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Petitioner: ABDUL RAHIM And Others VS Respondent: MEMBER (COLONIES), BOARD OF REVENUE And JUDGMENT
Court Name: Lahore High Court Judge(s): Fazal Karim Title:ABDUL RAHIM And Others vs MEMBER (COLONIES), BOARD OF REVENUE And
JUDGMENT
Reported As: 1989 MLD 3148 Result: Petitions dismissed Judgment JUDGMENT This will dispose of Writ Petitions Nos. 1211, 1212, 1213, 1214, 1215 and 1216 of 1969 as common question of fact and law arise in all of them. 2. The petitioners are members of the same family. They were granted land under what was known as the More Grow Food Scheme in the years 1956 and 1957. The grantee in Writ Petition No.1212 of 1969 was S. Muhammad Din and grantees in the remaining petitions are his sons, S. Abdur Rahim, S. Muhammad Nazir, S. Abdul Aziz, S. Muhammad Idrees and S. Abdul Majid petitioners. S. Muhammad Din died in the year 1965 and the petitioners in Writ Petition No.1212 of 1969 arc his widow and the above named five sons. The area of land, subject-matter of W.Ps. Nos. 1211 and 1212 is 24 acres each; the area of land in W.P. No.1215 is 20 acres; the area of land in W.P. No. 1213 is 4 acres and the area of land in W.P. No. 121.1 and 1216 is 12 acres each. 3. The land is situate in Chak No.39/UCC, Tehsil Ferozewala, District Sheikhupura. 4. In order to induce the people to grow more food, a Scheme known as Grow More Food Scheme was formulated by the Provincial Government in November, 1956. The salient features of this Scheme so far as relevant were as follows:- (i)Land should be leased out in compact blocks not exceeding 12-1/2 acres: (ii)only food grain crops should be grown: (iii) the (case should be for a prescribed period of three years: (iv) the (case might be terminated at any time if the land was required for other public purposes, without compensation, except for the standing crop; and
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(v)no rent in cash or kind should be charged for the first year, for canal irrigated land, and for the first two years, for non-irrigated lands. Accordingly, lease of such land in various canal Districts of the Punjab were granted for a maximum period of three years beginning from Rabi 1956 and ending in Kharif, 1959, on account of the failure of a large number of lessees to cultivate the land in Rabi, 1956, their leases were terminated, but the Government vide a memorandum issued in July, 1957, directed that all suchleases should be restored so that "these might run their full life upto and including Kharif, 1959, provided the lessees hereafter comply with all the conditions of their leases punctually." By another memorandum, dated 7-12-1957, the Government directed that the Scheme should remain in operation but file conditions regarding the cancellation of the lease in the event of the failure to cultivate the land during Kharif, 1955-51) should be strictly enforced. The leases under the Scheme were, by a memorandum, dated 29-10-1958, extended for a period of two years, if such areas "cannot otherwise be utilized in a better and more productive manner." Thus, the leases originally granted under file instructions issued in November, 1956, were to continue for a period of live years only unless determined for the breach of conditions of a lease or if file area covered by the lease was required for other public purposes. It was further laid down in this memorandum that extension of the lease period from 3 to 5 years should be allowed freely unless a lessee had failed to cultivate less than 50% of the area under lease. 5. By a Letter No.9363-60/5873-C(G), dated 18-8-1960, tile Board of Revenue informed the Commissioners and the Deputy Commissioners in file Province that "all the leases under Grow More Food Scheme have been extended upto 5 years and so naturally the period is expected to expire in Rabi 19(,1. Moreover, the question of conferment of proprietary rights to tile lessees under the Grow More Food Scheme is under consideration of Government. So, the Grow More Food Lessees should not be displaced on the expiry of the period of their (case, but should be allowed to remain in possession of tile land on payment of usual rent till the decision of Government in the matter". By another letter viz. Letter No. 9253-61/5824-C(G)Ill, dated 8th December, 1')61, the Board of Revenue conveyed to all the Commissioners in the Province that "the Governor of West Pakistan is pleased to decide that all 'cases granted under the Grow More Food Scheme should be terminated after the expiry of their lease period of rive years as Government have neither the legal nor moral obligation to accept the request of these lessees for the continued extension to their leases" and by another Letter dated 23rd February, 19(,2, the Board of Revenue conveyed the decision that "the area resumed form the Grow More Food lessees (after the completion of five years tenure period) should be leased out on year to year temporary cultivation basis by tenure system till further order". However, by its Letter No.4125-62/2120-S(G)III, dated the 10th July, 1962, the Board of Revenue conveyed the Government's decision to the