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Petitioner: MESSRS AGRIAUTOINDUSTRIES LTD. VS Respondent: THE GOVERNMENT OF BALUCHISTAN
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title:MESSRS AGRIAUTOINDUSTRIES LTD. vs THE GOVERNMENT OF BALUCHISTAN
JUDGMENT
Reported As: PLD 1987 Quetta 103 Result: Petition dismissed Judgment JUDGMENT AJMAL MIAN, ACTG. C. J.-By this common judgment, we intend to dispose of the above three Constitutional Petitions, as common questions of law and some common questions of facts are involved. The above petitions are directed against the order dated 11th July, 1985 passed by the Martial Law Administrator, Zone `D' under M. L. O. 16 as reconstituted by M. L. O. 46 (hereinafter referred to as the `M. L. O.'). The brief facts leading to the filing of the above petitions, as appear from the record placed before the Court by the parties, are that respondents Nos. 3 to 6 (hereinafter referred to as the `said respondents') or someone on their behalf presented an undated application on or about 5th August, 1975 before the Member, Board of Revenue, Baluchistan, Quetta with the request that Khasra No. 243, Mauza Baroot, measuring 123-0-34 acres (hereinafter referred to as the `land') be sold to them at the prevailing rate. On the very day, the following order was passed :- "May be allotted on usual terms and conditions" (Sd.) 5-8-1975." After passing of the above order, the above application was entered in the inward register on 6th August, 1975 and was assigned No. 2705. On 7th August, 1975 by Order No. 223-6/74-Rev./10318-21, the sale was sanctioned in favour of the said respondents at the rate of Rs. 10 per produce index Unit. It is the case of the said respondents that they were given possession of the land in pursuance of the above order upon payment of the price. It seems that on 4th January, 1978, the respondent No. 2 issued a show-cause notice to the said respondents stating therein, that the land was
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acquired by use of some official position or political influence or by means of fraud or misrepresentation or relaxation of laws, rules, conditions, policy, instructions or orders and calling upon them to show-cause as to why the sale of the land should not be cancelled in exercise of powers under section 164 of Land Revenue Act, 1967 read with the Martial Law Order No. 16 issued by the Martial Law Administrator Zone 'D' Baluchistan. The above show-cause notice was replied to by the said respondents on 22nd January, 1978, in which, it was stated that considerable land was reserved for agriculture purpose in order to promote grow more food scheme and that they had obtained the land for the said purpose and were making lot of efforts for improving the land for the said purpose. It was also stated that the land was not acquired by using any official or political influence. It was prayed that the notice be discharged and they be allowed to keep the lead. It may' be pertinent to point out that in the above reply, the address of the said respondents was given "care of Tehsildar, Hub". Lncidently, it may be mentioned that one of the said respondents, namely Sajid Amin was the son of Mr. Aminullah Khan, -who was at that time the Deputy Commissioner, Lasbella District. He was posted by Notification No. 7-10/70-SOI (S&GAD) dated 12th December, 1973 and was transferred by Notification No. 7-10/76-SOI (S&GAD) dated 27th February, 1976 (Annexures R/A and R/B respectively to the counter-affidavit), whereas, two of the said respondents, namely Abdul Karim and Abdul Rehman were sons of Mr. Ahmed Shah Khetran belong--ing to a Sardar family of one of the tribes; whereas, the 4th respondent Muhammad Anwar is reported to be by profession a goldsmith. Be that as it may, it further appears that the above notice was withdrawn by respondent No. 2's letter dated 4th March, 1982. I t may be stated that before the withdrawal of the above notice, the said respondents got a sale-deed dated 16th June, 1981 executed in their favour in respect of the land by the Collector, Lasbella District on behalf of the Provincial Govern-- ment showing the payment of Rs. 1,84,818.76 as the sale consideration. The above sale-deed was registered with the Assistant Commissioner/ Sub-Registrar, Hub Sub- Division, Lasbella on 16th June, 1981. It appears that the Martial Law Administrator, Zone `D' Baluchistan, by a Notification No. 469-8/80- Rev. Dated 12th June, 1984 (Annexure R/C to the counter-affidavit) constituted a Committee consisting of Member (R. J. T.) Board of Revenue, Baluchistan, as the Chairman, the Commis-- sioner, Kalat and Deputy Commissioner, Bela as the members to review all cases on merits where the lands had been allowed to be retained either by withdrawing the notices or by not issuing the notices at all specially in all Tehsils of District Lasbella under the M. L. O. The above Committee submitted its report sometime in 1985 in respect of various irregular allotments/transfers as per