Present: SHAIQ USMANI, J, ELECTRIC LAMP MANUFACTURER OF PAKISTAN-Plaintiff
GOVERNMENT OF SINDH and 2 others-Defendants
Civil Misc. Application No. 470 of 1998 in Suit No. 1570 of 1997, decided on 21.8. 1998.
Colonization of Government Lands (Sindh) Act, 1912 (V of 1912)--
—-S. 36-Civil Court-Ouster of jurisdiction by Section 36 of Colonization of Government Lands (Sindh) Act; 1912-Whether perpetual in nature- Where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government official or a person holding an important political office, in supersession or relaxation of Rules to detriment of another person, pursuance of departmental remedies provided under relevantstatutes, would be an exercise in futility because of increasing trend of obsequiousness amongst Government officials-Such officials hearing appeal/review, are likely, to be hesitant to apply their minds to cases judiciously in view of intimidating influence of their departmental or political superiors-Ousted jurisdiction of Civil Courts, by Section 36 of Coloriizatiou of Government Lands (Siiidb.) Act, 1912 would not be barred in such circumstances. [P. 515] A & B
Mr. Nadctni Akhtar, Advocate for Plaintiff. Mr. Khalil-ur-Rekman, Advocate for Defendant. Date of hearing : 21.8.1998.
This is an application under Order 7, Rule 11, C.P.C. whereby Defendant No. 4 seeks rejection of the plaint on grounds that this suit is barred under Section 36 of the Colonisation of Government Lands (Sindh) Act, 1912 (hereinafter referred to as the Act).
The facts of the case as brought out by the plaint are that Survey Nos. 179 and 489 of Deh Gujro, Taluka and District Karachi measuring 21 Acres and 13 Ghuntas were acquired by associates of plaintiff on or about 26.1.1948 through a sale-deed from its owner who was a Hindu. Since the Hindu owner migrated from Pakistan, the properly was declared evacuee property and that the sale in favour of plaintiffs association was confirmed only in 1957, vide order, dated 10.10.1957 of Additional Custodian (Judicial) Evacuee Property, Karachi. Thereafter, the plaintiff enjoyed peaceful possession of the entire property except for a brief interlude when hisownership of part of his property that is 80 Acres under Survey No. 89 became disputed at the time of renewal of lease. Nevertheless, the lease was finally renewed on 20.10.1976 for further period of 30 years with effect from 9.. 12.1968 but in respect of 15 Acres and 21 Ghuntas. However, these disputes, irrelevant for purpose of decision of this application, about 8 Acres of his property were finally resolved by 11.12.1990 and the plaintiff since then had unquestioned title to the said 8 Acres as well. The plaintiffs troubles began when the Chief Minister of Sindh at the time unilaterally and illegally allowed the application of Defendant No. 3 for allotment of 35Ghuntas (4235 sq. yds.) of prime land in Deh Gujro District East, vide, letter, dated 12.4.1996 at Rs. 200 per sq. yard. Defendant No. 3's application was then marked to Defendant No. 1 for necessary action. After doing the normal rounds in the corridors of bureaucracy the application reached the Secretary, Government of Sindh, Board of Revenue, Land Utilization Department who in exercise of power under Section 10(1) of the Act directed the leasing of an area of 0.35 Ghuntas from Deh Gujro District East Karachi to the Defendant No. 3 at a throw away price of Rs. 100 per sq. yrds. when the prevailing market price of the land was about 30,000. The Secretary wrote to the Deputy Commissioner, Karachi East, that is Defendant No. 2, on 23.4.1996 as under :—
"In exercise of the powers conferred under Section 10(i) of the Colonization of Government Lands (Sindh) Act, 1912 read with condition No. 3(2) of the statement of conditions notified on 12.5.1975, the Government of Sindh in Land Utilization Department with the prior approval of the Chief Minister, Sindh, has been pleased to lease out an area of 0.35 Ghuntas from Deh Gujro District Karachi East 011 99 years in favour of Hcy'i Shaukat Islam subject to availability of land at the rate of Rs. 100per sq. yrds. (!) for commercial, industrial and residential purposes in relaxation of condition No. 14 (ibid) and existing ban."
