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Petitioner: The Fauji Foundation Charitable Trust VS Respondent: Federal Land Commission & others
Court Name: Sindh High Court Judge(s): Muhammad Shafi Siddiqui, Muhammad Faisal Kamal Alam Title:The Fauji Foundation Charitable Trust vs Federal Land Commission &
others Case No.: C.P. No. D-620 of 2014 Date of Judgment:2020-02-27 Reported As: 2021 P C T L R 584, 2020 SHC 374 Result: Petition dismissed Judgment Muhammad Shafi Siddiqui, J.- Petitioner being aggrieved of the resumption of land by virtue of order No.3629 dated 05.12.1972, 04.04.1973 and 22.12.1973 passed by respondent No.5, 4 and 3 Deputy Commissioner , Land Commissioner and Additional/Relief Land Commissioner respectively under M.L.R. 115 has challenged the same through the instant petition after almost 41 years, yet again. 2. Brief facts are that the petitioners, being an entity under Charitable Endowment Act, 1890 is administered by a Committee, formed vide notification of 08.03.1972 of the Federal Government has challenged the resumption of land, referred above. The subject land claimed to have been vested with Federal Government under notification dated 13.10.1972. By Resolution No.26 of 02.08.1976 the Committee authorized Secretary to initiate legal proceedings against such resumption. The Secretary in pursuance of such authority delegated to him by the Committee, further authorized Major Ikramu l Haq, the Officiating General Manager on 14.03.2014 to file present petition, which sub-delegation itself is questioned. 3. The petitioner at the relevant time, when the additional/surplus land under the prevailing law, was resumed, it owned the land measuring 1170-20 Acres described in the Part I to Part III of the Schedule-A, plus the lands shown in Schedule-B and Schedule-C respectively . The total holding of the petitioner in terms of Schedules attached in 1971-72 (before resumption) was 2498-061/4 Acres, which was equal to 64952 Produce Index Units (PIUs). It is thus pleaded by the petitioner that they were/are neither declarant nor liable to be declared as charitable institution within the definition provided under the prescribed law and/or in the alternate it was urged that having been registered under ibid Endowment Act 1980, the status of petitioner is different and distinct than one which is covered by definition. The petitioner initially retained an area of 538-08 Acres which equals to 14000 PIUs. Aggrieved of it the petitioner preferred an Appeal No.70 3/LC/72, which was dismissed by the respondent No.4 (Land Commissioner) vide order dated 04.04.1973.
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4. The SROR No.869/1972-73 was then filed which met the same fate vide order dated 22.12.1973 passed by respondent No.3 Additional/Chief Land Commissioner. Consequently petitioner, being aggrieved of the orders, filed CP No.121 of 1974 before this Court. For convenience the prayer clause of the aforesaid petition is not repeated at this stage as we have left it for discussion in our findings ahead, since the cumulative effect of the prayer clauses of the two petitions (earlier and present), is inevitable. 5. During pendency of aforesaid petition, it is claimed that MLR 115 was repealed by Act II of 1977, however again petitioner filed declaration under Act II of 1977, which is again claimed to have been made by mistake. In pursuance of the above, vide order dated 14.01.1978 passed by respondent No.5 further area of 230-20 Acres which equals to 6000 PIUs were provisionally resumed, leaving finally an area of 307-28 Acres, which is equal to 8000 PIUs with petitioner. This additional resumption is not shown to have been challenged under the hierarchy as it did earlier before respondents No.4 and 3. It is pleaded that the proposal to "EXEMPT" the entire land in occupation of the petitioner and/or its predecessor from the provisions of Land Reforms, was discussed and the Chairman who was also the Chief Martial Law Administrator, decided in the meeting on 12.03.1979 to give the "resumed" land on 30-years lease to petitioner on payment of reasonable rent. Based on such understanding the aforesaid petition was withdrawn however with permission to file fresh. (The concept and purpose of permission shall be discussed later). In pursuance of the Minutes of Meeting and as per direction of the Federal Land Commission, respondent No.5 executed two lease deeds in respect of resumed lands i.e. (i) land measuring 1959-38/2 Acres and (ii) land measuring 230-20 Acres for 30 years at the rate of Rs.80 per acre per annum. 6. It is now claimed that the provisions of MLR 115 and Act II of 1977 since been declared repugnant to the injunctions of Islam w.e.f. 23.03.1990, in the light of Qazilbash case hence orders of resumption of land passed by respondents No.5, 4 and 3 dated 05.12.1972, 04.04.1973 and 22.12.1972 respectively be declared as null and void and of no legal effect and the petitioner be deemed to be in possession as it was earlier before promulgation of ibid laws. Petitioner claimed to be in possession of the resumed land as lessee paid lease money at the rate of Rs.80 per acre per annum w.e.f. 1979- 80 till 1994-95. It is however claimed that since then the rates have been revised unilaterally in terms of rate given in the chart below:- S.No. From To Rate 1 1995-1996 1996-1997 Rs.160/- 2 1997-1998 1998-1999 Rs.240/- 3 1999-2000 -- Rs.325/- 4 2000-2001 -- Rs.400/- 5 2001-2002 2134 Rs.700/-
