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Petitioner: (Retd.) GROUP CAPT. A.M. MORAD VS Respondent: MUHAMMAD AZMATULLAH SIDDIQUI And JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Zaffar Hussain Mirza Title:(Retd.) GROUP CAPT. A.M. MORAD vs MUHAMMAD AZMATULLAH SIDDIQUI And
JUDGMENT
Reported As: 1991 SCMR 2415 Result: Appeal allowed Judgment JUDGMENT SAJJAD ALI SHAH, J.--'This appeal with leave is directed against the impugned judgment, dated 26-4-1984 passed in Constitutional Petitions Nos. 353 and 402 of 1983 by Division Bench of Sindh High Court, Karachi. First mentioned petition was filed by Muhammad Azmatullah Siddiqui and Muhammad Yousuf Qamar Siddiqui, who are respondents Nos. 1 and 2 herein and claim to have purchased the land in dispute from appellant Group Capt. A.M. Morad, in respect of which ejectment order was passed by respondent No.3 on 23-4-1983, purporting to be an order under sections 19 and 32 of the Colonization of Government Lands (Sindh) Act, 1912. Subsequently, on review application of respondents Nos. 1 and 2 herein, vide order, dated 8-5-1983, order of ejectment passed earlier was suspended against which Group Capt. A.M. Morad appellant herein, filed Constitutional Petition No.402 of 1973. By the judgment impugned in this appeal, order of ejectment dated 23-4-1983 has been declared to be without lawful authority and of no legal effort and the other petition was allowed on the ground that no case for suspension or review of order of ejectment was made out. Being aggrieved against the declaration of order of ejectment to be without lawful authority, Retd. Group Capt. A. M. Morad filed petition for leave to appeal and leave is granted, hence this appeal. Briefly stated the facts in the background are as under:------ Appellant herein Retd. Group Capt. A.M. Morad (to be referred hereafter as Group Capt. Morad) was allotted from Kharif 1962-63 agricultural land consisting of Survey Nos. 207 to 211, 219 to 23-1, 242 to 255, 263, 266 and 267 admeasuring 496.27 acres, in deh Uhab, taluka Mirpur Sakhro, District Thatta, in mechanized farming scheme in Ghulam Muhammad Barrage area. Group Capt. Morad
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appointed respondents No.2 Muhammad Yousuf Qamar Siddiqui (hereinafter to be referred as Yousuf) as his general attorney and executed in his favour power of attorney on 3-5-1980. By this power of attorney, Yousuf was allowed to take possession and cultivate the said land and attend on behalf of Group Capt. Morad Government offices in connection with maintenance and affairs of the said land. Vide Clause (3). Yousaf was authorised to sell, give on lease entire land or portion thereof or to sell the produce if any, and to pay the price to Group Capt. Morad after deducting expenditure and taxes. Yousuf, vide agreement of sale dated 1-6-1980 offered for sale and the said land to respondent No.1 Muhammad Azmattullah Siddiqui (to be referred hereafter as Azmat) for consideration of Rs.7,15.012 at the rate of Rs.1,500 per acre. Part payment of Rs.3,00,000 was made for which separate receipt was executed. Remaining amount of consideration was to be paid within one year and seven months after which sale-deed was to be executed and physical possession handed over to Azmat. In the meantime, possession of the land was to remain with Yousuf. It was agreed that in connection with the payment of remaining instalments towards the price of land to the Government, Azmat shall pay the remaining transfer price. Through Yousuf in lump sum or through instalments before the target date 31-12-1981. If Azmat failed in the payment of instalment then agreement shall stand cancelled. Balance of consideration shall be paid at the time of registration of sale deed. On 17-12-1981, Group Capt. Morad executed second power of 'attorney in favour of Yousuf enlarging the scope of authority by including in it additionally power to mortgage, transfer and give on lease entire land or any portion to any party on any terms and conditions. On 7-5-1982, Group Capt. Morad published notice in daily Dawn offering to sell the said land to any interested party and on the following day another notice was published in daily Dawn dated 8-5-1982, whereby Group Capt. Morad cancelled power of attorney of Yousuf. On 2-6-1982, Azmat filed Suit No.235 of 1982 for specific performance of agreement of sale, in the High Court of Sindh at Karachi against Group Capt Morad as defendant No.1 and Yousuf as defendant No.2. It is stated m the plain; that Azmat has spent large sums of money on the development of land and on account of cancellation of power of attorney of Yousuf, difficulty would be felt it the execution of final sale-deed and there was serious threat of dispossession of Yousuf from the suit land. It is averred in the plaint that Azmat as plaintiff in the suit, is ready and willing to pay the balance consideration of price for execution of the final