' Arif Ali (plaintiff) was allotted the land in dispute, with effect from Rabi 1957 for three years, which term was later extended for another two years, under a scheme known as "Grow More Food Scheme", formulated by the Provincial Government in the form of "Statement of Conditions" under section 10 of the Colonization of Government Lands (Punjab) Act V of 1912 (hereinafter called the Act). The case of the plaintiff, as pleaded in the plaint, was that he was given possession of the land on 2440.1957 with the result that the term of the lease expired after Rabi 1962 (the precise date given In the plaint was October 1962). Some details and history of the "Grow Mote Food Scheme" are given on pages 44 to 51 of Appendix J to "the Colonization of Government Ludo (Punjab) Act, 1912" by Ch. Altai Hussain, 1966 Edition. A perusal of the same shows that in 1962 the Provincial Government decided that lands of those lessees, whose lease did not exceed 124 acres, will be settled on/with them on a fixed price, whereas lands of other lessees welch exceeded the aforesaid limit would be disposed of by auction. The concession of sale by private treaty, however, was not to apply to such leases which had terminated by or before Rabi 1962 (see page 49 of the above book). The plaintiff pressed that he bad a right to purchase the land in dispute by private treaty, but unfortunately the land was not given to him by the Collector, who, by means of his order dated 13,12-1962 (Exh. D/10) instead allotted it to a Manila Dam evictee Karim Dad, defendant No,
2. In this respect he referred to Board of Revenue letter dated 8-12-1961 which laid down that the allotment under the Grow More Food Scheme should not be extended any further and the area should be utilised for the resettlement of Mangle Dam and Islamabad uprooted families. In view of these facts he directed that the land in dispute should be treated as baqaya State land with effect from Rabi 1962. The plaintiff filed an appeal, but without any success as the same was dismissed by the Additional Commissioner on 6.1-194 (Exh. D/9 or Exh. D/13) as time-barred and also because according to him, the plaintiff did not qualify to get land by private treaty due to his lean having expired in 1961. At that juncture the plaintiff flied a suit against t 1 the Province of West Pakistan and
(2) Karim Dad, submitting that : "Under the circumstances it is humbly prayed that a decree may very kindly be passed in favour of the plaintiff against the defendants for a declaration to the effect that the plaintiff is allottee in possession of the suit land mentioned in pars. 1 of the plaint under the Grow More Food Scheme and is entitled to acquire the proprietary rights in the suit land by sate through. Treaty and the order of the C. A./Collector Pakpattan dated 1342-1961 and of the Additional Commissioner dated 64-1964 and further allotment of the suit land in favour of defendant No, 2 is illegal, ultra plies, improper, arbitrary, malts fide, capricious, without jurisdiction and void and inoperative on the rights of the plaintiff for the acquisition of proprietary rights in the suit land by sale through private treaty.
' And for Perpetual Injunction restraining the defendants from In any manner interfering with the lawful possession of the plaintiff over the suit land as allottee under the Grow More Food Scheme.
' The plaintiff also prays for any other relief to which the lion able Court finds him entitled in law, justice and equity under the circumstances of the case."
' The claim of the plaintiff was refuted by the defendants who filed separate written statements. It was pleaded that the jurisdiction of civil Courts to decide a suit of this nature was barred under nation 36 of the Act, that the suit was time barred that as the plaintiff was out of possession, therefore, a simple declaratory suit in that form was not maintainable (without claiming consequential relief of possession etc.). The pleadings of the parties gave rise to the following issues I- "(1) Whether this Court has jurisdiction to try the suit ?
(2) Whether the plaintiff is estopped by his conduct to file this suit?
(3) Whether the plaintiff is in possession of the land in dispute and whether this suit is maintainable in its present form ?
(4) Whether the suit is within time ?
(5) Whether the suit land is properly and sufficiently described in the plaint, if not, with what effect?
(6) Whether order of Collector, Pakpattan dated 13-12-1961 is null, void and inoperative upon the plaintiff's rights and whether the plaintiff is entitled to acquire proprietary rights in the suit land by sale through private treaty ?
(7) Relit ' On issue No, 1 it was held that the Coast had the jurisdiction to try the suit. On Issue No, 2 it was held that there was no estoppel on the part of the plaintiff to file the suit. On Issue No, 3 it was held that the plaintiff being out of possession, a simple suit without consequential relief of possession was not maintainable, but then to cover this defect the learned civil Judge sue emu directed the plaintiff to amend the suit so as to add relief of possession therein ; On Issue No, 4 the suit was held to be within limitation as being regulated by Article 144 of the limitation Act IX of 1908 which it was held would be applicable to the suit which was to be filed in pursuance of the order of the Court sue mots directing amendment of the plaint as a suit for possession, and Si such, covered by a limitation period of 12 years. On Issue No, 5 the description of the suit land was held to be proper. On Issue No, 6 the order of the Collector dated 14-12-1961 was held to be void and it was found that the plaintiff was entitled to acquire proprietary rights in the suit land from Government by sale through private treaty, inasmuch as he was in possession at least upto 4-1.1963, vide &h. "D/3".