7. Consequently and for the purpose of this petition a cause to initiate the present proceedings triggered when the respondents claimed an increase in the rate of lease unilaterally at the rate of Rs.,4500/- per acre per annum w.e.f. 2009. Since the amount, as claimed, was not only illegal and unlawful but also arbitrary exercise of power, it (petitioner) had not paid the same as it had already paid the same at the rate of Rs.700 till June 2013. The recovery proceedings claimed to have been initiated illegally and unlawfully under Land Revenue Act and consequently warrants of arrest dated 27.02.2014 was issued against Manager of the petitioner. This letter, urged to be in violation of order dated 10.04.2014 passed in this petition and consequently petitioner amended the petition by impugning warrants of arrest as well as consequent orders dated 24.01.2014 and 27.02.2014 respectively issued by respondent No.6. 8. Initially this matter was heard at length on 06.02.2020 when Mr. Jhammat was questioned about the maintainability of this petition and his answers were not found satisfactory. He then resorted to point out that there are counsels from the respondents' side who may like to appear. We may point out that this matter was already heard at length when Mr. Jhammat made the above statement. The statement made by Mr. Jhammat was strange but the purpose was1
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meaningful as learned Addl. Advocate General was present to address and he never asked Court for adjournment. We however directed all counsels to appear on the next date i.e. 27.02.2020. 9. Mr. Allah Bachayo Soomro, Additional Advocate General Sindh, appeared for Province of Sindh and Mr. Farooq H. Naek Advocate on behalf of respondents No.5 and 6. The contention of petitioner 's counsel out rightly denied by Mr. Naek. It is urged that the petition suffers from laches of almost more than four decades and no explanation is provided for this inordinate delay , which petition otherwise cannot be maintained under the law. It is urged that the land has already been resumed and the challenge, as thrown by petitioner insofar as enhancement of lease money is concerned, is not a challenge on the touchstone of mala fides as despite repeated notices, petitioner failed to respond and consequently notices for demand and warrants of arrest were issued, which were absolutely in accordance with law . 10. Learned counsel further submitted that the petition as well as the remedy suffers and barred on account of doctrine of promissory estoppel. Petitioner claimed to have surrendered all such rights which were agitated in the earlier petition bearing No.121 of 1974 when as a consequence whereof two leases of 30 years were executed and acted upon. 11. Learned Deputy Attorney General has supported the case of the petitioner and submitted that for security point of view the land was required by petitioner but remained unsuccessful to substantiate/ manifest his contentions. 12. We have heard the learned counsel and perused the material available on record. In view of pleadings and contentions of the learned counsels, following points have emerged:- I) Whether powers granted to the Secretary in terms of Resolution No.26 dated 02.08.1976 could further be delegated under the aforesaid Resolution to enable the Manager to file this petition? II) Whether in the absence of a challenge to a declaration filed by the petitioner "twice" as being charitable institution, any observation can be made by this Court with reference to their declarations which were made four decades ago? III) Whether the land was lawfully resumed under MLR 1 15 of 1972 and Act II of 1977? IV) Whether such resumption could be challenged after almost more than four decades? V) Whether petitioners bartered/surrende red their rights (right to contest earlier petition No.121 of 1974) with the execution of two leases of 30 years each by applying doctrine of election and the relief could not be granted under doctrine of estoppel? VI) Whether it was lawful for the petitioner to retain possession under 30 years leases? And/or VII) Whether a lawful process was involved in execution of 30 years leases in case it was so desired by the provincial government to lease out the land for their/its monetary benefit? VIII) Whether lease money was lawfully enhanced by the respondent? IX) Whether before issuing warrants of arrest procedure as required under Chapter VIII which deals with the collection of land revenue was exhausted? 