SHARIF HAROON vs PROVINCE OF SINDH through the Secretary to the Government of Sindh, Land Utilization Department and another

AMIR HANI MUSLIM, J.--Through this petition the petitioner has challenged the order of the Secretary Land Utilization Department passed on . 24-3-1994, whereby he has cancelled the allotment of the land allotted to the petitioner measuring 32 acres 19 Guntas, inter alia, on the ground that the petitioner had contravened the Regulations, Terms of lease by raising unauthorized construction of bungalows on the said land. In the impugned order it was also alleged that the allotment was motivated with political favouritism.

2. The brief facts leading to the filing of the above petition appears to be that in the year 1964-65 the petitioner was leased out an area of 32 Acres 19 Guntas situated in Deh Saphooran Karachi (East), for a period of 30 years for the purposes of Wahi Chahi/Poultry Farm. The land was situated in Survey Nos.179,197, 10 and 1. In Deh Saphooran. The Petitioner was put in possession of the land who initially utilized the said land for the purpose for which it was leased out and invested substantial sums of money by cultivating fruit farm.

3. Somewhere in the year 1978 it transpired that the Sindh Government had transferred 2000 acres land to the Karachi Development Authority (K.D.A.) for Scheme No,36. The petitioner has pleaded in the petition that he made representation to the appropriate authorities requesting them that the land leased out to him be excluded from the proposed K.D.A. Scheme. In this regard the Commissioner Karachi by his letter dated 16th January, 1979 addressed to the Member Technical, K.D.A., Karachi had informed him that the leased land of the petitioner was under cultivation and fully developed and shall be exempted from being transferred to K.D.A. As part of the State land.

Besides the said directive, it was also observed in the letter that since K.D.A. Has failed to pay the cost of the State land to the Government possession thereof was not given to the K.D.A..

4. The K.D.A., however, by its letter dated 10th February, 1983 informed the Member Land Utilization that the leased land of the petitioner falls within the notified boundaries of proposed Scheme No,36 and included in the State land measuring 2000 acres which the K.D.A. Has acquired for the said Scheme from the Government.

5. On 3-7-1983 the K.D.A. Addressed letter to the Commissioner 'Karachi in regard to the land of the petitioner in which it was suggested that petitioner's land has been acquired by the K.D.A. As it falls within the notified boundaries of the K.D.A. Scheme No,36. Therefore, the lease of the petitioner by the Government should be treated as cancelled. It was stated in the letter that the land leased to the petitioner falls within the notified boundaries of the K.D.A. Scheme No,36. Consequent upon transfer of the State land to the K.D.A. And on acquisition of the leasehold rights of the petitioner's land, the lease granted by the Government should be treated as cancelled. The said letter further states that the only interest the Government would have was to recover the cost of the said land from K.D.A.

6. In response to the letter of the K.D.A. The Deputy Commissioner, East Karachi, on 13-11-1983 a detailed summary was floated in which it was stated that the Government has transferred land measuring 2000 acres to the K.D.A. For a sum of Rs,9,68,00,000 out of which the K.D.A. Had only paid Rs,1,73,06,000 to the Government. The possession of the State land was, however, not handed over to the K.D.A. On account of their default. It was further mentioned in the summary that the petitioner's land was treated as private land and does not form the part of the land transferred to the K.D.A. For Scheme No,36. The summary suggested to notify K.D.A. To rescind from treating the petitioner's land as part of the State land transferred to them.

7. On 23-11-1988, the petitioner was issued show-cause notice by the Member (Land Utilization) wherein the right of the petitioner to claim ownership of the land was disputed. It was alleged in the show-cause notice that petitioner under the pretext that his land was acquired by the K.D.A. Hence he becomes owner was refuted and it was observed that petitioner under this misconception is violating the terms of the lease. It was clarified/mentioned in the letter that the K.D.A. Was neither competent to alienate any land vested in Government nor the land which was subject-matter of this petition belonged to the K.D.A. And, therefore, any sale transaction between petitioner and the K.D.A. Entered into between them would be a nullity. It was further alleged in the show-cause notice that petitioner instead of poultry farming has constructed 50 to 55 bungalows in violation of the terms of the lease. Petitioner was called upon to show cause why order of resumption of his tenancy passed by the Deputy Commissioner shall not be treated as final.

8. The petitioner by his letter dated 29th December,'1988 replied the said show-cause notice in which he has stated that his land falls within the notified boundaries of K.D.A. Scheme No,36 and was included in the 2000 acres of land which the K.D.A. Has acquired from the Government. In reply the petitioner, however, admitted that he had made substantial investment on the leased land by constructing 237 residential bungalows besides orchards. In regard to the alleged violation of the terms of the lease, the petitioner stated in his reply that since the petitioner's land falls under the notified boundaries of K.D.A. Scheme No,36 Gulistan-e-Jauhar, therefore, the terms on which the lease was granted to the petitioner by the Government stood inoperative on transfer of the State land to the K.D.A..

9. On 2-4-1989, the K.D.A. Had formally allotted the leased land to petitioner by recovering an amount of Rs,47,07,376 as outer development charges. It appears that on 2-11-1991 the show-cause notice dated 23-11-1988 issued to the petitioner was, however, withdrawn by the Secretary, Land Utilization Department observing that the K.D.A. Should reimburse the compensatory cost recovered from the petitioner to the Government of Sindh.