Consequently, under Issue No, 7 the Court, by means of its judgment and order, dated 2-6-1970 granted the relief to the plaints in the following manner :- "In the light of my above finding on Issue No, 3 the plaintiff is directed to amend his plaint so as to make it a suit for possession. The amended plaint be filed on 15-6-1970. The decree for possession shall be prepared in favour of the plaintiff in the light of my findings on the remaining issue after the amended plaint is filed by revaluing the suit for the purpose of court-fee and jurisdiction and making up the deficiency of court-fee in accordance with the relevant provisions of the Court Fees Act and the Suits Valuation Act within the prescribed period of limitation as observed under Issue No,
4. If the plaintiff fails to comply with this order his suit shall be deemed to have been dismissed.
In either event the parties shall bear their own costs., This judgment will form part of the order to be passed later."
' Karim Dad defendant No, 2 has come up in revision against the atom said judgment and decision to this Court wider section 115 of the Code of Civil Procedure. Learned counsel for the parties have raised a number of contentions which are presently being attended to."
2. Mr. Hassan Ahmed Khan Kan war, learned counsel for the plaintiff (respondent) has raised a preliminary objection submitting that as the judgment and decision impugned in this case is appealable in the form of a second appeal to this Court, therefore, the present revision petition was not maintainable. For this purpose he referred to samba 115 of the Code of Civil P104 cadre, which, at the relevant time when the petition was filed, namely, 6-7-1970, read as follows :- "115. Repulsion.-The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a)to have exercised a jurisdiction not vested in it by law, or (b)to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, ' the High Court may make such order in the case as it thinks fit."
' The objection raised by the learned counsel for the plaintiff-respondent has no substance, frit/1, because in the C. P. C, (Act V of 1908) appeal are provided either against (a) an order or (b) against a decree. Appealable orders are mentioned in section 104 and Order LXIII, rule 1, C. P. C. And the present judgment, decision or order does not fall under any of the appealable orders mentioned therein. Secondly, no doubt, a decree is ordinarily appealable, but It is a common ground, that in the instant case no decree has yet been passed or prepared by the learned Civil Judge and the matter before him is still at the stage of scrutinizing the filing of a proper court-fee stamp or other incidental formalities etc. The impugned judgment itself directed that the decree was to be prepared "after the amended plaint is filed by revaluing the suit for the purpose of court- fee and jurisdiction and making up the deficiency of court-fee in accordance with the relevant provision of the Court-fee Act and the Suit Valuation Act within the prescribed period of limitation as observed under Issue No, 4". It is well settled that if there is no decree or so long as a decree has not been prepared an appeal is not competent. See Gela Ram and others v. Ganga Ram and others (1), Bantam Ganpatrao Bhoot v. Manohor Bhoot (2), Labh Singh v. Javitt Singh and others (3), Vamanacharya Rameharia v. Goeind Madhavacharya (4) and Sana Ullah and others v. Ghulam Qatar and others (5). For the various reasons hereinbefore given, the objection as to the maintainability of the present revision petition is overruled.
3. After having overcome the preliminary objection as above Sh. Maqbool Ahmed I, learned advocate for petitioner opened his case and argued that when the learned civil Judge found that the suit in a bare declaratory form was not maintainable, the proper order in the case was to refuse to grant any relief to the plaintiff as contemplated in section 42 of the Specific Relief Act I of 1877 which (so far as relevant for the present case (laid down that "any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". It was submitted that it was the duty of the Court to deal with the plaint as framed and that as there was no application, written or oral, by the plaintiff, seeking permission is amend the plaint and rather the plaintiff insisted to continue with the suit as framed by him and contended that the form of his suit as a mere declaratory suit was in order, the Court could not have of its own compelled or directed the plaintiff to amend the plaint after having found that the plaintiff was out of possession. The objection raised so far it concerns the Court suo motu directing amendment of the plaint seems to have substance.
In VtatkataeheRa Cheat and others v. C. B. Narayana illyar and others (6), it was laid down that that "the plaintiff's pleader represented to the District fudge that he was unwilling to amend the plaint and, therefore, did not want the plaint to be returned for that purpose. In these circumstances the District Judge has no jurisdiction under the Code to direct the plaint to be returned for amendment.
A plaint may be returned for amendment if a party applies foe it. (Order VI, rule 17). Under that provision of law it is not open to the District Judge to insist upon the party amending the plaint for the obvious reason that if he refuses to do so the District Judge has no means of earring out his order. He can only reject the plaint or dismiss the suit. This he should have done when the pleader declined to amend the plaint. The case does not fall within Order VI, rule Id. Nor does section 153 apply, under that section the Court itself may make any amendment. Here it is obvious it is not open to the Court of its own amend to convert the suit for declaration into one for possession".
Same was the view upraised in Govinda Kumar Sur and others v. Mond Mohan Sen and others (7), where it was laid down that "the suit as framed must
(1) AIR 1920 Lah. 395
(2) AIR 1943 Nag. 204
(3) AIR 1949 R Pb. 401
(4) AIR 1924 Bom. 33 (5)PLD 1958 Posh. 213
(6) 19 I C 672 (Mad.)
