PLJ 2008 Lahore 69 (DB)
Present: Syed Hamid Ali Shah and Nasim Sikandar, JJ.
NATIONAL HIGHWAY AUTHORITY through its Chairman, Islamabad --Petitioner
versus
NASRULLAH KHAN CHATTAH, SECRETARY BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 989 of 2005, decided on 9.7.2007.
Colonization of Government Land
----S. 4 & 10--National Highway Authority Act, 1991, S. 10(2)(xiii)--Constitution of Pakistan, 1973, Art. 199--Question of--Right of way was transferred to NHA--Typographical error--Cancellation the mutation without jurisdiction and without any notice--Lease was cancelled--Challenge to--Validity--Violation of principles of natural justice--Question of--Right of way was conferred to NHA, by approval of Government C & W Department had authority to direct mutation in favour of petitioner, mutation was sanctioned with limited authority or name of petitioner was incorporated in column of cultivation and that all the relevant rules and procedural formalities were complied in sanction of mutation, are all questions of facts--These questions need determination through closer and thorough examination--Such exercise cannot be carried out, unless through resort to recording fo evidence--High Court therefore, leave it to the relevant authority to decide such issue and that after hearing the parties concerned--Such order cannot be passed, without affording the opportunity of being heard to petitioner--Letter impugned in these petitions, cannot sustain--Review of mutation is not merely an executive order, it involves determination of valuable rights of parties and must be passed through well reasoned, speaking order--Held: High Court, thus, persuaded to allow these petitions and set-aside the cancellation of mutation, being violative of principles of natural justice--Resultantly matter of impugned cancellation of mutations shall be deemed to be pending with District Officers (Revenue), who will decide it afresh after hearing the parties.
[Pp. 74 & 75] A, B, C & D
M/s. Raja Muhammad Akram, Advocate, Mr. Jahanzeb Khan Bharwana and Syyed Nayyar Abbas Rizvi, Advocates for Petitioner.
Ch. Rizwan Mushtaq, AAG for Respondents.
Mr. Zafar Abbas Kalanuri, Advocate for Respondent 3.
Date of hearing: 15.2.2007.
Judgment
Syed Hamid Ali Shah, J.--This judgment shall dispose of W.P. No. 989/2005 (National Highways Authority vs. Nasrullah Khan Chattah, Secretary BOR etc.), W.P. No. 65/2005 (Muhammad Shafique Butt vs. Allah Dad Tarar, DOR, Jhelum etc.), W.P. No. 1134/2005 (National Highways Authority vs. Sajjad Ahmad Khan, Nazim, TMA, Kamonki), W.P. No 1214/2005 (National Highways Authority vs. Cantonment Board, Gujranwala), W.P. No. 1622/2005 (National Highways Authority vs. Cantonment Board Kamra Attock), W.P. No. 2419/2005 (Ch. Sajjad Zaman vs. Nasir Warriach, TMO Kharian), W.P. No. 3415/2005 (Ch. Muhammad Akbar & Co. vs. National Highways Authority), W.P. No. 1929/2003 (National Highways Authority vs. Cantonment Board, Rawalpindi) and W.P. No. 7000/2006 (TMA, Kharian vs. National Highways etc.), as common question of law is involved in all these petitions.
2. Land and area forming part of Grand Trunk Road (G.T Road), falling part of N-5 within the Province of Punjab, was in effective Control of Communication and Works (C&W) Department of Government Punjab. It was transferred to National Highways Authority (NHA), vide letter dated 31.1.2002. The transfer, according to terms of letter, was unconditional, free of cost, without encumbrance. Government of Punjab was to effect mutation in the name of NHA/petitioner. Communication and Works Department of Government of Punjab through letter dated 31.1.2002, addressed to Chairman NHA conveyed acceptance of decision of the Federal Cabinet of handing over/taking over of "right of way". The right of way, was transferred to NHA included G.T. Road (N-5) Indus Highway (N-55), Multan-Rakhni, (N-70) Khanewal-Lodhran Road and Kashmir Chowki-Satra Mile Lower Topa Kohala Road.
