MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated 2-8-2000 of the Lahore High Court whereby Constitutional petition filed by the private respondent with the following prayer embodied therein has been accepted:--- "(a) That the impugned order/findings of respondent No,1 dated 17-6-1998 are illegal, without lawful authority and of no legal effect.
(b) Direct the respondents to act in accordance with the law and to accept the price paid by the petitioner in line with the formula laid down for the calculation of price by the respondents themselves. In case any further price has to be paid, it shall be recoverable at the rate of price prevalent in the year 1958, as held by respondent No,2.
(c) Direct the respondents to register the sale of land and make necessary mutation in the Revenue Record in favour of the petitioner.
(d) Any other relief that this Hon'ble Court may deem appropriate in the circumstances of the case.
It is further prayed that pending the adjudication of this writ petition, the operation of the impugned order of respondent No,1 may kindly be stayed/suspended for the ends of justice."
2. The facts of the case giving rise to this petition shortly stated are that through letter dated 18-11- 1952, the Additional Secretary to Government of Punjab, Resettlement and Colonies Department informed the Deputy Commissioner, Lyallpur with a copy to Commissioner, Multan Division and the Secretary to Government of Punjab Industry and Electricity Department,, Lahore about the sanction of the Government of Punjab for the sale by private treaty of the land in dispute measuring 115 acres situated in Faisalabad City to Messrs Crescent Textile Mills, Limited, Lyallpur respondent (writ petitioner) for establishment of textile mills subject to the following conditions:-- "(1) That the price of the land to be paid will be determined later after Commissioner's recommendations are received. The price fixed by the Government will be binding on the applicants.
(2) That the lessees on Government land if any are given some alternate land before they are ejected.
(3) That the firm is prepared to pay compensation to the sitting lessees if any of their standing crops prior to their being ejected."
3. It was also provided in the said letter that in case the above mentioned conditions were fulfilled and agreed to, the possession may be given to the Mill as a special case and a detailed proposal for the sale of this land to the respondent-mill was also ordered to be furnished immediately. In furtherance and implementation of the said sanction, the possession of the said land was delivered to the respondent-mill on 24-2-1953 as per letter written by the Deputy Commissioner, Lyallpur to the Tehsildar, Lyallpur from which it can safely be inferred that the conditions mentioned in the earlier letter of sanction of sale of the State land had been fulfilled, i,e, the Mill had agreed to pay the price which was to be determined as per terms of the said earlier letter and they had also agreed to establish an industrial concern. S.M. Elahi son of Mehr Elahi, Director, Messrs Crescent Textile Mills Limited, Lyallpur conveyed the acceptance of the said conditions mentioned in the letter dated 18-11-1952 through letter dated 24-7-1953. It appears that previously the Government of Punjab under bona fide belief and assumption that the land in dispute was vested in it had made the said offer in pursuance of the policy of the said Government to industrialize the area subsequently came to know that the land in dispute was evacuee. Mr. Noor Muhammad, Land Acquisition Naib Tehsildar Industry Lyallpur wrote a letter to General Manager, Crescent Textile Mills, Lyallpur on 28-2-1954 acknowledging that the possession of the said land had already been delivered to the said Mill as resumed evacuee i,e,, Government land by saying that the said land being an evacuee property, as such proceedings for acquisition of the same for the said Company were required to be initiated. On 12-10-1957, the Deputy Commissioner, Lyallpur wrote letter to Crescent Mill conveying the decision of the Provincial Government taken in the meeting held at Circuit House, Lyallpur under the Chairmanship of Commissioner, Multan Division, Multan that approximate cost of acquisition be estimated on the basis of five years' average price counted back from the date of transfer of possession to the Mill and notification under section 4 of the Land Acquisition Act whichever is earlier, whatever deposit had already been demanded on the basis of five years' average should be considered sufficient for the present but the Land Acquisition Collector would not be bound by it. The deposit must be made within one month from the demand now to be intimated to the industries concerned. The approximate cost of the land according to the above formula as conveyed through this letter was Rs,3,68,469.7 which was stated to be the lowest estimate which could be framed. It was also stated that the estimate was not binding on the Land Acquisition Collector. The Mill was directed to deposit the said amount. There is no dispute that an amount of Rs,2,50,000 was deposited by the Crescent Textile Mills on 9-4-1956 and an amount of Rs,1,20,000 on 10-2-1959 through Bank Challan making total amount as Rs,3,70,000. A.