(7) AIR 1930 Cal. 42 ' stand or fall on the allegations made therein and the character given to it by the plaintiff. It is a suit brought by the landlord against his tenants. If the Court holds that there is no relationship of landlord and tenant between the plaintiff and any of the defendants the proper course is to dismiss the suit as against that defendant. But there is no provision in the law that I am aware of which will entitle the Court to compel the plaintiff to change his suit into one of another nature". In Afehtab Singh v. Dayal Sigh (1). (Abdul Rashid, J.) it was laid down that "where the plaintiff bases his claim for possession on his title and defendant alleges adverse possession, the Court must determine the right of the plaintiff on the plaint as it is framed and not on one which in the opinion of the Court would be proper. It is not open to the Court to compel the plaintiff to amend the plaint so as to allege possession and dispossession". It was argued by the learned counsel for the petitioner that in the instant care arguments were heard by the learned civil Judge on 28.5-1970 and the judgment was reserved which was later announced on 24-1970. It was In final judgment later on that the learned ci Judge suo snots directed the plaintiff to amend the plaint without there any application, written or oral, for that purpose and without hearing the defendant-petitioner on this aspect of the matter. This factual position was not denied by the learned counsel for the plaintiff. In that view of this matter, it is obvious that a suo mate order directing amendment of the plaint was without jurisdiction on the part of the learned Civil ledge. 1 hold accordingly.
4. This, however, is not the end of the matter. The important question which still remains to be decided is whether on facts and in the circumstances of the case relief of possession was claimable by the plaintiff through a civil Court. It is to be noticed that the aforesaid claim has its roots in the Grow More Food Scheme and certain subsequent notifications which laid down fulfilment of certain conditions apart from the condition of tenure of lease for acquiring proprietary rights. In my opinion, therefore, as the right to claim possession depended /Was on the nature and the tenure of the lease, second!, on the fulfilment of the other relevant conditions issued a.m.
Regarding settlement and payment of price and cultivation etc., thirdly passing of an order determining the nature and tenure of lease and entitlement of an applicant fourthly, execution of formal treaty by both the puttee, namely, grantor and the grantee and fifthly, the transaction was in all cases to remain subject to the control of the Board of Revenue, therefor., in these circumstances it manifest that the relief of possession in the instant case was not such relief which straightaway flowed from mere determination of simple ten of the lease as to when it expired or when it did not expire but also various other attending and connected matte which were to be oat by the authorities concerned though the cases where all the necessary ingredients relevant on the subject stand fulfilled may perhaps be appear differently in appropriate Courts. The civil Court in such a situation act with material Illegal and irregularity in the exercise of its Jurisdiction when considered the relief of possession as an automatic consequential relief forget-tins the outer relevant intermediate steps and other stages which had to massed before taking back possession from respondents/defendants concerned. The result is that the order directing amendment of the plaint, looked at t whatever angle, cannot be sustained.
5. The next pint argued lay the learned counsel for the de In petitioner was that lies civil Court had no jurisdiction to try the present suit.
(1) AIR 1939 Loh. 172 ' He refers to section 36 of the Act which is headed. "Jurisdiction of civil Court barred as regards matters arising under the Act" and lays down that a civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act." Learned counsel submitted that allotment of land or the grant of concession of purchase by private treaty is a matter which the Collector is empowered to dispose under the said Act and the civil Court had no jurisdiction about that matter or about the manner of exercise of any power in that respect. He also argued that even otherwise concession of sale was not by its nature or expression an "enforceable undertaking". "This brings me to a study of the relevant cue-law on the subject. At this stage reference may be made to an order dated 30-5-1968 of the Supreme Court in Civil Petitions for Special Leave to Appeal Nos. 146, 147 and 148 of 1968 reported in Province of West Pakistan and another v. Raldm Bakhsh and others (1) which reads as follows t- "Hamoodur Rahman, .1 .-The dispute in these cases relates to certain lands allotted under the Grow More Food Scheme. The respondents who were allottees under the said scheme claimed that they were entitled to purchase these lands by private treaty in terms of the Board of Revenue's Memorandum No, 2805/6212363-S;(3) III, dated the 8th August 1962. Hence they challenged the auction of these lands by the Collector, by filing suits.
' The suits were decreed by the trial Court and the decisions of the trial Court were upheld even in second appeal by the High Court.
' Hence the Province of West Pakistan and the Collector of Shahiwal seek special leave to appeal from the orders of the learned Single Judge dismissing the second appeal.
' The petitioners contend that they should be allowed to file petitions for Special leave from the order of the learned Single Judge because the same Is based upon a Division Bench decision in the case of Muhammad Akron; v. Niaz Ahmad W. P. No, 117 of 1964. This case is titled as Muhammad Aslant v. Muhammad Akram etc. And is reported Law Notes 1968 Leh. 176- ' In these circumstances it is contended that it would be futile to file any Letters Patent Appeal.
' This appears to be correct. Hence the petitioners are allowed to move this Court for special leave to appeal from the judgment of the learned Single Judge of the High Court of West Pakistan at Lahore and leave is granted in all these three matters, because, leave has already been granted in the case of Ghulam Ahmad and others v. Board of Revenue, West Pakistan Lahore (Civil Petition for Special Leave to Appeal No, 501 of 1966) to consider this very question, namely, as to whether the promise of "concession of sale" contained in the Memorandum of the Board of Revenue referred to above was not by its nature or expression an enforceable under, taking.
' Since the Government is the petitioner in all these three cases, no security need be put in. These appeals will be heard with the appeal arising out of Civil Petition No, 501 of 1966.
