' This revision petition under section 164 of the Land Revenue Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912 calls in question the order dated 6-5-1979 of Commissioner, Multan Division whereby he upheld, in appeal, the order dated 20-3-1979 of District Collector, Multan refusing to absolve the petitioner from his liability for the payment of land revenue on the land comprised in Allah Dad Cattle Farm in Chak No, 99-100/10-R Tehsil Khanewal, District Multan leased out to him for the purpose of cattle breeding for a period of 10 years with effect from Kharif 1974 and to allow him the refund of the sum of Rs, 60,027.90 already paid by him under protest.
2. The facts giving rise to this petition briefly are that Ch. Zafarullah Khan petitioner who was a lessee of Allah Dad Livestock Farm established on State land comprising 2,832 acres in Chak No, 99-100/10-R of Khanewal Tehsil of Multan District was hit by the provisions of Land Reforms Regulation, 1972 [M. L. R. 115], and he had to surrender for resumption 1,418 acres, 2 kanals and 15 marlas of land, being in excess of the permissible limit of 14,000 P I Us. After resumption the land reverted to Government in the Colonies Department of the Board of Revenue, Punjab, who decided vide letter dated 12-10-1974 that it should be re-allotted to the petitioner for a period of 10 years in terms of proviso to paragraph 19 of M. L. R.
115. Accordingly Notification No, 7714/75-7222-CLV dated 11-12-1975 containing the statement of conditions for the re-allotment of land was issued by the Colonies Department upon which the lease deed was executed on 31-1-1978 and registered on 7-2-1978, between the Provincial Government through District Collector, Multan of the one part and Ch. ZafaruIlah Khan petitioner of the other part. By means of this lease deed an area measuring 1,418 acres, 2 kanals and 15 marlas was leased out to the petitioner for a period of 10 years with effect from Kharif 1974 to Rabi 1984. In clause 9 of this lease deed the petitioner lessee was required to pay to Government annual rent, inter alia, at the rate of 2.5 times of the land revenue and ceases and other taxes including water rate as assessed along with land revenue of the land. Accordingly the petitioner started paying the rent as well as the land revenue and other cesses and taxes levied by the Government from time to time in terms of the aforesaid lease deed. Afterwards, the petitioner came to know that as a tenant he was li able to pay the rent only and not the land revenue of the land and therefore he moved an application to the District Collector/Deputy Land Commissioner, Multan, praying for the refund of the sum of Rs, 60,027.90 allegedly paid by him under protest. The District Collector, however, turned down the request vide order dated 15-7-1978. Aggrieved by this order, the petitioner filed a revision petition before the Chief Land Commissioner. This revision petition which was treated as a miscellaneous application was examined on the executive side and was consequently rejected by the order of Chief Land Commissioner communicated to the petitioner vide Punjab Land Commission Letter No, LSI-464/78/62-48-L C dated 30-10-1978. The petitioner challenged the legality and propriety of both these orders in a writ petition before High Court and accordingly the case was remitted on 19-2-1978 to the Chief Land Commissioner with the direction that the same should be decided afresh after affording an opportunity of hearing to the petitioner. The Chief Land Commissioner entrusted the case for disposal to the Additional Chief Land Commissioner, who sent it down to Deputy Commissioner, Deputy Land Commissioner, Multan on 3-1-1379 with the direction that further recovery of land revenue in respect of the land in question would not be made from the petitioner till the case finally decided. The District Collector reheard the case and decided vide his order dated 20-3-1979 that under section 74 of the Land Revenue Act, 1967 the liability for the payment of land revenue on the land is that of the 'landowner' who, according to clause (13) of section 4 of the said Act, includes, inter alia "any person in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate", and accordingly refused to accept the plea of the petitioner that he was not liable to pay the land revenue other than the rent for the land: The petitioner went up in appeal against this order before Commissioner, Multan who dismissed the same on 6-5-1979 with the observation that although the contention of the petitioner was reasonable and appealed to his mind, yet the use of words 'Land Revenue' in the statement of conditions was not redundant and it could be competently interpreted only by the Colonies Department of Board of Revenue who had framed these conditions. In revision the Additional Chief Land Commissioner also held the view that it was only the Colonies Department of the Board of Revenue who was competent to adjust upon the matter ,and he therefore dismissed the revision petition for lack of jurisdiction and being incompetent, vide his order dated 28-6-1979.
