant/Assistant Collector was not possessed of the requisite jurisdiction to make the resumption order, dated 17-5-1981. We have ourselves gone through the available material with a view to exploring the possibilities of maintaining the said order, dated 17-5-1981, but to no effect. We made this exercise in line with dicta in the Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (PLD 1966 SC 725) and Lahore Improvement Trust, Lahore through Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811) which require that examination of entire field of jurisdiction of a public functionary should be made, before striking down his order/s.
12. Looked at from whatever angle the judgment in appeal does not suffer from any jurisdictional error or defect to justify interference therein in these proceedings.
13. The above are the reasons for our short order of even date which reads thus:- ' "For the reasons to be recorded later, the above appeal is dismissed with no order as to costs. Mr. S.M. Masud learned counsel, who is appearing for the intervenors, states that the intervenors have entered into an agreement of purchase of certain portion of the land which was auctioned by the Court and which was purchased by respondent No,3, the auction-purcahaser. He, therefore, submits that their right to file appropriate proceedings of the aforesaid alleged sale agreement may not be prejudiced.
' "It will suffice to observe that the intervenors may file a legal proceeding for enforcement of their alleged right, if any, in accordance with law."
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