statement annexed to Annexure R/K to respon--dent No. 2's application for additional documents. More than 200 cases of irregular allotment/sale were reviewed. It may be pertinent to reproduce the extract of the relevant portion of the Committee's report in respect of the land, which reads as follows :- "Against above background of the case the committee has following observations: - (i) The land was sold to four applicants without mentioning details of shares, (ii) the order was passed by the learned M. B. R. (on the same date and) on the same application submitted by the respondents without obtaining views of the district revenue administration, (iii) this land was resumed in favour of the state when revision of Hub Tehsil took place vide Notification of Board of Revenue in 1979. This notification provided for return of land to its occupants after payment of installments prescribed therein. The installments were accepted for this land also and the same was mutated in favour of respondents. The Committee believes that no installments should have been accepted by the revenue authorities for payment of this land as it was wrong to treat those lands whose grant attracts the provision of M. L 0.-16 at par with the lands granted/purchased under the said notification of 1979. As the allotments were made irregularly, the withdrawal of notices under M. L. 0.-16 should not have been based on the provision of said
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notification. One of the respondents is Sajid Amin who was son of the Deputy Commissioner, Lasbella. (fv) the land was not granted under any land grant policy/scheme ; (v) the address of respondent is shown as care of D. C. Quetta. (vi) there was a total ban on the allotment of land reiterated vide Board of Revenue's Memo. No. 39/8/70-Rev. 4872-73 dated 20th May, 1977 and therefore, this allotment is in total violation of the Government orders, and (vii) the learned M. B. R. Was not competent to lease/sell the said state land under the Rules. Keeping in view all the points raised above this committee is of the opinion that the land measuring 123-0-34 acres of Khasra No. 243 Mauza Beroot of Hub Tehsil has not only--been , granted through political /official influence but usual norms of law have not been observed either. It may therefore, be resumed in favour of the State, all the installments paid if any by the respondents may be refunded to them. The above report/recommendations of the Committee are submitted for the consideration/orders of Governor/M. L. A. Zone `D'. (Sd.) (Dr. Muhammad Arshad Malik), Member (Rjt), Board of Revenue, Government of Baluchistan, Quetta. (Sd.) (Imtiaz Kazi), Deputy Commissioner, Lasbella. (Sd.) (Syed Roshan Zamir), Commissioner, Kalat Division." It seems that upon the receipt of the above report the Martial Law Administrator, Zone 'D', inter alia, passed the resumption order, which was conveyed through the impugned order dated 11th July, 1985 pertaining to 33 irregular allotments/sales mentioned in the schedule to the said order. The land is mentioned at S. No. 24 of the said schedule. It may be pertinent to reproduce the operative portion of the impugned order and endorsement at S. No. 6 at the bottom of the, schedule, which reads as follows :- "No. 469-8/FO-Rev. 10810. In exercise of the powers vested in him under MLO-16/46, the M. t_. A. Is pleased to order the resumption of the land in favour of the State in the following cases wherein the Ex-M. B. R. Had withdrawn the notices: -" "6. The Deputy Commissioner, Quetta/Kalat/Loralai and Bela, with the direction to immediately resume the above lands and enter the same in the name of Provincial Government of Baluchistan in the Record of Rights. Confirmation to this effect may be sent to this office within 15 days of the receipt of this order." Ih pursuance of the above order, the mutation entries were reversed in the Revenue record. It appears that the said respondents filed a Review Petition dated 7th September, 1986 before the Governor under para. 5(2)' of the M. L. O. 2. It may be observed that the facts stated hereinabove are the common facts in the above three petitions. It may be pertinent to state the facts of each of the above three petitions. (i) Constitutional Petition No. 79/86 The petitioner is a Public Limited Company having its registered office in Karachi. The petitioner by a registered sale-deed. Dated September, 1981, registered on 3rd October, 1981 with the Assistant Commissioner/ Sub-Registrar, Hub Sub-Division, Lasbella purchased a portion of the land measuring 18-1-33 acres for a sum of Rs. 11,07,375. After that, they applied to the Collector, Lasbella for conversion of the aforesaid land from agriculture into Sikni, which was accorded in terms of Order No. (130)5/Rev./4061, dated 5th December, 1981 without charging any conversion charges or fee. After that, they obtained a No-Objection Certificate, dated 3rd November, 1983 from the