Notification under section 4 of the Land Acquisition Act, 1894 was issued on '22-7-1954 by the Commissioner, Development and Secretary to Government of Punjab Development Department, Lyallpur as is evident from the copy thereof placed on the record by the petitioners with their documents. Further proceedings to complete acquisition of land were still in progress when on 3-1- 1958, the Federal Government conveyed its approval to the Custodian of the Evacuee Property, of exchange of evacuee land measuring 5235 acres with the State land of the Provincial Government measuring 7150. Learned counsel for the petitioners submitted that formal mutation based on this exchange in the Revenue Record Was sanctioned on 14-12-1968.
4. During the acquisition proceedings, Rehabilitation Department raised a demand of the rent of the land from 13-4-1953 to 31-12-1958 to the tune of Rs,1,27,280 from Crescent Textile Mills the legality of which was challenged by the Company by filing Writ Petition No,449 of 1959 before the Lahore High Court which was decided on 2-10-1978 by the said Court. Before the final decision was made, the High Court during the pendency of the said Constitutional petition made a reference to the Custodian of Evacuee Properties, on the question whether the land in question had ceased to be the evacuee property and was vested in the Government or the petitioners as a result of valid notification or order if any passed under the Land Acquisition Act read with Central Government Order if any passed under section I2(3)(b) of the Pakistan (Administration of Evacuee Property)
Ordinance, 1949 or section 6 of Pakistan (Administration of Evacuee Property) Act, 1957.
5. According to the procedure, initial investigation and order was made by the Deputy Custodian who submitted report to the Custodian who after considering all the aspects of the case in paragraph 6 of his judgment dated 18-3-1976 held that the land remained evacuee property till 3- 1-1958 (by typographical error, it has been written as 1959 instead of 1958) when approval of exchange with the State land was granted, as such, various notifications issued by the Provincial Government as well as by the Central Government for acquisition of the said land did not change the character of the land as proceedings followed in pursuance thereof were not finalized when sanction for exchange of the land with the State land was granted by the Central Government. It was also held that the land in question became the property of the three industrial concerns with effect from 3-1-1958 as they had already paid its price under the agreement with the Provincial Government. It was categorically held by the Custodian that since the land had vested in the Provincial Government from the said date i,e, 3-1-1958, therefore, the industrial concerns became the owners of the property pursuant to the agreements with the Provincial Government. The said answers to the questions referred to the Custodian by the High Court were conveyed to the High Court and the Court through judgment dated 2-10-1978 as aforementioned decided the said writ petition. It appears that the Provincial Government did not challenge the correctness or otherwise of the findings recorded by the Custodian in the said judgment. It is manifest from the said judgment that the Provincial Government was joined in these proceedings, it was heard, therefore, it did not question the correctness of the findings recorded therein.
6. After having failed in their various attempts to get the execution of sale deed in favour of Crescent Textile. Mills, it on 3-1-1982 made a comprehensive application for execution of sale deed in its favour. The Deputy Commissioner, Faisalabad in his letter addressed to the Commissioner, Faisalabad Division, Faisalabad conveyed that the average sale price for the year 1951-52 came to Rs,46,080 per acre but the market price as proposed by the Tehsildar was Rs,10,000 per Marla which was supported by the Assistant Commissioner, Faisalabad. It was proposed that the market price at the rate of Rs,10,000 per Marla may be charged from the allottee for the sale of the State land by private treaty in its favour. The Commissioner, Faisalabad Division, Faisalabad in his memorandum dated 10-7-1986 addressed to the Secretary (Colonies), Board of Revenue, Punjab, Lahore proposed that the price of land measuring 77 acres which had actually been utilized for construction of industry should be charged at Rs,10,000 per Marla keeping in view the present condition plus 10% surcharge on account of sale by private treaty and the remaining land measuring 38 acres which according to him had not been utilized for the purpose may be resumed in favour of the State for breach of the conditions. The Deputy Commissioner, Faisalabad was directed to furnish Killa-wise details of both the areas -to the Board of Revenue direct.
