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Constitutional Petition No. 574 of 1966, decided on 12th April 1977.

Ss. 2 & 3 read with Circular letter of Colonization Officer, Sukkur Barrage of 1961‑Grant of Government land‑Grant although subject to appeal and revision yet appellate or revisional authorities could interfere only when grant not made in accordance with conditions for grant as set out in Colonization Officer's circular‑Grant of land made strictly in accordance with conditions specified in circular and no other person entitled to their grant or any portion thereof‑Held, neither grant could be cancelled nor land available for transfer to any one else.

‑‑‑ Ss. 2 & 3‑Grant of Government land ‑Cancellation of‑Notice Rights of grantee of land especially when Ijazatnama issued to such grantee‑Very valuable‑‑Grantee not only invested with right to culti vate land but also becomes fall owner on payment of price and fulfilment of conditions of grant‑Rights of grantee of land, held, cannot be taken away without notice to him and giving him opportunity of showing cause against proposed action.‑[Natural justice Principles of].

University of Dacca v. Zakir Ahmed, P L D 1965 S C 90 ref.

Ss. 2 & 3 read with Sind Land Revenue Code, S. 211 and Revenue Department Standing Order No. 10‑No question arising in case with regard to status of parties‑Petitioner alone submitting offer within prescribed‑ period, petitioner alone, held, entitled to grant :of land.

Muhammad Farid Jan v. Colonization Officer P L D 196 3 S C 399 distinguished.

‑‑‑ Ss. 2 & 3‑Pieces of land in dispute included in first lot and such lot granted as a whole to petitioner‑Petitioner obtaining Form A and also paying five instalements towards price of land‑Land having been granted according to terms and conditions specified in Colonization officer's Circular no legal sanction, held, existed for grant of such land to another person and no question of equity or good sense arose.

Salmond's Jurisprudence, 10th Edn., pp. 498‑499 ref.

‑‑ Ss. 2 & 3 Petitioner admittedly in possession of land since time of its grant and despite a portion of such land having been granted by a Member, Board of Revenue, to another continuing in occupation on basis of status quo order of High Court about 11 years earlier, expediency, held, tilted in favour of petitioner.

Salmond's Jurisprudence, 10th Edn., p. 120 ref.

Imam Ali G. Kazi for Petitioners.

Nemo for Respondents Nos. 1 and 2.

Ghulam Hussain Abbasi for Respondent No. 3

Dates of heating a 2nd, 9th March and 12th April 1977.

‑This petition is directed against two orders in respect of giant of agricultural land; one passed on 22‑9‑1965 by the Additional Commissioner, Khairpur, respondent No. 2, allowing the appeal of respondent No. 3 and granting to hire the land desired by him, and the other made on 30‑7‑1966 by a Member of the Defunct West Pakistan Board of Revenue, upholding the appellate order of respondent No. 2 and rejecting the revision application filed against the said order by petitioner No. 2, who, it may be stated, is the daughter of petitioner No. 1. Tne petition was contested only by respondent No. 3, while respondents Nos. 1 and 2 have chosen to remain unrepresented and absent.

2. The dispute in the instant case is in respect of a portion of unassessed Survey No. 50 of Deb. Paleja. Taluka Garhi Yasin, in Sukkur District This Survey number consists of several pieces and each of these pieces. appears to have been given a separate alphabetical letter, presumably for the purposes of identification. In the year 1961, the Colonization Officer, Sukkur Barrage, issued a Circular inviting‑ offers for permanent sale of a large area of Government land, consisting of scattered pieces and compact lots. In the details of the land offered for sale attached to tine said Circular, there were two separate lots from the aforesaid unassessed Survey No. 509 one comprisirg the pieces A, F, H, K and L, measuring 73 acres and 23 Ghuntas, and the other comprising the piece E, measuring 16 acres. The circular also contained the conditions on which the land was being offered for sale.

3. In terms of the above circular, petitioner No. 1 give an offer for the portion of the survey number in question comprised in the first lot, namely the lot consisting of the pieces A, F, H, K and L. Since there was no counteroffer, the offer of petitioner No. 1 was accepted for the said land, which was delivered to her and 'A' Form issued in her favour.

