ADMINISTRATOR, THAL DEVELOPMENT through EACO Bhakkar and others vs ALI MUHAMMAD

' ANWAR ZAHEER JAMALI. ---This civil appeal with the leave of the Court assails the judgment dated 21-3-2002 in Civil Revision No,358-D of 1994 (re: Ali Muhammad v. Administrator, Thal Development and another) passed by learned Single Judge in the Lahore High Court, Lahore, whereby the said civil revision was allowed, consequently the concurrent findings of the two Courts below against the respondent contained in the judgments dated 18-5-1993 and 14-11-1993 were set aside, and his declaratory suit, challenging the resumption order dated 27-4-1985 passed by Extra Assistant Colonization Officer, was decreed.

2. Briefly stated, facts leading to this litigation are that on 19-4-1964 Lot No,386, admeasuring 1200 canals, situated in Rakh Hyderabad, Tehsil Mankera, District Bhakkar was allotted/leased to the respondent for a period of twenty years, under the Revised Tube-well Scheme of the Government.

And accordingly its possession was delivered to him as per terms of such allotment. On 27-4-1985.

By an order passed by Extra Assistant Colonization Officer That, Bhakkar, this land was resumed on account of failure of respondent to meet the conditions of the allotment and simultaneously his second request for purchase of allotted land vide application dated 4-4-1984 was turned down on the ground, inter alia, being barred by time. On 22-1-1988, the respondent in order to seek redress of his grievance against such order of resumption filed a declaratory suit before the Court of Senior Civil Judge, Bhakkar, which was resisted by the appellants by submission of their written statement before the trial Court on 25-5-1988, also challenging therein maintainability of the suit, being barred by law.

3. After framing of issues and recording of parties' evidence, suit of the respondent was dismissed by the trial Court, vide its judgment dated 18-5-1993, with the observations that the resumption order dated 27-4-1985 was a legal and proper order, thus, no interference was called for by the Civil Court. This judgment of the trial Court was thereafter challenged by the respondent through an appeal before the District Judge, Bhakkar, which too was dismissed, vide judgment dated 14-11- 1993, with the observations that since the respondent failed to fulfill the conditions of allotment of suit land, therefore, order of resumption was proper and called for no interference. These concurrent findings of the two Courts below against the respondent were thereafter challenged by him before the Lahore High Court, Lahore through Civil Revision No,358-D of 1994, which was allowed, vide impugned judgment dated 21-3-2002, solely on the ground that due notice and proper opportunity of hearing was not afforded to the respondent before passing the impugned resumption order dated 27-4-1985. The question of maintainability of the suit qua bar of jurisdiction of the civil Court was also decided in favor of respondent for the same reason that in a case where due notice or opportunity of hearing was not afforded to a party, the bar of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 will not be applicable to a suit before the Civil Court.

4. We have heard the arguments advanced by Additional Advocate-General, Punjab, learned Advocate Supreme Court for the respondent, and carefully perused the material placed on record.

There is no denial of the fact that respondent was, allotted on lease Lot No,386 admeasuring 1200 canals, suited in Rukh Hyderabad. Tehsil Mankera, District Bhukkar for a period of twenty years under the Revised Tube-well Scheme published vide Notification No,629-63/711-CII, dated 15-2- 1963, and possession was accordingly delivered to him on 11-9-1964. Thereafter, from time to time, notices were issued to him regarding violation of terms of the allotment and in this background his first application dated 28-12-1974, for exercise of option to purchase the allotted land was also turned down on 20-3-1982, which was not challenged. The respondent thereafter moved second application of similar nature on 4-4-1984, which was considered as time barred and also not maintainable due to non-fulfillment of the conditions of allotment and on that basis order dated 27-4-1985, regarding resumption of suit land was passed against him. The trial Court as well as the appellate Court, after careful perusal of evidence and other material brought on record by the parties came to the conclusion that the suit of respondent was devoid of merits and accordingly it was dismissed. However, the issue regarding the maintainability of suit was answered in favor of the respondent, merely on account of the fact that the said issue No,4 was not pressed during the arguments.

5. When the matter came up before the revision Court, concurrent findings of the two Courts below were set aside solely on the ground that no notice of hearing was served or opportunity of hearing was given to the respondent before passing the impugned order dated 27-4-1985, therefore, the said order was liable to be set aside, leaving it open for the appellants to take fresh action in this regard, after giving due opportunity of hearing to the respondent. The revision Court also decided the issue of maintainability of the suit qua bar of jurisdiction under section 36 (ibid) in favor of respondent for the same reasons, with further reference to some case-law amplifying the general principles of "audi alteram partem, to which there is no cavil.