(Sd.) Fezkbar, J.
(Sd.) Hamoodur Rahman, I."
(1) 1968 SCM R 1328 ' Thus it appears that there were a number of cases on the subject which (include ins the above three cases) were later disposed of by the Supreme Court in final appeals on 8-44975. The final c Mel of the Supreme Court vi blob was passed in Civil Appeal No 243 of 1969 reads as follows :- ' Muhammad Aiwa Cheema, J.-These 28 civil appeals are connected matters having a common background and involving identical questions.
' They are disposed of by a consolidated short order, the controversy having been cut short owing to a concession made on behalf of the Government of the Punjab. Nine of these appeals were filed by private persons either against defunct province of West Pakistan or the Board of Revenue while the rest were filed by the Provincial Government and the Board of Revenue.
' The short background of the cases is that in order to 'meet foot shortage and give an impetus to food production in the country sometime in 1953-56 the ,-.Provincial Government framed a scheme known as the Grow More Food Scheme under which available plots of state land in colony districts were leased out foe self-cultivation to various persons initially for a period of five years. It was later decided to offer to the lessees having small holdings the option to acquire proprietary rights in their tenancies by means of private treaty, subject to the two-fold condition that the lease should have expired before 1961 and the land should not fall within five miles' radius from a Mandi, Town or Municipality. It appears that some lessees who would, otherwise, have been eligible for acquisition of proprietary rights were inevitably prevented from purchasing the land for no fault of theirs, Inasmuch as they could not get vacant possession of the land immediately after the order of allotment in their favour in Rabi 1956 and were thus, hit by the condition, apparently having no reasonable basis for its prescription, that their lease should not extend beyond 1961. Being thus denied "the concession to purchase" the land some of them having unsuccessfully approached the Revenue Authorities in the first instance invoked the writ jurisdiction of the High Court. Their Writ Petition No, 6ii4 of 1960 was dismissed by a D. B. Of the former High Court of West Pakistan vide order dated 15-7-1966. Eight of these appeals have arisen out of this judgment. Subsequently, however, a similar Writ Petition No, 658 of 1966 filed by some other lessees under the Grow More Food Scheme, who were likewise denied the concession to purchase the land was listed before another Bench of the same High Court which disagreeing with the earlier decision accepted the writ petition vide order dated 26-7-1968 repotted as Mohd. Ashraf v. Board of Revenue PLD 1968 Lab.
1155. It was held t' at the offer of the "concession of sale", made by the Government vide letter dated 28.6-1962 issued .By the Board of Revenue was available to the petitioners notwithstanding the fact that the terminus a quo of the lease in their case was subsequent to Rabi 1956. This judgment was challenged by the Province of West Pakistan in Civil Appeals Nos. 265 to 267 of 1971 and by the Board of Revenue in Civil Appeals Nos. 50 to 66 of 1971.
' Having once challenged the judgment of the High Court, it appears that the Provincial Government had a second thought and !Revising its previous policy issued a fresh Policy Letter No, 1488.71-1217-CL-M, dated the 26th of April 1971, whereby regardless of the time of expiry of the lease .11 allottees of state land under Grew More Food Scheme were offered the choice of acquiring proprietary rights subject to fulfilment of the terms and conditions of the grant. It is in view of this decision of Provincial Government that the appeals filed by the lessees are not contested by the Assistant Advocate General appearing on behalf of the Provincial Government. For the same reason he reeks permission to withdraw the appeals filed by the Government or the Board of Revenue.
' In view of the above position, appeals mentioned at Serial Nos. (1) to (8) are allowed while appeals at Serial Nos. (9) to (28) are dismissed as having been withdrawn. There shall be no order as to costs.
(Sd.) Muhammad Yaqub Ali, J (Sd.) Salshaddin Ahmed, J (Sd.) Muhammad Aftal Cheema, J."
Learned counsel for the plaintiff/respondent submitted that the aforesaid judgment of the Supreme Court lends a support to the view that the concession of sale was an "enforcible undertaking" and that is why that the Supreme Court accepted the eight appeals whereas Appeals Nos 9 to 28 were dismissed as having been withdrawn by the Government. The Supreme Court, according to the learned counsel, could have enforced only a lawful undertaking and not Ran unlawful one and if the Supreme Court based their orders on the willingness of the Government to confer proprietary rights on allottees of leases regardless of the time for the expiry of their tenure It meant that that right was an enforceable one and was thus being decreed by the Supreme Court in the relevant cases especially suits. On the other hand, learned counsel for the petitioner submitted that the aforesaid judgment is based upon a statement of Government Pleader and, therefore, does not by Well purport to declare or enunciate the law on the subject. He also refers to Sub. Muhammad Ashlar v. Mst. Salta Begum and another (1), which was a case of Horse Breeding Grant/Scheme and where at page 448 it was laid down by Mohammad Akram, J., who delivered the judgment by the Court that : "Needless to add here that the recommendation made by the District Remount Officer was entitled to due weight, although it may not be the last word on the point. Under section 10(3) of the Ad, the Collector, subject to the control of the Board of Revenue, was vested with the discretion to allot the tenancy. In the circumstances, in our opinion. The High Court in the exercise of the extraordinary jurisdiction vested in it under Article 98 of the late Constitution of Islamic Republic of Pakistan, was not justified in interfering with the discharge of his functions entrusted to him under the law. In this connection, we need only refer to Muhammad Hussain v. Sikandar and others PLD 1974 SC 139. It is well settled that where a Court or a tribunal has jurisdiction and it determines a question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. It is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision was wrong.
