MAJLIS-I-INTIZAMIA Versus SECRETARY TO GOVERNMENT

1. MUHAMMAD GUL, J. ‑This appeal by special leave by the Majlis‑i- Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur, (a society registered under the Societies Registration Act, 1860 and hereinafter called the appellant), is from the judgment dated 10‑1‑1967 of the late High Court of West Pakistan at Lahore. By the at judgment two writ petitions namely No. 1026/R of 1963, by the appellant and Writ Petition No. 1426/R of 1963 by Anjuman‑i‑Markazi Ahnaf Ghausia, (also a society registered under the 1860 Act and hereinafter called the Anjuman) were dismissed.

2. The dispute leading to this appeal concerns the allotment of an area measuring 1 acre, 3 kanals, 6 marlas and 72 square feet, survey Nos. 669/A and 443/C, for the purpose of construction of a Jamie Mosque in Ghulam Muhammad Abad Colony, a satellite town of Lyallpur. On the recommenda tion of the District Allotment Committee, the appellant, from among the five applicants, was allotted the area in dispute by the Deputy Commissioner vide letter dated 15‑8‑1962. Later the Governor, West Pakistan acting through the Urban Rehabilitation Officer, executed lease deed dated 3‑9‑1962 in favour of the appellant. It was duly registered on 24‑9‑1962. The lease was for a term of 99 years or for so long as the site was used for the specified purpose whichever was earlier. Under the terms of the lease, right of re‑entry was reserved to the lessor with power to determine the lease at any time for breach of any condition of the lease or on six months prior notice if the premises shall be required for any public purpose. The penultimate paragraph lease deed provided for reference to arbitration by any of the parties to the Commissioner of the Division.

3. "If any question, difference or objection whatsoever shall arise in any way connected with or arising out of this instrument or the meaning or operation of any part thereof of the rights, duties or liabilities of either party. . . . .

4. It appears that the Anjuman which was also among the five applicants for the area in dispute, was not considered fit for allotment, because its membership was confined to Brelvi School, which in the opinion of the District Allotment Committee was extremely rigid in their views and who already controlled a number of mosques in the locality. The appellant on the other hand was an organization of Deobandi School, which in the opinion of the Committee were more tolerant. Aggrieved by the allotment of the area in favour of the appellant, the Anjuman filed appeal before the Additional Commissioner. The appeal, however, failed and the Anjuman went in revision before the Secretary to Government of West Pakistan, Communica tion Department, who accepted the same and cancelled the allotment in favour of the appellant on the ground that it did not enjoy majority in the area, that the lease in favour of the appellant was not approved by the Government and that the appellant had raised unauthorized structure, and thereby violated terms of the lease. However, instead of allowing the allotment of the area to the Anjuman, the Communication Secretary directed that the construction of the Jamia Mosque should be entrusted to a Board representing "all shades of religious opinion and commanding influence in the locality." The order in revision is dated 30‑7‑1963.

5. The appellant and the Anjuman separately filed tyro writ petitions in the High Court, which were heard, together but dismissed by the impugned judgment. The learned Judges took the view that there was no statute regulating the establishment of "satellite town schemes" in the Province, arid, therefore, there was no question of any "legal right" of the parties which could form the basis for invoking the writ jurisdiction of the High Court in the case of its infringement. In the opinion of the learned Judges the whole scheme of the satellite towns in the Province has been conceived "within an administrative framework and that the provisions for appeal and review were made merely for efficient and proper working of the schemes so that the District Allotment Committees do not function in an arbitrary or capricious manner." In reaching that conclusion, the learned Judges relied on a judgment of this Court in Estate Officer, Government of Pakistan v. Syed Tahir Hussain (P L D 1962 S C 75), a case which proceeded on the interpretation of a set of rules called the Karachi Allocation Rules, framed for regulating the allotment of residential accommodation to Government servants in Karachi.

6. The Anjuman was apparently satisfied with the above judgment. Leave was, however, granted to the appellant to consider whether, the High Court judgment proceeded on a correct appreciation of the legal position arising in the case.

7. The learned Judges sought to distinguish Anjuman‑i‑Ahmadiya, Sargodha v. Deputy Commissioner, Sargodha (P L D 1966 S C 639), a case cited on behalf of the appellant for seeking redress in writ jurisdiction, on the ground that leave in the precedent case was granted on a limited question, namely, whether remedy by way of a suit was adequate as an alternative remedy for the redress of grievance arising out of an order "purporting to be in exercise of public power." The grant in the precedent case was made under the Colonization of Government Lands (Punjab) Act, 1912 and, therefore, the learned Judges thought that the dictum in the precedent case would not be attracted to the instant case in which the proceedings from the beginning to the end were under a procedure brought in force under executive instructions issued in it relation to the functioning of a "beneficent department of the Government" and not under a statute.

