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Petitioner: Shahzada ASHRAF DURRANI VS Respondent: PROVINCE OF PUNJAB through Chief JUDGMENT
Court Name: Lahore High Court Judge(s): Sh. Abdul Rashid Title:Shahzada ASHRAF DURRANI vs PROVINCE OF PUNJAB through Chief
JUDGMENT
Reported As: 2006 YLR 554 Result: Petition allowed Judgment JUDGMENT ' SH. ABDUL RASHID, J.---The facts leading to the institution of the present writ petition are that the Government of India in the year 1878 granted lease of 2000 Acres of waste land in District Montgomery (presently District Sahiwal) to Shahzada Nadir son of Shah Shuja-ul-Mulk the King of Kabul who was grandson of Ahmad Shah Abdali vide letter, dated 28th August, 1877. A regular lease deed was executed between the parties on 1-7-1877 copy of which has been placed on the file as Annex B. Shahzada Nadir surrendered his 2000 Acres of land in District Montgomery and in exchange he was granted lease of 182 Acres of waste land in Rakh Bangah of Teshil and District Lahore vide letter, dated 10-11-1890 and this subsequent grant was also on the same terms and conditions as were stipulated in lease deed Annex B. The subsequent lease deed was executed between the parties on 30-11-1891 copy of which has been placed as Annex C. It was stipulated in the lease deed, dated 30-11-1891 (Annex C) that the proprietary rights in the land shall be granted under Part V Class II in terms:-- "That if during term of this lease or on its expiration the Government shall resolve to sell the proprietary rights in the suit-land, the first often thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner Lahore." 2. In the lease deed it was also stipulated that Shahzada Nadir during his lifetime and his one generation of legitimate male heirs will hold the lease free of revenue and a nominal amount of Rs.250 per year was fixed by the Government as annual lease money of the total land of 182 acres payable after the expiry of revenue free period of the lease. During the lifetime of Shahzada Nadir and after his death his male legal heirs all along remained in possession of the land and they
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brought the waste land under cultivation and developed it at huge expense and hard labour in the hope of getting proprietary rights. Sahibzada Ashraf Durani the petitioner being the only grandson of Shahzada Nadir applied for the grant of proprietary rights which was considered by the Board of Revenue firstly on executive side and later on judicial side by way of R.O.R. No. 2192 of 1982 decided on 16-6-1983 by Mr. S.M. Nasim then Member (Colonies) Board of Revenue. He had held that the petitioner was not entitled for grant of ownership as a matter of right and he however, directed that in view of the long-standing possession and development of the lease land by the petitioner and his predecessors the petitioner be granted proprietary rights of 12-1/2 acres only under Government Policy vide order, dated 16-6-1983 (Annex D). Aggrieved by said order, the petitioner then approached States and Frontier Regions Division, Government of Pakistan (SAFRON) successor of Secretary to State Government of India which had ordered the grant of proprietary rights to the petitioner. The Law and Justice Division of Government of Pakistan also endorsed the said order vide letter, dated 26-1-1993 and 20-5-1993 copies of which are (Annexures E and F); in which it had been stipulated that the lease document was self-contained in law and a further coverage of Government Grants Act 1895 was provided, which made it completely independent of application of any other law in this regard. Only the functional responsibility was entrusted to the Government of Punjab through Board of Revenue Punjab within the framework of law prescribed on the subject and thus it being a special case of special law was dealt accordingly by the SAFRON being successor of Secretary of State Government of India "in council". 3. In the meanwhile the petitioner challenged the order of Member (Colonies) Board of Revenue, dated 16-6-1983 by filing Review Petition No.131 of 1992 which was heard by Dr. Imtiaz Ahmad Senior Member (Colonies) Board of Revenue who vide order, dated 29-9-1992 reviewed and recalled the order of his predecessor Mr. S.M. Nasim, Member (Colonies) Board of Revenue by holding that in view of the stipulations of the lease deed, continuous possession of the petitioner on the lease land for over 100 years and the petitioner being the only living grandson of Shahzada Nadir was entitled for proprietary rights of remaining granted land i.e. 169 1/2 acres. Copy of his decision is Annex G. Against the said order an application under section 12(2) of C.P.C. And Review Petitions were filed by some allegedly interested persons, which were finally dismissed by the full Court, Board of Revenue Punjab, Lahore on 18-3-2004. Copy of the said decision is Annexure K and at present no lis against the order of Senior Member, Board of Revenue, Punjab Lahore, dated 29-9-1992 which has attained finality for all intents and purposes of law is pending. However, notwithstanding the aforesaid order and instructions of the Member Board of Revenue the Government of Punjab on one pretext or the other did not implement the said order by granting proprietary rights to the petitioner which has constrained the petitioner to file this petition with the prayer that the respondents may be directed to implement, execute order, dated 29-9-1992 made by Member, Board of Revenue/Colonies. (copy Annex G) in letter and spirit in the Revenue Record and confer proprietary rights of the land in favour of the petitioner with effect from year, 1956 on a reasonable price as prevailed in the said area under the schedule of rates issued by the Government of the Punjab for such lands. 