4. So far as the second lot out of Survey No. 50 is concerned, namely the piece E, petitioner No. 2 made an offer for it through her father, Raza Muhammad, while respondent No. 3 made a counter‑offer for it through his servant, Karim Bux. On the report of the Barrage Mukhtiarkar that the status of the two parties was the same, the Colonization Officer ordered this lot tie put to restricted suction between petitioner No. 2 and respondent No. 3. Since respondent No. 3 is stated to have failed, despite notice to him, to turn up on the date on which the auction was proposed to be held and even on the subsequent date to which it was postponed, this second lot was granted to petitioner No. 2. Respondent No. 3 thereupon filed an appeal before respondent No. 2, in which, while stating that he was aggrieved by order of the Colonization Officer putting the land consisting of the piece E to restricted auction, he contended that in fact the said piece should be termed as piece L K and the said piece be granted to him. It may be mentioned here that the only person who was made a respondent in that appeal was petitioner No. 2. She, however, did not put in an appearance. According to the order of respondent No. 2, a special man was sent to the Mukhtiarkar to serve the notice on her, but as it appeared to respondent No. 2 that she seemed to be evading service, it was not considered necessary to wait any longer for her. The respondent No. 2 held that respondent No. 3 belonged to the hart class while petitioner No. 2 was a rich woman of higher status, and accordingly he allowed the appeal of respondent No. 3 and granted to him the pieces L and K, as prayed by respondent No. 3.

5. Against the aforesaid order of respondent No. 2, petitioner No. 2' filed a revision application to respondent No. 1, who, however, rejected the same, on the main ground that though respondent No. 3 in his memo. of appeal to respondent No. 2 had only impleaded petitioner No. 2, he had asked for the land granted to petitioner No. 1, and therefore, petitioner No. 2 was not adversely affected and had no locus standi in the matter. He rejected the contentions made on behalf of petitioner No. 2 that the order of respondent No. 2 was in respect of land other than that regarding which respondent No. 3 had preferred appeal and that petitioner No. 2 had not been served in the appellate proceedings.

6. We have heard Mr. Imam Ali Kazi, who appeared for the petitioners, and Mr. G. H. Abbasi, who represented respondent No. 3.

7. Mr. Imam Ali Kazi, the earned counsel for the petitioners, has assailed the two impugned orders on the grounds‑

(i) that since respondent No. 3 had not submitted an offer or applied for the pieces of land L and K as he was not entitled to the same and they could not be granted to him;

(ii) that the grant of land to petitioner No. 1 became final as she was the sole person who had recorded an offer for it and there was neither an appeal nor revision against the grant of the land to heel and

(iii) that in any case, the impugned orders are violative of the principles of natural justice, as they were passed without making petitioner No. 1 a party or giving her a notice.

8. Mr. G: H. Abbasi, the learned counsel for respondent No. 3, on the other hand, contended that piece E was treated as pieces Land K, first by the Additional Commissioner and then by the Member, Board of Revenue, that in the proceedings before the Additional Commissioner, notice was issued to petitioner No. 1, but as stated in the two impugned orders, she evaded service; and that in any case no notice was required to be served upon petitioner No. 1 in the circumstances of the case

9. We have already referred to the fact that the circular of the Coloniza tion Officer specified the conditions on which the land was being offered for sale. These conditions inter alts were as follows:‑

"The last date for recording offers and counter‑offers is 30th June, 1961, and no offer shall be accepted after that date.

The land for which there is only one offer. will be sanctioned automatically and the purchasers will be informed by the Barrage Mukhtiarkar to execute kabuliat within 15 days of the receipt of such information. The Ijazatnam will be issued after the kabuliat has been executed by the purchaser.

In case of contested offers I.e. if there are more than one offer for the same piece of land, auction will be held between the offerers only .......

Pieces of land from 12 acres to 24 acres will be disposed of according to the status of the parties. The land will be put to auction when the parties are rich and influential or of equal status."

10. Now so far as pieces A, F, H, K and L are concerned, the only offer within the prescribed time was that of petitioner No. 1, and accordingly she was granted this land is accordance with the circular of the Colonization Officer and even 'A' form has boon issued to her. According to the averments made in the petition, which have not been denied or disputed by the respondents, she has since the time that the land was granted to her, been in undisputed possession thereof and has so far paid five out of the ten instalments in which the, balance of the price of the land was to be paid. Since there is neither any allegation nor say circumstance to indicate that she has not been granted the land in accordance with the condi tions of the said circular or in any way failed to comply with the terms and conditions upon which the laud has been granted to her, we are of the opinion that neither her grant can be cancelled nor was the land available for transfer to any one else. Of course, if in future. she does infringe any condition upon which the land has beers granted to her, the grant could be cancelled In accordance with the conditions governing the grant.