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Industries Department, Government of Baluchistan for establishing an industry outside the Hub Industrial Estate. It is the case of the petitioner that they constructed and established an industrial establishment with an investment to the tune of Rs. 160 millions and that the said industrial establishment is in operation since 4th January, 1983. It is also the case of the petitioner that they had entered into arrangements for providing financial assistance with Messrs Bankers Equity Limited, Karachi firstly in the sum of Rs. 5.5 millions and then in the sum of Rs. 7.7 millions and mortgaged the said property vide registered mortgage deed No. 52, dated 10th August, 1982 and registered deed No. 104 dated 10th June, 1985. It has been also averred that when the petitioner in April, 1986 in order to finalize certain arrangements with Financing Institutions for increased financing applied to the Assistant Commissioner/Sub-Registrar, Hub for issuance of search certificate, which was issued to them on 28th April, 1986, they discovered that the above said certificate inter alia, contained the following endorsement: - "Cancelled and entered in the name of the Provincial Govern--ment under Martial Law Order No. 16 vide Mutation No. 676 dated 23-9-1985 in compliance with the Order No. 10808/Rev. 464-8 dated 11- 14/7/1985." Thereupon, they made efforts to inspect the record and to obtain the copies which attempt proved futile. Thereafter, after obtaining the requisite information as to the reason of the above endorsement, they filed the present petition challenging the impugned order on the various grounds including acquiescence and estoppel. (ii) Constitutional Petition No. 84/86 The petitioner is a Public Limited Company having its registered office in Karachi. They obtained a No-Objection Certificate dated 24th September, 1980 from the Industries Department, Government of Balu--chistan for establishing an industry outside the Hub Industrial Estate. After that, by a sale-deed dated September, 1981, they purchased a piece of agricultural land measuring 22-0-39 Acres, out of the land, for a sum of Rs. 13,34,625 from the said respondents. The above sale-deed was registered with the Assistant Commissioner/Sub-Registrar, Hub Sub-Division, Lasbella on 3rd October, 1981. The petitioner then applied to the Collector, 10Lasbella for conversion of the aforesaid portion of the land from agriculture into Sikni, which was accorded by Order No. (130)-5/Rev./7592 dated 19th July, 1982. It is the case of the petitioner that after obtaining permission for construction of the factory, they constructed an industrial establishment with an investment to the tune of Rs. 272 millions, which is in operation since 1st September, 1983, wherein approximately 238 persons are engaged at work. It is also the case of the petitioner that in order to finalize certain arrangements with Financing Institutions for increased financing, they applied to the Assistant Commissioner/Sub-Registrar, Hub for issuance of Search certificate in. Respect of the aforesaid portion of the land. Upon receipt of the above certificate on or about 18th June, 1986, they discovered the aforesaid endorsement referred to in para. 2 above. After that, they filed the present petition. (iii) Constitutional Petition No. 85/86 The petitioner is a Private Limited Company having its registered office in Karachi. They purchased a portion of agricultural land measuring 9-3-08 Acres out of the land for a sum of Rs. 5,88,000 from the said respondents under a sale-deed dated September, 1981 registered with the Assistant Commissioner/Sub-Registrar, Hub on 3rd October, 1981. They applied to the Collector for conversion at' the said portion of the land from agricultural into Sikni, which permission was accorded by Order No. (130)-5/Rev./4062 dated 5th December, 1981 without charging any conversion charges or fee. The petitioner had applied for requisite permis--sion for establishment of an industrial undertaking in the form of a Printing Industry to the Government of Baluchistan, Ministry of Industries, which permission has not yet been accorded. It is the case of the petitioner that they had discovered the aforesaid endorsement referred to in para. 2 above from the petitioner in the above first petition,