4. The respondents contested this petition and submitted their comments and as well as report to the effect that State land measuring 182 Acres situated in the revenue estate of Kalas Mari Tehsil and District Lahore was granted to the late Shahzada Nadir son of Shah Shuja-ul-Mulk, the King of Kabul and grandson of Aala Hazrat Ahmad Shah in the year, 1891 subject to the following conditions:- "(i) The lease was for the term of Shahzada Nadir's lifetime and one generation of his legitimate male heirs and "Revenue Free". (ii) If during the term of lease or its expiration, the Government shall resolve to sell the proprietary rights in the said land, the first offer thereof shall be made to the lessee, at a reasonable price to be
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fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have accepted to pay the land revenue assessed upon the said land by the proper officers of the Government. Provided further that the lessee shall have no right to such offer if the said lands are required for public purpose." 5. That the original lessee Shahzada Nadir expired on 25-12-1995 leaving behind the following five sons:-- Shahzada Hamdam, Shahzada Muazam, Shahzada Muhammad Umar, Shahzada Muhammad Akbar, Shahzada Ahmad Mukhtar, The fifth son Shahzada Muhammad Akbar was the last who died in India on 7-12-1956 and thus the first generation of Shahzada Nadir Shah ended in the year, 1956. The deceased lessee/lessees could not avail concession of acquiring proprietary rights in the lease in the tenancy during currency of lease or at the expiry of the said lease. In the year, 1962 through a petition one Shahzada Yaqoob a descendent of Shahzada Nadir (the original grantee) requested for extension of the lease and the Board of Revenue, Punjab vide order, dated 13-5-1963 ordered that the lease could not be extended in favour of a third male generation of the grantee and also ordered that the same be resumed from the sitting lessee. Aggrieved by the said resumption order Mr. S.A. Durrani the present petitioner filed an application before the then Member (Colonies), Board of Revenue Punjab, requesting for grant of proprietary rights in respect of 182 Acres of State grant land and the said Member (Colonies) vide order, dated 16-6-1983 in R.O.R. No.2192 of 1982 decided that the lease according to the terms was to subsist only up to one generation of Shahzada Nadir and after that came to an end and the petitioner being the third generation was not entitled to get the proprietary rights under the terms of lease. However, as a special dispensation keeping in view the long occupation on the land ordered to confer proprietary rights up to 12-1/2 Acre and had further ordered for resumption of the remaining land. Mr. S.A. Durrani the present petitioner then filed a review against the said order, dated 16-6-1983 in the Court of Senior Member Board of Revenue which was decided in Review No.131 of 1992 with the observation that the Government would resolve to sell proprietary rights after lifting up the ban imposed by the Chief Minister Punjab regarding sale of State land through private treaty. It had also been couched in the comments that the petitioner along with other descendents had dragged the Government in Writ Petitions No.15184 of 1993, 17777 of 1996, ICA No.407 of 1997 in Writ Petition No.17777 of 1996 and Writ Petition No.7305 of 1995 but the petitioner could not succeed to establish his claim and that he is not legally entitled for the grant of proprietary rights being third generation as the original lease terms was only confined to first generation which expired in the year, 1956. 6. During course of proceedings some applicants i.e. Ahmad Shujah, Nadeem Durani, Muhammad Yousaf Durani and Muzammil Durani filed C.M. No.479 of 2005 and Shahzad Muhammad Zar Bakhat filed C.M. No.696 of 2005 under Order I, rule 10, C.P.C. Read with section 151 C.P.C. For being impleaded as parties while claiming as successors in interest of late Shahzada Nadir. They alleged that they were necessary and proper party of the subject-matter of the present writ petition and the petitioner had filed the petition by intentionally omitting them to acquire the entire rights under the lease to their exclusion. 7. The petitioner had resisted their said applications with the submission that the order, dated 29- 9-1992 passed by Dr. Imtiaz Ahmad Khan Member Colonies clearly held the petitioner to be the sole legal heir qualified to acquire rights under the lease and the same had attained finality against the applicants and until the said finding was set aside, they had no status or claim to be treated as necessary party to be impleaded under Order I, rule 10 C.P.C. The two applications C.M. No.479 of 2005 and C.M. No.696 of 2005 need to be addressed and adjudicated first. 8. It is admitted by the applicants that there is a finding against them i.e. Vide order, dated 29-9- 1992 passed by Dr. Imtiaz Ahmad Khan Member (Colonies), Board of Revenue Punjab, S.A. Durani