It is evident from the above letter that the area where the said 35 Ghuntas of land has been leased to Defendant No. 3 had not been specified, yet the Defendant No. 3 proceeded to illegality occupy on 6.10.1996 a substantial portion of plaintiff's land arid upon enquiry maintained that he had done so under the directive of the Chief Minister.
Later upon change of Government an enquiry was instituted by the Government of Sindh to probe into the validity of allotment of lands by the previous Government. Apparently the name of Defendant No. 3 figured prominently in the published list of the beneficiaries of such allotment. During the course of enquiry it was found that the land in question had been sold by Defendant No. 3 to Defendant No. 4 by way of sale-deed, dated 6.10.1997. Through this suit plaintiff claims title over the said land in occupation of Defendant No. 3/4, and prays for cancellation of title documents of the said defendants.
According to the plaint the plaintiff disputes the title of the Defendant No. 3/4 on the following grounds
"(a) The Preamble of the said Act mentions that the said Act is 6, to make better provision for the colonization and administration of Government Lands'. It does not apply to non-Government Lands or the land already leased out to any person by the Government; as in the case of Haji Shaukat Islam (Defendant No. 3) a portion of Survey No. 179 Deh Gujro was given to him which was already in possession of the plaintiff on 30 years lease, as is explained in subsequent paragraphs. <
(b)Section 3 of the said Act defines 'Colony' as an area to which the said Act shall be applied by order of the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come under the definition of Colony.
(c) Section 4 of the said Act mentions that the said Act applies to certain types of Government lands notified by the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come within the scope of Section 4 of the said Act and as such the said Act is not
all applicable to the allotment made in him.
all applicable to the allotment made in him.
(d) Section 10(1) of the said Act lays down that 'The Board of Revenue subject to the general approval of the Government may grant land in colony to any person on such conditions as it thinks fit'. It is submitted that Syed Abdullah Shah, the then Chief Minister of Sindh, illegally purported to exercise in this matter powers conferred upon the Provincial Government under Section 10(i) of the said Act in spite of the fact that none of the provisions of the said Act, including Section 10(i), was applicable to the facts and circumstances of this case. This facts ; alone establishes collusion between Syed Abdullah Shah, the then Chief Minster of Sindh, and Haji Shaukat Islam Defendant No. 3) and other officers and the offence of ;corruption and corrupt practices as defined in Section 3 of the Ehtisab Act, K of 1997 prima facie appears to have been committed by all of them. ' '
(e) Section 10(2) of the said Act gives powers to the Provincial Government to 'issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants'. It is submitted that condition No. 14 was relaxed as well as existing ban prevailing at the relevant time was lifted in
this particular case was mentioned in Annexure 'P-3' without assigning any reason whatsoever for doing the same or for showing this concession of Hqji Shaukat Islam (Defendant No. 3)."
In so far as the Defendant No. 4 is concerned, in his application under Order VTI, Rule 11, C.P.C. for rejection of plaint, he has relied on various provisions of law, however, at the time of hearing his counsel's main thrust of the arguments was that this Court was no jurisdiction to try this suit under the provisions of Section 36 of the Act In effect Mr. Khalil-ul-Rehman, the learned counsel for Defendant No. 4 contends that under the statement of conditions notified under Sindh Government Notification No. KB-1/1/30/72/7096, dated 12.5.1975 as required by Section l<Xi) of the Act the Government (of Sindh) has absolute discretion in the grant of leaseand selection of lessees. He then goes on to say that as held in the case of Muhammad Asghar v. Sofia Begum PLD 1976 SC 435 these "statements of conditions" so issued constitute statutory instruction having the force of law". Consequently, since the lease was granted to Defendant No. 3 by the Chief Minister, who is the head of Sindh Government, it was validly granted and the Defendant No. 4, having purchased the land by a sale-deed, has now a valid title to the said land. If the plaintiff had any objection to it their remedy lay in appealing to the Commissioner under Section 161 of Land Revenue Act, 1967 within the limitation period and if unsuccessful seek revision of the adverse orders under Section 164 of the said Act by Central Board of Revenue. But under no circumstances, the argues, the plaintiffs couldapproach the Court for this purpose as its jurisdiction is ousted by Section 36 of the Act, which reads as under :--
"Section 36. Jurisdiction of Civil Court barred as regards matter arising under the Act.--A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collection or any otherRevenue Officer exercises any power vested in it or in him by or under this Act.