transfer of land as per terms of the agreement of sale. In the prayer clause of the plaint, declaration is sought that cancellation of power of attorney it favour of Yousuf was illegal. In suit proceedings, application under Order 39, Rules 1 and 2, C.P.C was filed on which order of status quo was passed on 2-6-1982, which was late confirmed on 31-8-1982. In the said order Court also directed plaintiff in the suit Azmat and defendant No.2 Yousuf to submit accounts every two months to the Nazir of the High Court who was appointed as Commissioner with power to enter upon the property in dispute from time to time t9 check the accounts. Aggrieved against the confirmation of order of status quo, Group Capt. Morad filed High Court Appeal No.88 of 1982, which was disposed of on 3-3-1983 by consent order, relevant paragraph from the said order is reproduced as under:--- "We, therefore, by consent, clarify that the order of status quo would not prevent the appellant from having recourse to a Court of law whether Civil or Revenue, for enforcement of his rights, if any or for seeking redress of his grievance. We would also modify the order of the learned Single Judge to the extent that accounts will be submitted to the Commissioner six monthly." On 4-4-1983, Group Capt. Morad through his daughter and attorney Mst. Yasmin Chaudhry filed application before Revenue Officer, Kotri Barrage, Hyderabad, for order of dispossession against Yousuf and Azmat as contemplated under sections 19 and 32 of the Colonization of Government Lands (Sindh), Act, 1912. Yousuf and Azmat were called absent though duly served at4 their home addresses. According to the process-server, notice against Yousuf was' received by his wife, who
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refused to put her signature and notice of Azmat was received by his son Asadullah. Revenue Officer, who is respondent No.3 before us, after taking into consideration the relevant record, passed order of ejectment against Yousuf and Azmat and directed that vacant possession be delivered to Group Capt. Morad or his attorney Mst. Yasmin Chaudhry. Barrage Mukhtiarkar was ordered to take necessary further action in the matter. Relevant paragraph from the order passed by Revenue Officer is reproduced as under:----- "The above grant is in tact and running. It was sanctioned under the rules for grant of land in Kotri under West Pakistan Government Gazette Notification No.1387/63-1260-GMB-IV, dated 9-5-1963. Its condition No.25, provides that the grantee, or his heirs, executors and assignees shall not without previous permission in writing of the Revenue Officer, in any way, gift, lease, mortgage, sell, or otherwise encumber the land or any part thereof granted under these rules, unless the whole amount due has been paid, or before the expiry of 5 years from the date of execution of the agreement in case all amounts due have been paid earlier. Thus, the Condition No.25, places embargo on transfer without permission of the Revenue Officer, Kotri Barrage, Hyderabad. There is nothing on this office record to show that the said General Attorney Muhammad Yousuf Qamar Siddiqui, had ever applied for getting permission for transfer of land in question in the name of Azmatullah, or anyone else. Thus, he has sold out the land without prior permission of this Department. The matter regarding sale of land under dispute, or otherwise, is pending decision before the Honourable High Court of Sindh at Karachi, which will be decided on merits." Yousuf and Azmat being aggrieved against the order of ejectment dated 23-4-1983 filed Constitutional Petition No.D-353/83 in the High Court of Sindh. In the said petition, plea was taken that Yousuf had entered into agreement of sale verbally with Group Capt Morad, who agreed to sell the land to him at the rate of 1,000 per acre. In that connection Rs.3,00,000 were paid by Yousuf and it was agreed that balance would be paid towards the instalments of the land to be paid by the original grantee. Group Capt. Morad executed general power of attorney dated 3-5-1980 in favour of Yousuf who took over possession of the said land for the purpose of cultivation. At that time the land was in possession of unauthorised persons and Yousuf had to pay Rs.1,00,000 to Pir Mehfooz, who was looking after the land on the basis of power of attorney executed by Group. Capt. Morad. After taking over possession, Yousuf entered into agreement of sale with his father-in-law Azmat. Remaining facts as stated in the memorandum of petition are same and stated above and need not be repeated. Main grievance of petitioners therein namely Azmat and Yousuf was that Revenue Officer had no jurisdiction to issue notices to them and to order ejectment as they were transferees in possession and their possession was protected under section 53-A of the Transfer of Property Act, which provision makes them entitled for specific performance of the agreement