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Petitioner: COMMISSIONER MULTAN DIVISION, MULTAN and others VS Respondent: MUHAMMAD HUSSAIN and others
Court Name: Supreme Court of Pakistan Judge(s): Ijaz Ahmad Chaudhry, Umar Ata Bandial Title:COMMISSIONER MULTAN DIVISION, MULTAN and others vs MUHAMMAD
HUSSAIN and others Case No.: Civil Petition No, 569-L of 2011 Date of Judgment:2014-10-29 Reported As: 2015 SCMR 58 Result: Appeal allowed Judgment ORDER ' UMAR ATA BANDIAL, J.---This petition filed by three Land Revenue Authorities of the Provincial Government is directed against the judgment dated 3-3-2011 by a judge in Chamber of the High Court that allows Writ Petition No,2686 of 2001 filed by the respondents. The impugned judgment declares the respondents to be owners of State land leased to their predecessor-in-interest, namely, Gahna, in the year 1908. The said predecessor-in-interest was allotted 384 Kanals, 17 Marlas of barren State land situated in village Abdul Hakeem, Tehsil Kabirwala, District Khanewal (previously District Multan) under the Tuhad Khawahi (Peasant Grant) Scheme vide a lease deed dated 13-3-1908. That scheme contemplated the lessee, Gahna, to sink wells in order to bring 1/3rd of the barren leased land under cultivation and to keep the wells in use and working order. 2. Gahna complied the conditions of lease which was extended upto the year 1941. After his death, the lease hold rights were transferred to his legal heirs, i.e., Allah Bakhsh and Ghulam Muhammad vide mutation No,279 dated 12-11-1942. On 5-1-1989 Ghulam Muhammad passed away and vide mutation No,2286 dated 21-10-1989 his leasehold rights were transferred to Muhammad Hussain and Ahmed Bibi (respondents Nos.1 and 5 in this petition). Likewise, heirs of Allah Bakhsh also succeeded to their forebear and are impleaded as the remaining respondents in this petition. Notwithstanding devolution of leasehold rights to Gahna's heirs, the record does not show that the lease of the aforementioned land was renewed or extended after 1941. However, the heirs of the allottee have since remained in possession of the said land. 3. Before this Court, respondent heirs of the allottee Gahna claim that after the creation of Pakistan they started pursuing the Provincial Government for grant of proprietary rights of the leased land.
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The foundation of their claim is stated to be letter No,6051/C dated 11-12-1941 issued by the Deputy Secretary, Development Department, Government of Punjab and addressed to the Commissioner, Multan Division. That letter directs implementation of various actions taken in respect of different Tuhad Khawahi leases granted in District Multan. The first part of the letter deals with leases in the Sindhnai area falling in Tehsil Kabirwala and Tehsil Multan. The letter intimates that leases mentioned at Sr. Nos.8, 9, 14, 24, 25, 27, 54 and 55 of the "Tehsil Kabirwala Register" covering a total area of 258 Acres, 4 Kanal and 4 Marlas are "allowed to acquire proprietary rights in their respective holdings @ Rs,5 per acre as provided in the lease deed." It is not disputed between the parties that the lease of State land granted to Gahna, predecessor-in-interest of the respondents, is mentioned at Sr. No,3 of the said Tehsil Kabirwala Register. 4. Ultimately, in the year 1970, the sons of Gahna, Allah Bakhsh and Ghulam Muhammad both respondents herein, filed Writ Petition No,972 of 1970 in the Lahore High Cotirt claiming relief in respect of their leased land against the Member, Board of Revenue, Commissioner Multan Division and Deputy Commissioner Multan. The said three revenue authorities are the present petitioners before the Court, with the difference that the District Collector, Khanewal has replaced the Deputy Commissioner, Multan. The order of the High Court dated 21-5-1986 disposed of the .Afore-stated petition on the statement by writ petitioners that the respondents had restored possession of their leased land and consequently the petitioners would approach the relevant authorities for the grant of proprietary rights of the leased land. The said dispositive order dated 21-5-1986 by the High Court also observed that "if and when petitioners apply for the grant of proprietary rights, the concerned authorities shall decide their application in -accordance with law." 5. The first official acknowledgment of a written application by the heirs of Gahna for the grant of proprietary rights of the leased land is made in the order dated 11-7-1990 passed by the District Collector, Khanewal. This order allowed the said application by the heirs and granted them the proprietary rights prayed at a price of Rs,100 per acre. However, the order dated 11-7-1990 was short lived. On 16-7-1990, the District Collector reviewed his earlier order on the ground that the leased land was located within the municipal limits of Town Committee, Abdul Hakeem and therefore fell within the Prohibited Zone. Nevertheless, he recommended that the case of the respondents be given sympathetic consideration by the Board of Revenue. The respondents' applications for relief filed before the Board of Revenue, however, did not receive any attention. Accordingly, they filed Writ Petition. No,3341 of 1992 and Writ Petition No,1869 of 1994 before the High Court against administrative inaction by the Board of Revenue. On 24-4-1994, the High Court issued directions to the Board of Revenue to decide the respondents' pending applications within two months. 