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Petitioner: ALLAH DITTA VS Respondent: ALI SHER
1988 S C M R 512
1988 S C M R 512
Present: Shafiur Rahman and Zaffar Hussain Mirza, JJ
ALLAH DITTA--Petitioner
versus
ALI SHER and 3 others--Respondents
Civil Petition No.1046 of 1980, decided on 24th November, 1987.
(Against the judgment and order of the Lahore High Court, Lahore, dated 20-7-1980 in Writ Petition No.1596 of 1976).
(a) Constitution of Pakistan (1973)--
---Art.185(3)--Leave to appeal, grant of--Grounds taken in leave petition having been attended to by High Court and a correct view taken--No question of law arising--Leave to appeal refused.
(b) Punjab Tenancy Act (XVI of 1887)--
---S.5--Constitution of Pakistan (1973), Art.185(3)--Tenancy right- Respondent (Lambardar) granted lease of State land under Pedigree Livestock Breeding Scheme-- After expiry of lease period, part of land made available to petitioner but respondent remained in possession--Later, under Government instructions issued for benefit of Lambardars who were in possession of land leased out to them despite expiry of lease, respondent sought acquisition of proprietary rights but was denied on ground that where status quo was passed by Board of Revenue, his lease stood determined and when subsequently rights of lease were revived, his right in tenancy was not in existence--On writ petition, High Court came to conclusion that respondent was entitled to purchase proprietary rights in leased property--Order impugned--Pleas raised that with determination of lease, lessee was left with no rights whatsoever and same could be allotted to someone else and that respondent had allowed a part of grant made to him to be taken over by someone from whom he had purchased this portion thereby estopping himself from claiming the right as Lambardar lessee of the remainder-- Respondent having remained in possession of the grant even after determination of lease and it being for the benefit of such category of Lambardars that status quo order was passed by Board of Revenue pending formulation of its policy with regard to such cases and when policy disclosed, the rights being recognized and conferred on Lambardars to purchase proprietary rights in leased property, respondent had to benefit from it--Question of estoppel was not relevant to disputed land because in respect of it respondent had not indulged in any act at any stage giving the impression that he had abandoned his claim on it--As for portion of land which respondent had purchased from subsequent allottee, he was already vested with proprietary rights though at his own cost and at his own option--No question of law arising, leave to appeal refused.
Ch. Muhammad Ashraf Wahla, Advocate Supreme Court assisted by Mahmood A.Qureshi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 24th November, 1987.
ORDER
SHAFIUR RAHMAN, J.--The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 20-7-1980 whereby a Constitutional Petition filed by the respondent No.1 was allowed and the land in his possession he being the Lambardar was allowed to be retained by him.
The respondent No.1 being the Lambardar was made a grant on Padigree Livestock Breeding Scheme of the disputed land and according to the written covenant the tenancy commenced from 1964 and was to last till 1974 when it was to determine. It appears that after the expiry of the lease period by efflux of time a portion of land was made available to the petitioner. Nevertheless, the respondent No.1 continued to remain in its possession. Subsequently, the Lambardars were given rights in such lands and they continued to acquire proprietary rights in the same. The respondent No.1 moved for the acquisition of the proprietary rights. He was denied the same on the ground that with the order of status quo passed by the Board of Revenue the lease stood determined and when subsequently the rights of the Lambardars were revived his right in the tenancy was not in existence. The High Court in constitutional jurisdiction examined the instructions in the field and came to the conclusion that the instructions of the Board of Revenue which were of general application were for the benefit of Lambardars whose leases had expired but who continued to remain in possession of the land leased out to them. The respondent No.1 ultimately, fell in that category. It was further held that the Board of Revenue indiscriminately applied the instructions to the cases of Lambardars similarly affected. It was for this reason that the Board of Revenue was burdened with the cost of the proceedings.
The learned counsel for the petitioner has urged before us two grounds in the main for challenging the order of the High Court. The first is that with the determination of the lease by efflux of time the lessee was left with no rights whatsoever and the same could be allotted or committed to someone else. The second is that the respondent No.1 has allowed a part of grant made to him to be taken over by someone from whom he had purchased this portion thereby estopping himself from claiming the right as a Lambardar lessee of the remainder.
We find that all these grounds have been attended to by the High Court and a correct view has been taken. It is not denied that respondent No.1 remained in possession of the grant even after the determination of the lease as it was for the benefit of such category of Lambardars that the status quo order was passed by the Board of Revenue pending formulation of its policy with regard to such cases. When the policy was disclosed the rights were recognized and conferred on the Lambardars to purchase the proprietary rights in the leased property. The respondent had to benefit from it. As regards the question of estoppel, that would not be relevant so far as the disputed land is concerned because in respect of it the respondent has not indulged in any act at any stage giving the impression that he had abandoned claiming it. As regards the other portion of the land which he had purchased from the subsequent allottee he is already vested with the proprietary rights though at his own cost and at his own option. We find that no question of law arises in the petition and leave to appeal is refused.
M.I. /A-139/S. Petition dismissed.