3. Having thus failed to achieve his object, the petitioner has now come to invoke the revisional jurisdiction of his Court as a Member, Board of Revenue (Colonies), under section 164 of the Land Revenue Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912, pleading that as the impugned orders dated 20-3-1979 and dated 6-5-1979 were passed respectively by the Deputy Commissioner and Commissioner not only in their capacity as Deputy Land Commissioner and Land Commissioner but also in exercise of the powers vested in them as District Collector and Commissioner under the Colonization of Government Lands (Punjab) Act, 1912, therefore, this Court has full jurisdiction to hear and dispose of this revision petition.
4. Mr. M. Saleem Zeervi, Advocate for the petitioner has assailed, with great vehemence, the provisions of clause 9 of the Statement of Conditions contained in the Lease Deed dated 31-1-1978 whereby the petitioner lessee was required to pay to Government annual rent, inter alia, at the rate of 2.5 times the land revenue and cesses and other taxes including water rate alongwith land revenue of the land. The learned counsel submitted that under section 74 of the Land Revenue Act, 1967, the liability for the payment of land revenue on the land is that of the landowner and not that of the tenant who having been excluded from the definition of 'landowner' is required to pay rent for the land only to the landowner in terms of clause (26) ibid. The learned counsel further submitted that the Provincial Government have been issuing various Schemes from time to time under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 for the grant of leases of State land but in none of the Statement of Conditions applicable to such schemes, it has been provided that a lessee/tenant shall pay rent and also cesses and other taxes alongwith usual land revenue of the land. Reference in this connection was also invited to paragraph 410 of the Colony Manual wherein it has been laid down that "Land Revenue could be paid only by the owners of the land and not by tenants -; what tenants of Government paid was actually rent of which, however, for statistical and accounts purposes, a portion might be deemed to be land revenue, and the remainder what has always been known as Malkana." It was also pointed out that the petitioner was an old allottee of this land who, prior to its resumption . Under M. L. R. 115, used to pay rent at the rate of one time the land revenue and in addition thereto no land revenue was payable by him. The learned counsel, therefore argued that the statement of conditions as contained in the Lease Deed dated 31-1-1978, moreso clause (9) thereof creating liability for the payment of land revenue in addition to rent for the land and also cesses and other taxes, might be appropriately amended so as to conform it to the general rule laid down in paragraph 410 of the Colony Manual and also to remove its conflict with other Statements of Conditions issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912.
5. Thus, from the arguments so addressed and from the contentions raised before the authorities who have been dealing with this case, from time to time, the questions that emerge for determination are-
(a) whether a lessee/tenant of Government land is a 'tenant' within the meaning of clause (26) of section 4 of the Land Revenue Act, 1967, having no liability for the payment of land revenue other than rent for the land payable by him to the landowner;
(b) if answer to (a) above is in negative then whether the lessee/ tenant of the Government has likewise no liability for the payment of land revenue other than rent for-- Land payable by him to Government in terms of paragraph 410 of the colony Manual;
(c) whether statement of conditions as contained in the Lease Deed dated 31-1-1978 has been issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. If not so, with what effect;
(d) whether clause (9) of the Lease Deed dated 31-1-1978 creating liability of the petitioner for the payment of land revenue in addition to rent for the land and also cesses and other taxes, does, in any manner, conflict with the provisions of paragraph 410 of Colony Manual and also with other Statements of Conditions issued under section 10 of Punjab Act V of 1912.