7. A summary was moved before the then Chief Minister Punjab in this matter as the Crescent Mill had been agitating for recovery of the price of the land on the basis of market price as was in 1958 on which the Chief Minister after having obtained the views of the Finance Secretary made the following order on 6-1-1987:--
15. Chief Minister has seen and has observed as under.-- "I agree with the Finance Department that the price to be recovered from the mills may be determined on the basis of the price of the land in 1958. This is approved for the area measuring 77 acres which stands utilized by the Mills. Further action should be taken immediately to finalize it.
' As for the area measuring 38 acres which is reportedly not utilized by the mills, we should get a report from the D.C., Faisalabad clearly delineating as to how much area out of this has been kept by the mills- Unutilized and what area is essential for their expansion programme."
8. On 1-12-1997, the Crescent Textile. Mill invoked the jurisdiction of the Member, Board of Revenue.
(Colonies), Punjab on judicial side by making a representation. It was registered as ROR No,301 of 1988 titled "Messrs Crescent Textile Mill & Limited, Faisalabad through its Managing Director versus The State". It was decided through detailed judgment dated, 21-2-1998 in which it was held that market price prevailing as on 3-1-1958 of the entire land should be charged from the said Mill and no distinction should be created between utilized and unutilized land. It was also directed that the amount already paid by the said Mill should be adjusted and a summary on the above lines should be submitted to the Chief Minister for approval through Finance Department. In pursuance thereof, a summary was moved before the Chief Minister of Punjab in paragraph 10 thereof, it was proposed as under:-- "10. To sum up, it is proposed that a Committee consisting of Secretary Finance, Secretary Law, Member (Colonies), Board of Revenue and Commissioner, Faisalabad may be set up to recommend a price for 77 acres as decided in 1987 and report whether any area is to be treated as unutilized and whether a different price can, be charged from this and if so, what this price should be? The Committee may hear the point of view of the mills and also examine similar other cases which have already been decided."
9. It was routed through Secretary Finance who had agreed with the said proposal. The Secretary to the Chief Minister conveyed the decision of the Chief Minister in the following terms:- "Chief Minister has seen and approved the proposal contained in para. 10 read with para 11 above".
10. The respondent-company feeling aggrieved that the matter which had already been finalized in the year 1987 and earlier too was being reopened as regards the quantum of the amount to be charged from it as price of the land and a distinction was being created between utilized and unutilized land to its prejudice filed Writ Petition No, 19065 of 1998 in the Lahore High Court. During the pendency of this Constitutional petition before the High Court, on 2-11-1998, the learned Advocate-General, Punjab informed the High Court that a Committee had already been constituted to sort out the case of the petitioner comprising Secretary Law, Finance Secretary, Senior Member. Board of Revenue and the Commissioner and the matter would be decided within a fortnight. This has been reflected in the interim order of the Court of the said date and case was adjourned to 6-12-1998.
11. It appears as is manifest from the documents placed on the record by the petitioner itself that, a Committee consisting of the said high ranking officers of the Provincial Government was constituted whose recommendations were as follows as contained in paragraph 6 of the report:-- "(i) As decided in 1987, the price of land should be charged on the basis of market price of land in 1958 plus 10% surcharge on account of sale by private treaty plus interest/mark-up at, official rate up to the date of payment. Commissioner Faisalabad will have the price assessed at the earliest and a detailed report along with reasons and supporting documents and basis of assessment shall be furnished by him along with his own views:
(ii) Distinction of utilized and unutilized area is neither warranted nor maintainable as it was not stipulated in the sale order.
(Sd.) (Sd.)
(Imtiaz Ahmad) (Abdur Rashid Khan)
Senior Member Member (Colonies)
(Sd.) (Sd.)
(Sh. Abdul Rashid) (Javed Malik)
Secretary Law Commissioner Fisalabad (Sd) Hassan Nawaz (Tarar) A ddl Secretary Finance."
12. On 16-12-1998, when the writ petition came up for hearing, Faqir Hussain Shah, Deputy Secretary (Colonies) along with Rana Abdul Waheed Khan, DS Finance appeared before the Court who confirmed that the said Committee was to meet on the said date and after deciding the value of the price prevailing in the year 1958, the Committee would submit report to the Chief Minister for approval, therefore, they sought adjournment to submit report about the decision of the Committee on which the case was adjourned to 12-1-1999. On 12-1-1999, Faqir Hussaiin Shahid, Deputy Secretary (Colonies), Board of Revenue informed the High Court that the matter was still pending with District Administration and no decision had been taken as yet about the value of the price prevailing in the year 1958. He made request for another adjournment to submit report about the value of land in the year 1958. The Court adjourned the case for three weeks an4 directed the Deputy Secretary, Colonies to procure the said report from the Committee. Thereafter, the case was adjourned but subsequently para wise comments were submitted by the Member, Board of Revenue (Colonies) in which he expressed his intention to contest the writ petition. The learned Judge in Chamber of the High Court after considering the material placed before the Court passed the impugned judgment dated 2-8-2000 of acceptance of the said Constitutional petition against which leave is sought.