to sell. Further, that the matter was sub-judice in the High Court in suit proceedings. It was prayed in the petition that order of ejectment passed by the Revenue Officer on 23-4-1983 was without lawful authority and of no legal effect. In the said petition on application for interim relief, High Court passed order on 28-4-1983 as under:------ "If the petitioners are in possession, they in the meantime shall not be dispossessed:" Meanwhile on the petition, comments were called for from Revenue Officer, who was named as one of the respondents. Group Capt. Morad filed Suit No.905/83 on 28-4-1983 against Yousuf and Azmat for accounts, mesne profit and permanent injunction. In suit proceedings order of status quo was passed on 28- 4-1983. On 30-4-1983, Yousuf and Azmat filed an application for review before Revenue Officer which was allowed vide order, dated 8-5-1983, whereby order of ejectment dated 23-4-1983 passed earlier, was suspended and its implementation was held in abeyance. Revenue Mukhtiarkar in the same order directed Barrage Mukhtiarkar to collect necessary documents after visiting the site and
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further hearing in the matter was adjourned to 29-5-1983. Against this order passed on 8-5-1983, whereby order of ejectment passed earlier was suspended, Group Capt. Morad filed C.P. No.D- 402/83 in the High Court of Sindh. Both Constitutional Petitions Nos.353 and 402 of 1983 have been disposed of by common judgment, dated 26-4-1984, which is impugned in this appeal. Constitutional Petition No.353/83 has been allowed declaring order of ejectment dated 23-4-1983 to be without lawful authority and of no legal effect and further order has been passed by the High Court that Yousuf and Azmat (petitioners in that petition) would be restored possession subject to the proviso that they would approach learned Single Judge in Suit No.209 of 1983 (Group Capt, Morad v. Yousuf and Azmat for accounts, mesne profit and permanent injunction in which status quo was ordered on 28-4-1983) for getting that order of status quo modified. High Court in the impugned judgment has further clarified that learned Single Judge (in suit proceedings) may decide the question whether status quo order is to be kept in tact or recalled on the assumption that the above impugned order, dated 23-4-1983 does not exist and that no action taken in pursuance thereof is to be undone. By the impugned judgment Constitutional Petition No.402 of 1983 filed by Group Capt. Morad is allowed on the ground that no case for suspension or review of order of ejectment dated 23-4-1983 was made out. Petition for leave to appeal was allowed vide order, dated 15-5-1984 granting leave on the ground that this case involves identical point of law on which leave to appeal has been granted by this Court in the case of Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others 1982 SCMR 729. In the said reported case, leave has been granted to examine whether authorities under the Colonization of Government Lands (Punjab) Act, 1912, did not have the power to direct dispossession of petitioners named therein and delivery of possession to respondents under the provisions of sections 19 and 32 of the said Act because it is contended that the aforesaid sections could not be used for settling private dispute of title. In this connection reference was made to the cases of Atta Muhammad and others v. Mst. Khurshid Begum PLD 1964 Lah. 224; Ali Muhammad v. Hakim and, others AIR 1928 Lah. 121 and Jiwana v. Mst. Sahbi PLD 1954 Lah. 253. Learned counsel for the respondents referred to the cases of Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254; Abdul Shakoor and others v. A.S. Tasneem and others 1974 SCMR 463 and Muhammad Shafi v. Hayat Khan and others PLD 1978 Lah. 1228. Before an attempt is made to go into examination of the provisions of Colonization of Government Lands (Punjab) Act, 1912, as mentioned in the leave granting order, it would be expedient and proper to ascertain as to under what provisions of law initial allotment of land in dispute was made by the Government in favour of Group Capt. Morad. Order of allotment is available in the record at page 60 of the paper book. This order is dated 5-12-1961 and it further shows that agricultural land ad-measuring 496.12 acres situate in Deh Uhab taluka Mirpur Sakhro with survey numbers specified therein was granted to Group Capt. Morad in Ghulam Muhammad Barrage Project for mechanized farming. The land was provisionally sanctioned at the rate of Rs.250 per acre subject to the condition that initial deposit equal to 10% of the value of the land shall be paid within one week, cultivation shall be done by mechanized means, non-observance of the conditions would render the grant liable to cancellation. 1t is further provided therein that detailed terms upon which this grant was made would be indicated in the Qabooliat which would be executed after crediting amount of initial deposit of 10%. It is stated by the learned counsel for the appellant that Qabooliat was executed on 15-4-1962. Copy of which is available in the record of suit proceedings and was based upon same conditions as have been provided in the rules called Grant of Land (Ghulam Muhammad Barrage Area) Rules, 1963 published vide Notification, dated 9th May, 1963, issued by Land Utilization Department of Government of West Pakistan. The said rules are available in the paper book from page 61 to page 64, made by Governor of West Pakistan under powers conferred