6. Before the Board of Revenue could respond under the said direction by the High Court, the District Collector, Khanewal passed an adverse order dated 3-5-1994 against the respondents on the basis of a field report by the Assistant Collector, Kabirwala. Without serving a show cause notice stating the allegation and the facts sustaining it or hearing the respondents thereon, the District Collector, Kabirwala ordered resumption of the respondents' leased land on the ground that agreement to sell for a portion thereof for residential/ commercial purposes had been concluded by the respondents against Government instructions and policy. Whilst the respondents' appeal against the District Collector's resumption order dated 3-5-1994 was awaiting hearing by the Commissioner, Multan Division, the Member (Colonies) Board of Revenue ["MBR (Colonies)] heard and allowed on 17-11-1994 the pending ROR No,2902 of 1994 filed by the respondents seeking proprietary rights of their leased land. The District Collector's order dated 3-5-1994 was not brought to the notice of MBR (Colonies) who decided on 17-11-1994 that the allottee had become entitled to grant of proprietary rights of the leased land well before such land came within the Prohibited Zone. His heirs who are respondents herein were accordingly allowed proprietary rights in the land but subject to deposit of dues/arrears as per Government policy. In the light of said order dated
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-17-11-1994 by the MBR (Colonies), the Commissioner Multan Division vide order dated 21-10-1996 remanded for fresh decision the appeal by the respondents pending before him against the resumption order dated 3-5-1994 by the District Collector, Khanewal. 7. The success achieved by the respondent heirs of the allottee, by way of the order dated 17-11- 1994 passed by the MBR (Colonies) did not, however, bear fruit. Notwithstanding the said order, the District Collector vide order dated 22-11-1999 re-agitated that the respondent heirs of the allottee had alienated chunks of the leased land for residential/comniercial purpose and thereby violated the conditions of their allotment. Consequently, the respondents had forfeited their entitlement to grant of proprietary rights wherefor the leased land was liable to resumption.. The District Collector also observed that the respondents' leased land was statedly valued at Rs,24 lacs per acre whereas the grant of proprietary rights at a price of Rs,100 per acre would cause colossal financial loss to the State. Consequently, through the Commissioner Multan, he forwarded a request to the MBR (Colonies) to review his order dated 17-11-1994 and to direct implementation of the District Collector's resumption order dated 3-5-1994. The request by the District Collector, Khanewal for review of the order dated 17-11-1994 by MBR (Colonies) was, however, ignored by the Commissioner Multan. Instead the latter vide order dated 24-1-2000 dismissed the appeal filed by the respondent heirs of the allottee against the District Collector's resumption order dated 22-11-1999. Accordingly, the respondents again agitated their claim for grant of proprietary rights in Revision Petition bearing ROR No,280 of 2000 filed before the Member (Judicial) Board of Revenue ["MBR (Judicial)"]. By order dated 15-8-2000 the said Member affirmed the view taken by his subordinate authorities. He determined that conditions of respondents' lease had been violated by their sale of pieces of the leased land for residential/commercial purposes without permission of the competent authority. It was also observed that the leased land was situated within the limits of Municipal Committee Abdul Hakeem which was a Prohibited Zone. Provincial Government policy barred such land from being transferred through grant of proprietary rights to its occupants. In short, by his order dated 15-8-2000, the MBR (Judicial) adjudicated the earlier order dated 17-11-1994 by the MBR (Colonies) and pronounced it a nullity for being against the applicable law and Government policy. Accordingly, he recalled the earlier order dated 17-11-1994 and restored the order of resumption of leased land passed by the District Collector on 3-5-1994. However, the MBR (Judicial) directed the District Collector to provide relevant data to the MBR (Colonies) for considering the allotment of alternate agricultural land to the respondent heirs of the allottee to the extent of the area retained and not alienated by them. 8. In the foregoing background of changing fortunes of the respondent heirs of the allottee, the