In response Mr. Nadeem Akhtar, the learned counsel for the plaintiff relied on the averments in the plaint that have been quoted above which basically relate to the land in question not being subject to the Act and to lack of authority of the Chief Minister to grant such lese and to his mala fide, which is manifest. He also relied on Section 9 of Civil procedure Code to show that the Civil Court will have jurisdiction to try the suit because of the fraudulent manner in which the lease was granted.
I am constrained to note that none of the counsels cited any authorities in support of their contentions and in fact did not give proper assistance to the Court.
Now it is settled law that a plaint an be rejected only if from the averments in the plaint the suit is found to be barred by any law and the defence put up by the defendants should not be the determining factor.
Needless to say that a similar criteria applies when determining whether a Court has jurisdiction in a matter or not In the plaint it is specifically averred that the action of the Chief Minister in approving the lease of land to Defendant No. 3 was unilateral and illegal inasmuch as he purposed to exercise powers under Section 10(1) of the Act, when the said Act was not applicable to this land. It is also averred that such act of the Chief Minister was mala fide inasmuch as he allowed the grant of lease at a rate much below the market value of the land and he did so in relaxation of condition 14. It is also averred that subsequently an enquiry was conducted about the irregularity in the grant of lease to Defendant No. 3. These averments prima facie point to the fact that the grant of lease to Defendant No. 3 was unusual and even possible irregular. The question, thus, arises that given the facts averred in the plaint, is the jurisdiction of this Court ousted by Section 36 of the Act ?
The question of ouster of jurisdiction under Section 36 of the Act has been considered in various reported cases though none of these were brought to my notice by the learned counsel for the parties. I give below brief excepts from some of these cases.
In the case of Karim Dad v. Arif and another PLD 1978 Lah. 679 it was held that :--
"............... Approached from this angle Section 36 of the (Act), which bars jurisdiction of Civil Courts should present no difficulty, inasmuch as that section will apply only where authorities concerned acted within the power and four corners of their jurisdiction and not where their acts are ultra vires or without jurisdiction or void or in excess of their jurisdiction."
In the case of Anjuman Tahirul Islam (Regd.) Sheikhupura v. Province of West Pakistan Punjab Province and 2 others PLD 1983 Lah. 294 it was held that :--
"......that if it can be shown that the order passed cannot be accommodated within the ambit of power of authority of a particular authority, the Civil Court would intervene. Similarly, the Civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the Civil Court would only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides."
In the case of Muhammad Shaft v. Punjab Province 1982 CLC 55 somewhat differently and rather stridently was held that :--
"the jurisdiction of the Civil Court cannot be made dependant on the correctness of the litigants contentions. What is to be seen is whether the authority passing the order was empowered under the Act to pass such an order."
To summarise the above citations, it would appear that the Superior Coons nave been consistently of the view that the jurisdiction of Civil Courts is indeed ousted by Section 36 of the Act, save in circumstances where the person passing the order was not authorised to pass such an order or the order passed was based on fraud ormala fides. Indeed, I would go farther and say that where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government officials or a person holding an important political
office, in suppression or relaxation of rules to the detriment of another person, the pursuit of departmental remedies provided under the relevant statute would be an exercise in futility because of the increasing trend of obsequiousness amongst the Government servants. Thus, such officials hearing the appeal/review are likely to be hesitant to apply their minds to V the case judiciously in view of intimidating influence of their departmental or political superiors. Consequently, I am inclined to hold that under such circumstances as well as jurisdiction of the Civil Courts will not be barred.In the instant case going by the averments in the plaint, as I must, I find that the allegations, to the effect that the Chief Minister of Sindh did not have the requisite authority to grant the lease and/or that in acting, thus, his motives were mala fide have been greatly emphasises. Moreover, it is apparent from the averments in the plaint that in grant of the lease of the suit land there was an avowed interference by the Chief Minister in favour of Defendant No. 3 in derogation of rules to the detriment of plaintiff. Consequently I am of the view that in these circumstances without an issue being cast with regard to jurisdiction and without evidence being led on that point it is not possible to hold at this stage that the jurisdiction of this Court is ousted under Section 36 of the Act. I, therefore, dismiss Civil Miscellaneous Application No. 470 of 1998.
(TAJ.) Appeal dismissed.