13. Mr. Salim Sehgal, learned counsel for the petitioners after giving history and background of the case in detail which has been narrated above raised the following contentions:--
(a) The Constitutional petition was not maintainable as the impugned decision of the Provincial Government to constitute committee to determine afresh further course of action as to the price to be charged from the writ petitioner was merely a recommendatory body and no final order of determining the price had been made;
(b) A number of questions of facts for determination were involved and alternate remedy of a suit for specific performance was the proper remedy, as such, the Constitutional petition should not have been entertained;
(c) The learned Single Judge in the impugned judgment omitted to note the following admitted facts in the case:
(i) Letter dated 18-11-1952 in which it was conveyed as a condition that price of the land was to be determined subsequently and the same would be binding on the respondent-Company.
(ii) The Provincial Government was not the owner of the land as on 18-11-1952.
(iii) Deposit of an amount of Rs,3,70,000 by the respondent-Company was for the purpose of proceedings of acquisition of land.
(iv) On 3-1-1958 approval for the exchange of evacuee land with the land of Provincial Government was granted by the Federal Government but the exchange of land shall be deemed to have been made in 1968 when formal mutation was sanctioned in the Revenue Record.
(v) The learned Single Judge appears to have been influenced by the judgment of writ petition passed in 1988 but did not consider that findings of Custodian had no bearing in the matter and the Provincial Government according to him will be deemed to have become owner in the year 1968 on the sanction of mutation of exchange.
(vi) The learned Judge of the High Court did not consider that the letter dated 18-11-1952 was legally ineffective instrument because it was written by a party who was then not the owner of the property as it did not vest in it.
(vii) Government Grants Act, 1895 expressly provides that provisions of Transfer of Property Act would not be applicable in the matter of transfer of lease on grant of Government land under the said Act.
(viii) The respondent-Company had agreed that it would be bound by the price to be determined and fixed by the Authority later on.
14. The fallacy of contention-A noted above lies in the erroneous assumption as if under Article 199 of the Constitution only final orders passed in some proceedings could be challenged and a direction sought against them. Article 199 of the Constitution provides that High Court may on the application of an aggrieved person declare that proceedings taken or order passed by any person performing functions in connection with the affairs of the Province or the Centre were taken and passed without lawful authority. It also provides that the High Court can issue direction to such a person to do what law requires him to do and refrain him from doing what law does not permit him to do. This Article is comprehensive, therefore, writ petition was maintainable as a direction was sought that the proceedings taken by the respondents were not permissible under the law and that they should be directed to perform their legal obligations as the law requires them to do so i,e, to determine the price according to the market price prevailing in 1958 and further direction that the matter had already been decided by the Chief Executive of the Province in relation thereto and order passed, the matter could not be reopened, therefore, the Constitutional petition within the parameters of Article 199 of the Constitution was maintainable.
15. The argument that a number of questions of facts were involved in the case which were required to be decided, therefore, the respondent-writ petitioner should have been directed to seek alternate remedy of filing suit, for evidence to determine disputed questions of facts could not he recorded within the scope of Constitutional jurisdiction under Article 199 of the Constitution has also no force though there can be no cavil with the general proposition of law as contained in this argument. The only question which was involved in this case was as to the date with reference to which the price of the land is to be determined and charged from the respondent-writ petitioner, as such, the same did not require recording of any evidence being a pure question of law, as such, the same could legally he decided in the Constitutional jurisdiction. Besides, availability of alternate adequate and efficacious remedy does not have adverse effect on the jurisdiction of the High Court to entertain petition under Article 199 of C the Constitution whereas it is relevant only to decide whether discretion vested in the Court under the said Article should or should not in a particular case in the attending circumstances be exercised. The High Court while entertaining the Constitutional petition in this case in its discretion did not commit any illegality. It was justified in law in the facts and circumstances of the case, for we have noticed that the possession of the land was given to the respondent-company in 1953 with the understanding that industries should he established which it by investment of huge amount established the industry, therefore, the company had fulfilled its part of the commitment; as such, even if it is assumed for the sake of argument without conceding that any other remedy was available, the same was neither adequate nor efficacious. It was eminently a fit case for interference under Article 199 of the Constitution, therefore, this argument has no force.