Single Judge in Chamber of the High Court allowed their Writ Petition against the concurrent orders dated 15-8-2000, 24-1-2000 and 22-11-1999 passed by the Provincial revenue authorities. Vide the impugned judgment dated 3-3-2011, the Single Judge adopted a simple approach to the controversy between the parties. In paragraph-9 of the impugned judgment, he declared that the respondent heirs of the allottee had already been granted proprietary rights of the leased land by the Provincial Government vide its letter No,6051/C dated 11-12-1941. The impugned judgment has, therefore, concluded that:-- "the petitioners have proved their case being owner of the land even before the creation of Pakistan and as such the impugned orders being without lawful authority are hereby declared having no force of law and are not effective against the rights of the petitioners. However, the petitioners were bound to pay the price of land as and when demanded by the respondents. The respondents are, however, entitled to recover interest on the price of land fixed by the Deputy Collector at Rs,100 per acre in his order dated 11-7-1990." ' The impugned judgment accordingly directs the grant of proprietary rights to the respondent heirs of the allottee to be implemented by the .Provincial Government.
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9. The petitioners before the Court are the Land Revenue Authorities of the Provincial, Government. They have called in question the finding of respondents' ownership of the leased land given in the impugned judgment dated 3-3-2011 by the High Court. To disprove the said finding the petitioners have filed C.M.A. No,807-L of 2014 seeking leave to adduce additional documents. The merits of the said application shall be examined in due course. Presently, the grounds of challenge to the impugned judgment dated 3-3-2011 laid out by the learned Additional Advocate-General Punjab are as follows:-- (i) The finding that the respondent heirs of the allottee became owners of the leased land in the year 1941 is based on a presumption and finds no support from the terms of the Provincial Government's letter bearing No 6051/C dated 11-12-1941; (ii) The Provincial Government letter dated 11-12-1941 approves grant of proprietary rights to lessees recommended in the Tehsil Kabirwala Register by the Commissioner, Multan Division. Whereas in the said Register the Commissioner has recommended conferment of proprietary rights on lessees under leases appearing at Sr. Nos.8, 9, 14, 24, 25, 27, 54 and 55 of the said Register, however, no such recommendation is made for the lease at Sr. No,3 in the said Register granted to the respondents' predecessor allottee Gahna. In fact with respect thereto the Commissioner has observed in the Register that the leased land is valuable on account of its proximity to a proposed mandi at Abdul Hakeem. Therefore, the lease should be ended till the next Settlement and the land be disposed of by other mode. The said C.M.A. No,807-L of 2014 filed by the petitioners attaches copies of entries in the original Register to rebut the impugned finding by the High Court; (iii) The impugned judgment dated 3-3-2011 does not discuss the merit of the grounds given by the order of the MBR (Colonies) dated 15-8-2000. These grounds are summarily rejected by the impugned judgment for being non-existent on 11-12-1941, the wrongly presumed date of grant of proprietary rights to the respondents. The grounds are: (a) that the respondents have violated the provisions of sections 5(5) and 19 of the Colonization of the Government Lands Act, 1912 ("Colonization Act"), the terms of their lease/ allotment and the Government policy on the conferment of proprietary rights of State land. The alleged violation is caused by the unauthorized sale of part of the leased land by the respondents to third parties without permission of the competent authority. As a result the respondents' right and interest are liable to automatic cancellation; (b) that the leased land is situated within the limits of Municipal Committee Abdul Hakeem which is a Prohibited Zone and its proprietary rights cannot be granted to the respondents; (iv) The declaration that ownership of the leased land vested the respondent heirs of the allottee since 1941 is a status that was never ever claimed by the respondents before any forum. In several rounds of their litigation with the Provincial Government, the respondents have admitted ownership of the leased land by the Provincial Government and have therefore sought the grant of proprietary rights. The impugned judgment is against pleadings and the record. 10. On the other hand, the learned counsel for the respondent heirs of the allottee has defended the finding given in the impugned judgment on the following grounds:-- (a) Gahna and his heirs have since 1908 complied with terms of lease and have qualified themselves for grant of proprietary rights of the leased land on account of their long standing, consistent and compliant performance as lessees; (b) The grant of proprietary rights of the leased land to the respondents has been unfairly denied by the Provincial Government. The petitioner revenue authorities have failed to specify any disqualifying event that occurred during the several decades of the respondents' possession of the leased land before filing of their application for proprietary rights. As such the denial of proprietary rights to the respondents is arbitrary and discriminatory;