11. It was contended by Mr. Abbasi that it was the prerogative of the Government to grant its land to any one and on any terms, and so long as the grantee does not pay the full price. thereof or any instalments in respect thereof remain to be paid, he does not acquire any rights of ownership therein and consequently the Government or its authorised officers can cancel the grant and dispose of the land to some other party. He submitted that petitioner No. 1 can be said to have only an interest in the land comprised In her grant but not a vested right in it. He contended that a right is an interest recognized and protected by a rule of right; any interest, respect for which is a duty, and the disregard of which is a wrong. In support of the distinction between right and mere interest, Mr. Abbasi relied upon the passages et seq. While we are quite conscious of the distinction between mere interest and a right, we are unable to agree with the learned counsel that petitioner No. 1 had a mere interest in the land granted to her and not a vested right, Section 2 of the Government Grants Act, 1895, provides, that all provisions, restrictions and conditions contained in any grant or transfer of land shall be valid and take effect according to their tenor, notwithstanding any rule of law, statute or enactment of the Legislature to the contrary. No doubt, the grant of land to petitioner No. 1 was subject to appeal and revision, but the appellant or revisional authorities B could only Interfere if the grant was not made in accordance with the conditions for the grant as set out in the circular of the Colonization Officer. As already shown by u9, the grant of the pieces A, F, H, K and L to petitioner No. 1 was made strictly in accordance with the conditions specified m the said circular and no other person was entitled to their grant or any portion thereof.

12. It may be stated here that neither the memorandum of appeal filed by respondent No. 3 with respondent No. 2 contains any allegation that the grant of the aforesaid land to petitioner was not In accordance with the circular of the Colonization Officer nor has this question at all been considered in the two impugned orders. As already pointed out, the appeal preferred by respondent No. 3 was against the order of the Colonization officer directing that restricted auction be hold in respect of piece E. Neither petitioner No. 1 was made a party to that appeal nor does the memo. of appeal even refer to the grant of land made to her. The substance of that memo, is that the piece of land E be termed as L and K and the same be granted to him. Since the latter two pieces of land were included in the grant properly made to petitioner No. 1, they were no longer available for grant and there was clearly no authority vested in respon dent No. 1 or respondent No. 2 to grant the said pieces to respondent No. 3. In granting the said pieces to respondent No. 3, respondents Nos. I and. 2, in our opinion, assumed and exercised jurisdiction which was not vested in them and they acted outside the scope of their authority and in violation of the conditions specified in the circular of the Colonization Officer on which land was offered for sale.

13. There is another ground on which, in our opinion, this petition must succeed. It is not disputed that petitioner No. I was neither made a party in the appeal before respondent No. 2 or in the revision proceedings before respondent No. 1, nor was any notice of the appeal or revision issued to her. Mr. Abbasi, however, contended that since petitioner No. 1 was a mere grantee, whose grant had not matured into ownership as she still had to pay some instalments, she was not entitled to notice, and that in any case as notice of both the appeal and revision was given to a member of her family she is deemed to have received due notice of both. Elaborating the first limb of his argument, Mr. Abbasi contended that a mere grant of land, until the price of land is fully paid up, confers no vested right on the grantee and hence the grantee is not entitled to notice in the matter of the cancellation of the grant. We find ourselves unable to find any substance in this contention of the learned counsel. In the case of University of Dacca v. Zakir Ahmed (PLD1965SC90), Hamoodur Rahman, J. (as he then was), after a careful review of the various decisions cited before him, observed:. " . . it appears that wherever any person or body of persons is em powered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express wards in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case." The rights of a grantee of land, specially one to whom an Ijazatnama has been given, as in the case of petitioner No. 1, are very valuable. In the first place, such grantee has the right to cultivate the land. Furthermore, on payment of the price of the land and fulfilment of any other conditions on which the grant may be made, he becomes full owner of the land, subject of course to .right to minerals, natural gas and any other rights which the Government may have specifically reserved to itself, while making the grant. The rights of a grantee of land cannot thus be taken away without notice to him and giving him an opportunity of showing cause against the proposed action.