16. As to the argument that the writ petitioner should have sought remedy by way of specific performance of agreement by filing civil suit apart from being totally misconceived is also plainly unsound. The present one is a case where the State in pursuance of its policy to industrialize the area which was beneficial for the uplift of the economy of the country as a whole offered the land to the Industrialists for the accomplishment of the said object through private treaty by way of sale.
It may be mentioned that under the law, the State could transfer land to welfare institutions even without price, therefore, it was not in strict sense a case of ordinary contract or agreement of sale of land under the general law between the parties, therefore, no question of filing suit of specific performance could legally arise. In the Constitutional petition, direction has been sought to the authorities in the Provincial Government to perform act of the State of charging the price which it was obliged to perform in accordance with law as such, the petition was maintainable, therefore, this argument also is repelled.
17. Dealing with the other contentions, learned counsel for the petitioners in elaboration thereof maintained that the main question in controversy was as to at what rate, the price of the land was to be charged from the respondent-mill. The main thrust of his argument was that in the year 1952 when the land was offered to the respondent-mill which it accepted in 1953 when possession of the same was delivered, the Provincial Government was not the owner thereof which acted with bona fide belief that as it was the owner of the property, therefore, the price should be charged at the market rate of the land prevalent in the year 1968 when on the sanction of mutation of exchange in the Revenue Record by the Revenue Authorities, the land was transferred in favour of the Provincial Government on which date according to him, the Provincial Government shall be deemed to have become owner thereof. This argument carries implied admission on the part of the petitioners that the price of the land is to be charged what was prevalent market price of the land on the date the Provincial Government had become the owner of the property. The argument that the Provincial Government shall be deemed to be vested with the title of the property on the date when formal mutation was sanctioned on the basis of exchange in favour of the Provincial Government overlooks the fact that according to the law declared by the superior Courts, mutation sanctioned in the Revenue Record by the Revenue Authorities itself, does not operate to create or extinguish, any right but it is the transaction on the basis of which the same was sanctioned which is relevant for determining as to on which date the same was effective and the transferee was vested with the ownership right in the property. Reference may be made to the case of Muhammad lqbal v. S.A.M.
Khan, Member, Board of Revenue, West Pakistan; Lahore and 3 others (PLD 1970 Lahore 614).
18.The Central Government admittedly accorded approval of transfer of this evacuee land in exchange to the Provincial Government in lieu of the State land on 3-1-1958. Under section 25(1)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957, the Custodian was vested with the power to transfer any evacuee land with the prior approval of the Central Government of which reliance was also placed during the arguments by Mr. Saleem Sehgal, learned counsel for the petitioners. It may be observed here that no particular form was prescribed under the said Act and the manner in which the transfer by Custodian of Evacuee Property would take place. The Custodian under the said Act who was vested with the power to administer all the evacuee properties and assets according to submission of learned counsel for the petitioners also was the competent authority in the matter of transfer of evacuee land. The Custodian in his order dated 18- 3-1976 as observed above expressly held that the property in question ceased to be evacuee property with effect from 3-1-1958 when the Central Government accorded approval for its exchange which order can legally be construed to be the act of transfer of the land by the Custodian himself in pursuance of the said clause as he did acknowledge the said approval as transfer of the land itself. In the presence of this order of the Custodian, it could not be maintained by any stretch of law that the property did not vest in the Provincial Government with effect from the said date, therefore, the Provincial Government cannot turn around and say that it was not the said transaction dated 3-1-1958 on which date it became the owner but the date on which on the basis of the same formal mutation was sanctioned in the Revenue Record by the Revenue Officer which argument is not sustainable in law as observed above.
19. Since according to the argument of learned counsel for the petitioners, the price of the land was to be charged according to the market price prevalent on the date when the Provincial Government became owner thereof, therefore, it was on 3-1-1958 when it became owner of the property, as such, the direction issued by the High Court that the market price of the similar land as was prevalent in, the year 1958 should be charged from the respondent is perfectly in accordance with law and could not be objected to on any principle.
