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Petitioner: Muhammad Israfeel etc VS Respondent: The Province of Punjab etc
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title: Muhammad Israfeel etc vs The Province of Punjab etc Case No.: Writ Petition No.35693 of 2020 Date of Judgment:2020-08-13 Reported As: 2021 MLD 313, PLJ 2021 Lahore 1, 2020 LHC 1716 Result: Petition dismissed
Judgment ORDER Through this single order , I intend to decide the above titled writ petition along with connected Writ Petition Nos.35654, 35405, 35573, 35714, 35733, 35603, 35622, 35785, 35961, 35860 , 36001, 36002, 36003, 36004, 35999, 36000, 35502, 35525, 35490, 35491, 35492, 35495, 35498, 35499 of 2020 as common questions of law and facts are involved in all these writ petitions. 2. Through these writ petitions, the petitioners have challenged the vires of Notification No.2106- 2019/753-CL(I) dated 13.09.2019 issued by the Colonies Department, Government of the Punjab being illegal, void, without jurisdiction, corum non-judice and unconstitutional. 3. Brief facts of the instant writ petitions are that all the writ petitioners are/were lessees over the respective chunks of the state land as given in the writ petitions. The leases were renewed by the Government of Punjab/Board of Revenue, through statement of conditions. Government of Punjab promulgated fresh policy bearing No.2106- 2019/753-CL(I) on 13.09.2019 whereby it has been decided that all the State agricultural lands situated in Prohibited Zone, Municipal Limits or State Charagah land be leased out for temporary cultivation through unrestricted public auction for a term of three years. In all these petitions the vires of the Policy dated 13.09.2019 as well as the issuance of proclamation of auction of said lands has been called in question. 4. I have heard the arguments of the learned counsels for the petitioners as well as the learned law officer and gone through the record with their able assistance. 5. Admittedly , suit land is state agricultural land situated within the prohibited zone or municipal limits and state Charagah land which was allegedly allotted to the petitioners on lease under Temporary Cultivation Scheme, 1978 and last extension was granted in terms of Notification dated 13.09.2019 (under challenge) till 30.06.2020. The Government of Punjab while invoking the powers under Section 10 (2) of the Colonization of Government Land
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(Punjab) Act, 1912 (hereinafter called as the "Act") issues statements of conditions/policies for the lease of state land. For ready reference, section 10 of Act ibid is reproduced as under:- "10. Issue of statements of conditions of tenancies.- (1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of Board of Revenue, allot land to any person, to be held subject to such statement of conditions issued under sub-section (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector . After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." (emphasis supplied) Under the above provisions of the Act, Colonies Department, Government of the Punjab/Board of Revenue issued statements of conditions for the lease of the state land under Temporary Cultivation Scheme initially in the year 1944 whereafter from time to time issued notifications/statements of conditions/policies on different occasions for the lease of the state land. The subject matter of these writ petitions is to the extent of land situated within the prohibited zone or the state charagah land, as such, it is appropriate to reproduce the history of notifications issued under Section 10(2) of the Act ibid by the Colony Department, Board of Revenue and Government of the Punjab on different occasions in this regard as under:- (i) In the notification dated 07.02.1968, the state land was to be leased for a period of 5 years with certain exemptions. Relevant clause of the aforesaid notification is reproduced as under: 2. Period of tenancy (cultivated) . The state land already under cultivation including that leased out under Temporary Cultivation Conditions on yearly tender , shall, henceforth, be leased out for a period of 5 years; Provided that such state land situated 10 miles of the outer limits of a first class municipality , 5 miles of the limits of other municipalities/T own Committees/Cantonment Boards, one mile from a railwa y station and that earmarked as Charagah, shall be leased out for a period of 3 years; Provided further that the existing leases shall, however , be valid for their present terms and thereafter leases shall be given under the present Conditions. (emphasis supplied) According to Clause 4 of the aforesaid notification, the period of unit and tenancy of land is mentioned as under: 4. Period of unit and tenancy (uncultivated) . The un-cultivated Banjar Qadim State land which requires little effect for