13. For the purpose of deciding the controversy we have scanned all documents attached with the pleadings. 14. This petition was filed on the basis of a Resolution, as referred above, bearing No.26 passed on 02.08.1976 by the Committee formed to administer petitioner . It enabled the Secretary to exercise the powers mentioned therein and to act accordingly . The Committee so empowered with the mentioned authorities and acts, was required to file this lis through an authorized person. However, on the basis of the aforesaid Resolution such authority was delegated to the Secretary of the above referred Committee, to exercise all such powers which include powers mentioned in clause 6 of the Resolution. The Committee never authorized the Secretary or delegated any such powers to the Secretary for further delegation of powers. In the absence of such delegation, the act of Secretary to execute an authority letter in favour of a manager to enable him to file and institute legal proceedings is far stretched. 15. This petition on the basis of an authority letter of the Secretary of the Committee of Administration was filed by one Major Ikramul Haq (Retd.) son of Ch. Ghulam Muhammad Shaque. The petitioner has not been able to explain as to how these powers have been delegated to a Manager by the Secretary, to whom alone the Committee delegated such powers to act accordingly. This Resolution enabled and empowered the Secretary to conduct day to
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day business which does not require any special attention of the Chairman or Member of the Committee. When after deliberation the Members of the Committee of the Administration of the petitioner resolved that the Secretary to act as authorized person, then unless otherwise explained, it does not deemed to have empowered the secretary, to further delegate the powers to a Manager. Hence we are of the view that such delegation of powers through an authority letter is not borne out of the Resolution nor it was the implied authority delegated to the Secretary to further delegate such powers and an approval from committee was inevitable. We do not find it in consonance with Order XXIX Rule 1 CPC. Reliance is placed on (i) 2004 SCMR 1034 Khalil Ahmad v. Mst. Muhammad Jan, (ii) PLD 2005 SC 705 Muhammad Yousuf v . Haji Sharif Khan and (iii) PLD 2005 SC 418 Imam Din v . Bashir Ahmed. 16. We however shall move on further since we have heard the case on merit as well. We have left the discussion on prayer clauses of earlier petition and this petition purposely, as it is now when it needed most. In the earlier petition, the petitioner claimed an identical relief except a portion of it which is based on a cause that accrued to it when the notice of demand and warrant of arrest were issued and it is only prayer clause "id" in the first paragraph of prayer clause which was inserted as an additional relief in the present petition. For the convenience the two prayer clauses are reproduced as under:- Prayer Clause in instant CP No.D-620 of 2014 (i) To declare that the following orders have been passed without lawful authority and are of no legal effect and may be quashed and set aside: (a) Order No.3629 dated 05.12.1972 passed by respondent No.5 (Annexure-F) (b) Order dated 04.04.1973 passed by respondent No.4 (Annexure-G) (c) Order dated 22.12.1973 passed by respondent No.3 (Annexure-H) (d) Notice and warrant dated 24.01.2014 and 27.02.2014 respectively issued by respondent No.6 (Annexure P&Q) (ii) That permanent injunction be issued restraining the respondents from interfering with the ownership and possessory rights of petitioner of land fully described in schedule-A. (iii) That permanent injunction be issued restraining the respondent from interfering with the leasehold rights of the petitioner and in any manner from increasing rate of lease money from Rs.80/- per acre per year. (iv) That respondents may be directed to adjust the illegally recovered amount towards future lease money of schedule-B and to refrain from doing anything which they are not permitted by law. (v) Any other relief this Hon?ble Court deems fit may be granted. (vi) Costs of the petition be borne by the respondents. Prayer clause in earlier CP No.D-121 of 1974 I. To declare that the following orders have been passed without lawful authority and are of no legal effect and to quash and set aside the same:- (a) Order No.3629, dated 5 December , 1972, passed by Respondent No.1 (Annexure-B) (b) Order