' This judgment shall also dispose of Regular Second Appeal No,42 of 1986 as the same question of law and facts is involved in both the cases.
2. In exercise of the powers conferred by section 2(2) of the Colonization of Government Lands (Punjab) Act, 1912, the Government of Punjab issued Notification on 8-9-1952 for setting up' of Tubewell Sinking Scheme. The purpose was to grant scheduled tenants leases of uncommanded State Waste Land for temporary cultivation with the aid of irrigation by means of tubewell. In the year 1961 Lot No,17 measuring 150 acres in Mouza Pakka Tehsil and District, Bahawalpur was allotted to Abdul Karim (half share) and Jaffar Hussain and Zakir Hussain 1/4 share each under the said Tubewell Scheme. In this manner Abdul Karim respondent No,8 has allotted 75 acres while the said Jaffar Hussain and Zakir Hussain were allotted 37-1/2 acres each. In 1971 all the said allottees entered into a transaction of sale of their rights in favour of Fateh Muhammad, Akhtar Ali, Manzoor Ahmed and Barkat Ali (all petitioners) and Abdul Hameed and Abdul Aziz respondents Nos.9 and 10, according to the said transaction, while Abdul Karim sold 50 acres out of his 75 acres, Jaffar Hussain and Zakir Hussain agreed to sell their total share in favour of the said set of vendees. In order to fulfil the requirement of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 an application was moved before the Collector and the necessary permission was granted under section 19 (ibid) by the Collector on 16-3-1971. A question arose whether such sale of tenancy rights was in violation of M.L.R. 64, however, by another order of the Collector, dated 15-1-1972 it was held that M.L.R. 64 was no bar to the said alienation. Consequently, Mutation No,235 was entered on 24-3-1972 in order to give effect to the alienation of tenancy rights as detailed in the preceding paras. As it happened there arose some dispute Abdul Karim one of the allottees/vendors (respondent No,8) Abdul ' Hameed and Abdul Aziz (respondents Nos.9 and 10). According to Abdul Karim respondents Nos.9 and 10 had not paid the sale consideration and as such he submitted an application to the Collector to delete the names of the said Abdul Hameed and Abdul Aziz from the permission under section 19 granted vide order, dated 16-3-1971. He also requested that instead of the said Abdul Hameed and Abdul Aziz alienation be now allowed in favour of Khushi Muhammad etc. Respondents Nos.2 to 6 and Naseem Akhtar wife of Abdul Karim respondent No,7. This application was granted and permission was given to the effect that the original allottees could alienate land of the share of Messrs Abdul Hameed and Abdul Aziz respondents Nos.9 and 10 in favour of respondents Nos.2 to 7. It may be noticed that the right of the petitioners namely Fateh Muhammad and 3 others remained unaffected.
3. Another development took place that Zakir Hussain one of the original allottees backed out from his commitment to sell his share measuring 37-1/2 acres. As a result 50 acres of Abdul Karim and 37-1/2 acres of Jaffar Hussain were alienated in favour of the petitioners and respondents Nos.2 to
7. Mutation No,235 was accordingly sanctioned on 8-5-1974. The petitioners were put in possession and acquired the status of tenants under the Government in accordance with section 10(4) of Act of 1912.