Deputy Commissioners of Lahore, Sheikhupura, Gujranwala, Sargodha, Lyallpur, Multan, Muzaffargarh, Bahawalpur, Bahawalnagar, Rahimyar Khan and Gujrat that "all bona fide Grow More Food leases of 12-1/2 acres or thereabout whether operating singly or jointly through a tube-well, will be excluded from the schedule of auctions. Only the land of those lessees will be included in the auction schedule, which substantially exceed the limit of 12-1/2 acres, or arc within live mile radius of any mandi town or other town, or of those lessees who have obtained large blocks of land over and above 12-1/2 acres or so, under Grow More Food Scheme, or of those lessees who are not cultivating the holding and arc merely interested in them as financiers or middlemen or as owners of tube-wells. In other words it is only the lands of second category that will be auctioned, whereas the holdings of the first category viz. Bona fide cultivators or small land holders, would be settled with them at a fixed price". 6. For this purpose, the Deputy Commissioners were required to prepare three lists of the Grow More Food lessees: (i)Those, who, in their opinion, were bona fide lessees:
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(ii)those who were not bona fide lessees and were not eligible to the concession proposed to be granted i.e., purchase of proprietary right by private treaty; and (iii) those who had put up tube-wells. 1. All bona fide Grow Food lessees of 12-1/2 acres who arc self--cultivators of small holders (self cultivators) owning upto 12-1/2 acres of their own, whether cultivating through tube-wells, open wells, canal water or otherwise whose term has expired in Rabi 1962 or will expire in subsequent years would be given the concession of sale by private treaty: 2. Save as provided in Para. 1 above, all lands leased out under the Grow More Food Scheme whether cultivated by tube-well, open wells, canal water or otherwise and the term of which has expired in Rabi 62 or earlier will be included in the schedule of auctions. Leases, the terms of which will expire of subsequent years, will be put to auction subsequently: 3. The concession of sale by private treaty does not apply to leases which have terminated in Rabi 1961 or earlier whether the same lands arc now cultivated by the same persons or others on temporary cultivation basis. Such lands will be included in tile schedule of auction: 4. The concession of sale by private treaty does not apply to leased areas lying within 5 miles of the outer limits of a mandi town or a municipality or within 1 mile of a railway station. Such lands will be sold in open auction and should be included in the schedule: 5. The concession will not apply where a tube-well has been put up on land cultivated under the Grow More Food Scheme by acquiring more than one lot in the names of wife, children or other dependents. Such cases will be treated as mala Fide and will be included in tile schedule of auction: 1. The State lands situated within 5 miles radius of a municipality, mandi town or other towns, arc to be sold by auctions and the proprietary right arc not to be granted through sale by private treaty within this belt: 2. That it was only where "lots of lands" had been acquired in the names of wife, dependent children or other dependents who could not be self-cultivating, that the allotments arc to be considered as mala fide for purposes of sale by private treaty: 3. That 13 acres will be maximum upper limit upto which an allottee under the Grow More Food Scheme could be considered entitled for sale by private treaty, if otherwise qualified. The area over and above 13 acres should be included in the schedule of auctions. 7. By a Memorandum No.8400-62/3438-C(G)III, dated the 8th October, 1962, the Deputy Commissioners of the above- mentioned districts were informed that "the Ex-Grow More Food lessees who were given lands in 1956 and whose leases expired in 1961 should not be given proprietary rights and, therefore, all those lands whose leases expired in 1961 should be included in the auction schedules". 8. The last memorandum on tile subject of the grant of proprietary rights is Memorandum No.4826- 62/1419-S(G)I11, dated the 22nd October, 1962. Its relevant portion reads: "The Government of West Pakistan have decided to dispose of all State lands in the Old Colony Districts by auction. Some of the State lands had been given on lease in connections with the Grow More Food campaign. In such cases it has been decided that the State land should be sold by private treaty to bona fide Grow More Food lessees of 12-1/2 acres, the maximum upper limit being 13 acres, who are self-cultivators or small holders (self-cultivators owning upto 12-1/2 acres of their own) whether cultivating the land through tube-wells, open wells, canal water or otherwise whose term has expired in Rabi 1962 or will expire in subsequent years. Whether a lessee is entitled to the concession of sale by private treaty or not under the above scheme shall be decided by the Collector." This was followed by instructions relating to the fixation of the price of the land and how that price would be payable.
