Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 23.9.1997 passed by learned single Judge in chambers of the Lahore High Court, (Bahawalpur Bench) whereby the writ petition preferred on behalf of respondents has been accepted and order dated 19.8.1995 passed by the District Collector and subsequent proceedings of mutations were declared unlawful and without any legal effect.
2. The chequered history of the case alongwith factual background has been mentioned elaborately in the judgment impugned and the repetition whereof would be of no use, however, it would be advantageous to reproduce Para-4 of the judgment impugned being crux of the controversy:-- "The Government of the Punjab, ColonieS Department, Lahore addressed a letter dated 12.6.1993 to the Adjutant General of the Pakistan Army, GHQ Rawalpindi informing that a land measuring 33866 acres 3 kanals and 10 Marlas had been reserved for the Army Personal in the districts of Bahawalnagar, Bahawalpur and Muzaffargarh, out of which 7919 acres 3 Kanals and 17 Marlas has been reserved for such purpose in Tehsil Fortabbas District Bahawalnagar. Brig. (Retd.)
Muhammad Bashir Respondent No, 6 was allotted by order dated 1.9.1994 the land measuring 400 Kanals in Chak No, 290-HR of Tehsil Fortabbas. However, the allotment order dated 1.9.1994 was superseded by a revised allotment order 12.8.1995 passed by the Deputy Commissioner/District Collector Bahawalnagar, where out of the total land of the petitioners a part thereof measuring 296 Kanals 19 Marlas was allotted in favour of Respondent No, 6 followed by further proceedings including Mutation No, 340. The petitioners are aggrieved of the revised allotment dated 19.8.1995, Mutation No, 340 and other proceedings whereupon the petitioners are .sought to be deprived of their leased land to the extent of 396 Kanals and 19 Marlas."
3. Leave to appeal was granted vide order dated 3.11.1997 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- Land comprising of 396 kanals and 19 marlas was allotted to the petitioner, Brig. ,Muhammad Bashir, by the Deputy Commissioner/Collector, Bahawalpur, vide order dated 19.8.1995, which was challenged through a writ petition by the Respondent No, 1 and others in the Lahore High Court (Bahawalpur Bench). The writ petition was allowed and the said allotment was held to be without lawful authority as the land was found to have been earlier allotted to the Respondent No, 1 and others, being landless tenants.
2. Contention of Mr. Bashir Ansari is that, lease of the respondents, which was of temporary nature being valid for ten years only, had already expired in 1979 and it was long after that when the land was allotted to the petitioner. Consequently, the judgment of the High Court is liable to be set aside.
3. Mr. M. Zaman Bhatti who has appeared for the official respondents has not opposed the petition.
4. In the result, leave is granted to examine the contentions raised by Mr. Bashir Ahmed Ansari.
4. Sardar Muhammad Ghazi, learned ASC entered appearance on behalf of Brigadier Muhammad Bashir (appellant) and urged vehemently that the legal and factual aspects of the controversy have not been dilated upon in its true perspective which resulted in serious miscarriage .of justice.
It is pointed out that the possession of the land in question was never handed over to the respondent but the comments of functionaries of the revenue department to this effect were ignored by the High Court without any rhyme and reason causing serious prejudice against the appellant. It is next contended that such controversial matters could not have been dilated upon and decided in Constitutional jurisdiction as conferred upon the High Court pursuant to the provisions as contemplated in Article 199 of the Constitution of Islamic. Republic of Pakistan, scope whereof is limited. It is argued that 33,866 acres of land was transferred to GHQ for allotment to army personnel by means of order dated 12.6.1993 which was never challenged and attained finality which cannot be assailed now at this belated stage by invoking the Constitutional jurisdiction. It is argued that Abdul Karim (Respondent No, 1) floated his bid in the auction to get the land in question on lease but no cogent or convincing evidence could be produced regarding payment of auction money and more so, the possession of land in question was never delivered to him and thus he had no locus standi to claim for further extension qua the lease. It is also contended that notice under Section 24 of Colonization of Government Land Act 1912 was also issued as Abdul Karim (Respondent No, 1) was found defaulter and accordingly lease was cancelled. It is contended emphatically that learned High Court was not justified in assuming jurisdiction specially when the matter is pending adjudication and status-quo order was passed by the learned Member Board of Revenue. It is pointed out that the Respondents Nos, 1-17 were not in possession and hence the question of conferring of propriety rights upon them does not arise and High Court had erred while deciding the question of conferring of propriety rights which exclusively falls within the jurisdictional domain of the forums provided in the hierarchy of revenue laws. It is contended that the lease was auctioned in 1969 for a period of ten years and after the expiry of said period it could not have been extended which was allotted in the year 1959 in favour of the appellant through GHQ and therefore, such allotment could not have been questioned.