4. It appears that Abdul Hameed respondents Nos.9 and 10 filed an application before the Collector, Bahawalpur in which the act of deleting their names from the earlier permission under section 19; dated 16-3-1971 was challenged and it was claimed that Abdul Karim could not enter into a transaction of sale in favour of respondents Nos.2 to 7. Respondents Nos.9 and 10 and Abdul Karim respondent No,8 were heard and without any notice to the petitioner or respondents Nos.2 to 7, the Collector passed its order, dated 22-5-1973 Exh.P.9 whereby the basic permission, dated 16- 3-1971 passed by the Collector himself under section 19 of the Act, 1912 was set aside. The main ground that found favour with the Collector was that the permission granted on 16-3-1971 was only effective for a period of six months thereof and as the mutation was not attested within the said period the permission granted vide order, dated 16-3-1971 automatically lapsed. It was also held that the subsequent order passed on 15-1-1972 and 16-10-1972 were also ipso facto illegal. Against this order of the Collector an appeal was preferred before the Commissioner, Bahawalpur Division by Khushi Muhammad etc. Respondents Nos.2 to 7. Vide order, dated 1-3-1974 the said appeal was dismissed and the order of the Collector, Bahawalpur Division, dated 22-5-1973 was upheld. The petitioners challenged the order of the Collector, dated 22-5-1973 and the order of the Commissioner, dated 1-3-1974 through a civil suit, wherein, it was contended that both the said orders were without jurisdiction and in violation of the Act V of 1912 and were ineffective upon the rights of the plaintiffs. The suit was contested by respondents Nos.1, 8, 9 and 10 only. Vide judgment and decree, dated 27-5-1980 the learned trial Court dismissed the suit of the D petitioners mainly, on the ground of jurisdiction inasmuch as it was held that the suit was barred under section 36 of the Act V of 1912. It was also held that permission under section 19 was for a period of six months and since no mutation was sanctioned within the specified period the permission given vide order, dated 16-3-1971 was rightly set aside. It was also held that the appeal filed by respondents Nos.2 to 7 was rightly dismissed by the Commissioner. As regards the case of the petitioners it was held that as Mutation No,235 was sanctioned in their favour on 8-5-1974 much beyond the period of six months from the original permission under section 19 issued on 16-3-1971, it created no right of tenancy for the petitioners. Resultantly, the suit of the petitioners was dismissed vide judgment and decree, dated 27-5-1980.
5. Aggrieved of the said judgment and decree the petitioners filed an appeal which was also dismissed vide judgment and decree, dated 15-6-1986 by the Additional District Judge, Bahawalpur. While coming, to this conclusion, the learned Appellate Court also held that the permission under section 19 of Act V of 1912 could only enure for a period of six months and any mutation attested thereafter would not confer any right upon the transferee.
6. The present civil revision is directed against the aforesaid judgments of the lower Courts. The respondents Nos.2 to 7 namely Khushi Muhammad and others claimed that Abdul Karim respondent No,8 had himself applied to the Collector that the original vendees namely Abdul Hameed and Abdul Aziz respondents Nos.9 and 10 did not pay the sale consideration and that their names be deleted as vendees from the order of permission, dated 16-3-1971. He also contended that he has entered into an agreement of sale with Khushi Muhammad and others respondents Nos.2 to 7 and that,the order of permission under section 19 may accordingly be amended so as to incorporate the names of respondents Nos.2 to 7. This was duly implemented by the Collector and the names of respondents Nos.2 to 7 were entered in the permission under section 19 in place of Abdul Hameed and Abdul Aziz. Subsequent order passed by the Collector on 22-5-1973 by which the basic order for permission under section 19, dated 16-3-1971 was set aside thereby nullifying the Mutation No,235 attested on 8-5-1974 also adversely effected respondents Nos.2 to 7. They filed an appeal before the Commissioner which was dismissed by order of the Commissioner, dated 1-3- 1974. Respondents Nos.2 to 7 then filed a civil suit for specific performance of the agreement to sell executed in their favour by Abdul Karim and in the same process sought to put at naught the order of the Collector, dated 22-5-1973 and the Commissioner, dated 1-3-1974.
7. The said civil suit was, however, dismissed by the trial Court mainly on the ground of limitation and on the ground that both the Collector and Commissioner had ample power to revoke earlier permission granted under section 19 vide earlier order, dated 16-3-1971. The suit was dismissed vide judgment and decree, dated 22-2-1983. The appeal filed by respondents Nos.2 to 7 against the said judgment and decree was also dismissed vide judgment, dated 15-5-1986 passed by Additional District Judge, Bahawalpur. Khushi Muhammad etc. Filed Regular Second Appeal No,42 of 1986 which shall also be decided by this judgment.