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9. The petitioners claim that they made applications for the grant of proprietary rights and one of the applications was rejected by the Collector's order, dated 4-12-1962. An appeal was preferred before the Additional Commissioner, Lahore, and the case was remanded to the Collector for fresh decision. The Collector, however, filed the papers without deciding the matters by his order, dated 24-1-1964. The aggrieved petitioner had approached tile Board of Revenue "requesting that no action has been taken on the application of the Petitioner and that the matter be finally concluded". The Board of Revenue called for a report from the Deputy Commissioner who stated in his report, dated 20-7-1966 that "the petitioners have built 5 quarters, garrage and godowns for dwelling and storage of the produce and have brought under cultivation more than half of the land"; that "it is alleged that sufficient amount has been spent on the development of this land which is situated 7 miles from the limits of Town Committee, Mandi Muridke and 2 miles from Railway Station Kala Shah Kaku"; and that "out of the said allotted land 312 Kanals 17 Marlas have been reported to be reserved charagah land which should not have been allotted under this Scheme. Action for exclusion of this area is being taken separately". According to the petitioners, the Board of Revenue accepted the Deputy Commissioner's recommendations and authorised the Deputy Commissioners to finalise the matter with the remarks: "Forwarded to the Deputy Commissioner, Sheikhupura. You arc competent to take action in the matter". This according to the petitioners "in effect meant that the Board of Revenue accorded sanction as to the sale of the land and the details were to be settled by the learned Collector". 10. It is stated that "the Collector seems to have ultimately issued notice to the petitioner to appear before him. No notice was, however, served on the petitioner. The petitioner deputed one of his employees Haji Shuja-ud-Din to go to Sheikhupura and to find out as to the fate of the case. Incidentally the matter was before the Collector on 14-5-1969 for consideration. The said employee appeared before the Collector and apprised him of the fact that no notice had been served on any of the petitioners and that a dale in the case be given. In any case the employee further stressed the Collector as to the circumstances relevant to the case". The Collector, however, proceeded ex parte against the petitioners and cancelled the allotments. In doing so, the Collector observed: "During scrutiny by the Governor's Inspection Team, it was discovered that the allotment was illegal and against spirit of the Scheme. Efforts were made to secure the attendance of the respondent through due service, but he failed to appear" and concluded as follows:- "The allotment is more than 12-1/2 acres and was within five miles radius of the Town Committee Shahdara at the time of allotment. At present too it is within five miles boundary of the Lahore Corporation. The allotment is against the intention of para. 1 of the Statement of Conditions as notified in No. 6539/56/589-C(G), dated 7-12-1957, issued by the Board of Revenue, West Pakistan". 11. The petitioners appealed against the Collector's order, dated 14-5-1969 before the Additional Commissioner, Lahore. Before him, the Legal Adviser of the Lahore Municipal Corporation appeared to state that "the land resumed from the appellants is proposed to be utilised for the purposes of establishing a Colony of Gowalas of Lahore" on behalf of the Deputy Commissioner, Sheikhupura, it was staled that the land was liable to be resumed on the following grounds:- (a)that the allottees were already owners of 12-1/2 acres of land: (b)that the allottees were known Industrialists and could not be considered as self-cultivating farmers; and (c)that some of the land allotted was Charagah and some of it was barani "irrigated at the time of allotment". On behalf of the petitioners, grievance was made of the fact that in pursuance of Additional Commissioner's order, dated 11-12-1962 remanding tile case "with the directions that it should first be ascertained whether the present appellants were or were not entitled to the conferment of the
