MUHAMMAD AKRAM Versus MEMBER, BOARD OF REVENUE

ORDER

CH. IJAZ AHMED, J.-- - The appellants/petitioners filed C.P.L.A. No.301-L of 2001 against the judgment of Lahore High Court dated 21-11-2000 wherein the constitution petition filed by the petitioner challenging the vires of the order of the Member Board of Revenue dated 13-5-1987 was dismissed. Leave was granted by this Court on 3-2-2003 in the following term:--

"Leave is granted inter alia to consider that out of 44 Kanals of land given to the Municipal Committee, Jhang for construction of hospital and school, 2 Kanals and 3 Marlas having been resumed for deploying it beyond the scope of the object viz. raising of shop (92 in number) discrimination could be made qua the shop in question (41 and 42) only on the ground that Committee had received cost of construction (Rs.14,000) from the predecessor-in-interest of the petitioners.

Status quo as to possession be maintained subject to payment of rent."

2. The necessary facts out of which the present appeal arises are that land measuring 44 Kanals'was handed over to Municipal Committee, Jhang Saddar by respondent No.1 (Member Colonies, Board of Revenue) for construction of hospital and a school. Land measuring 41 Kanals, 17 Marlas was utilized by the Municipal Committee for Hospital and a school and the remaining land measuring 2 Kanals, 2 Marlas was further leased out by the Municipal Committee to different persons for construction of shops. As many as 92 shops were constructed by different persons and. the occupants being paying annual rent of Rs.60,000 to the Municipal Committee. Shops Nos.41 and 42 were originally allotted to one Hashmat Ali son of Faqir Muhammad by Municipal Committee Jhang on rental basis who sublet the shops in question to Muhammad Ramzan, predecessor-in-interest of appellants Nos.2 to 7 in the year 1965. As the original allottee namely Hashmat Ali breached the terms and conditions of the lease, therefore, Administrator, Municipal Committee had rented the shops in question to Muhammad Ramzan and Barkhurdar at the monthly rent of Rs.240 and he also cancelled the lease of the original lessee/tenant (Hashmat Ali). Thereafter agreement was also executed to this effect on 10-3-1965 between the predecessor-in-interest of the appellants and Administrator, Municipal Committee. Another agreement dated 9-7-1965 was also executed between them wherein the rate of rent was enhanced from Rs.240 to Rs.245 p.m. Thereafter another agreement dated 26-8-1967 was also executed between the parties wherein the rent was enhanced from Rs.245 to Rs.260 p.m. The aforesaid parties also executed another agreement qua the shops in question. Hashmat Ali being aggrieved by the action of the Administrator, Municipal Committee filed constitutional petition in the Lahore High Court which had been subsequently withdrawn by him and he sold the structure to the Municipal Committee Jhang for consideration of Rs.14,000 on 29-1-1969 as evident from the resolution of the respondent No.2 dated 26-2-1969 and agreement dated 29-1-1969. Predecessor-in-interest of appellants had paid the rent to the Municipal Committee up to June, 1973. All the shopkeepers (92) inclusive of the predecessor-in-interest of the appellants preferred application before District Collector, Jhang on 18-1-1969 for the sale of the land in question under their occupation to them. Additional Commissioner Consolidation under the instructions of the competent authority had inspected the spot and found that 92 Pacea shops had been constructed over the land in question and the occupants were paying the rent as well as tax to the Municipal Committee. He also observed that Municipal Committee could not lease out or sublet any portion of area transferred to the Government for specified purpose. He also came to the conclusion that Municipal Committee was not justified to drive income of the shops as depicted from his report dated 10-1-1970 which was submitted by him to the Board of Revenue through Commissioner Sargodha Division. The Board of Revenue had decided to resume the land in question measuring 2 Kanals, 3 Marlas inclusive of the Shops Nos.41, and 42, in possession of the appellants from the name of the Municipal Committee Jhang. The Board of Revenue also directed to the concerned Collector to recover the rent already received by the Municipal Committee from the shopkeepers. The Government of Punjab had decided to sell the land in question by private treaty to the occupants/shopkeepers. This decision was conveyed to the Board of Revenue through Commissioner vide letter, dated 5-2-1970. Board of Revenue also directed the Commissioner, Sargodha Division to make an inquiry from D.C. Jhang with regard to the prevailing market price of the land on prescribed pro forma basing it on the average of the land for commercial purpose during the preceding 12 months. The D.C. was also directed to submit a list of 92 shopkeepers along with the report about the area in their possession. Board of Revenue intimated the Commissioner concerned to the extent that Board of Revenue is ready to sell the land in question by private treaty in favour of the sitting shopkeepers attached in the list sent to him vide office endorsement dated 4-2-1969 at the rate of 26 per sq. ft. plus 10% surcharge on account of sale by private treaty for commercial purposes. Name of the petitioner was also mentioned in the list of sitting shopkeepers. The Board of Revenue on 10-5-1982 made an inquiry from D.C. Jhang as to whether the appellants who were sitting tenants were prepared to purchase the said land at the rate of 1,50,000 from 26 plus 10% surcharge on account of sale by private treaty. Notices were issued by the competent Officer to all the sitting occupants/shopkeepers. All the occupants/sitting shopkeepers agreed to purchase the land at the above rate. 90 shops were sold to the sitting shopkeepers but the respondent had refused to sell the shops in question to the appellants on the ground that shops in question were allotted to one Hashmat Ali in the year 1952 who handed over the same to the appellants in the year 1954. Shops iii question were rented out to the predecessor-in-interest of the appellants by Municipal Committee @ 240 p.m. Predecessor-in-interest of appellants being aggrieved filed suit for declaration against the respondents in the Court of Civil Judge 1st Class, Jhang which was dismissed vide order, dated 10-3-1982. Predecessor-in-interest of the appellants being aggrieved by the discriminatory action of the respondents by not selling the shops in question to them filed Constitutional Petition No.465 of 1982 which was disposed of with the direction that the Member Board of Revenue was directed to decide the case of the appellants in accordance with law expeditiously under intimation to the Registrar of the Lahore High Court. The Board of Revenue after remand decided the case against the predecessor-in-interest of the appellants vide order, dated 13-5-1987. Appellants being aggrieved filed Constitutional Petition No.2576 which was dismissed vide impugned judgment, dated 21-11-2000. Hence, the present appeal.