3. Government of Punjab subsequently through Letter No. 1059/2004/46/LR(1) dated 10.1.2005, conveyed to the concerned District Officers (Revenue) that word "right to ways" appearing in letter dated 15.2.2003, is typographical error and be substituted as "right of way". Decision of Punjab Cabinet taken in its meeting held on 30.11.2004 was also communicated where it was decided that ownership of roads (handed over to NHA) must remain with Provincial Government. Additionally District Officers (Revenue) were directed to cancel the mutations in favour of NHA and restoration of ownership to Provincial Government. District Officer, Jhelum addressed communication to Tehsildar vide letter dated 15.10.2004 and directed him to get property measuring 3« Marla, leased to M/s Muhammad Shafeeq Butt and others by NHA, vacated from illegal occupants i.e. lessee of NHA. Mr. Shafiq Butt was informed through letter dated 20.10.2004 about cancellation of his building plan and was further asked to remove the building plan. District Officer through letter dated 31.8.2004, addressed to Assistant Director NHA, informed that lease to Mr. Shafeeq Butt by NHA, is against the policy of Government of Punjab. NHA can use the land only for departmental purpose and its onward lease to other persons is not permissible. The lease, on this score, was cancelled. The petitioner, through instant petition, has challenged the action of the respondent subject-matter of letter dated 10.1.2005, 15.02.2003, 15.10.2004 and 20.10.2004.
4. Learned counsel for the petitioner has contended that after having alienated the land unconditionally in favour of NHA, Government of Punjab, has no power or authority to cancel the same. The cancellation is without any notice to the petitioner and as such violative of principles of natural justice, cannot sustain legally. While referring to Section 10(2) (xiii) of NHA Act, 1991, it was contended that Authority is empowered to raise its fund by leasing its assets, besides borrowing, floating of bonds etc. The Executive Board of the petitioner in its 104th meeting dated 29.5.2004 approved the policy for preservation of commercial use of right of way regarding establishment of Filling/Gas Stations, hotels and motels etc. Learned counsel added that Rule 11 of National Highways Strategic and Control Rules, 1998, permits erection and installation of any structure or amenities for carrying out commercial activities. Learned counsel contended that Secretary Board of Revenue, Punjab , has issued impugned letter dated 10.1.2005 without jurisdiction. He had no authority to cancel mutation in favour of the petitioner. Learned counsel went on to argue that impugned letter/impugned action, of the respondent, is violative of principles of natural justice. The petitioners were condemned unheard, such order is not sustainable. Learned counsel a support his contention by referring to the case of Fuel Auto Supply Company and 5 others vs. Federation of Pakistan (PLJ 2006 Lahore 469).
5. Learned counsel further submitted that NHA Act of 1991, as amended in 2001, is Federal Act. It is Federal Legislation as per Entry No. 34 in the Federal Legislative List. The right of way, as per Section 10(XV), has been conferred by the Provincial Government and relevant mutation had also been sanctioned in favour of NHA. Mutations were sanctioned being mandate of NHA under Sections 10 & 15. Provisions of Land Revenue Act are not applicable to a transfer of land, fallen to NHA. It was contended that executive authority of Province, is to be exercised to secure compliance with Federal Laws as per Article 148(1) of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel supported his contention by referring to the cases of Rimpa Limited and another vs. Karachi Metropolitan Corporation (2004 CLC 1797) and Shamas Textile Mills Ltd. and others vs. The Province of Punjab and 2 others (1999 SCMR 1477).
6. While meeting the objection of respondents that remedy of appeal has not been availed, it was contended that remedy is not adequate but illusory and remedy of writ petition remains only option before the petitioner. Case of Zahida Sattar vs. Federation of Pakistan (PLD 2002 SC 48) and Collector of Customs, Customs House, Lahore and 3 others vs. Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad (1999 SCMR 138) were referred to support this contention. Learned counsel emphasized that the land in question, after the conferment of its right of way to petitioner and after sanction of mutations, cannot be cancelled. Once an order passed by a lawful authority and it has been implemented, such authority has no power to recede. Learned counsel supported his contention by referring to Section 24 of the General Clauses Act, and cases of Pakistan International Airlines Corporation through Chairman vs. Inayat Rasool (2003 SCMR 1128) and Muhammad Nawaz vs. Federation of Pakistan and 61 others (1992 SCMR 1420).