14. In support of the second limb of his argument, Mr. Abbasi submitted that petitioner No. 1 was the wife of Mr. Raza Muhammad and the mother of petitioner No. 2, and that in the appeal before the respondent No. 1, notice was sent to petitioner No. 2 but as held both by respondent No. I as well as respondent No. 2 in the impugned orders, she evaded service, while in the revision proceedings before respondent No. 1, Raza Mohammad was personally present alongwith his learned counsel. The precise contention of Mr. Abbasi was that the land allegedly granted to petitioner No. I was in fact granted to Raza Muhammad and in support of this contention he relied upon the observation made by respondent No. 2 in his impugned order that Raza Mohammad "has recently got 75 acres from Survey No. 50 in the name of his wife . . . . . . . . " There is, however, no foundation whatsoever for making this observation. The 'A' form attached to this petition shows that the pieces of land A, F, H, K and L had been granted to petitioner No. 1. There is no mention in this form of Raza Muhammad. Furthermore, since none of the respondents have filed any counter‑affidavit, the averment made in the petition, which is supported by the affidavit of the two petitioners, that the aforesaid land was applied for and granted to petitioner No. 1, has remained unrebutted. It appears to us that the above observation was made by respondent No. 2 solely by reason of the fact that petitioner No. 1 was the wife of Raza Muhammad and he therefore presumed that the land granted to petitioner No. 1 is owned by Raza Muhammad. However, in law a wife has a separate entity of her own and is entitled to acquire separate property of her own.

15. Mr. Abbasi further submitted that in revenue matters notice to a member of the family of a party is deemed to be notice to the party. No authority in support of this proposition, however, has been cited by him, We find no substance in this contention in view of the provisions of section 191 of the Sind Land Revenue Code, 1879, which Code was in force at the relevant time. The said section reads as follows :‑

"191.‑Every notice under this Act, unless It is otherwise provided shall be served either by tendering or delivering a copy thereof to the person on whom it is to be served or to his agent, if he have any ;

or by affixing a copy thereof to some conspicuous place on the land, if any, to which such notice refers.

No such notice shall be deemed void on account of any error in the name or designation of any person referred to therein, unless such error has produced substantial injustice,"

15. There is nothing in the two orders to suggest that Raza Muhammad was the agent of petitioner No. 1. As appears from the order of respondent No. 1, Raza Muhammad was appearing before him on behalf of petitioner No. 2 only. Petitioner No. 1 thus, in our opinion, had no notice either of the appeal before respondent No. 2 or the revision proceedings before respondent No. 1, though possibly she had knowledge of the same.

17. Mr. Abbasi also sought support for his submission on the decision of their Lordships of the Supreme Court in the case of Muhammad Farid Jan v. Colonization Officer (P L D 1965 S C 399). That case, however, involved different points and the decision therein. in our opinion, is not relevant in regard to the points canvassed before us. In that case, there being also offers by the harts in respect of some agricultural land offered by Government for sale, a restricted auction was ordered by the Assistant Revenue Officer. The matter ultimately went up in revision to the Board of Revenue, and a single Member of the Board, after giving full hearing to both the parties, hold, in exercise of the powers vesting in the Board under section 211 of the Sind Land Revenue Code, that as the two parties who had recorded the offers were not of equal status, one party being a hurl while the other being the minor sons of a big Zamindars, who was also a rich transporter, plying several buses, the land should go to the hart as provided in Standing Order 10 of the Revenue .Department. S. A. Rahman, J. (as he then was). while upholding the order, passed by the Board of Revenue in revision, observed as follows :‑

"The reasons given by the learned Member, Board of Revenue, in support of his order in revision appear to fall fully within this extract from the Standing ‑Order. If the argument raised that the appellants' personal status should have been distinguished from that of their father, who was acting as their next friend during their minority. Be given effect to, it would virtually mean that tae Pit Sahib, their father, could get lands in the names of his minor song, whereas he would not have been entitled to do so, in competition with a hart such as the respondent was, in view of his own affluent condition. The impugned order, therefore, appears to us to be in accord with the equities of the ease and no ground has been made out which would justify interference by this Court."

18. In the instant case, no question arose about the status of the parties. Since petitioner No. 1 alone had submitted an offer within the prescribed period in regard to the pieces of land A, F, H, K and L site eras automatically entitled to the grant of such land in accordance with the provisions of the circular of the Colonization Officer and Standing Order 10.