' Last, but not the least, we find that the High Court seems to have oven looked another aspect of this case. Clause (2) of the Statement 01 Conditions of this tenancy expressly lays down that "no person shall (1) PLD 1976 SC 435 be entitled as of right to become a tenant, that is to may, the Provincial Government hereby reserves to itself and retains absolute discretion in selection of tenants for land referred to in this statement". This would show that the question as to the selection of suitable candidate for the allotment of a tenancy was purely internal with the Government and the respondent was not, as of right, entitled to lay her claim to the allotment. In this view of the matter, her petition before the High Court challenging the legality of the impugned orders passed by the competent authorities was mil, conceived."
' Reference was also made to Writ Petition No, 794 of 1966 titled Raja and others v. Member Board of Revenue and another (1) (Sajjad Ahmed Jan and Muhammad Gul, JJ.), where Muhammad Gel, J.
On page 332, pares. 5 to 7 of the judgment, held as follows :- "(5) Furthermore, the memorandum of the 8th of October 1960, which is the foundation of the petitioners' claim, cannot be read as conferring upon grantees of land under the Ejected Tenants Scheme an absolute right to claim the transfer of the Proprietary rights in the land even if they fulfilled the conditions laid down in the memorandum. It merely makes them eligible for the grant and it rests entirely with the Provincial Government whether or not to accept their option for the grant of proprietary rights In the land. In other words, option exerciseable by the eligible tenants is open to acceptance or rejection by the Government and ft. Would be erroneous to reed the memorandum so as make the option exercised by an eligible tenant and absolute as binding leaving no choice to the Government. In State of Madras and another v. K. M. Rakopakm AIR 1955 SC 817 it was held that the option given on the eve of Independence to the Members of the Services of the former Secretary of State for India to continue in the service of any of the two successor Dominions was not final unless it was accepted by the Government of the successor Dominion or as the cue may be of the Province concerned. In that came Rajgopalan, a member of the former I.
C. S. Opted for service with the Government of Madras after Independence but his option was not accepted by that Government owing to hi, indifferent record of service. It was held by the learned Judges of the Indian Supreme Court that the option exercised by him in pursuance of the announcement of the Viceroy dated the 30th April 1947 and circular issued by the then Government of India to the Chief Secretaries in the Provinces on the 18th June of 1947, did not become effective or final unless it was accepted by the Provincial Government concerned. On that view of the matter, his premature compulsory retirement from service after Independence as a result of the refusal of the Provincial Government to accept his option was held to be not open to any objection.
(6) On the above principle, therefore, if in any given case, the Govern-meat decline to accept the option of any eligible tenant, then a tenant even if eligible cannot on any known principle enforce his option by means of a writ unless it is accepted by the Government. It is equally erroneous to view the memorandum of the 8th of October 1960, as an agreement for the transfer of proprietary rights in the land by the Government, for time is no mutuality in the terms of the memorandum.
(1) PLD 1967 Lab. 329 ' The instructions contained therein were entirely in the nature of ex grade concession allowed unilaterally by the Government to the grantees under rejected Tenants Scheme, as a result of policy decision and it was open to the Government to make any exception without assigning any reason. The very fact that lands situate within 10 miles of a First Chas Municipality and within 5 miles of a Second Class Municipality have been excluded from the grant of proprietary rights is highly significant.
(7) For the foregoing reasons, in our opinion, no case is made out for interference in writ jurisdiction, We, therefore, dismiss this writ petition In latrine."