20. Mr. Saleem Sehgal, learned counsel for the petitioners feebly attempted to argue that the transaction of sale of the, land was void ab initio as the contract was without consideration. As has already been observed, the land was offered to the respondent as an incentive to facilitate establishment of industry in the area as State land which under the Government Grants Act could be transferred without consideration keeping the purpose for which the same was to be utilized, therefore, general principles of ordinary contract could not be invoked in the present case apart from the fact that in the offer itself, it was made clear that the price shall be paid by the respondent the determination of which was postponed, therefore, it could not be maintained that it was a transaction which was without consideration.
21. Faced with this difficulty that there was no legal justification for not abiding by the terms of the offer to charge the price of the land equal to the market price prevalent on 3-1-1958, learned counsel mainly attempted to overcome it by arguing that since on the date when the land was offered by way of sale to the respondent, the Provincial Government was not the owner thereof, as such, it was not bound to abide by its terms. In our view, this argument is also fallacious and deserves no serious consideration. The act of the Provincial Government to make available the said land to the respondent to achieve the object of industrialization in the country persuaded the respondent to invest huge amount who acted in good faith, therefore, it was a case of completed transaction and this argument amounts to claim premium over the fault of the Provincial Government which cannot be accepted on any established principle of law. The Provincial Government admittedly became the owner of the property thereafter on account of the exchange with effect from 3-1-1958, J therefore, it could not turn around and say that on the date when the land was offered to the respondent to invest huge money acting on the representation made by it in good faith, the transaction could be nullified. In these circumstances, the principles embodied in section 43 of the Transfer of Property Act and section 18 of the Specific Relief Act can legitimately be pressed into service to bind the Provincial Government to abide by its commitment. Section 43 of the Transfer of Property Act and section 18 of the Specific Relief Act are reproduced below in extenso for facility of reference:-- "S.43. Transfer by unauthorized person who subsequently acquires interest in property transferred.- -Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
"S.18. Purchaser's rights against vendor with imperfect title.--Where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights:--
(a) If the vendor-lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other persons is necessary to validate the title, and they are bound to convey at the vendor's or lessor's request, the purchaser or lessee may compel him to procure such concurrence;
(c) where the vendor professes to sell unencumbered property but the property is mortgaged for an amount not exceeding the purchase money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with such compensation thereon as may be considered reasonable by Court, to his cost of the suit, and to a lien for such deposit, compensation and costs on the interest of the vendor or lessor in the property agreed to be sold or let.
Punjab Amendment.-- In Punjab for clause (d), the following shall be substituted:-- "Where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any), with such compensation thereon as may be considered reasonable by Court, to his cost of the suit, and to a lien for such deposit, compensation and cost on the interest of the vendor or lessor in the property agreed to be sold or let."
22. Learned counsel for the petitioners in answer to this, submitted that Government Grants Act is an overriding Act and by virtue of its provisions, the provisions of Transfer of Property Act are not applicable, therefore, these provisions could not be pressed into service. We have examined the Government Grants Act which provides that Transfer of Property Act would not be applicable to the transactions made under the said Act. From a bare reading of these provisions, it is manifest that the intention of the law makers was that technical formalities of drawing transactions under the Act in a particular form, documentation and registration would not be applicable in that the procedure for transfer of the land under the said Act was intended to be simplified and to do away with the compliance of technical provisions of the Transfer of Property Act. These provisions are made to facilitate the transfer of property under the Act without any hindrance of technical formalities and nothing else. Even if it is assumed that the provisions of section 43 of the Act are not applicable, as such, it would not in any manner advance the case of the petitioners inasmuch as the principles embodied therein can very well be invoked and pressed into service as principles of prudence, equity, justice and good conscience to the facts of this case, therefore, this argument is devoid of any substance.
23. In view of the above findings, the Provincial Government having become vested with the ownership rights in the property with effect from 3-1-1958, as such, was legally bound to abide by the offer made initially for transfer of land by way of private sale which transaction became final on the delivery of possession of the land to the company on a price to be determined by the Commissioner as contained in the offer.
