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Civil Appeal No. 7 of 1968, decided on 27th May 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd February 1967, in Writ Petition No. 2017 of 1966).

-- Art. 98‑Other remedy open --Matter already examined and pronounced upon by superior authority‑Making appeal to authority subordinate to such superior authority would be futile‑-Invoking writ jurisdiction in circum stance, held, proper.

Muhammad Shafi, Senior Advocate Supreme Court (Ghulam Mohyuddin, Advocate Supreme Court with him) instructed by Masood Akhtar, Attorney for Appellants.

Saeedur Rahman, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Respondents Nos. 1 to 3.

Saeed Akhtar, Advocate Supreme Court instructed by Tanvir Ahmad, Attorney for Respondent No. 2.

Date of hearing : 27th May 1968.

‑The appellants are temporary allottees of Government land which has since been sold to the respondent No.2 under the grant of State agricultural land to the Retired and Retiring Government Servants Scheme. Though the leases in favour of the appellants were to last till Rabi, 1969, the Collector of Sheikhupura, purporting to act under Condition No. 15 of the Statement of Conditions governing the leases on 1‑12‑1964 gave them notices to surrender the land within thirty days from the receipt of the notice "to make it available for the said grantee". Aggrieved by the premature termination of their leases, the appellants moved the High Court in writ jurisdiction for quashment of the notices issued by the Collector on the contention that they were not liable to be ejected till Rabi, 1969. The petition was dismissed in limine by a Division Bench on the finding that the land was required by the Government for permanent allotment to the respondent No. 2 which was a public purpose within Condition No. 15 of the Statement of Terms and Conditions which governed the leases in favour of the appellants. The resumption of the land was, accordingly, held to be with lawful authority.

Leave to appeal was granted to consider: whether the Government of West Pakistan had, while granting approval to the sale of the land to the respondent No. 2, preserved the lease hold rights of the appellants and the Collector was not competent to resort to Condition No. 15 and resume the land before the expiry of the leases in Rabi, 1969.

The order of the Governor dated the 29th July 1966, according approval to the sale of the land in favour of the respondent is to the following effete:

"Governor of West Pakistan is further pleased to grant 40 acres, 6 kanals and 7 marlas to Khan Abdullah Khan at present on lease with Grow More Food lessees and temporary lessees, the term of which will expire in 1969, subject to its availability for allotment."

The condition reproduced above makes it plain that the Governor desired to preserve the lease hold rights of the appellants and directed that land would be made available to respondent No. 2 after the expiry of the leases in Rabi, 1969. The learned counsel for the respondent No. 2 on the contrary maintained that the phrase " that temporary leases the terms of which will expire in 1969" was inserted in the order of the Governor to specify the land granted to the respondent No. 2 and was not intended to place an embargo on the powers of the Collector to resume the land under Condition No. 15.

We were unable to accept the construction placed by the learned counsel for the respondent on the order of the Governor for if it was intended to deliver immediate possession to the respondent No. 2 it would have been unnecessary to mention that the land was at present on lease the term of which will expire in 1969. We further find that before the Governor gave approval to the sale of the land in favour of the respondent No. 2, the Collector had submitted a detailed report indicating that the land to be sold was under lease with the appellants for a term which will expire in 1969 and that if it was intended to give immediate possession to the respondent No. 2 it would be necessary to resume the land under the terms and conditions of the leases. It is apparent that if the Governor did not adopt the latter course it was intended to preserve the lease hold rights of the appellants and for this reason it was expressly mentioned in the order dated the 29th July 1966, that the land was under lease with the appellants till 1969. The construction placed by the counsel for the respondent on the order of the Governor is thus contrary to its plain meaning and belied by the circumstances attending upon the grant in favour of the respondent No. 2.

It was next contended by the learned counsel that the writ petition filed by the appellants in the High Court was liable to be dismissed as they had omitted to prefer an appeal from the order of the Collector to the Commissioner as provided for in section 7 of the Colonization of Government Lands (Punjab) Act read with section 21 of the Land Revenue Act. An examination of the record shows that before issuing notices to the appellants for resumption of land the Collector had made a reference to the Board of Revenue on which the Secretary (Colonies) had directed him to make recourse to the provisions of the Colonisation of Government Lands (Punjab) Act and the Statement of Terms and Conditions under which temporary leases were granted to the appellants. The matter had thus already been examined by the Board of Revenue, and an appeal to the Commissioner, a sub ordinate authority, would have been a futile exercise on the part of the appellants. In the circumstances it could not be said that another adequate remedy was available to the appellants within Article 98 of the Constitution.

We accordingly allow this appeal and quash the notices issued by the Collector, Sheikhupura, to the appellants on 1‑12‑1966 for resuming the land under their temporary leases before the stipulated period as without lawful authority. This would, however, not affect the powers of the Collector to terminate the leases in favour of the appellants in case they commit any breach of the terms and conditions on which they held the disputed land on temporary leases till Rabi, 1969.

In the circumstances of the case there shall be no order as to costs.

Appeal accepted.

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