ALI SHER vs MEMBER, BOARD OF REVENUE AND Other
The petitioner sought leave to appeal against the Lahore High Court's judgment dismissing his constitutional petition, which had challenged the reversal of permission granted to him under section 19 of the Colonization of Government Lands Act. The core legal question concerned whether the Board of Revenue could lawfully treat a sanction granted under section 19 as void solely based on an internal administrative circular prohibiting such transfers, without examining allegations of fraud or affording an opportunity of hearing to the affected party. The Supreme Court held that the petitioner's contentions—including the lack of opportunity of hearing, the interpretation of the circular regarding ejected tenants, and the interdependent nature of the transfer transactions—raised substantial grounds requiring in-depth examination. Consequently, the Court granted leave to appeal. The key principle laid down is that administrative circulars cannot override statutory discretions without proper scrutiny of facts, and affected parties must be granted a fair hearing before administrative interference with settled property rights.
- Whether the Board of Revenue can declare a transfer sanction under section 19 void solely on the basis of a general administrative circular without examining allegations of fraud?
- Is an affected grantee entitled to an opportunity of being heard before the cancellation or reversal of a sanctioned land transfer?
- Whether general instructions issued by the Board of Revenue can override statutory permissions granted under the Colonization of Government Lands Act?
- Section 19, Colonization of Government Lands Act 1912
ORDER
1. SHAFIUR RAHMAN, J.--A.I Sher, the petitioner, seeks leave to appeal against the judgment of the Lahore High Court dated 23rd November, 1981, whereby a constitutional petition filed by him reversing the permis--sion granted to him under section 19 of the Colonization of Government Lands Act was dismissed.
2. According to the petitioner he as well as Rehmat A.I were both ejected tenants who had received allotment of Government lands as such. They had both complied with the terms and conditions of the grant and were adjudged by the Commissioner to be entitled to acquire proprietary rights. By a triangular arrangement between himself, Rehmat A.I and one Khushi Muhammad he sought permission of the Collector to transfer his grant in favour of Khushi Muhammad and obtained it. By another arrangement Rehmat A.I got a sanction of the Collector under section 19 to transfer his grant in favour of A.I Sher. The necessary permission under section 19 was granted to them in December, 1966. The transfers were given effect to in the revenue record by sanction of the mutation in 1967. Ten years after, that is in the year 1976, Rehmat A.I, respondent No. 2. Moved the Board of Revenue seeking reversal of the sanction under section 19 on the ground that he had been subjected to fraud. Without examining that question and without hearing the petitioner. A.I Sher, the Board of Revenue held the sanction granted by the Collector in December, 1966 under section 19 to be void because the Board of Revenue had by a circular in July, 1966 informed all subordinate authorities that permis--sion for transfers of the grant made to the ejected tenants should not- be granted because it was difficult to ensure satisfaction of the conditions of the grant insofar as the transferee was- concerned. The Collector gave effect to the order of the Board of Revenue and reviewed the mutation earlier sanctioned in favour of the petitioner. In different proceedings the Collector reported the violations of the Board of Revenue's circular in respect of the transfer made by A.I Sher in favour of Khushi Muhammad and the Board of Revenue regularised it.
3. The main grievance of the learned counsel for the petitioner is that if an opportunity had been extended to him of explaining his case he would have established how two separate transactions and three parties, two of .4 whom were grantees holding land in the ejected tenants' scheme, were affected and either both the transactions should fail or should have been sustained. It was also urged by the learned counsel for the petitioner that the general instructions of th6 Board of Revenue were not in fact contravened by such permissions because the petitioner himself was an ejected tenant and not a rank outsider and further he had satisfied all the conditions of the grant and was adjudged eligible to acquire proprietary rights. Such a tenant could by means of transfer acquire similar other tenancy without in any manner violating the spirit or letter of the Cir--cular.
4. Finally it is said that alienation in favour of Khushi Muhammad being part of the same transaction could not be protected as it suffered from the same taint as was held to vitiate, the transfer in his own favour.
5. After bearing the learned counsel for the petitioner we find that there is substance in the grounds urged by him which need examination in depth in the presence of the Respondents. We, therefore, grant leave to appeal. Security for costs shall be Rs. 2,500. Interim Order already made shall continue for his benefit. .