leveling etc., to be brought unde r plough and which has sweet sub-soil water or for which supply of canal water can be arranged immediately shall be leased out for a period not exceeding ten years, in lots ranging upto 50 acres, Provided that such falling within 10 miles of a first class municipality , 5 miles of the outer limits other municipalities/T own Committees/Cantonment Boards, or one mile of railway station or earmarked as Charagah, shall be leased out in lots not exceeding 25 acres each. (emphasis supplied) Clause 24 of the aforesaid notification emphases that no proprietary rights will be conferred on any lessee under any circumstances. The said clause is also reproduced as under: Peaceful Surrender . The lease shall terminate at the expiry of the period of lease and shall not be extended. No proprietary rights will be conferred on any lessee under any circumstances whatsoever . The lessee shall surrender the land peaceably to the Government at the expiry or sooner determination of the lease for breach of conditions, or for any other reason. (emphasis supplied)
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(ii) As per notification dated 24.04.1971, the land which is lying within the prohibited zone, is also excluded from grant of proprietary rights. Relevant clause of the aforesaid notification is reproduced as under: "2. Exceptions . The following categories of land shall not be leased out under these conditions:-- (a) land which lies within 10 miles of the outer limits of a Corporation, within five miles of the outer limits of a First Class Municipal Committee or within three miles of the outer limits of any other Municipal Committee/T own Committee. (b) Land which is already leased out for a fixed period, till the expiry of lease period or termination thereof which ever is earlier; (c) Land reserved as Charagah ; and (d) Land which has been reserved for sale, lease or allotment under any approved scheme. (emphasis supplied) (iii) The notification dated 12.06.1972 restricts from permanently disposing of land falling within the prohibited zone. Relevant portion of the aforesaid notification is reproduced as under: "There is state agricultural land situated within 10 miles of the outer limits of a Corporation, five miles of the outer limits of a first class Municipality and three miles of the outer limits of any other Municipal committees/town Committee. This area is at present on yearly lease for agricultural purposes. The tenure of these lease will expire after Rabi 1972. Such areas cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other ancillary urban requirements. These were deliberately excluded from various land disposal schemes introduced by Government for time to time." (emphasis supplied) (iv) According to Clause 2 of the notification dated 07.02.1980, the land situated within the prohibited zones or comprising charagahs was given on temporary leased for a period of two years as per following criteria: 2. As regards the State lands which are not covered under the afore-said Notificat ion and are still lying un-utilized as Baqaya Sarkar , it has been decided that the same should be disposed of in the following manner: (i) Such lands as are outside the prohibited zones other than Charagah be given on temporary cultivation lease by open auction for a period of five year in the lots not exceeding 12-1/2 acres per family to the landless tenants or self-cultivation owners who own less than four of land. (ii) Such lands as are situated within the prohibited zones or comprise Charagahs be given on temporary cultivation leases by open auction for a period of two years in the lots not exceeding 12-1/2 acres per family to the landless tenants or self-cultivating owners of less than four acres of land. As regards the existing lease of such lands expiring in Rabi, 1098 no further extension should be allowed and the land becoming so available be similarly disposed of by open auction after every two years. (emphasis supplied) (v) The policy notification dated 23.10.1986 Clause 2(a) whereof allows the leasing of the land lying within the prohibited zone or Charagah for a period of two years. Relevant portion of the aforesaid Clause is reproduced as under: "2. The Government of the Punjab has been pleased to lift the ban imposed on the leases of State land. Future disposal of State land will be as follows: (a) State agricultural land may continue to be leased out as before through restricted auction, open to landless or self-cultivating tenants owing land 4 acres or less. Lands situated in the prohibited zone or State Charagah land which is mainly meant for the extension of Abadi Deh or establishment of Government projects etc. may be leased out through restricted auction for a period of two years . For other State lands that already unde r plough will also be leased out for a maximum period of two years while in case of Banjar land the lease period may extend upto 5 years." (emphasis supplied) (vi) The notification dated 20.09.1993 allowed the leasing of the state land through auction situated in prohibited zone or Charagah for a period not exceeding two years. Relevant part of the said notification is reproduced as under:
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2. a) Agricultural state land, situated within Municipal limits, should be leased out in lots not exceeding 12-1/2 acres, for a period of two years through general open auction . Any agriculturist/Cultivator will be eligibl e to take part in auction proceedings. b) Agricultural State land situated within the prohibited zone may continue to be leased out as before, through restricted auction . c) ............ d) State land within the Prohibited zone, charagah and cultivated state land may be leased out for a period not exceeding two years which Banjar state land situated outside prohibited zone may be leased out for a period of 5 years . The land will be re-auctioned after the expiry of prescribed period. (emphasis supplied) (vii) The clause 2 of notification dated 24.06.1999 lays down a criteria for lease of land situated in prohibited zone or Charagah land. The same is defined as under: "2. The temporary Cultivation Lease Scheme was promulgated in the Province in 1993 vide this office circular memo under reference wherein it was laid down that all available agricultural state land should be leased out after carrying lots upto 12-1/2 acres. State land situated within Municipal limits is to be leased out through general open auction for a period of two years. The state land situated within prohibited zone, charagah and already cultivated land is to be leased out for a period of two years and Banjar state land situated outside the prohibited zone is to be leased out for a period of five years through restricted open auction to the landless tenants or self cultivating owners of less than four acres of land who are bonafide residents of the chak/villag e/revenue estate where the land is situated. (viii) The auction and re-auction of the lease of state land under Temporary Cultivate Lease Scheme was suspended vide notification dated 09.10.1999. Relevant portion of the aforesaid notification is reproduced as under: "To review the availability of state land in the Province, it has been decided to suspend the auctions and re- auctions of the state land under T emporary Cultivation Lease Scheme with immediate ef fect." (ix) Vide notification dated 09.06.2001, further extension of the lease of state land situated within municipal limits and/or state charagah land was not extended any further and possession of the land was ordered to be resumed after expiry of the lease. Relevant portion of the aforesaid notification is reproduced as under: 2. The Government of the Punjab in the Colonies Department has been pleased to decide that leases given under Temporary Cultivation Lease Schemes issued from time to time in respect of land situated within the municipal limits, prohibited zone, charagah and that reserved for permanent schemes/public purposes should not be extended after expiry of the existing lease period and the possession should be resumed forthwith. 3. It is further decided that all the state land of the categories mentioned in para 2 above which may be lying un- allotted or which may become available after expiry of the lease period, may henceforth be leased out in the following manner:- a) Agricultural state land situated within municipal limits, of the categories mentioned in para 2 above should be leased out in lots not exceeding 12-1/2 acrs for a period of two years through open auction . Any agriculturist/cultivator will be eligible to take part in auction proceedings. (emphasis supplied) (x) The above restrictions withdrew through notification dated 13.01.2010 and the lease of land situated within the prohibited zone was allowed on certain conditions. Relevant portion of the aforesaid notification is reproduced as under: "1). Selected agricultural state land, situated within prohibited zone/Municipal limits or Charagah land, may be leased out in lots not exceeding subsistence holding (i.e. half a square, or half a rectangle or 12-1/2 acres which- ever is more) for a period of one year through restricted auction..." (emphasis supplied) (xi) Through notification dated 11.05.2010, the lease period for land situated within the prohibited zone was extended upto 30.05.2010. Relevant portion of the aforesaid notification is reproduced as under:
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"2. I am directed by the Competent Autho rity to convey you that the times schedule for the following three schemes has been extended upto 30.05.2010.:- a) Allotment of state land under Temporary Cultivation Lease Scheme for one year situated within the Prohibited Zone and Charagah." (emphasis supplied) (xii) Under notification No.917-2013/932-C.L(I) dated 26.11.2013, selected agricultural land or charagah land situated within the prohibited zone was allowed to be leased out on certain conditions. Relevant portion of the aforesaid notification is reproduced as under: "1). Selected agricultural state land, situated within prohibited zone/Municipal Limits or Charagah land, may be leased out in lots not exceeding subsistence holding of 100-kanals for a period of one year through open auction..." (emphasis supplied) According to the Act as well as all above said notifications/policies made under Section 10(2) of the Act ibid on the subject issued by the Colonies Department, Government of the Punjab/Board of Revenue, Punjab a constant approach was/is followed throughout that land situated within the prohibited zone or state Charagah land can only be given on lease under Temporary Cultivation Lease Scheme only through auction for specific period and after lapse of stipulated lease period the lessee was/is duty bound to peacefully vacate/surrender the possession of land in favour of the state. Such areas/land cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other urban requirements. 6. It is pertinent to elaborate the salient characteristic of the Charagah Land as well as its expected objects and purposes of utilization as described in the policy of Charagah land dated 04.02.1998, relevant text whereof is reproduced as under:- "i). The Charagah land around the village abadis as also alongwith roads shall not be converted into State land and shall not be used for any purpose excep t with the prior permission of the Board of Revenue and that for a public purpose only. A recommendation in this behalf should invariably be initiated by the District Collector through the Commissioner of the relevant division." After scanning the policies on the subject for the grant of lease or proprietary rights, it clearly evinces that the Charagah land has expressly been exclud ed from any further allotment/grant. This principle is manifestly described in Notification dated 3rd September 1979 (under Temporary Cultivation Lease Scheme) and Notification dated 20th April, 1983 issued by Colonies Departme nt, Government of the Punjab. Further , the Colonies Department issued notification No.3215-79/3973-C II dated 3rd September , 1979 for grant of proprietary rights under Temporary Cultivation Lease Scheme. In Clause 2 of the aforementioned notification, the charagah land has been excluded from every grant which is reproduced as under:- 2. Exceptions and Reservations . Unless it is otherwise specifically provided, the following lands shall be deemed to have been expressly excluded from every grant under these conditions; (i) lands already allotted under permanent grants; (ii) lands reserved or earmarked but not yet allotted under permanent grants; (iii) charagahs ; (iv) lands lying within a belt of:-- (a) ten miles running along and on the outer side of outer limits of a Corporation; (b) five miles running along and on the outer side of the outer limits of a Municipality; (c) three miles running along and on the outer side of the outer limits of a Town Committee or a Mandi Town; (v) lands which are/may be reserved for any purpose. (emphasis supplied) Through another Notification No.1925-83 /1253-CLI dated 20th April, 1983 the Colonies Department, Govt. of the Punjab issued terms & conditions for the grant of proprietary rights in the state land given on temporary leases and also excluded the following state lands including Charagah from every grant. The relevant clause is as under:-
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Exceptions and Reservations. Unless it is otherwise specifically provided, the following categories of State Land shall be deemed to have been expressly excluded from every grant under these conditions; i) land already allotted under permanent grants; ii) lands already reserved or earmarked for permanent grants or for a public purpose; iii) reserved Charagah or Charagah Baqaya in Colony chaks; iv) lands lying within 10 (ten) miles of the outer limits of a Municipal Corporation, within 5 (five) miles of the outer limits of a Municipality or with 3 (three) miles of the outer limits of a Town Committee/Mandi Town; v) land lying within 5 (five) miles of the outer limits of a Cantonment Board area; vi) lands allotted or leased out under service grants viz, Lambardari grants, House/Mule Breeding tenancy , Livestock Breeding tenancy and River Action Scheme. (emphasis supplied) The subsequent Notification No.7402-86/374-CLI dated the 1st Feb, 1995 further clarified the term prohibited Zone mentioned in notification of 1979 and 1983 for the purpose of grant of proprietary rights and vide Notification No.1997-2001/1 174-CLI dated 9th July, 2001, the following lands has been excluded from every grant, Clause 3 is as under:- 3. Exceptions and Reservations . Unless it is otherwise specifically provided the following categories of state land shall be deemed to have been expressly excluded from every grant to be made under these conditions. 