Find a Lawyer

Constitutional Petition No. 454 of 1976, decided on 8th April 1977.

‑‑ Art. 199‑Writ jurisdiction‑Any act or proceedings taken in connec tion with affairs of Federation, a Province, or a local authority‑‑Can be assailed before High Court in exercise of its constitutional jurisdic tion‑Executive direction of Government granting lease of a plot Held, an action in connection with affairs of Province of such Govern ment and a Statutory exercise of power, hence. held, can be impugned before High Court in exercise of its constitutional jurisdiction. [Writ).

‑‑ S. 42(5) (ii)‑Lease‑Requirement of cl. (ii), subsection (5) of S. 42t ‑Not that plot owned by prospective lessee should have an area of 80 square yards or less but that area of plot desired on lease and to be added to lessee's plot should not exceed 80 square yards.

‑‑‑S. 4215)(il)‑Word "adjacent" in cl. (ii)‑Implies two objects being not widely separate‑Question of one area being adjacent to another Entirely a question of circumstance‑Object of cl. (i1) being to enable landholders of plots to add to their holdings small plots or alignments, an area of plot could to considered to be adjacent to another plot only when so close as to allow both being amalgamated‑Main road intervening between two plots, plots, held, not adjacent for purposes of cl. (W‑Grant of lease of a plot not so adjacent made by Govern ment in purported exercise of its powers under S. 42‑ 5), held further, not in accordance with law.‑[Words and phrases).

Shorter Oxford English Dictionary, Third Edn., Black's Law Dictionary; Mayor of Wellington v. Mayor of Lower Mutt 1904 A C 773 ref.

‑‑ Locus poenitentiae 'power of receding till decisive step taken) Always available to Government and other executive authorities if no vested right or interest affected thereby.

Pakistan v. Muhammad Himayatullah P L D 1969 S C 407.

M. M. Pirzoda for Petitioner.

Nemo for Respondents Nos. 1 and 2.

G. M. Piryani for Respondent No. 3

Date of hearing : 8th April 1977.

.‑The dispute in this constitutional petition is in respect of a plot of land, bearing No. 2889, admeasuring 600 aft. in Ward‑B of Sukkur Town, which plot, the Government of Sind, by its order, dated 27.3‑1976, bad granted on lease, for a period of 99 years, in favour of the third respondent, at the rate of R9. 49.50 per yard, plus land rent. By the said order, 6 other persons were also granted lease of other plots of land, but this petition does not seek to challenge their grants.

2. The case of the petitioner, shortly stated, is that the plot in dispute is situated near his house and the houses of his relatives. whereas the house of the third respondent is across a main road from it. According to the averments made in the petition, Rajab Ali, the father of respondent No. 3, was originally granted lease of the plot in dispute by the Chairman, Sukkur Municipality, but on appeal by the petitioner, respondent No. 2: by his order, dated 14‑9‑1965, directed that the said plot be put to public auction. There after, the third respondent managed to get lease for one year of the plot in dispute from the Sukkur Municipality, whereupon the petitioner again went up in appeal to the second respondent, who, by his order, dated 14‑7‑1969, re‑affirmed his previous order that the said plot b put to public open auction. Subsequently, respondent No. 2 recommended the grant of lease of the plot in dispute, for a period of 99 years, to the third respondent. His recommend ations were accepted by the first respondent, the Government of Sind. which by the impugned order granted lease of the plot to the third respondent.

3. We have heard Mr. M. M. Pirzada, who appeared for the petitioner and Mr. Piryani, who represented the third respondent. The first two respondents were originally represented by the learned Additional Advocate‑General, but subsequently he withdrew from the case on receiving directions that it was for the interested parties to contest the matter before the Court.

4. Mr. M. M. Pirzada has assailed the impugned order on the following two grounds :‑

(i) That the plot in question could not be legally leased out to respondent No. 3, as the said respondent does not fulfil the conditions laid down in subsection 5) of section 42 of the Sind People's Local Government Ordinance, 1972, hereinafter referred to as the said Ordinance.

(ii) That the recommendation made by respondent No. 2 to respondent No. I to lease out the plot in dispute to respondent No. 3 was male fide in that it wag contrary to the earlier decisions made by res pondent No. 2 on two occasions.

5. Mr. Piryanl, on the other hand, contended that the so‑celled order of the Government, which is being impugned in this petition, is not an order at all, but merely an executive direction or action, and consequently cannot be impugned before us in the exercise of our constitutional jurisdiction. We find no substance in this contention. for any act or proceedings taken in connection with the affairs of the Federation, a Province or a Local Authority can be assailed before us in the exercise of our constitutional jurisdiction. It was not disputed by Mr. Piryani that the executive direction of the Government granting lease of the plot in question to the third respondent was an 'action' in connection with the affairs of the Province of Sind and was a statutory exercise of power.