' The contrary view is contained in Agfuliattmad Ashraf v. Board of Revenue West Pakistan and another (1), by Qadeeruddin Ahmed, Acting Chief Justice and Nasim Hassan Shah, J., wherein it was held that statement of conditions constituted law on the subject which it was incumbent on the executive officers to observe and follow. In that case (which was also of Grow More Food Scheme silences) the relief granted was in the following form : "In consequence, we accept the above-mentioned petitions to the extent of holding that these petitioners are entitled to have proprietary rights transferred to them in the lands which were teased to them, subject to the finding by the Revenue Authorities that they have fulfilled the relevant conditions. The adverse orders passed against these petitioners, based on considerations and interpretations that have been found in the above discussion to be erroneous, are accordingly held to be without legal authority and of no legal effect, and the above mentioned cases are remitted to the Board of Revenue for further action in the light of the observations made above,"
6. I have attended to the arguments advanced and the references cited before me as mentioned above. I am of the opinion that the Supreme Court in the various appeals before them did not declare or enunciate any proposition of law though the difference in the point of view of certain Lahore High Court decisions was fully taken note but the matter was concluded due to certain later instructions of the Provincial Government on the subject which Implied that the Government did not press the plea that the concession to grant land by private treaty was not an enforceable undertaking. However in Sub. Muhammad Asghar v. Mst. Safla Begun: and another, It was observed that: "The 'statements of conditions' of the tenancies in the Punjab are issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. Subsection (2) of the section lays down that the Provincial Government may issue a statement or statements of conditions on which it is willing to grant land in a colony to tenants. In this connection subsection (3) further provides that where such statements of conditions have been issued, the Collector may subject to the control of the Board of Revenue, allot land to any person, to be held subject to such statements of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. Section 11 of the Act lays down that the grant of tenancy in accordance with the "statement of conditions" issued under the Act, shall be deemed to be transfer of land within the meaning of the Crown (1) PLD 190. Lab 1155 {{BLURPAGE}} e provisions of the Wet ;hoe ogotemenu of nonatto fe winder the Act and am &woe Mat ti-osw Name,* cone ecoordaws weth Kat)ta, evorgee& geentorp las dons navies the f ref of low.' (The eeeierf Ina is niireei, This sup ree 1,111 (ti k;', that the statement, of c ,editions constitute a law on the subject If ,. c,ie ie so then tiding to Article 4 of 1973 Con lion it is an inalienable rkht of every citeten comer to be dealt ith in acco et with eee relevant law and oniy in aceciedance with law, If, therefore, the authorities corned in a given cue fail to apply correct and re1evarit law on the szehjeet a person aggrieved could approach the relevant forums for enforcement of his rlibto. In the instant case the Col. Lector and the Additional Commissio f held that the lease of the defendant/ respondent expired in 1961 which Ito rear was neither factually not legally correct as found by the learned Civil Sedge seed which finding seems to be supported by the references quo by him, namely, Muleemesed Ashrsf v, rd of Revenue West Pakbtan another and another judgment referred to therein wiz., Writ Petition 117 of 1964 decided on 21.12-1964 titled Mohammad Aslant v.
Mohammad Akron sec. (1), (Anwarul Haq and Muhammad Akram, my A Petition for Special Leave to Appeal toeing No of 1965 against the same was dis teed (as withdrawn) by the Supreme Court. The dismissal of that appeal In a way supports the view that the law in the form of statement of conditions was like other laws duly enforceable through Courts. Here I may reproduce section 10 of the Act, which reads as follows t "Section 10. Issue of statement of conditions of ten Gus.--(1) Board of It avenue subject to the general approval of the Government may grant land In a colony to any person on such conditions as it thinks fit. {{BLUR PAGE}}
(2) The Provincial Government may lone statement or statements of the conditions on which it is willing to grant laud in a colony to tenants.
(3) Where such statements of conditions have been issued, the C011eotot may, subject to the control of the Board of Revenue, allot land to any personal subject to such statement or statements of conditions hued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the cue.
(4) No person shall be deemed to be a tenant or to have any right, or title in the land allotted to him" until such a written order has been passed and he has taken possession of the land with the permission of of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.
This section shows that transfer of land can be dude in, two ways wk. t-
(a) Firstly by a straight grant by the Board of Revenue subject to final approval of the Government.
This grant can be made to autos and on such conditions as the Board of Revenue may think fit to impose, The word grant may include all, forms of grant for example ask lease, exchange etc,
(l) Law Notes 1963 Lab. 176 {{BLUR PAGE}}
(b) Ste il.yR uing the State entt of c, -n whion the Government is willing to grant and in colony to is. These con ditions are tr> be issued by tile Provincial Goventiment and it is th tatter that allotments are made by the Collector which will be subject to the control of Board of Raven e.
Reading the section in this way it is manifest that where, for example there is no grant by the Board of Revenue or where no eta t of conditions has been issued, it it not within the powers f the Collector to ate say allotment. Gee arkat 4ti v., Emperw (1) (Din 7r. Ohs mad eon Teta Singh, LI ). Similarly an executive authority will not be cone tent to taper-impose upon the grew of proprietary rights to a t ant on payment of at rnelko.kRzt, a oonditi that the land should not be alienated during the tenure of the pant without the consent of reversioners because I position of such a condition will tantamount to pant something different fromahe proprietary eights. See Mohammad Din and other., v. Mars Din and another (2). In that case poaiti of such a condition was crack down and it was further held reiterating the general principle of Emperor v. Stbnath Banedi and ethers (3), that in cases of ultra rims actions of the executive under the Colonization of Government Lands (Punjab) Act V of 1912 civil suits could be filed and maintaine) in the revision before him ado o rvat lion that as the Government was not bound to grant proprietary rights it was equally competent to grain proprietary rights suect to conditio and under Crown Lands Government Act XV of l695 suchda conditions were binding on the panto's. This view as n t maintained and the High Coon held that after having received purchase money from the wid (the grane in tat case) for proprietary rights it was not justified to now grant a lesser estate to hen Their Lord ips of the Privy Council, however, observed that they wouldot lay stress on this aspect of the case but would like to decide it with reference to theint as to whether such a condition could be imposed by the Come IP missioner and proceeding that way they found that the tart imposition of of that condition was ultra Ares. The actual passage in para. 10 of the judgment of the Privy Cotton reads as follows {{BLUR PAGE}} "10. But, however, this may be, the substantial question, as the Chief Justice observed, still remains, whether the executive authority could lawfully superimpose upon the grant of proprietary rights such a condition as was here imposed. Upon this question their Lordships concur in the reasoning and conclusion of the Chief lattice; They would not lay too much stress on the fact that the widow had in fact paid a purchase price based on the acquisition of full proprietary rights whereas the result of the condition was that she got something different and less valuable. They would assume that the executive authority would not hold her to such a bargain but would, if the wished, repay the money and restore her to her former petition. The real question is whether it was rope tent for the executive authority under the form of granting proprietary rights to grant something very di event and in fact to create an estate of a kind unite an to the law. For the remit of a grant with a condition is to deprive the grantee of prop niter, rights of an essential right of property, tie. The free power of Lion, and moreover to fetter it not by an etiolate her against /theca- lion nor by such a bar except with the concert of Oculist person,
(1) A IC 352 (2)AiRlt41PC33
(3) AIR 194 P C {{BLUR PAGE}} hut by a bat against alienation "exeopt with the mecum of the reversioners a body of persons presumably altering from time to time 611C1 perhaps at no time easily meertainable. Their Lor' ipe do not find any justiti ton for snob a condition in the Act or any Rules that have brouOt to their notice.)'
