' This order will dispose of the above-cited appeal and revision directed against the order dated 20-10-1979 of Commissioner, Multan by which he allowed Khushi Muhammad respondent to exchange his horse breeding tenancy in Chak No, 46/2-L with the horse breeding tenancy resume in Chak No, 101/9-L, Tehsil and District Sahiwal.
2. Briefly, Khushi Muhammad respondent has been holding a horse breeding tenancy in Chak No, 46/2-L since 1966. He contended that most of the land comprised in his tenancy had been affected by water-logging and thus and accordingly applied to the District Collector, Sahiwal for its exchange with the horse breeding tenancy in Chak No, 101/9-L which had since been resumed from its allottee. The petitioners resisted the application on the ground that Chak No, 101/9-L was inhabited exclusively by Baloch tribe and as such they had a better claim to get the resumed tenancy. The District Collector after hearing both the parties refused to allow the exchange vide his order dated 28-7-1979 mainly on the grounds (a) that 67% of the area was still cultivable and (b) that there was no precedent where a horse breeding tenancy had been exchanged on account of land becoming deteriorated subsequently. Being aggrieved by this order the respondent filed an appeal before that Additional Commissioner who found that out of total tenancy of 200 kanals only 43 kanals were left cultivable as per report of the Superintending Engineer, Lower Bari Doab Canal, and also that in similar cases exchanges had been previously allowed to Saadat Ali in Chak No, 47/2-L and Raja Ameer Ahmad Khan in Chak No, 48/2-L. He therefore accepted the appeal and allowed the exchange of tenancy vide his order dated 28-10-1979. The present appeal and revision have been filed against this order.
3. I have heard the arguments on both sides and have also gone through the impugned order and other relevant record. The learned counsel for the respondent argued that there was no bar to the exchange of a horse breeding tenancy if the land had been subsequently affected by waterlogging and thur. In this connection the learned counsel referred me to Financial Commissioner's Memo. No, 2157-C dated the 10th July, 1944 whereby the policy instructions governing exchanges of land held by non-service grantees were also applied to exchanges of service grants (like the present grant) affected by water-logging, if the land had become incapable of satisfying the requirements for which it was granted. It will be observed that these instructions were subsequently superseded by Government memo. No, 8432-69/1076-CIV, dated 10th' October, 1970, wherein it had been decided that "in future no exchange of land on the ground of water-logging and thus should be sanctioned." In view of these prohibitory instructions the Additional Commissioner had no power to allow the exchange on the ground that the land comprised in the petitioner's tenancy was affected by water-logging and thur. The precedents- relied upon by the learned Additional Commissioner in his order dated 28-10-1979 are contrary to the express policy instructions of the Government and cannot be pressed into service.
4. In the result I would allow this appeal and revision, set aside the impugned order dated 28-10- 1979 of the Additional and restore that of the District Collector dated 28-7-1979 rejecting the respondent's request for the exchange of his horse breeding tenancy. The respondent should immediately shift to his previous tenancy in Chak No, 46/2-L and the resumed tenancy in Chak No, 101/9-L be disposed of after inviting fresh applications from eligible persons in accordance with the Horse Breeding Conditions.