MUHAMMAD KHAN and others Versus PROVINCE OF PUNJAB

JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the judgment dated 12-1-2000 whereby R.S.A. preferred on behalf of appellants has been dismissed.

2. Leave to appeal was granted by means of order, dated 30-1-2000 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:--

"The land in dispute was allotted to the petitioner under Grow More Food Scheme admittedly on 14-12-1956. The possession was delivered to them in pursuance of the said allotment in March, 1957 as per findings recorded by the trial Court in the judgment, dated 29-11-1987 through which their suit was decreed.

(2) According to the policy decision of the Punjab Government, the land of the such allottees whose lease had expired on or before Rabi, 1962 was to be resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large.

(3) The land of the petitioners was resumed under the said policy decision aggrieved of which they brought a suit before the civil Court which was decreed through judgment dated 29-11-1987 by the trial Court, by recording finding that the possession having been delivered to the petitioners in March, 1957, therefore as per terms of sect: m 10 of the Colonization of Government Lands Act, their tenancy would be deemed to have started from the said date and if counted from the said date, period of five years would go beyond Rabi, 1962, as such, the said policy decision was wrongly applied to this case and the orders of the authority of resumption of the land and inclusion of the same in the scheme of tender were void ab initio.

(4) In appeal, however, the Appellate Court dismissed the suit of the petitioners by acceptance of appeal on technical ground that jurisdiction of the civil Court in such matters was barred by virtue of section 36 of the said Act. It was affirmed by the learned Judge of the High Court through the impugned judgment dated 12-1-2000 against which leave sought.

(5) Learned Judge of the High Court in the impugned judgment has, however, observed that in case an order of the statutory authority was void ab initio, mala fide or against law, the jurisdiction of the civil Court would not be barred. At the same time, it appears to have altogether been overlooked by the First Appellate Court and also the High Court that the case of the petitioners was and it was proved through evidence as per findings of the trial Court that possession of the land was delivered in March, 1957 and as per terms of section 10 of the Act, the tenancy would be deemed to have started from the said date, as such, period of five years would not expire in Rabi, 1962 but would go beyond the same which has not been attended to. This jurisdictional fact being absent from the case which is sine qua non for exercising power by the concerned authorities to resume the land under the said policy decision and inclusion of the same in the scheme of schedule of tender, therefore, the trial Court according to learned counsel for the petitioner rightly decreed the suit by holding that the act of the concerned authorities was void ab initio and lacked power which has not been taken into consideration by the First Appellate Court and the learned Judge of the High Court as the decision of the said two Courts are based on extraneous matters and the petitioners have been deprived of their valuable right under the law. In support of his contentions, he relics upon Muhammad Rafiq and others v. Hashmat Ali and others PLD 1992 SC 37 and Muhammad Shafi v. Member, Board of Revenue and others 1985 SCMR 817. He also argued that subsequent to the said policy decision, however, the Government changed its policy and issued another policy decision that in case of allottees under the Grow More Food Scheme, proprietary rights could be given to them irrespective of date of commencement or expiry of their lease.

(6) We have also heard learned counsel for the respondents.

(7) The above contention, inter alia, raised by the learned counsel for the petitioner requires examination, therefore, we grant leave to consider the same.

Till the disposal of the appeal, possession of the petitioners over the land in dispute shall not be disturbed who shall continue paying Government dues.