8. Mr. M. Rahim, Advocate, learned counsel appearing for the petitioners in Civil Revision No,256/D of 1986 and Mr. Aejaz Ahmed Ansari, Advocate appearing for the appellants in Regular Second Appeal No,42 of 1986 have raised the following contentions:--
(i) that the Collector was not legally competent to fix and impose the condition of six months for the completion of sale in the order, dated 16-3-1971 made under the provisions of section 19 of the Colonization of Government Lands (Punjab) Act of 1912;
(ii) that this period of six months if at all is not a period prescribed; by law and that no rigours of the law of limitation can apply to this provision. According to the learned counsel for the petitioners even if such period is prescribed under a notification this shall be for the internal guidance of the concerned officials;
(iii) that in any event for different reasons which have been amply brought on the record it was not possible to complete the mutation within the period of six months which was beyond the control of the petitioners. Firstly, the period of six months was not inflexible. Secondly no act of default is attributable to the petitioners for the lapsing of the said period. If there was .Any dispute which might have caused the delay in the attestation of mutation, it was on account of the dispute between Abdul Karim on the one hand and Abdul Hamid and Abdul Aziz on the other and also on account of objection regarding M.L.R. 64 which was subsequently, removed. The petitioners were not in default and could not be penalized;
(iv) that even if the Collector was competent to fix the condition of six months under section 19 of Act V of 1912, as he had himself extended the same after the lapse of said period of six months, he could. Not turn around and revoke the same on the ground that the original period of six months had lapsed;
(v) that under section 19, the permission is to be granted by the Commissioner or by such other officers as he may by written order empower. The Collector for the purpose of grant of permission only acts as a delegatee of a Commissioner. Once the permission has been granted, his delegated powers are exhausted and he had no jurisdiction to withdraw the said permission without further sanction in this behalf from the Commissioner;
(vi) that once the permission have been given by the. Collector and the said permission was duly acted upon and a mutation having been duly attested, it had become past and closed transaction and the Collector or the Commissioner had no locus poenitentiae to revoke the same;
(vii) that the petitioners were not given any opportunity of being heard by the Collector before passing the order, dated 22-5-1973. Both the orders of the Collector and the judgment in appeal by the Commissioner, dated 1-3-1974 offended against the principles of natural justice and are null and void.
9. On the other hand Mr. M.M.A. Pirzada, Advocate the learned counsel for the respondents appeared for respondents Nos.8 and 9, Mian Bashir, A.A.-G. Represented respondent No,1 while Malik Abdul Ghafoor, Advocate appeared for respondent No,10. Malik Abdul Ghafoor, Advocate contended that Tubewell Sinking Scheme was promulgated through Notification No,4717-C, dated 8-9-1952. He referred to clause (2) of the said notification to contend that the Government of Punjab is competent to grant schedule tenancies for temporary cultivation on the terms and conditions specified therefor. According to him no person shall be entitled as of right to receive a lease and that the Financial Commissioner shall have an absolute discretion in the selection of the lessees. He further submitted that according to clause (64) of Part 2 of Colony Instructions, it has been specifically provided that while permitting a tenant to alienate his tenancy under section 19 of Act V of 1912, the name and full details of alienee should in variably be stated in the permission.
According to clause (64) there should also be a time limit specified in each case not exceeding six months after which the permission should be considered to have been withdrawn should the contract not have been concluded by them. He further submitted that the original permission granted by order, dated 6-3-1971 by the Collector had lost its efficacy after lapse of six months. The learned counsel for the respondent placed reliance upon the case of Engineer-in-Chief v. Jalal- ud-Din PLD 1992 SC 207 to contend that under section 21 of the General Clauses Act, authority which can pass an order is entitled to vary, amend, add or rescind that order. He also relied upon the case of Masud Ali v. Ali Haibat Khan PLD 1958 (W.P.) Lah. 340 to argue that the Civil Court has no jurisdiction to question the consent of the Collector. On behalf of the petitioners reliance was placed upon Sher Muhammad Khan v. Ilam Din 1994 SCM R 470 to support their contention that an agreement to sell of land situate in Colony Area not amounting to a sale-deed itself is not in violation of section 19 of Act V of 1912 and can be specifically enforced under the law. For similar effect reliance was placed upon Mst. Rehmat Bibi v. Jhando Bibi 1992 SCM R 1510.