5. Mr. Muhammad Jaffar Hashmi, learned ASC entered appearance on behalf of Respondents Nos, 1 to 17. Mr. Muhammad Zaman Bhatti, learned ASC appeared on behalf of official Respondents Nos, 19 to 23 and adopted the arguments made by Sadar Muhammad Ghazi, learned ASC for appellant with the further submission that since the land in question was available, therefore, it could have been allotted to the appellant by the GHQ at whose disposal it was placed after having completed all the necessary formalities by the competent authority.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have perused the judgment impugned carefully. The pivotal question which needs determination would be as to whether the land in question was available for allotment or otherwise? In order to answer the said question we have thrashed out the entire record. On 7.2.1968 the notification qua formulation of policy for future leasing of such land was issued by the Government of West Pakistan, Colonies Department, relevant portion whereof is reproduced herein below for ready reference: "No, 3369/67-198-C.1.1. In exercise of the powers conferred by Sub-section (2) of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, and in supersession of the previous orders contained in Memorandum No, 8977-61/1298-CGI, dated the 6th May 1965, as subsequently amended the Government of West Pakistan is pleased to direct that in future lease of all available State Agricultural land to which the Act has been applied shall be subject to the following terms and conditions, so far as they may be applicable thereto and save insofar as they may be expressly modified or abrogated by any further statement of conditions applicable to any particular class of land or any class of persons.
1. DEFINITION. All available State Agricultural land shall lease out subject to:--
(i) The General Colony conditions published with Punjab Govt. Notification No, 5782-C, dated 29th June, 1938 as , amended uptodate contained in the Pb. Colony Manual, Vol. II of 1942.
(ii) The temporary Cultivation conditions published with Pb. Government No, 2664-C dated 22nd Sep. 1944, as amended from time to time and (iii)The conditions hereinafter appearing provided that in case of repugnancy, the present conditions shall prevail. Any tenancy granted on these conditions shall
2. PERIOD OF TENANCY
3. UNIT OF TENANCY
4. PERIOD AND UNIT OF TENANCY
5. PERIOD AND UNIT OF TENANCY (un-cultivated) - The uncultivated Banjar Qadim - State Land requiring more efforts for leveling etc. but having sweet sub-soil water may be leased out for a period not exceeding 10 years in lots not exceeding 150 acres each, provided that such land as mentioned in proviso to Clause 4 shall be leased out in lots not exceeding 50 acres each.
6. DEFINITION
7. METHOD - AUTHORITY - All leases under Clauses 2.4 and 5 shall be given to the highest bidders in open auction hold in case, after adequate publicity. The final authority to accord sanction in case of leases under Clause 2 shall be the Collector of the District, and in case of those under Clauses 4 and 5, the Commissioner of the Division.
8. INELIGIBILITY.
(a)No person is in the service of the Central or the Provincial Government, All Development Authority, a Semi-Government institution or a local body, his wife wives dependent children shall be eligible to take any lease under these conditions.
(b)Any person who holds other agricultural land as owner, mortgages or leases shall be allowed to get only so much of land on lease under these conditions, as when added to the land already held by him, does not exceed the limit fixed by the Martial Law Regulation No, 64.
9.......................................
10. Schedules - Separate schedule for leases for a period of 3, 4 and 10 years and for different categories of land shall be prepared according to the above instructions and one copy thereof shall be sent to the Commr and another to the Board of Revenue. No area included in one schedule be transferred to another except with the prior sanction, in writing of the Board of Revenue.
11. Purpose
12. ...............................................
13. PERCENTAGES OF CULTIVATION
14. SOURCE OF IRRIGATION
15. Lease money
16. SECURITY - No person shall be permitted to bid in open auction in cases mentioned in Clauses 2, 4 and unless the prospected bidder has deposited in the Govt. treasury, or with the person receiving the bid, an amount of Rs, 10.00 per acres (calculated on the total area involved in each case) in advance, in lump sum, to be retained by the Government as security, for due observance of the conditions of the lease. The security deposits shall be refunded (i) if the bid is not accepted. (ii) when accepted, on the termination of the lease, if the lessee has duly observed all the conditions of the lease and his also paid all the amount due to the Govt. under these conditions and has surrendered peaceably the possession of the land to the Government.