6. Adverting to the first question, it will be observed that a lessee/tenant of Government land has been defined under section 3 of the Colonization of Government Lands (Punjab) Act, 1912 to mean "a person holding land in a colony as a tenant of Government" and is quite different from a tenant of proprietary land as defined under clause (26) of section 4 of the Land Revenue Act, 1967 to mean "a person who holds land under another person and is, or but, for a special contract would be, liable to pay rent for that land to that other person". The definition of Tenant as given in the Land Revenue Act, 1967 has been imported, with a little modification, from the Punjab Tenancy Act, 1887 and is not applicable to a tenant of Government in view of section 6 of the Colonization of Government Lands' (Punjab) Act, 1912, which specifically excludes the applicability of all tenancy laws for the time being in force to the tenancies under this Act. Again, section 7 of this Act provides that where the provisions of the Land Revenue Act, 1967 and the Puiijab Tenancy Act, 1887 are applicable to the proceedings taken under this Act (i. e. Act V of 1912), the same shall be subject to the provisions of this Act and nothing in the said Acts" shall be so construed as to vary or invalidate any conditions entered in any statement of conditions issued by the Provincial Government. It, therefore, follows that meaning assigned to term 'tenant' in the Colonization of Government Lands (Punjab) Act, 1912 will remai unaffected notwithstanding any different meaning having been assigned to the same term in the Land Revenue Act, 1967 and Punjab Tenancy Act, B 1887. Thus a 'tenant' as defined in the Colonization of Government Lands Act, will always be governed by the provisions of that Act and such statement of conditions as may be applicable to his tenancy. If he commits a breach or non-observance of such conditions, his tenancy be liable for resumption and he can be ejected from the land in accordance with the terms and conditions of his tenancy as against the `tenant' of proprietary land, who cannot be so ejected from the land unless it is established in the revenue Court that he has violated one of the conditions laid down in para. 25 of the Land Reforms Regulation, 1972 [M. L. R. 115]. In any case the controversy has now been finally set at rest by clause (12) of section 2 of the Land Reforms Act, 1977 according to which" 'tenant' does not include "a person holding State land in any manner and for any purpose".
7. This will leave no room for argument that lessee/tenant of Government is same as tenant of proprietary land who being excluded from the definition of 'landowner' under clause (13) of section 4 of the Land Revenue Act, has no liability for the payment of land revenue other than rent payable by him for the land to 'land owner'. In other words a lessee/ tenant of Government being a person other than tenant of proprietary land falls within the definition of 'landowner' as given under clause
(13) of section 4 of the Land Revenue Act, 1967, that is:- " 'land owner' includes a person to whom a holding has been transferred or an estate or holding has been let in farm, under this Act, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, and any other person who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate, but does not include a tenant."
In this context a lessee/tenant of Government land is a person in possession of an estate or a portion thereof or in the enjoyment of any portion the profits of an estate and therefore a 'landowner' having full for the payment of land revenue on such estate, under section 74 of the Land Revenue Act.
8. The next question arises from the argument that even if the lessee/tenant of Government is considered to be not at par with the tenant of proprietary land, he can still claim immunity from the liability for the payment of land revenue for the land comprising his tenancy in view of paragraph 410 of the Punjab Colony Manual (1933 Edition). This paragraph which embodied the policy decision conveyed in Punjab Government Letter No, 2919/21-R, dated the 28th October, 1930 reads as under :- "Para. 410.-All these assessm ents, it is interesting to note, have been specifically described as assessm ents of Land Revenue. It was not until recent years that it was pointed out, that on a strict legal interpretation, Land Revenue could be paid only by owners of land and not by tenants; what tenants of Government paid was actually rent, of which, however, for statistical and accounts purposes, a portion might be deemed to be Land Revenue, and the remainder what has always been known as malkana. An order of the Governor-in-Council was, therefore, issued (Punjab Government Letter No, 2919-21-R, dated 28th October 1930) laying down the principles which should be observed in future in the assessme nt of all land to which the Colonization Act has been applied and which have not hitherto been assessed to Land Revenue. These are :
(1) Where proprietary rights are transferred by sale or grant, a special assessment under section 59 of the Land Revenue Act should be made by the Collector, such assessment to be reported to the Financial Commissioner for confirmation. When the Settlement Officer has given in his assessment reports, clear indication of the revenue which he considered suitable for such lands, his views should be adopted, except where for special reasons the Collector considers that a different assessm ent is desirable. When there is no recommendation in assessment reports, the land sold or granted should be assessed at the rate of land revenue prevailing in the estate in which the land is situated; if there is more than one rate (i. e., more than one class of land in the estate) the Collector should decide in which class the newly-sold or granted land falls and assess it accordingly.
(2) In the case of grants or leases of land on tenancy conditions, the portion of rent which may be considered as land revenue for the purpose of determining the amount of rates and cesses payable by the tenant should be determined on the same principles."