dated 4 April, 1973, passed by Respondent No.2 (Annexure-C) (c) Order dated 22 December , 1973, passed by Respondent No.3 (Annexure-D) II. To restrain the respondents their agents and representatives from dispossessing the petitioner from the Land Farm bearing survey No. as given in the schedule annexed herewith and marked "E" measuring about 2500 acres situated at Deh Nukerji and Deh Kandani and from recovering the same and to refrain from doing anything which they are not permitted by law to do. III. To award costs of the proceedings. IV. To grant such other reliefs as this Honble Court may deem fit and proper in the circumstances of the case. 17. Substantial piece of land was resumed under MLR 115 in the year 1972-73. The resumption of land was challenged by the petitioner by virtue of an Appeal bearing No.70-3/LC/72, which was dismissed by respondent No.4 vide order dated 04.04.1973 (challenge in the earlier petition as well as this petition) followed by order passed on SROR No.869/72-73 filed by the petitioner and dismissed by respondent No.3 vide order dated 22.12.1973 (which was also impugned in the earlier petition as well as this petition). The petitioner challenged two orders, referredth th nd ?
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above, and the resumption of subsequent land when Act II of 1977 came into being, in the earlier petition. There was no challenge under the hierarchy, of a subsequent land resumed (at least not demonstrated). While the petition was pending, the petitioner then interested in an idea of occupying land on 30 years lease instead of fighting over a lost case. This was resolved in a meeting held in Chief Martial Law Administrator's (CMLA) Secretariat on 12.03.1979. Minutes of meeting though were to consider the request of petitioner for exclusion of Fauji Sugar Mills Farm from operation of Land Reforms Regulations 1972 (MLR 115) however it was resolved differently . The meeting was presided over by President/CMLA and attended by (a) Ministers of Finance Et Law, (b) Secretaries Law, Defence and Cabinet, (c) Member FLC and (d) Managing Director Fauji Foundation (petitioner). It was resolved and decided in the meeting that the land in question be given on a long term lease of 30 years to petitioner under section 17 of Land Reforms Act, 1977. 18. The Minutes of aforesaid meeting with CMLA were forwarded on 12.03.1979 and it was considered inadvisable to undertake subject legislation in the nature of an amendment in Land Reforms Regulations 1972 (MLR 115) and the land Reforms Act 1977 (Act II of 1977) to exempt Fauji Sugar Mills Farms from the provisions of Land Reforms Act. The Federal Government under the above discussed nomenclature (Cabinet) thought that such "exemption " might be misunderstood and could lead to unavoidable criticism of the government and the armed forces. Besides, it would invite from other charitable institutions and trust etc., similar demands which the Federal Government may find dif ficult to resist. 19. The petitioner, while their petition was pending were conscious of their rights and entitlements and consciously elected to have the same land on 30 years lease, instead. The two leases were executed on 05.01.1980 whereafter earlier petition No.121 of 1974 was withdrawn. 20. There is apparently no purpose behind obtaining permission for filing fresh petition as for any fresh cause no permission was required and the "subject cause" i.e. resumption of land was being dealt with when parties negotiated to resolve it by way of 30 years lease and which cause deemed to have been consumed. Under Order XXIII Rule 1 CPC a litigant is only allowed to withdraw a lis and to file it again, if the defects in the petition are not curable and so far as fresh cause is concerned, no permission was required. Order XXIII Rule 1 CPC read as under:- ""1. Withdrawal of suit or abandonment of part of claim:(1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied - a) that a suit must fail by reason of some formal defect or b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. "(3) Where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4)...." 21. This is where the doctrine of election would come into play and consequently doctrine of promissory estoppel. Petitioner, in its dealing with official respondents opted for one of the option available and once an option was availed, leaving and ruling out other, it/petitioner cannot have a second recourse to have another option under the doctrine of election and consequently based under law of Estoppel. This is waiver of alleged right amongst the available range and once an option is chosen, the other goes out of reach. If petitioner thought it had a right and it bartered the same with other option, estoppel would come into play as by conduct it is evident. This principle of election, for the purpose of the present controversy, is derived from principle of estoppel. 22. The better course available, as they thought, was to have a land of a long term lease on payment of reasonable/nominal rent while giving away any right if existed at the relevant time. Based on such reasoning and the conclusion in the above terms, which was a barter of their rights to contest the earlier petition, a decision was taken