6. In the above circumstances, in this appeal the moot points for consideration before us are as to whether no notice of ,hearing or due opportunity of hearing was afforded to the respondent before passing the resumption order dated 27-4-1985 and whether suit before the Civil Court against the impugned order dated 27-4-1985 was barred and, therefore, not maintainable in law. In this regard, when we enquired from the learned Additional Advocate General Punjab representing the appellants before us, he placed on record a bunch of documents from the original file of the proceedings before the Extra Assistant Colonization Officer That, Bhakkar, who had passed the above order dated 27-4-1985 impugned in the suit. A perusal of these documents reveals that not only from time to time several notices were issued to the respondent regarding violation of terms of the allotment, and hearing of the case before the concerned officer, but there are also many other applications, moved by the respondent, available on record in the context of such proceedings, which totally belies his claim that he was not given notice or due opportunity of hearing before passing the order dated 27-4-1985. The Court diaries of such proceedings and other office notings, spreading over several full scale papers, being part of the paper book placed on record by the appellants, further reveal that apart from earlier proceedings the matter was being heard and proceeded before the Colonization Officer since April, 1984, and till passing of the order dated 27-4-1985, number of adjournments were allowed to the respondent at his request, and ultimately the order of resumption was passed on 27-4-1985. Not only this, but soon thereafter the respondent also moved a review application through his counsel, which was heard and dismissed by the Colonization Officer on 21-5-1985, but all these facts were suppressed by him.

Even in his review application, it was not the grievance of the respondent that before resumption order dated 27-4-1985, due opportunity of hearing was not afforded to him. These authentic documents placed on record by the appellants leave no room for doubt in our minds to hold that the findings of the learned Judge in Chambers of the Lahore High Court contrary to it, contained in the impugned judgment dated 21-3-2002 suffered from non-reading and misreading of relevant record, which resulted in miscarriage of justice. As against it, concurrent findings of the trial Court and appellate Court in favour of appellants were based on proper appreciation of evidence therefore, the same were not open to interference by the revisional Court in exercise of its jurisdiction under section 115, C.P.C., which is primarily meant for correction of jurisdictional defect/ error and material illegalities/irregularities, resulting in miscarriage of justice to a party.

7. As regards the maintainability of the suit before the Civil Court against the order of Colonization Officer dated 27-4-1985, suffice it to say that admittedly said order was within the competence and jurisdiction of the Colonization Officer and there was also no other inherent defect in the proceedings before him or mala fide involved in the matter. Thus, bar of jurisdiction, in terms of section 36 (ibid), was very much attracted. If any case-law is needed to fortify this view, reference can be made to the following cases:--

(a) Abdul Hamid v. Province of the Punjab (1980 SCMR 1741)

(b) Alam Sher v. Muhammad Sharif (1998 SCM R 468)

(c) Muhammad Ali v. Province of Punjab (2005 SCM R 1302)

(d) Province of the Punjab v. Yaqoob Khan (2007 SCM R 554)

8. The two Courts below were, therefore, not justified in bypassing the issue of maintainability of the suit merely on the concession of appellants' counsel, who refrained to argue this legal point.

Needless to mention here that it is the bounden duty of every Court/Tribunal to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on the mere concession of one or the other party. Moreso, when consent of the parties can neither confer nor can take away the jurisdiction of a Court/Tribunal, unless so conferred or barred by law.

9. Another legal aspect of the case, which also materially affected the maintainability of the suit before the Civil Court in terms of section 9, C.P.C., but escaped the sight of the Court below is the availability of remedy of appeal against the impugned resumption order dated 27-4-1985 in the hierarchy of revenue laws in terms of section 161 of the Land Revenue Act 1967, which was admittedly not availed, but impliedly barred the jurisdiction of the Civil Court in such matters where the jurisdiction to adjudicate exclusively vested with the revenue Courts.

10. Besides, a careful reading of the terms of the allotment/lease provided in Notification No,620- 63/711-CII dated 15-2-1963 along with other documents placed on record by the appellants from the original file reveals that though the respondent had the right to purchase the leased/allotted land after the expiry of five years and before the expiry of nineteen years of the lease from the date of its commencement and he also availed such opportunity in the first place by moving an application before the concerned authority on 28-12-1974, but the same was rejected vide order dated 20-3-1982 due to non-fulfillment of required preconditions for this purpose by the respondent himself, which remained unchallenged, thus attained finality to this extent. Such aspect of the case is duly supported from the documents containing several letters/notice to the respondent in this regard. Similarly, the second application for exercise of option to purchase the leased land dated 4-4-1984 was rightly rejected through the impugned order dated 27-4-1985 on the ground of it being barred by time as such stipulation was clearly provided under clause 14.(a) of the Scheme which reads as follows:-- "14.(a) The option will not be exercised before the expiry of a period of five years of the commencement of the tenancy but may be exercised at any time during the sixth to nineteenth years of the tenancy."

' This being the position, even on merits the impugned order of resumption dated 27-4-1985 did not suffer from any perversity. Learned Advocate Supreme Court for the respondent when confronted with the above factual and legal shortcomings in the case of the respondent had no plausible answer, except that since respondent is still in possession and, according to him, has made huge expenditure over the development of suit land, therefore, he is entitled for grant of its ownership.

11. The upshot of the above discussion is that this appeal is allowed; impugned judgment of the revisional Court dated 21-3-2002 is set aside, and that of the two Courts below in favor of the appellants are restored with no order as to costs.

12. Keeping in view the above-noted admitted fact that twenty years lease period in respect of the suit land leased/allotted to respondent stood expired on 10-9-1984, but thereafter despite resumption order dated 27-4-1985 he continued to retain its possession without any lawful right to do so, thereby causing unnecessary financial loss to the national exchequer, and in order to do complete justice between the parties, it is left open for the appellants to recover their legitimate claim of lease money plus penalty or mesa ne profit for the whole period from the respondent.