9. This policy decision, as would appear, was based on the view that land revenue could not be assessed on State land granted or leased out on tenancy conditions, and that the tenant could be charged rent only on the land so held by him. This view was later on modified and, new policy instructions were issued vide Punjab Government Letter No, 235-S., dated the 27th February 1940, superseding the previous instructions conveyed in Letter No, 2919/21-R, dated the 28th October, 1930 as referred in paragraph 410. These instructions are reproduced in extenso as under:- ' From ' B. R. Tandan, Esquire, Barrister-at-Law, I. C. S., Deputy ' Secretary to Government, Punjab, Revenue Department.
' To ' The Commissioner,
(1) Lahore Division.
(2) Rawalpindi Division.
(3) Multan Division.
' Subject : Special assessm ent to land revenue of Crown waste to be granted or leased on tenancy conditions.
' Sir, ' I am directed to invite a reference to Punjab Government letter ' Nos. (1) 2920-R,
(2) 2919-R,
(3) 2921-R, ' dated the 28th October 1930, in which certain instructions were conveyed to you in regard to the assessm ent of Crown lands to be sold, granted or leased. The instructions conveyed in paragraph 1, clause (ii), of that letter were based on the view that land revenue could not be assessed on Crown land granted or leased on tenancy conditions, and that the tenant could only be charged rent on the land so held by him. The matter has been reconsidered by Government who are now advised that land revenue can be assessed by means of a special assessment under section 59 (1)
(b) of the Land Revenue Act on Crown waste leased or granted on tenancy conditions. In certain colony areas Crown lands have been classified during the course of general reassessment and the appropriate rates of land revenue to be charged, if and when the land is allotted or leased, have been placed on record. Where this is not the case, a special assessment to land revenue of such lands can be made under section 59 of the Punjab Land Revenue Act above-cited, which would remove all doubts regarding the assessment of cesses. (2) The Punjab Government have decided therefore that whenever Crown land is to be leased out or granted on tenancy conditions, the Deputy Commissioner or other Officer in charge of the area should ascertain whether the land has already been assessed to land revenue during the general reassessment of the district or by any other order of competent authority. If the land has not been so assessed, he could submit proposals for its special assessm ent under section 59 of the said Act, for the orders of the Financial Commissioner. Having ascertained the land revenue chargeable, the tenant should be required to enter into contract to pay the assessment on behalf of the owner, i. e. Government unless there may be any orders to the contrary in any individual case. If the tenancy is one under the Colonization of Government Lands (Punjab) Act, 1912, such payment can be recovered as arrears of land revenue.
(3) The above orders regarding the payment of land revenue by the tenant on behalf of the Government shall come into force with effect from Kharif 1940. Tenants, who under the terms of their present grants or leases are required to pay the rent of land only and no land revenue, should not be called upon, during the currency of these grants or leases, to pay land revenue in addition to the rent charged from them, though for the purposes of cesses the land should be assessed to land revenue.
(4) I am to add that land revenue should not be charged in addition to the rent tendered from the lessees of temporary cultivation leases in the canal colonies granted by inviting tenders and after the execution of lease deeds prescribed in Punjab Government Notification No, 414-C, dated the 30th January 1940.
(5) I am also to inform you that in pursuance of the policy in paragraphs I and 2 above, all Crown waste on the Pirmahal, Khikha and Burala Extensions of the Lower Chenab Colony in the Lyallpur District has been recently classified by the Settlement Officer, Lyalipur, according to the various classes or revenue rates chargeable vide paragraph 16 ot Mr. Kirpalani's assessment report of the Extensions Circle of Toba Tek Singh Tehsil of that District. Similarly all Crown waste in the Nili Bar Colony has been specially assessed to land revenue vide paragraphs 3 and 5 of Punjab Government Letter No, 1235-R (S), dated the 4th October 1926. In these and other similar areas all that is necessary is to enter the appropriate rate of land revenue in the lease deed and to provide in the deed itself that the tenant will pay that assessment, together with rates and cesses and other charges lawfully leviable on behalf of Government. Where assessment has not already been made, the officer-in-charge of the area should frame assessment proposals in accordance with the instructions in paragraph 1 (i) of Punjab Government Letter No, 2919/21-R, dated the 28th October 1930 and submit them for the sanction of the Financial Commissioner.
' I have the honour to be. Sir, ' Your most obedient servant, (Sd.)
' Deputy Secretary, Revenue.