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and consequently the petition was withdrawn with alleged permission, to file fresh. Permission granted to petitioner was not unconditional. Petitioner was only allowed to file, if so advised, and this would not exclude the jurisdiction of this Court to examine the case, in the above terms. 23. A question now would be, as has been raised by the petitioner , whether such rights to challenge the reclaimed/excess land, resumed under MLR 115 would still be available under the facts and under the law. A simple answer to it would be "NO". Remedy and/or relief was earlier availed in lieu of 30 years lease when the earlier petition was filed and it is for this reason that the dispute was set at rest while they were at both the ends of the fence. This question is now far from being conceived if such relief is still available to petitioner . 24. The petitioner has thrown a challenge to nullify the orders passed in the year 1972 and 1973 respectively, which orders too were accepted when they surrendered themselves at the time of execution of 30 years lease in respect of the same land. Reliance is made on the case of Abid Mahmood Butt v. Manager S.B.F.C. reported as 2002 YLR 1383. 25. Let us now discuss whether 30 years leases were executed after following the procedure as required under the law, in favour of the petitioner. In terms of Section 21 of MLR 115 as well as under section 17 of Act II of 1977, the provincial government under the nomenclature as they were at the relevant time, if thought to have it utilized, that should have been done under a transparent mechanism i.e. any lease either for a shorter period or a longer period should not have been done without public notice in order to avail maximum monetary profit and to attract public at large and that should be the only consideration in order to maintain the orchard, and agricultural land, yielding maximum produce. Such was not done in the instant case hence we do not appre ciate the manner in which such leases were executed as the Provincial Government did not get the maximum out of it. Section 21 of MLR 115 and 17 of Act II of 1977 read with other releva nt provisions, reproduced below , would be frustrated if the public interest and for public purpose such land was not used. Definition of "person " and Paras 8, 12, 19, 21 from MLR 1 15/72 : (7) "person" includes a religious, educational or charitable institution, every trust, whether public or private, a Hindu undivided family, a company or association or body of individuals and a co-operative or other society, but does not include a local authority, a university established by law, a body incorporated by a Central or Provincial law, or an educational institution exempted by Government from the operation of this Regulation; 8. Limits on individual holdings:- (1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land), or an area equivalent to fifteen thousand produce index units of land, whichever shall be greater. (2) Notwithstanding the provisions of sub-paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any, which would bring the total area retained by him to the equivalent of eighteen thousand produce index units, if on the twentieth of December 1971.- (i) he owned an agricultural tractor, certified to be in good working order by an officer authorized by the Commission in this behalf; or (ii) there was installed on his land a tube-well, of not, less than ten horse-power. (3) Any person, who, at any time before the commencement of this Regulation but not earlier than the twenty-fifth day of December 1971, became the owner of an agricultural tractor certified as provided in clause (i) of sub-paragraph (2) or had installed on his land a tube-well of not less than ten horse-power, or at any time after the commencement of this Regulation becomes the owner of such a tractor or installs on his land such a tube-well, shall, notwithstanding, the provisions of sub-paragraph (1), be entitled, after becoming the owner of such tractor or having installed such a tube-well, to acquire, possess or own such additional area as would bring the total area possessed of owned by him to the equivalent of fourteen thousand produce index units:
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Provided that a person who on…
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