1. Land already reserved under any other scheme including permanent grants/schemes and service grants. 2. Reserved Charagah or Charagah Baqaya in colony Chaks; 3. Lands lying inside municipal limits and within prohibited zone which will be upto i). 10 (T en) miles beyond the outer limits of a Metropolitan/Municipal Corporation as existed on 1.1.2001. ii). 5 (Five) miles beyond the outer limits of a Municipal Committee as existed on 1.1.2001 iii). 3 (Three) miles beyond the outer limits of a Town Committee/Mandi Town as existed on 1.1.2001. (emphasis supplied) From the perusal of the afore quoted notifications as well as Clause-2 of notification dated 03.9.1979, it is abundantly clear that Charagah lands / state land have expressly been excluded from every grant/allotment, as such, its any alienation or grant of proprietary rights thereof are not in consonance with the policies. Further , from the perusal of aforementioned policies, it is very much clear that Charagah land cannot be converted into state land for its onward allotment against any sort of claim and the same shall not be used for any other alternative purpose except with the prior permission of the Board of Revenue and any change of character of the Charagah land was only subservient to any manifestly described wider scope of glorified "public purpose", which change of character / nature of the Charagah is only vested with the Board of Revenue who has to objectively ascertain the public purpose with the judicious application of mind by demonstrating all superior objectives of public purpose. Otherwise, its character cannot be modified as per policy on the subject. It is proved on record that the respondent-Government in order to save the state land situated within the prohibited zone/Charagah land is only empowered to grant leases for specific period and in the said notification it was specifically mentioned that if at any time the Government may require the said land for public purpose, the lessees will vacate the same. The notifications dated 04.04.2016 & 13.09.2019 were also issued on the same footing by Colonies Department, Government of Punjab/the Board of Revenue by invoking the jurisdiction under section 10(2) of the Act ibid. The notifications dated 04.04.2016 and 13.09.2019 are reproduced as under:- Phone No.99210799 No.922.2016/261-CL-I, Board of Revenue, Punjab, Lahore, dated 04.04.2016. To 1. All the Commissioners, in the Punjab. 2. All the District Collectors, in the Punjab. 3.Managing Director . Cholistan Development Authority , Bahawalpur . Subject: EXTENSION IN TIME LINE FOR PRO-POOR INITIA TIVE IN PUNJAB. (TEMPORAR Y CULTIVATION LEASE SCHEME)
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I am directed to refer to this office circular No. 2111-2013/757-CL-I dated 09.09.2013, on the subject captioned above. 2. The Government of the Punjab, Colonies Department issued two notifications No.222-2010/1 17-CL-l and No.224-2010/1 19-CL-l, dated 13.01.2010 for grant of state land for temporary cultivation on lease falling within and outside the prohibited zone and charagah. The said leases expired on 31.12.2015. 3. Now, the Government has decided to extend the lease period of the subject leases till 30.6.2016 on the existing terms and conditions. After this date, the said land will be resumed and existing the lessees will be allowed to reap their existing crops. The lessees will not cultivate the land beyond the cut-of f date. All the lots will then be put up to open auction and first right of refusal will be given to the existing lessees. 4. You are, therefore, requested to proceed further in the matter accordingly . Secretary (Colonies) Board of Revenue, Punjab. (emphasis supplied) GOVERNMENT OF THE PUNJAB LA W AND P ARLIAMENT ARY AFFAIRS DEP ARTMENT NOTIFICA TION (70 of 2019) 18 September , 2019 Notification No.2106-2019/753-CL(I), dated 13.09.2019, issued by Government of the Punjab, Colonies Department, Board of Revenue is hereby published in of ficial Gazette for general information: "GOVERNMENT OF THE PUNJAB COLONIES DEP ARTMENT Dated Lahore, the 13th September , 2019 NOTIFICA TION. No.2106-2019/753-CL(I). 1n exercise of the powers conferred under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912) and in supersession of Notifications No. 224-2010/1 17-CL-l, dated 13.01.2010 and No.917-2013/932-C.L(l), dated 26.11.2013, Governor of the Punjab is pleased to issue the following Statements of the Conditions for grant of leases of certain available State agricultural lands situated within prohibited zone, Municipal limits…
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