24. Learned counsel for the petitioners then argued that the respondent had agreed to be bound to pay the price which may be determined by the Commissioner, therefore, it could not raise any objection to, the payment of any price determined by the Commissioner on the ground that the same' should be based on the market price at a particular time and .Period. This argument too is not sustainable. The Commissioner who was vested with the said power of determining the price to be charged from the respondent was required to act in accordance with law reasonably and the price determined should be based on some principles, parameters and not to arbitrarily act at his own whim. The case of the respondent was that firstly the price should be charged from it at the market price of the land prevalent in the year 1953 when the possession was delivered to the respondent. Anyhow, it appears that during the proceedings of the high level committee, the respondent offered to make payment of the price at the market price of the land as was prevalent in 195.8 as the Provincial Government became owner of the land with effect from 3-1-1958, therefore, it was urged that in no case, the Provincial Government could charge the price at the market price of the land of any period thereafter. The contention on behalf of the respondent at all the stages of the proceedings was legally justified and based on the principles of equity, justice and good conscience.
25. During the hearing of the arguments, learned counsel for the respondent-Mill pointed out that in the case of Koh-i-Noor Textile Mills and Rafhan Maize, the price was charged according to the market price prevalent when the possession was delivered to the said companies. We summoned the record of the said companies which was made available. On examination, we find that in the case of Koh-i-Noor Mill, the possession of the land was delivered in 1948. The said Mill was urging that the market price of the land as prevalent in the said year should be charged but the functionaries of the Provincial Government were adamant to charge the price according to the market price of the land on the date when the same was to be paid. The matter came up before the then Chief Executive of the Province who passed order in the year should be charged but the functionaries of the Provincial Government were adamant to charge the price according to the market price of the land on the date when the same was to be paid. The matter came up before the then Chief Executive of Province who passed order in the year 1984 that in the light of the principles embodied in section 18 of the Specific Relief Act, the price should be charged according to the market price prevalent in the year 1958 which was complied with and the price was charged from the said Mill accordingly. In the case of Rafhan Maize Limited, in similar circumstances, the same approach was adopted by the Provincial Government but the High Court in the Constitutional petition filed by the said Mill directed that price should be charged from the said Mill according to the market price prevalent in the year when the possession was delivered to the said Mill. This judgment has attained finality as it was not challenged by the Provincial Government. The grounds on which the Chief Executive in the case of Koh-i-Noor Textile Mills ordered charging of price according to the market price prevalent in the year when the possession of the land was delivered followed the principles laid down in section 18 of the Specific Relief Act as principles of prudence, equity, justice and good conscience. In our view, this is the correct approach which is also just and proper, therefore, the said cases were decided correctly which were perfectly in accordance with law, as such, the respondent-company could not be discriminated, therefore, for this additional ground, the impugned judgment does not suffer from any legal infirmity.
26. Learned counsel for the petitioners submitted that the respondent should have approaches' the authorities promptly for determination of the price of the land, therefore, it should pay the price of the land as prevalent at present or in the year 1968. This argument overlooks the material facts of the case. The respondent had throughout been ready and willing to pay the price to be determined by the petitioners. Whenever the Mill was asked to deposit a specific amount as the price of the land, it deposited the same. Besides, it was primarily the legal obligation of the petitioners of their own to determine the price of the land as early as possible and charge the same from the respondent and in-action on its part in this regard cannot legally be used to penalize the respondent for charging the price of the land which legally could not be done.
27. The question about unutilized portion of the land does not arise in this case. It was not the case of the petitioners that the portion which was lying vacant at some point of time had been used for any purpose not connected NA7ith the Mill or transferred by the Mill to any other person. The area not covered by the main building of the industry was situated within the four walls of the Mill and reserved for further utilization for any matter connected with the Mill, unless it was shown that the said part of the land had been utilized for any purpose other than the Mill, the argument would have had some force. The Mill was not required to bring 0 under the building of the main Mill the entire land transferred to it, for after construction of the Mill, the other portion of the land was required for construction of labour colony, residences of the labour employed, to provide amenities to them of mosque, playground, park and even dispensary. At present, it was urged on behalf of the respondent which fact was not controverted that even the said portion was subsequently utilized for the purpose of the Mill, therefore, there was no question of utilization of the land transferred to the respondent for the purpose other than connected with the Mill, therefore, there was no question of resumption of the additional land.
28. For the foregoing reasons, we find no force in this petition which is accordingly dismissed and .