17. TRANSFER - The lessee shall not create any charge over or transfer the leased land by way of sale, exchange, gift, will mortgage or otherwise except by away of sub-lease for a period not exceeding one year. Any such transfer shall be void and shall be considered to be a reach of conditions of the lease.
18. EXCHANGE
19. TREES
20. SUCCESSION
21. COMPENSATION
22. RE-ENTRY - The lease shall surrender the whole or so much of the land as may be required on demand by the Collector in either of the following events:-- (a)If the land of any portion thereof is required for any public purpose: or (b)If it is found that the whole or any part thereof had already been leased or granted to any third person.
23. PENALTY - When the Collector is satisfied that a lessee in possession of the land has committed breach of any of the conditions of the lease. He may after giving the lessee a notice in writing and an opportunity of being heard:--
(a) Impose on him a penalty not exceeding Rs, 500.00 or
(b) Order the resumption of the tenancy; or
(c) If the breach is capable of rectification, allow the lease to rectify it within a reasonable time not being less than one month.
24. PEACEFUL SURRENDER - The lease shall terminate at the expiry of the period of lease and shall not be extended. No proprietary rights will be conferred on any lessee under any circumstances, whatsoever. The lessee shall surrender the land peaceably to the Government at the expiry or sooner determination of the lease for breach of conditions or for any other reason.
25. ENHANCED RENT BY ORDER OF THE GOVERNOR OF WEST PAK.
HUSAN TURAB ALI Secy to the Government of W. Pakistan Colonies Department."
7. A bare perusal of the above reproduced portions of the notification dated 12.2.1969 would reveal as follows :--
(i) The policy for allotment/future lease of all available State Agricultural land free from any encumbrance was made by Government in exercise of powers as conferred upon it under Section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912. Notification dated 12.2.1969 would have no effect on the previous Notification No, 5782-C, dated 29.6.1938 and temporary cultivation conditions published by the Government of Punjab vide Circular No, 2664-C dated 22.9.1944.
However, memorandum Bearing No, 8977- 61/1298-CGI, dated 6.5.1965 was superseded.
(ii)In case of any repugnancy the notification dated 7.2.1968 shall prevail. The category of land i,e, uncultivated (Banjar Qadim) could have been leased out for a period not exceeding ten years.
(iii)The available land was to be leased in open auction to the highest bidder subject to the approval of Collector of the District.
(iv)No person in the service of Central/Provincial Government/ any Development Authority/a Semi Government Institutions/ Local Body including their dependents would be eligible to take part for having allotment of such lease.
(v)The joint auction was not permissible.
(vi)Separate schedule for leases in accordance with its tenure with different categories of land were prepared and restriction was imposed for not challenging the schedule and transfer of the category of land except with the prior approval of Board of Revenue. The open auction for such land was subject to depositing of the amount of Rs, 10.00 per acre calculated on the total area involved in each case in lump sum.
(vii) A ban was imposed on the lessee for creation of any charge over or transfer of leased land by way of sale, exchange, gift, will mortgage or otherwise.
(viii) The area of land so leased out could have been acquired by the Collector for any public purpose or where it was already found allotted.
(ix)In case of breach of condition of lease and after issuance of notice in writing and affording an opportunity of hearing the Collector could have imposed a penalty not exceeding Rs, 500.00 or resumption of land subject to a chance of rectification within a reasonable time.
(x) After the termination of lease it was required to be surrendered by the lessee.
8. We have no hesitation in our mind, after having an in depth evaluation of the said notification, that it does not find mention for allocation, allotment, leasing of such available State land to the Armed Forces rather a restriction has been imposed by incorporating para-8 as mentioned above concerning ineligibility and para-10 of the notification dated 12.2.1969 further removes doubt if any by clarifying that no such land could be allotted to any person who is in the service of Central/Provincial Government/any Development Authority/a Semi Government Institutions/Local Body.
9. We have examined the case of respondents on the criterion as laid down in the said notification.
There is no denying the fact that in April 1993 pursuant to an application moved by Abdul Karim (Respondent No, 1) to Deputy Commissioner/Collector Bahawalnagar for grant of propriety rights being landless tenant, the land in question was leased out at the report of Assistant Commissioner after holding a comprehensive inquiry and recording of his findings in his favour by means of order dated 5.6.1993 which is reproduced herein below for ready reference:--
10. Now the land which was already leased out after completion of all the mandatory formalities as enumerated in the notification dated 7.2.1968 could not have been declared as "land available", hence the question of its further allotment (without getting it cancelled which aspect of the matter has been discussed in the latter portion of this judgment) by means of order dated 19.8.1995 does not arise. The respondents are admittedly landless tenants to whom land measuring 96 acres, 7 kanals, 11 Marlas was leased out in accordance with the then prevalent policy and physical possession was also handed over which could not have been cancelled by one stroke of pen without affording them proper opportunity of hearing as envisaged in para-23 of the notification dated 7.2.1968 which is in grave violation of the principles of natural justice, fair play and equity.
