FAZAL DAD Versus THE COLLECTOR~SAHIWAL

The petitioner, an Islamabad oustee, who was allotted land in Chak No. 187/E.B. Tehsil Pakpattan, aggrieved by the order of the Collector, maintained in appeal and revision, whereby his allotment was cancelled and alternate land was offered to him can the groused that it was located within the prohibited zone being at a distance of within one mile of the Railway Station Gaggo in Sahiwal District.

2. The case of the petitioner is that the allotment was made in the yea; 1961, under a Scheme promulgated and enforced though not formally notified in the Gazette, and the grant was made by way of additional compensation for the proprietary land acquired for setting up capital at Islamabad. The conditions on which the land was allotted required him to pay its market price to be determined by the Collector. The eligibility extended to 12‑1/2 acres which was the unit of allotment. In 1965 there came to be placed a restriction in view of the growing need of Mandi‑Towns, Railway Stations, etc., for expansion and a limitation was placed which had varied froth time to time within the radius of which State land" was not to be allotted under any permanent scheme. This restriction has been given effect to against the petitioner and many others similarly placed. The petitioner agitated against the order cancelling the allotment and offering him alternate land instead on the ground that policy enforced subsequent to the' allotment could not be applied to his case as such prohibition was not in existence when the land was earmarked for settling Islamabad oustees or when the allotments were actually made, and not even when the petitioner was put in possession of it. The Commissioner and the Board of Revenue did not, as a fact, hold that such a prohibition existed when the petitioner was settled on the land but it was held by those authorities that if the petitioner had failed to pay the market price of the land, he had acquired no vested right in it, and that his allotment could be cancelled and he could be given alternate land.

3. Going by the reasons advanced by the Commissioner and the Board of Revenue, it appears that the departmental authorities, have tried to claim a right out of their own failure. It is admitted that the market price of the land was to be determined not by the allottee but by the Collector under the directions of the Board of Revenue. The learned Counsel for the respondent and even the departmental representative, who was in attendance, admitted that till to‑day at no stage was the market price of this land ever worked out or communicated to the allottee. There was, therefore, a clear non‑performance of a duty on the part of the Collector hector and the authorities charged with the responsibility of determining rice and this failure of the department could not be made the basis the market for treating the petitioner in default. The occasion for attributing default to the petitioner would arise' only when the market price is worked out and communicated and a reasonable time is afforded to comply with the demand. Remedies under the law are certainly available to the department in case the demand is not complied with by the petitioner.

4. As regards the enforcement of the prohibition enforced subsequent to the grant made to favour of the petitioner it is stated that the petitioner had no vested right in the land and under the grant any conditions could be added to the grant already made in his favour. Looking to the nature and conditions of the grant and its background it cannot be said that the Collector and the authorities above him exercised such a vast plenary power. It was a case of sale of earmarked land in consideration of acquisition of the proprietary rights of those affected by shifting of the Capital from Karachi to Islamabad. The reasons were embedded in public interest and national policy. The petitioner was qualified for the grant and at no stage has been held not entitled to it. The conditions on which the land was offered did not envisage that any alteration prejudicial to the grantee could take place either in the price, the suit of tenancy or the terms and conditions on which it was made available, after the entitlement was established and the allotment made. There was no such reservation either. Therefore, the Bard of Revenue could not enforce an instruction which came into existence at least about four years after the allotment against the petitioner. It could not be applied retrospectively to these allotments where non of the conditions specified remained unsatisfied.

5. The position would have been different so far as the results are concerned, and the nature of rights claimed in the proceeding if the instructions bad already been in existence and had been either ignored or not given effect to in making the allotments for then a subordinate functionary could be accused of violating the rule, the law or the instructions and on that account the grants suffering from an initial vice. That is not the case with the allotment of the petitioner.

6. The Government is as much bound by the provisions of the Governments Grants Act as are the parties deriving benefit under the grant Section 3 of that Act provides that "all provisions, restrictions, conditions and limitations contained in any such grant or transfer as aforesaid shall he valid and take effect according to their tenor, any rule of law, statute or enactment of the legislature to the contrary notwithstanding". This provision of the law was given full effect against the Government itself in the case of West Punjab Province v. Siraj Din (P L D 1951 Lah. 459).

7. Today a number of other cases involving the same question as has arisen in this case were taken up. These were W.P. No. 1554/70 (Mst. Khairan Bibi v. The Collector) W.P. No. 1558/70 (Muhammad Afzal v. The Collector) and W.P, No. 43/70 (Karim Dad Khan v. The Collector and others) and an arbitration award given by the Commissioner enforcing the same prohibition was sought to be made the rule of the Court which the Civil Court refused on the ground that the Board of Revenue could not place subsequently a restriction such as may affect materially the terms and conditions on which the petitioner and others were granted land. The Government did not successfully challenge such a decision.

8. In the circumstances of the case, I find that the Collector, the Additional Commissioner and the Board of Revenue acted without lawful authority in giving retrospective effect to the prohibition enforced subsequently and this petition is accepted with costs.

M.Y.H./3993/L

Petition accepted.