7. Learned Assistant Advocate General, on the other hand, has fully supported the impugned letter/order of the respondent. It was contended that mutations earlier sanctioned in favour of NHA, were wrongly attested, yet the ownership was never transferred to the NHA. Entries in the relevant mutations reflect entry in favour of NHA in cultivation column "( )", while Communication and Works Department has been shown in possession of property in dispute. The petitioner has no title in the property and as such cannot leave out the property, without the permission of paramount owner. It was urged that the title and ownership was never transferred to NHA and thus the principle of locus-poenitentiae is not available to the petitioner. Case of Abdul Haque Indhar and others vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907) was referred in this regard. Learned counsel cited cases of Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad vs. The General Public (PLD 1988 SC 645) and Miss Rukhsana Soomro vs. Board of Intermediate and Secondary Education, Larkana, Sindh and others (2000 MLD 145), to contend that instant case falls, within the exception and right of hearing in such matters cannot be claimed as a matter of right. Rules of business with more specific reference to Rules 152 and 173 and case of Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another vs. Messers Shoaib Bilal Corporation and 2 others (2004 CLC 1104), was referred to submit that the letter issues without the consent of Chief Executive of Province and without his instruction, confer no legal title in favour of the petitioner. It was lastly contended that Entry No. 34 in the Federal Legislature List is read in isolation while it has to be read with Entry No. 37 of the list and also with Section 2(9) of the NHA Act. Combined reading of these provisions, show that ownership has not passed on to the petitioner. Commercial use of right of way is not permissible and rules being contrary to main statute i.e. NHA Act, have not legal values. Learned counsel in this respect has referred to the cases of Muhammad Saleem II, Stenographer, Establishment Division, Islamabad vs. Federation of Pakistan through Secretary Establishment Division, Islamabad and others (1998 SCMR 747) and Messers Mehraj Floor Mills and others vs. Provincial Government and others (2001 SCMR 1806).
8. Heard learned counsel for the parties and record perused.
9. Legal title of the land subject matter of these petitions vests with the Secretary (Colonies), Government of Punjab, by virtue of Section 4 of the Colonization of Government Lands Act, 1912. Such land can be granted to any person, by the Board of Revenue, subject to approval of the Government, within the contemplation of Section 10 of Act, 1912. According to Rules of Business, Administration of West Pakistan Highways Ordinance, 1959, vests with Communication and Works Department and Secretary C & W has administered control of such land but its legal title vest in Colony Department of Provincial Government. The questions that right of way, was conferred by NHA, by the approval of Government, C&W Department had the authority to direct mutation in favour of the petitioner; mutation was sanctioned with limited authority or name of the petitioner was incorporated in the column of cultivation (" ") and that all the relevant rules and procedural formalities were complied in sanction of mutation, are all questions of facts. These questions need determination through closer and thorough examination. This exercise cannot be carried out, unless through resort to recording of evidence. We, therefore, leave it to the relevant authority to decide such issue and that after hearing the parties concerned.
10. So far as the impugned letter dated 10.6.2005 is concerned, it has been issued without notice to the petitioner. Rights of the petitioner had been adversely affected, when the mutations in favour of the petitioner, were ordered to be cancelled. Such order cannot be passed, without affording the opportunity of being heard to the petitioner. The letter impugned in these petitions, cannot sustain.
11. Additionally Respondent No. 1 has cancelled the mutations through impugned letter. Review of mutation earlier attested in favour of the petitioner, has to be conducted in open assembly, after notice to the parties and after hearing the parties concerned. Review of mutation is not merely an executive order, it involves determination of valuable rights of the parties and must be passed through well reasoned, speaking order. This exercise has not been undertaken in the instant matter.
12. Cancellation of mutations primarily the function, assigned to Revenue Officer. This exercise has been undertaken by Respondent No. 1, depriving the affected party of right of appeals and revision in the hierarchy of Board of Revenue. This Court has settled this issue in the case of Muhammad Suleman vs. Addl. Deputy Commissioner (General), Lahore Cantt. (PLD 2000 Lahore 262) and Khadim Hussain vs. Deputy Commissioner Hafizabad etc. (NLR 2000 Revenue 127) and Gulzar Ahmad Khan and 2 others vs. Deputy Commissioner, Hafizabad and others (2002 CLC 1746). Respondent No. 1, before proceeding further in the matter will first determine the issue of jurisdiction.
13. We are thus persuaded to allow these petitions and set aside, the cancellation of mutation through impugned letter dated 10.6.2005, being violative of principles of natural justice. Resultantly, the matter of impugned cancellation of mutations shall be deemed to be pending with the District Officers (Revenue), who will decide it afresh after hearing the parties.
(N.F.) Case remanded.
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