Repectifuliy mating similar sporoach, I would hold that in the instant c as well the ;ski question is that when Ito Princi Government has slimed laid down pertaiconditions for grant of proprietary rigs is notpen to tn., executive 1,f,, Collector or thedditional Commissi net to by- as* this* statements of eonditio and specify, if I can say so, their onditions the proprietary right, WITO not to be grant if the leas expired on or bets Kharif 1961. This was nowhere laid down in the relevant lute en of conditions which rather sted as interpreted inohan; Ask* Board of Revenue and anotr and inuhammad Aslam v. Migisnwe Akram etc. That the leases relent were those which aspired in Rabi 1962 and the expy of lease in Rabi 62 would mean expity April 1962, and not beforehat dat The learned Colieetot and the Addional Commissioner In the instant case thus adltra Pilaf of the powers in Beg their own different date that theease in the instant case had expired in 1961 by misinterpreting the lawich existed the subject in t form a States.Into of Conditions andhich defect gave rise to the institon of the present suit,, Approached from this angle, section 36 of th Colonisation of Government Lands (Punjab) Am, which bars juriedio, Lion of dell Courts should present no difficulty, inasmuch as, that seotio will apply only where the authorities concerned acted withi the m and the four tor en of their jurisdiction and not whin their a are itioa iket or without jurisdiction or void or In excess o their joie oiistiou,See All Mohammad v. Ifalcim and others (I), where it was held that Collector had no jurisdiction to adjudicate upon private rights of the chiffons. In PWAMS V, Mg. SAN (2), it was laidown that a civil Court has jurisdiction to examine whether an act has been validly performed or done by the ColleotoT. The pica and objection regardinouster of jurisdiction of the civil Court in this context, trefore, Is overruled and the view of the learned Civil Judge on the subject is hereby maintained. Before leaving this subject I must explain a passage In Subuhammad Asghar v. Safia Begun and another where it is laid down that "selection of suitable candidate for the allotment of a tenancy was purely internal with the Government and the respondent (therein) was not as of right entitled to lay her claim to t allotments". This observation, in my mble opinion, is con to the particular statementf conditions of Ohe tenancy involved in that eat where the Government had itself laidown in clause (2) th "No person shall be entitled as of right to become a tenant, L. To say the Provincial Government hereby reserves to itself and retains absolute discretion in selection of tenants for land referred to in this statement."
No such eon dition, however, exists, if I canay so, in the statement of eon. Ditions for grant ofroprietary rights to the previous allottees of land under the Grow More Food Scheme. Again the point in this case is not of refusal of Govetn nt to pant proprietary rights but to examine the *es of the acts a of the exe.e rive officers, namely, Collector/Additional Comp issioner, who were required to implement the Government schemes wherein the Government itself had pronounced their willingness to confer proprietary (0 A 1 R 1928 Leh l (2) PLD 1934 Laho 2,3 {{BLUR PAGE}} ' rights on all such spotter under Grow More Food Scheme who fulfilled the conditions laid down in the relevant notification. The actions and orders of the executive convened, if thus ultra vires could safely be declared to be so by the civil Court just as it was dons by the Privy Council in Mohammad Din aid others v. Imam Dill another (I), which too was a case of ferment of proprietary rights under the Calcination of Government Lands (Punjab) Act V of 1912.
7. Learned counsel for the defendant-petitioner, then argued that if the relief of on which was directed to be added in the by the learned vii Judge, is ignored and the plaint is taken up in t e form in which it was filed then it purported to eel aside an act or order of an officer of the Provincial Government in his official wacky and, therefore, was governed by Article 14 of the Limitation Act IX of 1908 which prescribed pedal of one year from the date of the act or order impugned. The date of the order of the Collector in this case is 1342-1961 and that of the Additional Commissioner has 6-1- 1964. If therefore, the time is reckoned from the appellate order dated 644964 as laid down in Anok Singh v. Nagina liam (2), limitation for filing a suit against the same would expire on 54-1965 whereas the present suit was filed on 4-6-1968 and was hopelessly time-bared. Article 14 of the Limitation Act, reads as follows ;- {{TABLE}} No, of the Desuiptioa of Suit Period Thin from Article. Of Li- which period mita, begins to tion. Sun ____________________________________________________________ wm..r.w....Moaaliaqsmmaunwb..Wasa.m 14 To set aside act or One Isar The date of the order of an of act or order.