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the present writ petitioner has been held to be the only living grandson of the original lessee Shahzada Nadir entitled to the grant of proprietary rights of the disputed land under the instrument of lease, dated 30-1-1891. They have further indicated that they had sought to have the same set aside by filing of the review petition before the Board of Revenue Review No.131 of 1992 and section 12(2), C.P.C. Application in the Review No.131 of 1992. The same had admittedly been dismissed vide order, dated 18-4-2004 by the Full Board. It has also been stated that the applicant had further sought to have the same set aside by filing a further review application before the Board of Revenue, which is statedly pending. While it is doubtful that such a review application lies under the law and the same has not, to this date, been brought on the record. Respondents in their report and parawise comments had also indicated that some kind of proceedings is pending before the Full Board but when confronted with the order, dated 18-3-2004 were unable to indicate what further proceedings remained that could nullify the findings given in order, dated 29-9-1992 by Dr. Imtiaz Ahmad Khan Member (Colonies). Even if some proceedings are pending before the Board of Revenue, the Board itself has not suspended the order, dated 29-9-1992 which still holds the field and remains final and binding qua the applicants. The applicants seem to be urging their case merely as being descendants of Shahzada Nadir, what they failed to recognize is that they have to pass the requirement of the lease deed itself in which they have failed miserably. The determination that they possess the qualifications under the lease deed for grant of proprietary rights was properly required to be adjudicated at the level of Board of Revenue and as noted already the applicants had availed their remedy against the same and had failed to convince the Board of Revenue about the merits of their case that they were descendants of Shahzada Nadir and a joint lessee of the land along with the present petitioner. The order, dated 29-9-1992 passed by the Member Colonies had, therefore, attained finality against them. 9. It is established proposition of law that before any person can be impleaded as a party in the proceedings he has to show that he is either necessary or proper party. ' The necessary, and proper party had been defined in several judgment of this Hon'ble Court as well as that of Hon'ble Supreme Court of Pakistan that it is in relation to the subject-matter of the suit or for that matter a Constitution petition to which C.P.C. Is applicable in view of the law declared by the Hon'ble Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). The subject-matter of the present writ petition is implementation of order, dated 29-9-1992 passed in R.O.R. No.131 of 1992 by the learned Member Board of. Revenue Punjab and in relation to the subject-matter the applicants are neither proper nor necessary party as their presence is not necessary for the adjudication of the point in issue in the writ petition itself. The applicants claim to be successors in interest of Shahzada Nadir and during course of arguments their learned counsel has referred to "revised pedigree-table of the families mentioned in the Revised Edition of Chiefs and Families of Note in the Punjab in which Pedigree-table of Sardar Muhammad Hamdam Saddozai, Shah Shuja-ul-Mulk has been appended at page 58. The applicants claim to be the descendants of Imtiaz Jan born in the year, 1910 and Niaz Ahmad Jan born in the year, 1940 and Yaqoob born in the year, 1923. The pedigree- table does not link the applicant with their said three alleged predecessors as their off-springs have not been mentioned in the same. Furthermore, no proof of Revenue Record regarding Shajra Nasab of Imtiaz Jan, Niaz Ahmad Jan and Yaqoob has been brought on the file to show the applicants' link with Imtiaz Jan, Niaz Ahmad Jan and Yaqoob mentioned in the pedigree-table given on page 58. The applicants in their review petition before the Board of Revenue had failed to establish their claim that they were the successors-in-interest of Shahzada Nadir and secondly the order, dated 29-9-1992 passed by Dr. Imtiaz Ahmad Khan holding the petitioner to be the only living grandson of Shahzada Nadir has attained finality, thus there is no force in the contentions of the applicants and as such their applications are dismissed.
