CHAN PIR SHAH Versus MILLITARY STATE OFFICERS

The petitioner was granted a lease of agricultural land measuring 112.736 acres situated within the boundaries of Lahore Cantonment by weans of deed of lease dated the 30th November 1966, for a period of ten years. Clause (ii) of the said lease deed is relevant which reads as follows :-

"Provided always that it shall be lawful for the lessors at any time or times during the said term on giving thirty days' notice in writing to resume possession of land determine the tenancy of the lessee of the said land or any part thereof without making to the lessee any compensation on account thereof save only a fair payment for the crops if any standing on the said land at the time of resumption and the abatement of a proportionate part of the rent for the then unexpired portion of the said term."

In exercise of the powers contained in the aforesaid clause the petitioner .on 8th September 1967, was served with an advance notice of one month indicating that the lease would be terminated as the land was required by the ,Government for Army use. A copy of that notice has been filed in the form of Annex. `B' and reads as follows :-

"Registered/AD

No. L-10/82/V/TY/II/258

Office of the Military Estate

Officer, Lahore Circle, Lahore

Cantt. dated the 8th September

1967.

To,

Syed Chanpir Shah, c/o Malik Khizar Hayat Khan Tiwana,

Bungalow No. 47, Lahore Cantonment.

Subject :-Lahore Cantt-Determination of Agricultural lease measuring 112.76 acres comprising Survey No. 313/Part,

Leased out for a period of 10 years to S; ed Chanpir Shah.

Whereas the lease of land measuring 112.736 acres comprising Survey No. 313/Par. Lahore Cantonment, has been granted to you for agricultural purpose for a period of 10 years w.e.f. 1-7-1966 to 30-6-1975 at an annual rental of Rs. 47,000.00.

2. Whereas the land in question is required by the Government for army use, the lease of the land has been determined by the Government. The undersigned has also been directed by the Government to resume the possession of the land giving thirty days' resumption notice, as required under condition II of the lease deed dated 30-7-1966 on payment of compensation. for standing crops, if any depreciation value of the newly installed tube-well and payment of proportionate rebate in rent for the unexpired portion of the said term.

3. Please take Notice under Condition I1 of the lease deed that you will hand over the possession of the land and both the tube-wells to the representative of this office, M. Mohammad Hadayat Ullah S/D'Man on 9-10-1967 at 10-00 hours without fail.

4. Please also take notice that if you fail to hand over the possession on the above date, the possession will be entered upon under the provision of Condition IV of the lease deed and section 5 of the Recovery of Possession (Land and Buildings) Ordinance, 1965 in the presence of two prominent witnesses.

(Sd.)

S. M. AFZAL,

Military Estate Officer,

Lahore Circle, Lahore Cantt."

In pursuance of the aforesaid notice the possession was taken by the lessor (through his representatives)-on 9-10-1967. Against the aforesaid proceedings, and orders the petitioner filed the present writ petition in this Court on the 16th October 1967. Alongwith the writ petition the petitioner had filed Civil Miscellaneous Application 1 of 1967 wherein he had prayed for the, suspension of the respondent's action for resumption of the disputed land. The writ petition came up for motion hearing on 17th October 1967, when a. report with parawise comments from the respondent was called for and in the meanwhile the action for resumption of the disputed land was suspended.

2. The respondent filed Civil Miscellaneous Application No. 2 of 1967 for vacation of the slay order alleging that the possession had already been taken from the petitioner before the passing or issuance of the stay order by this Court. The matter was attended to by a Division Bench of this Court consisting of Sardar Mohammad Iqbal, J. (as then his Lordship was)-and Dorab Patel, J., who, by means of their order dated the 23rd October 1967, withdrew the stay order dated 17th October 1967, holding that the possession had already been taken away by the respondent before any order by this Court was passed. It is instructive to reproduce a passage from the order of the Division Bench which reads as follows :-

"From the facts which have come to our notice, we are prima facie satisfied that the possession of the land in dispute has been handed over to the Army Authorities. So far as the crops are concerned the petitioner is entitled to receive the compensation. It is true that on the file the compensation is determined, but the petitioner does not accept its correctness and further states that he is entitled to receive a sure of Rs. 69,000.00 as compensation for the crops. We are not here to decide as to the compensation to which the petitioner is entitled to receive. In case the petition is accepted, the petitioner will be entitled to such compensation as may be determined in due course of law. On the contrary, if the petition fails, then too it shall be for the authorities to pay him the compensation to which he is entitled. He cannot, in these circumstances, order the determination of the compensation. Since the possession has already been taken over by the respondent, we withdraw our order dated the 17th of October 1967. The costs shall depend on the ultimate result of the petition."