10. According to these instructions any State land which is to be leased out or granted on tenancy conditions has first to be assessed to land revenue, if not already so assessed by making a special assessm ent under section 59 of the Land Revenue Act, 1887 (the corresponding section of the 1967 Act is 70) and after having ascertained the land revenue chargeable on such land the tenant is to be required to enter into contract to pay the assessment on behalf of the owner i. e. Government unless there may be any orders to the contrary in any individual case. If the tenancy is one under the Colonization of Government Lands (Punjab) Act, 1912, such payment can be recovered as arrears of land revenue. The decision contained in these instructions was based on legal interpretation of section 48 (the corresponding section of the 1967 Act is 50, according to which "all land, to whatever purpose applied and wherever situate, is liable to the payment of land-revenue to Government". Thus, in view of this policy decision issued in accordance with section 48 of the Land Revenue Act, paragraph 410 of the Punjab Colony Manua stands repealed pro tanto and can no longer hold the field. Moreover, as it would appear from the note given on its title page the Punjab Colony Manual (1933 Edition, has) been complied under the orders of Government for administrative convenience and is not authoritative; therefore it cannot override any policy decision taken by the Government in pursuance of F any statutory provisions of law or any statement of conditions issued by it in exercise of its powers under the Colonization of Government Lands (Punjab) Act, 1912 or under any other law for the time being in force.
11. The next question to be determined is whether the statement of conditions as contained in the Lease Deed dated 31-1-1978 has been 'issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 or under any other law and with what effect. In this connection it may be mentioned that the land in question is the property of Government and had been on lease with the petitioner under Cattle Breeding Scheme. After resumption under M. L. R. 115, the land reverted to and vested in the Provincial Government in the Colonies Department of Board of Revenue for disposal in such manner as it deems fit, under para. 19 of the Land Reforms Regulation, 1972. As, however, the provisions of Colonization of Government Lands (Punjab) Act, 1912 had been applied to this land by virtue of Punjab Government Notification No, 90-Rev-Agr-Irrg. Dated the 2nd June, 1913 issued under section 4, therefore the power was also available to the Provincial Government for the disposal of this land in accordance with the provisions of the said Act. Nevertheless, the Government in the Colonies Department chose to invoke its powers under para. 19 of the Land Regulation, 1972 (M. L. R. 115) and accordingly issued a statement of conditions for leasing out the land in question to the petitioner ride Notification No, 7714-75/6222-CLV dated 11-12-1975. This statement of conditions which later on form the basis of Lease Deed dated 31-1-1978 included, among others, clause (9) whereby the liability of the petitioner for the payment of land revenue in addition to rent and other cesses and taxes for the land was specified in G most unequivocal terms. Such statement of conditions issued by the Government whether in exercise of its powers under para. 19 of the Land Reforms Regulation, 1972 or under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, shall, in view of section 3 of the Government Grants Act, 1895 (Act XV of 1895) be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding".
12. Here it may also be pointed out that according to distribution of business among various Departments Government as shown in Schedrile II of the Rules of Business, 1974 and allocation of subjects amongst Members, Board of Revenue in terms .Of section 6 of the West Pakistan Board of Revenue Act, 1957, the responsibility for the disposal and management of all State land in colonies and any other land elsewhere vesting in Government is that of the Colonies Department of the Board of Revenue; therefore it was that Department alone who could competently issue statement of conditions on which it was willing to grant such land.
13. In this view of the matter no objection, whatever, is sustainable against the legality or propriety of clause (9) of statement of conditions as contained in the Lease Deed dated 31-1-1978 on the plea that while creating the liability of the petitioner therein for the payment of the land revenue in addition to rent etc. For land, the guiding principles as laid down in para. 410 of the Punjab Colony Manual and the pattern set out in other statements of conditions issued from time to time under section 10 of the Colonization Act, 1912 have not been strictly followed. The Government has absolute powers both under para. 19 of the Land Reforms Regulation, 1972 as well as under section 10 of the Colonization Act to grant State land to any person in such manner and on such terms, and conditions as it thinks fit.
14. Thus, in view of what has been stated above it becomes abundantly clear that the petitioner as a lessee/tenant of Government is bound by the conditions applicable to his tenancy and therefore he cannot be allowed to deny his liability, fixed under these conditions, for the payment of land revenue, on the plea that such liability was exclusively that of `landowner' and that as a 'tenant' what he was required to pay to Government was rent for the land only.
15. In the result this revision petition fails and is accordingly rejected, with no order as' to costs.