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upon him under section 62 of the Sindh Land Revenue Code, 1879. It would be pertinent to note that at the time of allotment in 1961, the Colonization of Government Lands (Punjab) Act, 1912 was applicable in parts of Punjab and was extended to the whole of West Pakistan in the year 1969. Rule 10 of the said Rules, which governed the allotment, provides that grantee, having made payments as required in the said rules, shall execute an agreement and shall be entitled to receive Ijazatnama authorising him to occupy the land permanently on the conditions mentioned in the said agreement. Rule 23 provides that grant shall be liable to resumption at any time if it is found that the grantee was ineligible or any provisions of the rules have been contravened. Rule 24 envisages that grantee shall be entitled to full rights of occupancy as recognised by the said code after payment of full occupancy price and fulfilment of all other conditions attached to the grant. Rule 25 provides that grantee or his heirs, executors and assignees shall not without previous permission in writing of the Revenue Officer in any way gift, (case, mortgage, sell or otherwise encumber the land or any part thereof unless the whole amount due has been paid or before the expiry of five years from the date of execution of agreement in case all amounts due have been paid earlier. It is thus very clear that even according to rules, appellant was grantee, who had to make payment of instalments and only after the payment of all instalments and other dues, he would have become entitled to get 1jazatnama and right of permanent occupancy. Secondly, grantee before, acquiring permanent rights of occupancy was not allowed without previous permission in writing of Revenue Officer to gift, lease, mortgage, sell or otherwise encumber the land. This rule 25 is very much similar to section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which was extended to the whole of West Pakistan in the, year 1969. Subsequently, by Province of West Pakistan (Dissolution) Order No.1 of 1970, one unit was dismembered and in consequence old provinces were revived in which the same laws were allowed to be continued in force as provided by Article -19 of the said Order. Therefore, it can be said that in Sindh also after break up of one unit, Colonization of Government Lands (Punjab) Act, 1912, applied in full force as it was saved and made applicable in the manner stated above. Thereafter, in the year 1975, Sindh Adaptation of Laws Order 1975 was passed, whereby the Colonization of Government Lands (Punjab) Act, 1912, was declared to be applicable subject to adaptation whereby word "Sindh" was substituted for words "West Pakistan". In the instant case, appellant Group Capt. Morad who was allotted agriculture land in Dhulam Muhammad Barrage in the year 1961, had not acquired occupancy rights as all instalments were not paid when Province of West Pakistan was dissolved and Province of Sindh was revived, as such his case would be governed by the provisions of Colonization of the Government Lands (Punjab) Act, 1912, which remained in force in Sindh as well. Under the said Act, appellant as purchaser of the agricultural land from the Government became tenant pending payment in full of purchase money as contemplated under section 15 of the Act mentioned above. Respondent No.2 namely Yousuf, claims to have agreed to purchase from appellant in 1980 at the rate of Rs.1,000 per acre and paid Rs.2,00,000 to appellant and Rs.1,00,000 to Pir Mehfooz and in return appellant executed power of attorney in favour of Yousuf on 3-5-1980 allowing him to take possession of the land with power to sell it. Thereafter, Yousuf entered into sale agreement, dated 1-6-1980 with Azmat respondent No.1, at the rate of Rs.1,500 per acre. Now questions that arise for consideration are as to what was the status of Yousuf and whether appellant could sell him the land in question of which he himself was tenant because he had not yet acquired occupancy rights as all the instalments and other dues were not paid. Secondly, could Yousuf further sell the land in dispute to Azmat. Thirdly, whether both the transactions mentioned above, would not be hit by restriction contained in section 19 of the Colonization of Government Lands (Punjab) Act, 1912, for the reason that appellant as tenant could not transfer his