3. The learned counsel for the appellants submits that learned High Court had decided the case against the appellants as the appellants were not original lessee and also that predecessor-in-interest of the appellants had filed a suit which was dismissed by the Civil Judge 1st Class, Jhang vide order, dated 10-3-1982. He further maintains that predecessor-in? interest of the appellants had filed appeal against the order of the Civil Judge, dated 10-3-1982 in the Court of District Judge, Jhang. Their counsel under the instructions of the predecessor-in-interest of the appellants had given statement before the First Appellate Court to allow him to withdraw the suit filed by the predecessor-in-interest of the appellants which was allowed vide order, dated 14-9-1983. He further maintains that memorandum dated 29-12-1971 did not mentioned single word that shops in question must be sold to the original allottees. Ex parte order had already been passed against the respondent No.1. Nobody entered appearance on behalf of the respondents on 20-9-2006. Office was directed to inform the respondents and their counsel to appear before this Court along with original record for 21-9-2006. The learned Law Officer has supported the impugned judgment.

4. The representative of the respondent No.2 has also stated that case of the appellants did not fall within the parameters of the policy letter, dated 29-12-1971 of the Member Board of Revenue.

5. We have considered the contentions of learned counsel for the parties and representative of the respondent No.2 and perused the record. It is better and appropriate to reproduce the statement-of the counsel of the predecessor-in-interest of the appellants and order of the First Appellate Court qua the appeal filed against the order of the Civil Judge 1st Class dated 10-3-1982 as the suit of the predecessor-in-interest of appellant was dismissed as premature and Memorandum No.5721-71-II/ 4206-CS, dated 29-12-1971 to resolve the controversy between the parties.