How the respondents could. have been deprived from a major chunk of their land without following the prescribed lawful procedure. Sardar Muhammad . Ghazi, learned ASC has laid much stress on the notice issued to the respondents, which according to him, amounts to cancellation of the land in question, which is reproduced herein below for ready reference:-- 11.We have carefully examined the contents of the notice which reveal that it was a notice for the payment of installment and on the basis whereof the inference that installment was not deposited and lease should be treated as cancelled would be baseless having no substance whatsoever. The issuance of notice to respondents hardly renders any assistance to the case of appellant who has absolutely no concern with this aspect of the matter. It is worth mentioning that all such allotments were governed by the provisions of the Colonization of Government Land (Punjab) Act, 1912, read with general colony conditions applicable to the temporary cultivation leases published by Government of Punjab by means of Notification No, 2664-c dated 22.9.1994 read with the notification dated 7.2.1968 and the so called cancellation was not in accordance with the provisions enumerated in the relevant law and policy formulated thereunder and published by- means of notification as mentioned herein above. Even for the sake of arguments if it is admitted that the land in question was cancelled still the question would be as to whether it could have been allotted without order of resumption of land by the District Collector or Assistant Collector, the answer would be in negative. No such resumption order was passed.
12. Mr. Muhammad Zaman Bhatti, learned ASC on behalf of official respondents failed to point out any such resumption order and could not explain satisfactory how the respondents had failed to satisfy the conditions of allotment as contemplated in notification dated 7.2.1968. The Deputy Collector/Collector had acted not only capriciously but in arbitrary manner which can be cited as a classic example of abuse of authority. He had performed his duties in a casual and careless manner and his indifferent approach is highly condemnable. How the land could have been allotted in view of the status quo order passed by Member Board of Revenue qua the said land which makes it abundant clear that the land in question was not "land available" for the purposes of allotment. The allotment was also in violation of Condition No, 5 of the notification dated 7.2.1968 as mentioned above. In view of the above glaring illegalities, high handedness and arbitrariness of the revenue authorities the order dated 19.8.1995 has rightly been declared as unlawful. We are not persuaded to agree with Sardar Muhammad Ghazi, learned ASC for appellant that the scope of Article 199 is limited and such like controversy could not have been dilated upon and decided by the High Court while exercising Constitutional jurisdiction for the simple reason that record was crystal clear and accordingly the controversy being not ticklish and complicated could have been decided. It is well settled by now that 'Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive Authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law.
Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress." (Ghulam Mustafa Khair v. Pakistan & others PLD 1988 Lah. 49, Muhammad Hussain Khan v.
Federation of Pakistan PLD 1956 Kar. 538 (FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar. 599 [FB]. It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v. Hameed Begum 1986 SCMR 1561, Raunaq Ali v.
Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the State, the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party." (East and West Steamship Co. v. Pakistan PLD 1958 SC 41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive.
13.It is brought to our notice that a few hundred acres of land has already been allotted in favour of Brig. Muhammad Bashir (Appellant) who should be satisfied instead of approaching different forums to get the land in dispute allotted in his favour which could not have been allotted to him. I don't know whether it would be relevant or not but I can't help quoting a para from John Steinbeck's "Grapes of Wrath" which is as under: "And the great owner, who must lose their land in an upheaval, the great owners with access to history, with eyes to read history and to know the great fact; when property accumulates in too few hands it is taken away. And that companion fact; when a majority of the people are hungry and could they will take by force what they need. And the little screaming fact that sounds through all history: repression works only to strengthen and knit the repressed. The great owners ignored the three cries of history. The land fell into fewer hands, the number of the dispossessed increased, and every effort of the great owners was directed at repression. The money was spent for arms, for gas to protect the great ,holdings, and spies were sent to catch the murmuring of revolt so that it might be stamped out. The changing economy was ignored, plans for the change ignored; and only means to destroy revolt were considered, while the causes of revolt went on." (Emphasis provided). It is high time that we should teach lesson from history. What would happen otherwise need no comments.
14. The judgment impugned being well based and unexceptionable does not warrant interference.
The appeal being merit less is dismissed. There shall, however, be no order as to costs.