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proprietary rights on the land allotted to them and the question of the auction of this land be taken up accordingly", no final orders were passed by the Collector but the Additional Commissioner dismissed this plea on the ground that the appeals before the Additional Commissioner were against the order of Collector "placing the disputed land in the auction list to be held on 8-12-1962" and observed that" as the auction of State land and appeals stopped by the Government, therefore, these appeals obviously became infructuous and were correctly filed by the learned Collector". The question, so observed the Additional Commissioner, whether the petitioners were entitled to the conferment of the proprietary rights was taken tip later and it was found that the petitioners were not so entitled and therefore, their allotments were resumed. It was also argued before the Additional Commissioner that the previous order of the Board of Revenue amounted to the acceptance of the recommendations made by the Deputy Commissioner. The Additional Commissioner was, however, of the view that "the Board of Revenue left the matter to the D.C. And obviously did not accept the request of tile appellants for the grant of proprietary rights; nor the D.C. Was directed to grant proprietary rights to the appellants". The Additional Commissioner then proceeded to say that "the main point is whether the lend could be resumed on account of the fact that the land allotted was within 5 miles of the limits of a municipal area" and observed that "the record above shows that the land is situated within a mile or two of the outer limits of the Lahore Municipal Corporation". His attention was called to the Board of Revenue memorandum, dated 22- 10-1962 and it was pointed out by the petitioners' counsel that in that memorandum" it is nowhere mentioned that proprietary rights would not be conferred on lands situated within 5 miles of the Municipal area." The Additional Commissioner agreed that in that letter "there is no express ban on the grant of proprietary rights on the allottees of land situated within 5 miles radius of the outer limits of a municipality" but observed that "the last sentence of para. l of the said letter says clearly that it will be for the Collector to decide whether the lessee should be given the concession of the sale by private treaty or not. If it was the intention of the Board of Revenue to grant proprietary rights to every allottee or lessee of land of Grow More Food Scheme irrespective of the fact whether the land allotted to him fell within the radius of 5 miles of the outer limits of a municipality, there wits no idea of leaving the matter of the grant of the proprietary rights to the discretion of the Collector. The obvious intention of the sentence quoted above was that the Collector had to abide by the conditions laid down by tile Board of Revenue in its earlier instructions. As according to the conditions earlier issued by the Board of Revenue, "proprietary rights could not be conferred in respect of land situated within a radius of 5 miles of the outer limits of a municipality", the Additional Commissioner found no force in the contention "that the latter, dated 22-11)-1962 omitted this conditions." The Additional Commissioner was also of the view that the land had been "earmarked for establishing a Colony of tile Gowalas of Lahore who arc being asked to move out of the limits of Lahore Municipal Corporation." The Additional Commissioner, therefore, dismissed the petitioners' appeals by his judgment, dated 13-6-1969. 12. The petitioners then invoked the revisional powers of the Board of Revenue but a learned Member of the Board of Revenue by his order, dated 22--7-1961) dismissed their revision petitions. There, among others, the points tried to be made were that the petitioners had been condemned unheard by the Collector; that the Scheme for the grant of proprietary rights was enforced in the year 19611: that at that time, Shahdara," was not attached with Lahore District and there was no separate Municipal Committee Shahdara" the nearest local authority to the area in dispute was the Municipal Committee Mandi Muridke and as observed by the learned Deputy Commissioner in his report, dated 20-7-1966 the land was, outside the five miles limit from Muridke Mandi Town Committee," that the' petitioners had in terms of the Scheme become vested with the proprietary rights." Memo. Issued in 1962 only amplified the scheme issued in 1960 and did not operate retrospectively; that a Town Committee was started in Shahdara and it was joined with Municipal
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Committee of Lahore in which case the area would fall within the 5 miles radius of the outer limits of Municipal Committee of Lahore, the same will not affect the petitioners' case. On the Lahore side the area did not fall within the prescribed limits at the time of enforcement of the scheme. The August, 1962 letter would not affect retrospectively nor would it affect the future cases. If the intention was to cover the future cases at any time, the limits of Town Committees can be extended by the Provincial Government thereby leaving no area in which the proprietary rights were given to the allottees." The learned Member Board of Revenue observed that "the petitioners have not denied that they were served and it seems to have been their choice to send their employee rather than to pursue the case themselves. They had, however, ample opportunity before the Additional Commissioner and before the Court to voce their grievance and state their case and any prejudice