Statement of counsel of predecessor-in-interest of appellants

Memorandum

"The Board of Revenue, Punjab, is pleased to accord sanction to the sale by private treaty, of State land measuring 2 Kanals and 3 Marlas, under the shops situated in Rail Bazar and on Shaheed Road, Jhang, in favour of the sitting 92 shopkeepers at the market price plus 10% surcharge on account of sale, by private treaty, for commercial purposes.

The Deputy Commissioner, Jhang, should please be asked to intimate within a fortnight, the present market price of the land in question in the prescribed pro forma basing it on the average of land for commercial purposes fetched during the preceding 12 months in this or in the neighbouring locality. He should also be asked to forward a complete list containing the names of 92 shopkeepers along with the exactly area with each of one of them.

You are, further requested to ensure compliance of the aforesaid orders within two weeks. Also kindly forward the explanation of those officers/officials responsible for delaying the implementation of the orders of the Board of Revenue already communicated."

6. It is pertinent to mention here that this fact qua withdrawal of suit was not brought into the notice of the learned High Court by the parties, therefore, this part of the impugned judgment is not sustainable in the eyes of law as law laid down by this Court in Ghulam Nabi's case B PLD 1983 SC 344 and laid down the following principle:--

"It is established law that a mere withdrawal of a suit does not operate as res judicata for the reason, if for nothing else, that there was no adjudication on merits."

7. It is also admitted fact that shops in question were in possession of the appellants since 1954 firstly after securing the same on rent from the original allottee Hashmat Ali. Subsequently the shops in question were in possession of the appellants in view of the agreement executed between the predecessor-in-interest of the appellants and the Administrator, Municipal Committee in the year 1965. Mere payment of Malba amounting to Rs.14,000 by the Municipal Committee to Hashmat Ali in view of compromise arrived at between them could not change the status ,of the appellants and distinguish the case of the appellants with other 90 sitting shopkeepers. Mere reading the aforesaid memorandum clearly shows that the action of the respondent does not fall within the c four corners of the aforesaid memorandum. The learned High Court had also misconstrued the aforesaid memorandum by observing that original allottee was only entitled to purchase the shops. This construction of document is not borne from the contents of the aforesaid memorandum coupled with the fact that Municipal Committee was not owner of the land in question as is evident from the narration of facts mentioned hereinabove. The Member Board of Revenue had also directed the concerned quarters to recover the rent already received by the Municipal Committee from the shopkeepers. In any canon of justice case of the appellants is similar to the. case of , other 90 sitting shopkeepers, therefore, action of the respondent is hit by Article 25 of the Constitution as law laid down by this Court in L.A. Sherwani's case 1991 SCMR. 1041. It is pertinent to mention here that Member Board of Revenue and learned High Court did not consider the report of the EAC (R) which is at page 91 of paper book which is to the following effect:--

"(2) Shop site Nos.41 and 42 Rail Bazar Shumali

This plot was originally allotted to Hashmat Ali son of Faqir Muhammad by the Municipal Committee, Jhang, in the year 1958. He sublet the site to Muhammad Ramzan in the year, 1965, due to which the Administrator, M.C. Jhang rented it out to Barkhurdar and Muhammad Ramzan, the present occupier of the site. Mr. Hashmat Ali challenged this order in the High Court and consequently he withdrew the writ petition and sold this land in favour of M.C. Jhang against a consideration of Rs.14,000 on 29-1-1969. Muhammad Ramzan and Barkhurdar sons of Muhammad Musa are continuously in possession of the site since 10-3-1965."

It is the duty and obligation of the public functionaries to act in accordance with the law in view of Article 4 of the Constitution. D It is also command of the Constitution by virtue of Article 5(2) that everybody is bound to obey the command of the Constitution as law laid down by this Court in Ch. Zahoor Elahi's case PLD 1975 SC 383.

8. In view of what has been discussed above, the impugned judgment is not sustainable in the eyes of law, therefore, same is set aside and appeal is accepted with no order as to costs.

S.A.K./M-177/SC ?????????????????????????????????????????????????????????????????????????????? Appeal accepted.