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after receipt of the search certificate. They have also filed the present petition to impugn the above order. 3. The above petitions have been resisted by the official respondents and, inter alia, it has been averred that the impugned order has been passed in accordance with law. 'Before dilating upon the respective contentions of the learned counsel for the parties, it may be observed that there seems to be some confusion as to the Authority who had passed the impugned order. A perusal of the relevant portion of the impugned order indicates that it was passed by the Martial Law Administrator, Zone `D', Baluchistan, but the petitions have been framed on the assumption that as if the same was passed by the Member of the Board of Revenue. Same mistake has crept into one of the comments filed by the official respondents. However, both the learned counsel have argued the case on the assumption that the same was passed by the Martial Law Aministrator, Zone `D' Baluchistan, though it was also urged by the learned counsel _ for the petitioners and of the said respondents that the impugned order was not in accordance with the M L. O., inasmuch as, it was the Committee which examined the case without jurisdiction. 4. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners in the above three petitions has urged as follows :- (i) That the impugned order dated 11th July, 1985 is void, as it is beyond the purview of the M. L. O.; (ii) that the Authority who had passed the impugned order had no authority to pass the same and, therefore, it is Coram non judice; (iii) that even the provisions of the M. L. O. Have not been adhered to, as no opportunity was given to the petitioners or to the said respondents before passing the impugned order; (iv) that since the Mutation Entry No. 676 dated 23rd September, 1985 was effected on the basis of the above impugned void order, the above mutation entry is of no legal effect; (v) that no notice was given to the petitioners or to the said respon--dents while recording the above Mutation Entry No. 676 dated 23rd September, 1985; (vi) that since the respondent No. 2 maintains public record pertaining to quasi judicial proceedings, the petitioners having interest were entitled to inspect the same and to have the copies thereof, which was denied to them illegally; and (vii) that in any case, the petitioners being bona fide purchasers for valuable consideration, without notice of any defect, are entitled to protection under section 41 of the Transfer of Property Act, as the official respondents Nos. 1 and 2 have acquiesced to the peti--tioners as well as to the said respondent's rights. Mr. Basharatullah, Advocate who was assisted by Mr. Ghulam Sarwar Malik, Advocate appearing for the said respondents has contended as under :- (i) That the impugned order is not an order under the M. h. O.; (ii) that the action under the M. L. O. Could be taken when the land would have remained as land and not after the construction was raised and industries were set-up; (iii) that under the M. L. O. Action could have been taken when the land would have remained with the allottee and not after it was sold to a third person; and (iv) that the said respondents purchased the land from the Competent Authority under the law at the relevant time without exercising any official or political influence. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has submitted as follows :- (i) That the impugned order falls within the compass of the M. L. O. And was passed by the Competent Authority; (ii) that under the M. L. O., notice was required to be given to the allottee, which was given in the instant case ;
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(iii) that if the impugned order is within the compass of the M. L. O., any procedural irregularity would not vitiate it ; (iv) that there was sufficient material before the Committee and the Martial Law Administrator, Zone 'D' to infer that the land was acquired by the said respondents by exercising official/political influence ; (v) that there was no requirement to serve any notice upon the petitioners or to the said respondents by the Revenue Authorities in view of section 45 of the West Pakistan Land Revenue Act, as the entry was made in pursuance of the impugned order, which was passed by a competent authority ; (vi) that the petitioners are not entitled to protection under section 41 of the Transfer of Property Act, and (vii) that the impugned order was protected by clause (5) of Art. 15 of the Provisional Constitution Order, 1981 as well as by Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973. 5. Before dilating upon the above contentions of the learned counsel for the parties, it may be pertinent to observe that the Martial Law Order No. 16 was issued by the Martial Law Administrator, Zone `D' on 22nd December, 1977. It was re-constituted as Martial Law Order No. 46 on I1 th February, 1979. It may be advantageous to reproduce the same, which read as follows :- "I, Major-General Abdullah Saeed, Martial Law Administrator Zone 'D' Baluchistan, order the following: - In pursuance of the Proclamation of the fifth day of July, 1977 and in exercise of the powers conferred by Martial Law Order No. 3 issued by the Chief Martial Law Administrator, 1, Major-General Abdullah Saeed, Martial Law Administrator Zone `D' make the following Martial Law Order :- Any allotment of State land (or water right) made between the first day of January, 1972 and the 4th day of July, 1977, which is not covered by any regular scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912, or which has been obtained by using official position or political influence or by means of fraud or misrepresentation of facts in violation or relaxation of law, rule, condition, policy, instructions or orders, may notwithstanding anything contained in any law for the time being in force, or any order or decree of a Court, tribunal or authority, be cancelled by the Board of Revenue or any officer authorised by it in this behalf : Provided that no order of cancellation shall be passed without giving the allottee a reasonable opportunity of being heard. Explanation I-The term 'allotment' includes. Any grant, lease, exchange, sale, restoration of resumed lease or any other transaction so declared by the Board of Revenue. Explanation II.