that could conceivable have been caused has been removed. "Dealing with the" central issue" whether the land in question fell within a radius of five miles of outer limits of Lahore Corporation", the learned Member referred to the Deputy Commissioner's report, dated 20- 7-1900 and observed that the petitioners "have admitted the position vis-a-vis Lahore Corporation. Any alleged finding by the Collector does not therefore cover the ground." As to the contention that the Government could defeat a grantee's right of proprietary rights by, at any time, extending the limits of a Municipality, the learned Member referred to the instructions in Memo. No.1670-66/16140- GG-111, dated the 20th May 1966" in which it has been pointed out for the purpose of examining the eligibility that the distance from the outer limits of a Municipality etc., must be reckoned as on the date of passing the final orders." In the view of the learned Member, the instructions contained in the Board of Revenue Memo. Dated 22-10-1962 "are in no sense in replacement of the August, 1962 instructions. The August 1962 instructions spoke of the conditions of eligibility and the October 1962 deal with the price and the procedure of payment. By reading the two instructions together, it is clear that the latter instructions neither purported to be nor intended to be in supersession of earlier instructions". 13. By this petition, the petitioners seek to have the orders of the Revenue authorities declared to have been made without lawful authority and of no legal effect on the following grounds:-- (i)that the Collector's order, dated 14-5-1969 was made "without taking into consideration the directions of the Additional Commissioner contained in his order, dated 11-12-1962"; (ii) (iii) (iv) (v)Municipal Committee. On the Lahore side the area did not fall within the prescribed limits at the time of the Scheme. August, 1962 letter would not affect retrospectively nor would it affect the future cases. If the intention was to cover the future cases at any time the limits of the Town Committee could be extended by the Provincial Government thereby leaving no area in which proprietary rights could be given. In any case October 1962 letter does not impose any such condition under the Grow More Food Scheme.": (vi) that the petitioners could not be deprived of the land until due compensation was paid; (vii) that in making the order, dated 14-5-1969, the Collector "does not seem to have applied his own mind" to the facts of the case and "seems to have been influenced by a note of the Governor's Inspection Team"; and (viii)hat the Additional Commissioner was in error in assuming that the land had been resumed for a public purpose. 14. In the written statements contesting these petitions, it is stated that the petitioners had fabricated documents "showing a fake auction of the land in dispute". They prepared bogus and fictitious documents and fabricated the signatures of the Assistant Commissioner, Ferozewala, "and were prosecuted. It was further stated that in a meeting held " under Chairmanship of the
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Chief Secretary Punjab on 14th March, 1982, it was decided that land measuring 103 acres 1 kanal m Chak No.39 Union Council Ferozewala and the other adjoining land in village Dargai Gill shall be immediately transferred to the Forestry and Wild Life Department by the Board of Revenue for the purposes of setting up public park. The land reserved in Chak No.39 UCC includes the land which is the subject-matter of this writ petition and the connected writ petitions." Under the relevant Scheme, it was maintained, the petitioners' allotment was to be treated as mala fide, for "the petitioners are not genuine agriculturists but are big industrialists of Pakistan running the business of manufacture of National Electric Fans etc. The allotment was thus not genuine, the sole purpose of the petitioner was to grab State land for commercial purposes." The Deputy Commissioner's report dated 20-7-1966 was admitted "but its accuracy and the inference sought to be drawn by the petitioners, therefore, are not admitted." On facts it was stated that the land in question " is lying within five miles radius from the outer limits of Lahore Corporation situation within the prohibitory zones is to be seen with reference to the time when proprietary rights are conferred. The land in dispute is situate within the prohibited radius from the Lahore Municipal Corporation". 15. Some of these grounds can be dealt with shortly. It should be clear from what has been stated above that the Additional Commissioner's order, dated 11-12-1962 had some relation to instructions, whereby the Deputy Commissioners were directed to include all those lands whose leases had expired in 1961 in the auction schedules. As the question raised before the Additional Commissioner was that the petitioners were entitled to the…
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