The petitioner again filed anther application being C. M. No. 2 of 1968 for restoration of possession. This application was dismissed by a Division Bench consisting of Mr. S. A. Haq, J. (as then his Lordship was) and Dr. Nasim Hassan Shah, J. on 14-11-1968. The order of the Bench reads as follows :-

"We see no reason to take any action on the present application as the matter has already been gone into at some length by the Division Bench which considered the question of interim relief on the 23rd of October 1967. It was clearly stated in the order passed on that date that as the possession of the disputed land had already been taken from the petitioner no question of restoration arose and it was only the question of compensation which would have to be considered in due course. The assertion that the land is today not in fact being used for the training of the troops does not alter the situation, for we can take judicial notice of the fact that it is not necessary that every inch of the land in dispute should be constantly occupied for twenty-four hours of the day by the troops for purposes of training. The application is dismissed.

2. However, as the matter is of great urgency to the petitioners, let the main petition be fixed for a very early hearing."

3. Today the main case has come up before me for disposal. Learned counsel for the petitioner has argued that even though the lessor had a right to terminate the lease or resume possession by giving an advance notice of one month, but the maximum that the lessor under clause (ii) of the lease deed, as reproduced above, could do was to determine the lease but if possession was to be taken back from the petitioner it could not be taken away by any private efforts, and the lessor must have had resorted to the remedy of a civil suit in a civil Court. In this connection, he placed reliance upon Azim Khan v. State of Pakistan and another P L D 1957 Kar. 892, wherein it was held that "under section 9 of the Specific Relief Act a lessor, who had dispossessed otherwise than by due course of law, a lessee whose term had expired, would be compelled to restore possession to the lessee. Therefore, in view of the effect of that section, the Common Law right conceded to a lessor in England to eject his lessee by use of minimum force necessary for purpose cannot be granted to a lessor in Pakistan. A person who has got settled possession cannot be evicted except through a Court of law". On the other hand, learned counsel for the respondent has relied upon Lt.-Col. Muhammad Amin Khan etc. v. Government of West Pakistan and others P L D 1966 Lah. 111, wherein it was held that "the Government Grants Act, 1895;. which is a short enactment consisting of three sections was enacted, as is clear from the preamble and the enacting clause, for the purpose of clarifying doubts as to the extent and operation of the Transfer of Property Act, 1882 and the power of the Government to impose limitations and restrictions upon grants. The whole purpose of the enactment, as would' be evident from a bare reading of it, is to make it abundantly clear that no, provision contained in a grant would become ineffective or lose its validity, simply on account of its running contrary to any provision of any law for the time being in force. We have failed to find any provision in the Land Acquisition Act which contravenes or is in collision with any of the provisions of the grant in question. At the same time, we also do not find any stipulation in the grant which lays down that it will not be open to the Government to acquire the land in dispute. The mere fact that the tenure has not yet expired does not mean that it cannot be acquired for the unexpired period. In fact, the action of acquisition, far from being at cross purpose with the grant recognises and honours the same by making it incumbent upon the Government to pay compensation to the petitioners for the damage caused to them by way of loss of profits for their not being -able to enjoy the grant for the remaining period". Learned counsel then referred to the further discussion which is contained on the subject in paragraphs 31 and 32 of the latter case, where the question was whether after having granted a land for a particular tenure the Government could acquire the same for a public purpose or not and the answer of the Bench was that it could do so. I have no intention to enter into the controvers whether the manner in which the possession was taken over from the petitioner was lawful or not, because, in my opinion, the present case can be disposed of on another point and that is that since an advance notice h duly been served on the petitioner the tenancy in terms of column No. 11 of the lease deed reproduced above had come to an end. In that state o affairs I do not think that I should pass any order which may have the effect of putting the petitioner on a land over which he has no lease right any more. This is the obvious effect of the service of the notice of termination of lease on the petitioner. In that view of the matter, at the most what the petitioner can claim, as observed by the earlier two Division Benches in their orders reproduced above, is to claim compensation from the authorities concerned. The prayer to let the petitioner re-enter upon the land in the circumstances cannot, therefore, be accepted. At this stage it may be mentioned that Mr. I. A. Wasti, Deputy Assistant Military Estate Officer, Lahore. who was present in person in Court alongwith the relevant record pointed out that the petitioner has duly received the amount of compensation to the extent of Rs. 69,064.52 on 1-1-1969 by means of a cheque without protest. This amount is virtually the same which was indicated before a Division Bench of this Court at the time the order dated the 23rd October 1967, was passed. In the face of this conduct of the petitioner in accepting the amount of compensation for termination of his lease etc. no further order of any kind from this Court is called for.

4. The next point argued by the learned counsel for the petitioner was that the termination of the lease of his client was male fide inasmuch as the land even these days was not being used for Army purposes and had in fact been again given on lease to certain other persons. This point was clearly .met by a Division Bench of this Court in its order dated 14-11-1968 reproduced above.

5. The upshot of the above discussion is that this writ petition has no merit and is dismissed with no order as to costs.

S. A. H. Petition dismissed.