-The term 'water' means the water granted for irrigation purposes. On cancellation of allotment, the Collector of the District shall resume the land forthwith. No compensation or claim for improvement, other than compensation in respect of any standing crops, shall be payable by Government to the outgoing allottee. Where the allottee is aggrieved by the decision of the Board of Revenue or the authorised officer, such allottee may submit a petition to the Martial Law Administrator, Zone 'D' for review within seven days of such decision. The Board of Revenue may issue such instruction as it deems necessary for carrying out the purposes of this Martial Law Order and such instructions, shall be deemed to form part of this ardor and shall have effected accordingly_ Martial Law OrderNo.46 I, Lieutenant-General Rahim ud Din Khan Martial Law Administratotr , Zone D (baluchistan), hereby issue the following order:--- Martial Law Order No. 16 as amended by Martial Law Orders No 34 and 40, is reconstituted as under: -
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(1) This Martial Law Order shall come into force at once and shall be deemed to have taken effect on the 22nd day of December, 1977. (2)Any allotment of State land or water right made between the first day of January, 1972, and the 4th day of July, 1977, which is not covered by any regular scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912, or has been obtained by using official position or political influence or by means of fraud or misrepresentation of facts in violation or relaxa--tion of law, rule, condition, policy instructions of orders, may, notwithstanding anything contained in any law for the time beingin force, or any order or decree of a Court, Tribunal or Authority, bas . Be cancelled by the Board of Revenue or by officer authorised, by it in this behalf : Provided that no order of cancellation shall be passed without granting the allottee a reasonable opportunity of being heard. ExplanationI---the term allotment includes ant grant lease exchange , sale, restoration of resumed lease or any other transaction declared by the Board or Revenue . ExplanationII---For the purposes of this Martial Law Order, the tirm `Water`means the water supplied or made available for irrigation purposes. (3) On cancellation of such allotment, the Collector of the District shall resume the land forth with. (4) No compensation of claim for improvement, other than compensa--tion in respect of any standing crops, shall be payable by Government to the outgoing allottee. ,(5) (1) Where the allotteeaggrievedby the decision of--- "(a) an officer authorised by the Board of Revenue to take action under this Martial Law Order, he may, within thirty days of the date of such decision, file an appeal before the Board ; (b) the Boardoof Revenue upder this Martial Law Order; he may, within fifteen days of the dale of such decision, file a review applica--tion before the Board. (2) The Martial Law Administrator may, either on his own motion or on the application of any aggrieved person, call for the record of any proceedings under this Order and revise the decision made there in . (6)The board of revenue may issue such instructions as it deem necessary for carrying out the purposes of Chief Martial law order and such instructions shall be deemed to form part of this Order and shall have effect accordingly." 6. A perusal of the above-quoted Martial Law Order No. 46 indicate that in order to attract the same, the following conditions are to b fulfilled: - (i) That the allotment should be in respect of State land or water right, which term included any grant, lease, exchange, sale, restora--tion of resumed lease or any other transaction so declared by the Board of Revenue ; (fi) That the allotment should have been made during the period commencing from 1st January, 1972 to 4th July, 1,977 ; (iii) That the allotment should not have been covered by any regula scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912 ; or -. (iv) That the allotment must have been obtained by using official or edt political influence ; or (v) That the allotment must have been obtained by means of fraud or misrepresentation of facts in violation or relaxation of law, rule, condition, policy, instructions or orders; (vi) That the allotment could be cancelled notwithstanding…
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