10. Mr. Abbas Ali, learned A.A.-G. Appearing for the respondent No,1 has drawn our attention to the letter of the Deputy Commissioner East dated 10-11-1994 which was addressed to the Deputy Secretary Board of Revenue wherein it was specifically pleaded that the petitioner has cultivated fruit trees on 11 acres and 29 Guntas in NA-Class No,197 and adjoining areas while in the remaining area of the leased land the petitioner has constructed bungalows. It was further stated in the said letter that the K.D.A. Had no authority to allot the leased land to the petitioner as the K.D.A. Has failed to discharge its own liability to the Government by avoiding and or refusing to pay the dues of the Government in regard to 2000 acres of land for Scheme No,36. It was specifically pleaded that the land of the petitioner falls outside the area of 2000 acres granted to K.D.A. For Scheme No,36.

11. It has been argued by Mr. Muhammad Ali Saeed that the impugned order was passed without a show-cause notice and therefore, any action on the basis of such order cancelling the allotment in favour of the petitioner was void, ab initio and could not be subsequently cured. Learned counsel relied upon section 24 of the Colonization of Government Lands Act, 1912 and contended that if an opportunity to show cause was provided for in the Statute itself (as distinguished from merely the principles of natural justice) required to be read into a Statute. The order passed was void, ab initio and could not be cured by providing a subsequent opportunity to show cause. He 'relied upon the pronouncement of the Honourable Supreme Court in Sindh Employees' Social Security Institution and others v. Dawood Cotton Mills Limited (PLD 1977 SC 177) in support of the above proposition.

12. It was argued that the expiry of the terms of the lease would not affect the rights of the petitioner in the land. He submitted that the terms of the lease ceased to be operative after the land was transferred to the K.D.A. By the Government. His argument was that land which was transferred to the K.D.A. Included the land of the petitioner and, therefore, the Government lost its right over such land once the petitioner has been allotted the same land by the K.D.A. On further payments towards the allotment. It was also argued by the learned counsel that the ground for cancellation was different than the ground with which the petitioner has been confronted. He submitted that prior to the cancellation of the land by the impugned order, the petitioner was neither provided an opportunity to show cause nor was granted any opportunity of hearing and therefore, the order ex facie was violative of the principles of natural justice. It was further argued that the petitioner was never served with a notice under section 24 of the Colonization of Government Lands Act before passing of the impugned order and therefore, the impugned order has been passed without the sanction of law.

13. Mr. Abbas Ali learned A.A.-G. Had argued that the land in question did not fall within the notified boundaries of the land transferred to K.D.A. For Scheme No,36. Drawing our attention to different correspondence changed between the Government and the K.D.A., the petitioner under the garb of transfer of State land to the K.D.A. Was trying to safeguard his interest in land as he wilfully violated the terms of lease by constructing bungalows on the land which was leased out to him for cultivation/poultry farming purposes. The petitioner has admitted violation of the terms of the lease. In this respect he argued that at no point of time the Government accepted the statement of the K.D.A. That the land of the petitioner also vested in K.D.A. On transfer of the State land and/or K.D.A. Had any authority and/or control to modify the terms of the lease issued by the Government to the petitioner.

14. Mr. Muzaffar Imam, learned counsel for the K.D.A. Has argued that the petitioner having committed the breach of the terms of lease was not entitled to seek restoration of the land.

15. We have heard the learned counsel for the parties and have perused the record. Indeed Mr.Muhammad Ali Saeed appears to be correct in asserting that in view of the mandatory provisions of section 24 of the Colonization of Government Lands Act and order of resumption of tenancy on grounds of the tenant breach of the terms of tenancy could not be passed A without giving the tenant an opportunity of hearing and if so passed it would be a nullity in law.

Nevertheless there appears to be a basic contradiction in his stand inasmuch as he is not prepared to accept that the land continued to remain vested in the Provincial Government to which the terms of the initial lease would apply but has asserted that his title on the basis of an allotment order passed by the K.D.A.. The crucial question to be determined would be whether title to the land legally came to be vested in the K.D.A. On the basis of which the petitioner's alleged right as a transferee could be asserted.

16. Article 92 of the K.D.A. Order empowers K.D.A. To enter into any agreement with any person for acquisition of land through purchase, lease or exchange and Article 93 enables it with the previous sanction of the Provincial Government to acquire any land under the Land Acquisition Act 1894. No agreement or provision of law applicable to the acquisition of 2000 acres has been pointed out by any of the parties. At the same time under section 10(4) of the Colonization of Government Lands Act no person can be treated as a tenant unless he has taken possession of the land with the permission of the Collector. Admittedly the petitioner was in possession of the land since 1964 and therefore K.D.A. Could not be treated as a tenant of the same at any time thereafter. It is therefore clear that K.D.A. Neither acquired the land as owner nor could be treated as a tenant of the Government in respect thereof. Even the petitioner himself could not transfer any interest in the land without the written consent of the Commissioner in view of the statutory embargo created by section 19 of the Act.

17. In view of our above finding to the effect that the disputed land vested in the respondent No,1 (Provincial Government) and not respondent No,2 (K.D.A.). The lease in favour of the petitioner could only be terminated after service of mandatory notice under section 24 of the Colonization of Government Lands Act. As such we are constrained to declare the impugned order to be without lawful authority and of no legal effect. Nevertheless, it cannot be overlooked that the 30 years lease period has already expired and the petitioner admittedly violated the terms of the lease by raising residential buildings on a property lease out for poultry farming and cultivation purpose. Therefore, it must be left open to the respondent No,1 to take any appropriate action in accordance with law.

18. These were the reasons for the short order dated 19-11-2002 by which we had disposed of the above petition.