10. Arguments have been heard and record perused.
11. Some important facts are admitted between the parties on the record. The agreement to sell by Abdul Karim, Jaffar Hussain and Zakir Hussain in favour of the four petitioners and Abdul Hameed and Abdul Aziz is admitted. It is also admitted that the D.C./Collector had duly granted permission under section 19 of Act V of 1912 vide order, dated 16-3-1971 to complete the alienation of tenancy rights. It is also admitted that an objection was raised that the proposed sale offends against M.L.R.
64. The Collector examined and decided this objection vide order, dated 15-1-1972. By this order he directed that the order, dated16-3-1971 originally granting permission for alienation under section 19 be implemented. This order, dated 15-1-1972 was passed 10 months after the original permission.
The Collector had himself not considered the period of six months as a term of limitation which could ipso facto nullify the permission granted on 16-3-1971. It is thus, held that the period of six months contained in clause (64) of Part IV of Colony Instruction is merely directory in nature and is primarily for the guidance of the officials performing functions under Act V of 1912. It does not lay down a prescribed period of limitation as is understood under the law of limitation. Non- completion of mutation within the period of six months shall not ipso facto nullify the permission granted for alienation.
12. It is also admitted on the record that after the second order of the Collector, dated 15-1-1972 Mutation No,235 was duly entered on 24-3-1972. It was again on account of an act neither attributed to the petitioners of Civil Revision No,256/D of 1986 or the appellants of R.S.A. .No,42 of 1986 that the matter of attestation of mutation was further postponed. This time it was on the complaint of respondent No,8 Abdul Karim who stated that as Abdul Hameed and Abdul Aziz were not complying with the terms of sale their names be deleted from the permission order, dated 16- 3-1971 and instead the names of respondents Nos.2 to 7 (appellants in R.S.A. No,42 of 1986) be incorporated instead. The necessary amendment in the permission was made on 16-10-1972. It would thus, be manifest that the period of six months has never been treated to be mandatory within which the mutation had to be attested. The fact that one of the original allottees namely Zakir Hussain refused to abide by the alienation is also not to be ignored. It was after clearing all the maze of disputes that intervened that it was finally possible to attest Mutation No,235, dated 8- 5-1974 in favour of petitioners and respondents Nos.2 to 7 who thus, obtained status of tenants of the Government under section 10(4) of the Act V of 1912.
13. Whatever be the merits of the application filed by respondents Nos.9 and 10 before the Collector, the D.C./Collector had no jurisdiction whatsoever to have set aside his earlier orders passed on 16- 3-1971 and 16-10-1972 on the ground that a period of six months had since elapsed from 16-3-1971 and that permission had become extinct. The reliance placed upon clause (64) of Part IV of Colony Instruments is futile and baseless. The act of the learned Collector in passing his order, dated 22-5- 1973 is also nullity in the eyes of law as he did not even issue any notice to the petitioners or the respondents Nos.2 to 7 before passing such orders. Both the petitioners and respondents Nos.2 to 7 were persons who were adversely effected by the order of the Collector. The procedure undertaken by Collector was wholly without authority and offended against the principle of natural justice and were null and void.
14. The appeal filed against the order of the Collector, dated 22-5-1973 before the Commissioner culminated in the order, dated 1-3-1974 by virtue of which the order of the Collector was maintained. This order of the Commissioner was also illegal as even the Commissioner did not issue notice to the petitioners and passed the order behind their back. The Collector acted as a delegatee of the Commissioner under section 19 of the Act V of 1912. As a delegatee he could not exercise any power of cancelling or revoking the permission once granted. The Collector had no power to review his own order. The agreement admittedly executed by Abdul Karim in favour of respondents Nos.2 to 7 was fully enforceable at law and could not be defeated upon the basis of the permission or otherwise under section 19 of Act V of 1912. The respondents Nos.2 to 6 who are appellants in R.S.A. No,42 of 1986 were fully entitled for specific performance of the agreement in their favour. The suit of respondents Nos.2 to 6 could not be barred by time as they were admittedly in possession of the property in question and in whose favour Mutation No,235 was also attested on 8-5-1974.
15. As a result of aforesaid discussion this civil revision is allowed and the judgment and decree, dated 15-6-1986 of the Appellate Court and the judgment and decree, dated 27-5-1980 of trial Court is set aside with', the result that the suit of the petitioners 'is decreed as prayed for. Parties to bear their own costs.