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(c) The adverse order of resumption of land dated 15-8-2000 by the MBR (Colonies) sustains earlier orders by his subordinate authorities. Resumption of the respondents' land is ordered without specifying the particulars of any transaction that violates the Colonization Act or the terms of the respondents' lease. Nor any show cause notice setting out the offending facts was served. Vague and unsubstantiated allegations are used by the petitioners to deprive the respondents of their valuable rights in the leased land; (d) The order dated 15-8-2000 by the MBR (Colonies) declines proprietary rights of the leased land for being located within a Prohibited Zone. Record is silent about the existence of a Municipal Committee in Mouza Abdul Hakeem, let alone the breach of limits of a Prohibited Zone. The respondents have been condemned in this matter on a speculative allegation; (e) The Provincial Government has twice determined that the respondents are entitled to proprietary rights of the leased land. The first order dated 11-7-1990 by the Collector Khanewal was recalled in review jurisdiction on 16-7-1990 and the second order dated 17-11-1994 by the MBR (Colonies) was annulled in revisional jurisdiction by the MBR (Judicial) on 15-8-2000. Notwithstanding other alleged defects, both the retractive orders acknowledge the respondents' right to be given allotment of alternate land. The petitioner revenue authorities are themselves convinced about the moral and legal force of the respondents' entitlement to transfer of proprietary rights of State land; (f) The MBR (Judicial) lacked jurisdiction under proviso to section 7(2) of the Punjab Board of Revenue Act, 1957 to adjudicate and set aside in revisional jurisdiction the earlier revisional order dated 17-11-1994 passed by the MBR (Colonies) which has attained finality. 11. The learned counsel for the parties have filed their written submissions on the merits of the controversy and with respect to the petitioners' C.M.A. No, 807-L of 2014 for leave to file additional documents. These materials have been considered in the light of oral submissions by the learned counsel and the record. At the outset we will decide the aforesaid application filed by the petitioners, which seeks leave for the production of additional documentary evidence comprising the Tehsil Kabirwala Register maintained by the Provincial Government. This Register records the particulars of and departmental comments made in respect of leases of State land situate in Tehsil Kabirwala, District Khanewal. The Register is part of the official record and enjoys the presumption of regularity. The entries in the Register in particular the comments by the revenue authorities in relation to the leases mentioned in the Provincial Government letter dated 11-12-1941 that are granted proprietary rights find support and elaboration from the contents of the Register. 12. According to the aforementioned letter dated 11-12-1941, the leases mentioned at Sr. Nos.8, 9, 14, 24, 25, 27 and (54, 55) of the Tehsil Kabirwala Register have been granted proprietary rights. These leases are fully described in the Register with regard to their respective terms, the compliance of such terms and future rights of the lessees. The entries and comments by revenue authorities in the Register pertaining to the aforementioned leases and also the respondents' lease have been placed on record. These comments in the Register are recorded by two revenue authorities, namely, Colonization Officer and the Commissioner, Multan Division. The two officers have specifically recommended the grant of proprietary rights to the respective lessees enumerated in the Provincial Government letter dated 11-12-1941. The volume of the Tehsil Kabirwala Register produced on record contains the particulars of six out of eight leases mentioned in letter dated 11- 12-1941. In relation to these six leases, the respective comments recommending grant of proprietary rights are available on record. The significance of the contents of the Register for present purposes is that respondents' lease at Sr. No,3 thereof did not receive recommendation for conferment of proprietary rights by the aforementioned revenue authorities. In fact, the Commissioner, Multan Division has given the following remarks in relation to Gahna's lease:
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"In view of the probability that this land may become very valuable owing to location of a mandi at Abdul Hakim, I agree that Government should pass orders in the alternative as A recommended by the Colonization Officer." ' The remarks by the Colonization Officer dated 31-12-1940 that are approved by the Commissioner, Multan Division are as' follows:- "If irrigation from canal is illicit as appears it must be stopped and penalty imposed. If the land remains uncommanded the lease must continue till settlement. If irrigation is correctly being given the lease can be terminated and the land disposed of as in other similar cases." ' Consequently, the said observations dated 31-12-1940 made by the revenue authorities explain the exclusion of Gahna's lease from the list of leases approved for grant of proprietary rights in the Government's letter dated 11-12-1941. 13. As such, the contents of the additional documentary evidence proposed by the petitioners in their C.M.A. No, 807-L of 2014 reveal an error in the finding given in the impugned judgment of the High Court to the effect that the Provincial Government's letter dated 11-12-1941 confers proprietary rights of leased land granted to Gahna in 1908. That finding was given without being informed about the status of the respondents'. Lease. The additional documentary material comprising entries in the Tehsil Kabirwala Register rebuts the finding given by the High Court. The evidentiary content of the record produced is consistent with the overall plea taken by the petitioners that the respondent heirs of B allottee Gahna lack entitlement to obtain proprietary rights of the leased land. The additional documentary evidence proposed by the petitioners is authentic, consistent with the pleadings of the petitioners and directly relevant to the findings of ownership of the leased land given in the impugned judgment. Such additional evidence facilitates resolution of the controversy between the litigating parties. This Court has held in Muhammad Tariq v. Sharma Tanveer (PLD 2011 SC 151) and Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan (PLD 1992 SC 96) that additional evidence having the afore-going qualities is admissible on record. The jurisdiction of this Court to do complete justice between the parties also favors additional evidence to be admitted in order to meet the ends of justice. Applying the foregoing tests to the additional evidence proposed by the petitioners, their application bearing C.M.A. No, 807-L of 2014 carries merit and is accordingly allowed. 14. As noted above, the contents of the Tehsil Kabirwala Register show that the respondents' lease is mentioned at Sr. No,3 of the said Register and explain its exclusion from the list of leases approved for transfer of proprietary rights under the Provincial Government letter dated 11-12-1941. The said background negates the finding given in the impugned judgment dated 3-3-2011 to the effect that the respondents were conferred proprietary rights of their leased land by the said letter dated 11- 12-1941. No other substantive reason is given by the impugned judgment to strike down the order dated 15-8-2000 passed by the MBR (Judicial), that directed resumption of respondents' leased land with the recommendation that alternate land be allotted to the respondents. Consequently, the learned Single Judge has erred in reading the record, namely, the Provincial Government letter dated 11-12-1941. The impugned judgment dated 3-3-2011 therefore cannot sustain. As a result, the order dated 15.08.2000 by the MBR (Judicial) continues to remain in the field for its judicial evaluation. The respondents had voiced objections to the said order in their writ petition but these were not considered nor decided on merit by the High Court. Therefore, the forum that may be both competent and suitable to decide the respondents surviving objections and the remaining controversy between the parties could properly be. The High Court. However, after hearing the matter at some length, we consider that certain factual aspects therein necessitate the controversy to be decided by the Board of Revenue. 15. The litigation between the parties, namely, the respondent heirs of allottee and the petitioner department on the subject of proprietary rights of the leased land has existed since Writ Petition
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No, 972 of 1970 was filed by the respondents before the Lahore High Court. From the above noted contentions advanced by learned counsel for the parties, it is plain that the controversy between the parties possesses both legal and factual facets. It is claimed by the learned counsel that disputed legal facets of the case have either been ignored or misinterpreted by the revenue fora below. Also, the factual aspects of the dispute are such that require the collection and appraisement of evidence which is an exercise to be undertaken by a suitable forum competent to do so. Lack of clarity on the two aspects of the dispute has led to decades of litigation without the achievement of a clear result in the case. 16. With regard to the legal points it is noted firstly, that the omission by the Provincial Government's letter…
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