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10.. Regarding the main petition it is submitted on behalf of the petitioner that the lease deed, dated 20-11-1891 in Part V thereto in sub-clause 1 provides that upon expiry of the said lease the Government shall necessarily resolve to sell the land with first right of refusal to the petitioner at the reasonable price fixed and that the words "expiry of lease" referred to expiry of the revenue free period and since that event happened in 1956 the petitioner may be granted proprietary rights upon payment at the rates existing in the year, 1956. Further in support of conferment of proprietary rights the petitioner has also placed reliance on a letter, dated 28-9-1877 written by Under Secretary Government of Punjab to the Secretary Financial Commission Punjab which expresses that hopes may be held out to the Shahzada that if they improve the estate the proprietary, rights will be granted and that further on a letter, dated 10-11-1890 written by Revenue Secretary, Government of the Punjab to the Financial Commission of Punjab that proprietary rights would be conducted if in that time they improve the estate in a proper fashion. The case of the petitioner is that since the land had been improved, brought under cultivation at huge expense and with hard labour the term of the lease having been fulfilled he has become entitl to the grant of proprietary rights 11. The learned Addl. Advocate- General while appearing on behalf of the respondents has in support of the reply and comments had stated that the lease of the disputed land was for the term of Shahzada Nadir's lifetime and one generation of his legitimate male heirs and was revenue free and if during the term of said lease the Government desired to sell the proprietary rights in the suit- land, the first offer thereof was to be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the proprietary rights would not be transferred to the lessee unless and until he had paid the land revenue assessed on the said land by the proper officers of the Government and that the lessee would have no right to such offer if the land was required for any public purpose and that the original lessee Shahzada Nadir died on 25-12-1895 and his last son Shahzada Muhammad Akbar died in India on 7-12-1956 and thus the first generation of Shahzada Nadir came to an end in the year, 1956 and the deceased lessee or lessees could not avail the concession of acquiring proprietary rights in the tenancy during currency of the lease or at its expiry and that the lease in favour of the petitioner no longer subsisted to entitle him to the grant of proprietary rights at a reasonable price. The perusal of the instrument of lease, dated 30-11-1891 executed between the Secretary for State of India and Shahzada Nadir son of Shah Shuja-ul-Mulk of Kabul show that it is self-contained law and its analysis can be made as under:-- (a) That the term of lease was for life time of Shahzada Nadir and one generation of his legitimate male heirs, "Revenue Free" (Clause 1 part 1 of the deed). It is obvious that the clause in question is primarily meant for qualifying the specific period during which it would be retained by the original lessee, his legitimate male heirs and one generation of the said heirs as "Revenue Free". After the expiry of the aforesaid period an exercise was to be conducted. It was optional on the part of Government to conduct an exercise, during the currency of the aforesaid clause or at its expiration, to offer the proprietary rights to the lessee under clause (2) Part V of the lease deed. (b) That the Government shall resolve to sell the proprietary rights during the term of the lease or at its expiration to the lessee (Clause (2) Part V of the deed). In the said clause of the instrument it has been held that "if during the term of the lease or at its expiration, the Government shall resolve to sell the proprietary rights in the said land during the term of the lease or at its expiry. This is lent support by the letter of Mr. C.L. Trupper, under Secretary, Government of the Punjab to the Secretary, Financial Commissioner, Punjab, dated 28th August, 1877, which says "Hopes may be held out to Shahzadas that if they improve the Estate, proprietary rights will be granted". Similarly Mr. R.G. Thomson, Ofg., Revenue Secretary, Government of the Punjab to the Financial Commissioner, Punjab, dated 10th November, 1890, proprietary rights would be granted, if in that