6. In order to appreciate the contentions of Mr. M. M. Pirzada, it would be appropriate to set forth the provisions of subsection (5) of section 42 of the said Ordinance. The slid substation (5) reads of follows :‑

"(5) Notwithstanding anything contained in subsection (14) of this section, y a Council may grant, sell or lease out land at rates to be fixed in consultation with Government, to‑

(i) associations or individuals for establishing, maintaining or extending educational, religious and charitable institutions for the benefit of the public subject to the condition that if the association or the individual is found not using it for the purpose it was granted, leased or sold, the Council shall be competent to confiscate such land along with struc tures, if any without paying any compensation on that account after affording the association or individual, as the case may be, an opportu nity to show cause against the action proposed by the Council ;

(ii) landholders for adding to their holdings, alignments or small plots of not more than 80 syds. in areas lying adjacent to their plots at a market price likely to be obtained in auction ;

(iii) holders of leases for twenty years or more after the expiry of the lease on the same terms and conditions."

7. Mr. M. M. Pirzada relied upon clause (ii) of the aforesaid subsection and submitted that neither the plot owned by the third respondent was 80 syds. or less nor did his plot adjoin the plot in dispute. The first limb of Mr. Pirzada's contention, is, in cur opinion, erroneous, for more than one reason. What the law requires is not that the plot owned by the prospective lessee should have an area of 80 syds. or less but that the area of the plot B which he desires on lease and to add to his plot should not exceed 80 syds. It is an admitted position that the area of the plot is less than 80 syds. being only 600 aft. As such, the only question falling for consideration, so far as the first submission of Mr. Pirzada is concerned, is whether the plot of the petitioner is 'adjacent' to the plot of the third respondent, so as to entitle him to grant of the lease of the plot in dispute.

8. According to the Shorter Oxford English Dictionary, Third Edition, the word 'adjacent' means "lying near to adjoining ; bordering (not necessarily touching)". This word has been defined in Black's Law Dictionary art "lying near or close to; sometime contiguous, neighbouring: Adjacent implies that the two objects are not widely separate. Though they may not actually touch." In the case of Mayor of Wellington v. Mayor of Lower Mutt (1904 A C 773), their Lordships of the Privy Council held as follows ;‑

"'Adjacent' is not a word do which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining, and it includes places close, to or near. What degree of proximity would justify the application of the word is entirely a question of circumstances."

9. In the above case, the Privy Council was considering the question whether the City of Wellington was 'adjacent' to tine Borough of Lower Mutt for the purposes of the Newzealand Municipal Corporation Act, 1900. Their Lordships held in that case that there were no circumstances to justify their interference with the decision of the lower Courts that the City of Wellington was adjacent to the Borough of Lower mutt, although there was a distance of over 6 miles between their boundaries and three other local Divisions intervened. However, as pointed out by their Lordships of the Privy Council, the question whether one area is adjacent to anther area D is entirely a question of circumstances. We have, therefore, to see what the circumstances in the instant case and whether we should give a narrow or wider meaning to the word 'adjacent' as used in the said Ordinance. The object in view of clause (ii) of subsection (5) of section 42 of the said Ordinance appears to be to enable landholders of plots to add to their hold ings, small plots or alignments. If this be the object, we consider that an area of a plot could be considered to be adjacent to another plot, for the purposes of the aforesaid clause, only if it is so close to it that the plots could be amalgamated. In the instant case, as appears from the Map filed by the petitioner, the correctness whereof has not been disputed by the respondents, there is a main road in‑between the plot of the third respondent and the plot in dispute. In view of this circumstance, we are of the opinion that the plot in dispute would not be 'adjacent' to the plot of the third respondent for the purposes of section 42 (5) (E) of the Ordinance. The Map further shows that there is a street in‑between the plot in question and the houses of the petitioner and his relations. We, therefore, are of the opinion that the plot in dispute would also not appear to be 'adjacent' to the houses of the petitioner or his relations. As such, the orders or the decision of the" Government granting lease of the plot to the third respondent, in purported exercise of its powers under section 42(5) of the said Ordinance, would appear to be not in accordance with law.

10. Mr. M. hi. Pirzada also contended that the second respondent was not legally competent to make a recommendation to the Government, contrary to has earlier two decisions, for the lease of the plot to the third respondent. He was, however, unable to show us any legal bar to the second respondent in making such a recommendation. It is quite possible that the second respondent, when making his recommendations to the Government, may have construed the word 'adjacent' as having a wider connotation than what his predecessors had considered. Be that as it may, locus poenitentiae (power of receding till a decisive step is taken) is always available to the Government l and other Executive authorities, subject to the condition that no vested right or interest is affected thereby (See P L D 1969 S C 407).

11. For the reasons given by us above, we would set aside the impugned order granting lease of the plot In dispute to the third respondent and allow the petition with costs.

S. A. H. Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.