3. Ch. Muhammad Ashraf, learned Advocate Supreme Court entered appearance on behalf of appellants and contended that the evidence which has come on record has not been appreciated in its true perspective by the learned single Judge of Lahore High Court in Chambers as well as by the learned Appellate Court which resulted in serious miscarriage of justice. It is argued that determination of the learned Appellate Court, upheld by the learned single Judge of Lahore High Court has no nexus whatsoever with the evidence which has come on record. It is also contended that the legal aspects of the controversy could not be appreciated in its true perspective and the learned High Court has erred while holding that civil Court has no jurisdiction to dilate upon the controversy which is not in consonance with the dictum laid down by this Court on various occasions. It is urged with vehemence that the appellants are admittedly allottees of the land under Grow More Food Scheme and their period of five years lease was expired after Rabi, 1962 and as such they are entitled to acquire the proprietary rights pursuant to the' policy framed by the Government of Punjab which aspect of the matter went unnoticed by the learned Courts below causing grave prejudice against the appellants. It is next contended that the instructions dated 26-4-1971 issued by the Government of Punjab have been misinterpreted and misconstrued whereby all allottees of the land were eligible to acquire proprietary rights under the Grow More Food Scheme irrespective of the fact that the land was allotted in their favour or otherwise. It is further argued that the learned trial Court after having gone through the entire record and evidence determined that the allotment made in favour of appellants was legal and valid under the Grow More Food Scheme which entitled them to acquire the proprietary rights of the land in question in view of the provisions as contemplated in section 42 of the Specific Relief Act, 1877 but the learned Appellate Court as well as learned single Judge in chambers have reversed the findings of learned trial Court without assigning any cogent reasoning. It is lastly argued that the District Collector has resumed the land allotted in favour of the appellants without affording proper opportunity of hearing and thus, the exercise of authority by the District Collector was arbitrary and fanciful which could have been looked into by the learned Civil Court and there would be no bar of jurisdiction in such-like eventualities.

4. Ms. Afshan Ghazanfar, learned Assistant Advocate-General entered appearance on behalf of Province of Punjab and strenuously controverted the viewpoint as canvassed at bar by the learned Advocate Supreme Court on behalf of appellants and supported the judgment impugned for the reasons enumerated therein with the further submission that no order was passed by the learned District Collector in black and white and therefore, learned civil Court could not have exercised jurisdiction in view of the bar as contemplated under section 36 of the Colonization of Government Lands (Punjab) Act (V of 1912). It is next contended that the appellants were not entitled for proprietary rights as stipulated period i.e. five years of their lease was expired prior to Rabi, 1962 and the land in question could have been resumed and allotted by the authority concerned. It is next contended that the appellant had no locus standi to initiate the proceedings against the Government of Punjab being lessee for a stipulated period and limited purpose having no legal right whatsoever to claim the proprietary rights of the land in question.

5. The entire record has been examined with the eminent assistance of learned counsel. We have perused the judgment of learned trial and Appellate Courts as well as the judgment impugned. There is no denying the fact that the land in question was allotted in favour of appellants by means of order, dated 14-12-1956 under the Grow More Food Scheme and the physical possession was delivered in March, 1957. The pivotal question which needs determination would be as to whether the land in question could have been cancelled prior to the expiry of five years stipulated period pursuant to the provisions as contemplated in section 10 of the Colonization of Government Land (Punjab) Act (V of 1912) because the policy framed by the Government made it abundant clear that the land of such allottees whose lease had expired on or before Rabi, 1962 was to be resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large. As mentioned earlier the physical possession of the land in question was handed over to the appellants in March, 1957 and the period of five years would be completed after Rabi, 1962 and thus, the land in question by no stretch of imagination could have been resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large because it was not available for such auction. It is worth mentioning that the said policy decision was abandoned and it was decided by the Government of Punjab by means of instructions dated 8-8-1962, 22-10-1962 and 26-4-1971 that all the allottees under the Grow More Food Scheme are eligible to acquire proprietary rights irrespective of the date of allotment and date of termination of lease. Ms. Afshan Ghazanfar, learned Assistant Advocate-General was asked pointedly that as to why the proprietary rights should not be conferred upon the appellants, but no satisfactory answer could be given except that the claim of appellants could not have been dilated upon and decided by the Civil Court in view of the bar of jurisdiction as contemplated under section 36 of the Colonization of Government Land (Punjab) Act (V of 1912) and besides that the five years lease period was expired prior to Rabi, 1965 and thus, the re-allotment of the land in question to private respondents cannot be termed as mala fides hence the Civil Court had no jurisdiction. The above contention of learned Assistant Advocate-General seems to have been made in oblivion of the fact that the order passed by District Collector qua resumption of land was ab initio void and hence no embargo can be imposed on the-jurisdiction of civil Court. It is well settled by now that "a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any fact, he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which be can pass an order and in that case, he will act in a quasi judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. ... So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that special tribunal may be made the Judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words. However, with respect to mala fides, the jurisdiction of civil Court can never the taken away for a mala fide act is in its very nature an illegal and void act and the civil Court can always pronounce an act to be mala fide and therefore, void. (Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698). While examining a similar proposition it was held by this Court in case Abdul Rab v. Wali Muhammad PLD 1980 SCMR 139 that "the Colonization Officers have no independent jurisdiction of their own and in cases of this type, they are bound to settle land on persons concerned in accordance with the statements and conditions or the scheme promulgated by the Government on the subject. These "statements and conditions" or the scheme constitute a law on the subject and if Colonization Officers violate that law in the garb of putting in unwarranted interpretation or construction of the same, they act in excess of their power and authority civil Court will always have jurisdiction to strike down their orders. The proposition is well-settled but if authority be needed reference may be made to Thakur and another v. Bengal Duars Bank Ltd. (1), Karim Dad v. Arif Ali and another (2) and Jiwana v. Mst. Sahibi (3).