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time they improve the Estate in a proper fashion. It appears that the hopes were held out by using the word "Shall" in the lease deed instead of the word "MAY". It is therefore, obvious that the Government is under obligation to sell this land and first offer would be given to the lessee. It is in the light and spirit of the referred Clause that proprietary rights are claimed by the petitioners. (c) That the said land could only be resumed if required for public purpose, after giving lessee six month notice, on payment of compensation, during the term of the lease. There is absolutely no other clause under which the land could be resumed. (Clause (3) of Part III of the deed). 12. When the petitioner's petition for grant of proprietary rights was partially accepted up to 12-1/2 acres of land and was rejected to the extent of remaining 169-1/2 acres of land vide order, dated 16-6-1983 by S.M. Nasim, Member Colonies Board of Revenue Punjab, the petitioner being aggrieved approached the States and Frontier Region Government of Pakistan Islamabad, the competent body in respect of the disputed land after the partition of the sub-continent which consulted the Law and Justice Division Government of Pakistan and the said agency of the Federal Government came to the conclusion that the relevant provision under which the proprietary rights should have been given was clause (2) Part V of the deed and it was in their recommendations that the Government was obliged to grant proprietary rights under the said clause. Thereafter, the petitioner filed review petition (Review No.131 of 1992) requesting to review and amend the order, dated 16-6-1983 in view of Clause 2, Part V of the lease deed and prayed for the grant of proprietary rights of the remaining land i.e. 169-1/2 Acres. The Advocate-General was consulted and he had opined in his Letter No.1469/AG, dated 27-9-1992 that a plain reading of the lease form reveals that:-- (a) Clause (1) of Part-I relates to the period of the lease for which it is to be "Free of Revenue". (b) Clauses (2) and (3) of the Part V read with the future i.e. Sale renewal/extension of lease to the lessee on the expiry of period mentioned in (a) above." ' The Advocate-General had further opined that the Government did not take any action with regard to the resumption of land in 1956 when the male heir of the first generation died and instead mutations of inheritance were sanctioned in favour of descendent and further the land was not required for any public purpose so it was an implied renewal and extension of the lease on the payment of land revenue. The Advocate-General observed that as the petitioner's family was in continuous possession of this land for over 100 years it would be unlawful to eject him under the terms and conditions given in the lease form. He also observed that initial lease was granted by Secretary of State for India in Council and its successor was the State and Frontier Region Division Government of Pakistan. Therefore, their instructions contained in letter, dated 6-8-1001 to decide the case in the light of the provisions contained in Clauses (2) and (3) of Part V of the lease deed were to be kept in view. After going through the terms of lease deed, dated 30-11-1891, advice of the State and Frontier Region Division and view of the Advocate-General Punjab Lahore, dated 27-6- 1992 Dr. Imtiaz Ahmad Khan, Member Colonies, Board of Revenue vide his order, dated 29-9-1992 observed as under:-- "It is evident from the record that the petitioner is in continuous possession one way or the other and under provisions of Clause (3) of Part V of the lease deed, if Government is not in need of the disputed land for any public purpose, the disposal of the land at the expiry of the lease shall be made according to the provision of Clause (2) of Part V of the lease deed which reads as under:-- "That if during the term of this lease or its expiration the Government shall resolve to sell the proprietary rights in the said lands, the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner of Lahore and to be accepted or refused by the lessee within the time named by the Government. Provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have consented to pay the land
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revenue assessed upon the said land by the proper Officers of Government. Provided further that the lease shall have no right to such offer if the said land be required for any public purpose." ' In this case the petitioner being the only living grandson of the original lessee Shahzada Nadir, is entitled to the proprietary rights of the disputed land under the instrument of lease, dated 30-11- 1891. If after lifting/relaxation of temporary ban by the Chief Minister, the Government resolved to sell the proprietary rights in the said land; the first offer thereof…
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