Government in his diktat capacity not Wein otherwise ex- pressly provided for. {{TABLE}} ' In my Mons the aforesaid Article has no application to the fasts circumstances of the present ease, firstly, because if the paragraph r relief claimed in the suit as reproduced in earlier parts of this judgment kept in view then it becomes dear that the declaration regarding the eligibility of the plaintiff to acquire proprietary rights in the suit land is the pic relief and pronouncement upon validity of the order of the Collector/Additional Commissioner is just incidental. Secondly it is well settled Article 14 is not applicable where the order/action impugned is void ultra-Ores of the powers and jurisdiction of the executive officer concerned and before examining the applicability of this Article a Court has, therefore first to find out whether the impugned orders/acts were void or jurisdiction, ultra tires or not In Mimi Jamal Shah v. The Member, Commission, Government of Pakistan, Lahore etc. (3), it was laid down, while drawing distinction between orders of regular Courts and orders of tribunal!, that an act of a regular Court could be illegal without being void, but if the act of a tribunal was incest it was necessarily void and the act of a tribunal was illegal if it had failed to apply its mind properly to the law and fasts of the ease before it. The actual plume in the judgment of Kakas, J. In this reopen occurs at page 49 where his Lordship held that "it is a distinction
(I) AIR 1941 P C 33 (2) A 1 R 1,952 Pon $5
(3) P L D1966SCi ' attaching only to judicial tribunals that their acts within their jurisdiction though illegal are not null and void. So fur administrative officers and authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. An administrative officer has authority to pass order or to take action if certain fonts emit. If those essential facts do not exist his order or action is void". Respectfully applying this principle, the orders of the Collector and the Additional Commissioner who failed to apply their minds to the la and facts of the present case, as pointed out by the learned Civil Judge as explained by me above, were void and, therefore, Article 14 was applicable to a suit where the validity also came under scrutiny while exulting entitlement of the plaintiffs. Reference may also be made to Pun Province v. Federation of Pakistan (1), where an Income-tax Officer passed an order assessing the Provincial Government to pay income-tax treating it as an "association of persons" under the Income-tax Act XI of 1922. The aforesaid order of the Income-tax Meer was challenged and an issue was framed as to whether the suit was barred by time under Article 14 of the Limitation Act. The Federal Court held that the order/action of the Income-tax Officer being void no question of limitation in the case arose. They also gave another reason which was peculiar to that case, namely, that the wrong complained of was a continuous wrong but the general proposition that to void orders Article 14 did not apply was enunciated independently. In Ghulam Mani & Co. v.
Government of Pakistan (2), . It was laid down that Article 14 of the Limitation Act is only applicable to such cases where a valid order is passed by a competent authority. The trend of general cue- law is also to the same effect and as there is no dispute to this aspect of law, there is no need to refer to further case-law. In the instant case my finding is that the impugned orders and actions of the executive officer were void and ultra wires of their powers and jurisdiction, inasmuch as they were bound to act according to law on the subject as explained In Muhammad Asif v. Board of Revenue, West Pakistan seed another vis-a-vis nature and the tenure of the lease of the plaintiff and his consequent eligibility for obtaining the proprietary rights. My finding, therefore, is that the suit of the plaintiff was not governed by Article 14 and no other Article of the Limitation Act having been show to me to be applicable in this case the readmit.), Article 120 which prescribed a period of six years from the date of the accrual of the cause of action should be held to squarely cover the field. Examined from that point of view, the suit was well within time.
8. Lastly defendant-petitioner who was present in person in this case on the last date of hearing towards the conclusion of the arguments of the Advocates, submitted that plaintiff had obtained alternate land but without disclosing that fact he was trying to get the present land as well. He submitted that as the relief claimed in suit was of a discretionary nature, I should take note of this fact and development in order to maintain equity between the parties and also with reference to the plea of estoppel. He submitted that this plea was taken in para. 7(b) of the written statement and that some evidence also had been led by him on the subject but the learned Civil Judge had not referred to the same e.g., D. W.
1. Muhammad D. W. 3 Pais Muhammad and D. W. 4 Ghulam Ali. The contention seems to have merit.
The learned Civil Judge has omitted to attend to the aforesaid aspect of the matter and the attending evidence. In these circumstances, the case shall have to be remanded to the learned Civil Judge to it)PLD 195PLC 72 (2) PLD 1967 PLC 624 deckle this matter and the matter of estoppel afresh Similar pea was raised by the learned counsel for kite defendants petitioner in Civil Revision No, 600/1970 which is being decided and diorama by the present judgment).
9. No other point was argued before me.
10. The revolt is that the present revision petition it scented in this way that t judgment directing (a) amendment of the plaint (h) payment of additional court-fee and (c) delivery of possession is let aside and the case is remanded to the learned civil Judge for treating the suit as a declaratory suit as framed originally and then examining as to what relief on the facts and in the circumstances of the present case and in the light of the observations above made should be granted by him after hearing arguments of all the parties and attending to the law relevant and the facts as established on the record cis-a-vis the fulfilment of the requisite conditions on the subject of acquisition of proprietary rights and other matters above noticed etc. The defendant-petitioner would get his costs from the plaintiff-respondent. . Case remanded.