6. The provisions as contemplated under section 36, of the Colonization of Government Land (Punjab) Act (V of 1912) were examined in Anjuman Talim-ul-Islam (Regd.) Sheikhupura v. Province of West Pakistan PLD 1983 Lah. 294 wherein it was held as follows:

"(11) The learned counsel for the appellant also challenged the view taken by the two Courts below that the Civil Court had not jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of civil Court is not to be presumed or readily admitted, there is a plethora of case-law laying down that despite a clear ouster of jurisdiction of a civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia PLD 1958 SC 101. It was held in Karim Dad v. Arif Ali and others PLD 1978 Lah. 679 that section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or the four corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction.

(12) Reference be also made a Jewana v. Mst. Sakhi PLD 1954 Lah. 253 and Government of Punjab v. Harbhagwan and another 1940 PLR 529 laying down that section 36 did not oust the jurisdiction of the civil Courts in certain cases. The same view was taken in the case of Sardar Habibullah also as referred to in para.15 below. Thus, if it is shown that the order passed cannot be accommodated with in the ambit of power of a particular authority, the civil Court would intervene. Similarly, the civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the civil Court could only the ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides. (Aslam Zia PLD 1958 SC 104, Karim Dad v. Arif Ali and others PLD 1978 Lah. 679, Jewana v. Mst. Saki PLD 1954 Lah. 253 and Government of Punjab v. Harbhagwan and another 1940 PLR 529).

7. The provisions of section 36 of the Colonization of Government Land (Punjab) Act (V of 1912) were also examined in case Jiwana v. Sahbi PLD 1954 Lah. 253 with the following observations:--

"The Civil Courts would ordinarily have jurisdictions to decide whether or not the act purporting to have been done in the exercise of powers conferred by Act V of 1912 could be validly done under the act and on the language of section 36 of the Act it cannot be held that that jurisdiction had been taken away from the Civil Courts by that section. Nor does section 36 of Act V of 1912 divest the Civil Courts of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912 will have on the rights of the parties before it."

8. On the touchstone of the criterion as laid down and discussed hereinabove we have no hesitation in our mind to hold that Civil Court had the jurisdiction to dilate upon and decide the controversy in hand. Before parting with the judgment we may mention here that the instructions issued by the Government of Punjab on 8-8-1962, 22-10-1962 and 26-4-1971 are to be implemented in letter and spirit which contemplates that all the lessees under the Grow More Food scheme are entitled to acquire the proprietary rights irrespective of the date of allotment and termination of lease. As mentioned hereinabove the stipulated period of five years was not complete and hence the question of termination of lease of appellant does not arise.

In sequel to above mentioned discussion we are inclined to accept this appeal and the judgment impugned as well as the judgment of learned Additional District Judge dated 4-10-1996 arc set aside and the judgment/decree of learned trial Court dated 29-11-1987 shall remain intact.

S.A.K./M-46/SC ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.