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rights or interests in the said land without consent in writing of the Revenue Officer by sale because admittedly at that time no such consent in writing was obtained from the Revenue Officer. Mr. Mansoorul Afrin, learned, Advocate Supreme Court submitted that appellant had appointed respondent No.2 Yousuf as his Manager/Agent vide general power of attorney executed on 3-5- 1980 to enable him to take possession and manage the affairs of the land on his behalf as it was not possible for him to look after the land personally for certain reasons and he never intended to sell the land to Yousuf or empower him to sell it to any other person. In any case, there was no consent in writing obtained from the Revenue Officer as is contemplated under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which was necessary for the reason that appellant was still tenant as he had not paid up all the instalments towards the purchase price. In order to appreciate as to what was the intention of legislature and under what policy and with what objects and on what terms and conditions Government lands were allotted, it would be necessary to make reference to the preamble and certain provisions of the Colonization of Government Lands (Punjab) Act, 1912, which is now called as Colonization of Government Lands (Sindh) Act, 1912 (to be referred hereafter as the said Act). According to preamble, the exercise was undertaken to make better provisions for the colonization and administration of Government lands and for that purpose schemes were prepared and people were encouraged to purchase Government lands on instalment basis and till proprietary or occupancy rights were acquired, land would remain with such persons as tenants who were required to carry out improvements in the land to make it properly and effectively cultivable. In that' context terms and conditions were laid down which had to be fulfilled. Under section 10 of the said Act, Government issues statement of conditions on which it is willing to grant land in a colony to tenants. It also provides that no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. Grant can be cancelled if tenant has committed breach of conditions of tenancy or defaulted in the payment of instalment. Section 15 very clearly envisages that a purchaser of the Government land who has been placed in possession of the said land shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled. Section 19 imposes restrictions on transfer of rights or interests of tenant without consent in writing of the Commissioner or such officer as may be empowered by him in this behalf, by way of sale, exchange, gift, will, mortgage or any other private contract excepting a sub-lease for not more than one year in case of tenant who has not acquired a right of occupancy and seven years in case of tenant who has acquired a right of occupancy. Section 19 further-envisages in very unequivocal terms that such transfer or charge made without such consent in writing shall be void and if the transferee has obtained possession he shall be ejected under the orders of the Collector. This section is concerned with two questions which are firstly, that a tenant cannot alienate without consent of the Commissioner and secondly, that such alienation is void. This restriction is to remain operative during the subsistence of tenancy rigths and shall come to an end as soon as proprietary rights are acquired because after acquisition of proprietary rights, statement of conditions would not govern the rights of the person who has become the proprietor. A transfer which is prohibited by section 19 is void as between the parties to the transaction. An agreement reached before any interest is acquired in the Government land is outside the scope of the Act. There is no bar to a person agreeing to transfer or acquire jointly proprietary rights. Section 24 empowers Collector to impose penalty on the tenant for breaches of the conditions of tenancy made by him after giving hearing to the tenant. Section 30 provides that after acquisition
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of proprietary rights by a tenant, he shall cease to be subject to any statement of conditions issued under the abovementioned Act but would remain bound by other provisions of this Act applicable to the proprietors of the land. Section 32 empowers Collector to dispossess squatters and trespassers and resume possession of the land and all crops, trees and buildings thereupon without payment of any compensation whatsoever. Mr. Mansoorul Arifin, learned A.S.C. For appellant contended that appellant was a tenant when transactions as alleged by respondents took place and those transactions were void for want of consent in writing of the Revenue Officer as contemplated under…
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