19. Mr. G. H. Abbasi finally submitted that legal principles should not be carried to their extreme regardless of equity and good sense, that technicalities should be overcome and not stand in the way of doing sub stantial justice. In support of the first limb of his contention he relied upon the legal maxim, apis furis non sunt Jura. According to the commentary on this maxim in Salmond's 'Jurisprudence', Tenth Edition, pp. 498‑499 :‑

"Legal principles must not be carried to their most extreme consequences, regardless of equity and good sense. A principle valid within certain limits becomes false when applied beyond these limits. The law must avoid the falsehood of extremes."

20. We have no quarrel with the above proposition, but as already pointed out the pieces of land lettered L and K in U. A. No. 50 were included in the first lot and this whole lot was granted to petitioner's No. 1, who bas obtained 'A' form in respect of it and also paid 5 instalments towards the price of the land. As this land had ceased to be available for grant, having been granted in accordance with the terms and conditions specified in the circular of the Colonization Officer to petitioner No. 1, there was no legal sanction for the grant of this land to respondent No. 3, and hence no question of equity or good sense arises.

21. As regards the second limb of his contention, Mr. Abbasi relied upon the following passage from Salmond's 'Jurisprudence', Tenth Edition, page 120 ;

"We proceed now to the consideration of civil justice and to the analysis of the various forms assumed by it. The first distinction to be noticed is that the right enforced in civil proceedings is either a primary or a sanctioning right. A sanctioning right is one which arises out of the violation of another right. All others are primary; they are rights which have some other source than wrongs. Thus my right not to be libelled or assaulted is primary; but my right to obtain pecuniary compensation from one who has libelled or assaulted me is sanctioning. My right to the fulfilment of a contract made with me is primary: but my right to damages for its breach is sanctioning.

The administration of civil justice, therefore, falls into two parts, according as the right enforced belongs to the one or the other of these two classes. Sometimes it is impossible for the law to enforce the primary right; sometimes it is possible but not expedient. If by negligence I destroy another man's property, his right to this property is necessarily extinct and no longer enforceable. The law, therefore, gives him in substitution for it a new and sanctioning right to receive from me the pecuniary value of the property that he had lost"

22. It was contended by Mr. G. H. Abbasi that even if the grant of land to petitioner No. 1 be considered to have clothed her with legal right to the land granted, it was not expedient to enforce that right in view of the equities in favour of respondent No, 3, who was a poor hart, wherean petitioner No. 1 was a rich woman, being the wife of an influential Zamindar. He further submitted that petitioner No. 1 could be compensated by being given some alternate land in lieu of the pieces L and K, which the Additional Commissioner and Member, Board of Revenue, had granted to respondent No. 3. We fail to see how it is inexpedient for the law to enforce her right and why she should be compelled to accept an alternate piece of land: Petitioner No. 1 has admittedly been in possession of the land in question since the time it was granted to her. Even after the Member, Board of F Revenue, granted the portion of land L and K to respondent No. 3, she has been in occupation of this land on the basis of the status quo order passed by this Court as far back a9 the year 1966. As such, expediency is much more tilted in her favour than towards respondent No. 3.

23. G. H. Abbasi also submitted that mere technicalities should not stand in the way of the third respondent being allowed to retain the piece of land granted to him by the Additional Commissioner and Member, Board of Revenue. Mr. Abbasi was by this referring to the fact that petitioner No. 1 was not formally made a party to the proceedings before the Additional Commissioner or the Member, Board of Revenue. In support of his contention that technicalities should be overcome and not stand in the way of substantial justice being done, the learned counsel relied upon Imtiaz Ahmed v. Ghulam Ali (PLD1963SC382). In that case, one of the points that arose for consideration of their Lordships of the Supreme Court was whether the Presiding Officer was right in refusing to give oath of office to a member of a Local Council under rule 7 of the West Pakistan Local Councils (Assumption of Office) Rules, 1970, because there was a alight misdescription in the Rolls of the father of the member. While holding that this slight misdeacription should not have stood in the way of the member being administered oath of office, Kaikaus, J. observed thus in regard to mere technicalities:‑

I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."

24. In the instant case, as we have already shown, petitioner No. 1 had a very real and substantial right in the while of the land granted to her, including the pieces L and K. She could not be deprived of that land unless she had committed a breach of any term or condition of her grant and had been given an opportunity of showing cause against such deprivation. Her not being given such an opportunity cannot be considered to be a mere technicality, which could be brushed aside as a clog of justice.

25. For the reasons stated by us above, we are of the opinion that the two impugned orders are without legal authority and of no legal effect and accordingly we quash the same and allow the petition with costs.

S. A. H. Petition allowed.

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