8. Sheikh Muhammad Shall, learned counsel for the appellant argued that with the execution of the lease dead dated 3‑9‑1962, the transfer of leasehold title in favour of the appellant was complete and the jural relation between the parties in relation to the grant was entirely governed by the terms of the grant specified in the; lease deed. Learned counsel submitted that the appellant scrupulously adhered to the conditions of the lease and that assuming for the sake of argument that the appellant was in breach of any of its terms, then the remedy lay in a reference to arbitration by the Commissioner and, therefore, the lease could not have been cancelled other wise than under the award of the arbitrator.

9. Learned counsel further argued that lease having been granted by the Governor of the Province who was party to the lease deed, the lease could not have been cancelled by the Secretary, Communication Department, in purported exercise of his revisional jurisdiction so as to set at naught the transaction solemnly entered into by the repository of the executive authority of the Province under the Constitution namely, the Governor. It was emphasized that the Secretary, Communication Department, acted entirely under departmental instructions and not under a statute and being a subordinate authority could not set at naught the solemn transaction to which the Governor himself was a party.

10. In our opinion there is force in the argument. It is not disputed that with the execution of the lease deed in favour of the appellant, the demise in favour of the appellant was complete. And that being an official act, in the absence of any proof to the contrary it must be presumed to have been regularly performed. That being so, the transaction could not have been cancelled save as provided under the terms of the grant. In our opinion despite the differentiation in facts in the case of Anjuman‑i‑Ahmadiya Sargodha, the principle laid down in that case would extend to the instant case, In that case Anjuman‑i‑Ahmadiya Sargodha, purchased a parcel of land for its community mosque in Sargodha. A registered sale‑deed was also executed. This was followed by a delivery of possession as in the instant case. After all the formalities were completed, the Municipality took objection against the validity of the grant to the Anjuman‑i‑Ahmadiya and the Government suddenly served a notice on the vendee saying that "the Government have decided to cancel the sale of . . . . . of land." A wait petition filed by the Anjuman in that case was dismissed in limine on the ground that the sale‑deed executed in favour of the Anjuman provided for arbitration and that was adequate alternative remedy against the cancellation of the sale and that in any event the dispute having arisen out of the breach of the contract of sale, the normal remedy lay by way of a suit. That view was not approved by this Court and while remitting that case to the High Court to determine the validity of the grant in that case, this Court observed:

11. " . . . . . on completion of the purchase and execution of the conveyance, the parties cease to be governed by any conditions incompatible with those actually incorporated in the instrument itself. Such a grant being a Crown grant is to be read, according to its tenor, any statute or law to the contrary notwithstanding.

12. It is, therefore, clear from the provisions contained in the statute and the conditions in the deed of conveyance that if there has been a valid grant then it cannot be cancelled in the manner in which the authorities have purported to do in the present case. The case was thus clearly one in which the appellant was complaining of a non‑performance of a public duty and asking for a direction that the authorities concerned should perform their public duty in accordance with law."

13. Nothing turns on the fact that the grant in the precedent case was under the Colonization of Lands (Punjab) Act and in the instant case it is made pursuant to the administrative instructions. In either case, the grant is in exercise of the executive authority of the State, though in the precedent case, it is regulated by the 1912 Act, and in the instant case the matter rests entirely in the executive discretion. The validity of the grant not being in question, it cannot be cancelled save as provided in the lease deed itself. Therefore, the appellant in this case properly invoked the writ jurisdiction of the High Courts complaining that after the execution of lease in its favour, the Secretary, Communication Department acted without lawful authority and that he cancelled the lease otherwise than as provided in the terms of the s grant, which under the provisions of the Government Grants Act, 1895 (Act XV of 1895) is not permissible. According to section 3 ibid, all grants made by or on behalf of the Government: "shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislative to the contrary notwith standing."

14. It is important to point out that revisional order was subsequent to the lease in favour of the appellant. Accordingly, the revisional order by the Secretary, Communication on 30‑7‑1973 is plainly nugatory to the above provision and, is, therefore, without lawful authority. On that view of the master, the remedy by way of appeal or revision against the order of allotment under the departmental instructions will avail only as long as the grant remains inchoate. But once the grant became a fait accompli by execution of deed of conveyance as in the instant case, the matter is taken beyond tae reach of the appellant or as the case may be the revisional authority which is a creature of mere administrative instruction.

15. The matter can also be considered from the point of view of adminis trative propriety. As pointed out already, Secretary Communication, exercised revisional jurisdiction in the matter not under any statute but under an executive measure issued in the form of instructions presumably to ensure a just and fair distribution among different competing appellants. But once the Governor in the exercise of his executive authority has completed the conferment of grant by executing the lease deed, to allow a subordinate authority purporting to act under administrative instruction to countermand the grant made by the Governor, will only cause disarray and confusion which the subordinate authority will do well to avoid for the smooth running of the administration.

16. For the foregoing reasons, the appeal is accepted and the order of cancellation of lease is hereby set aside as without lawful authority. We, however, make no order as to costs.

17. K. B. A. Appeal accepted.