Through this constitutional petition the petitioner has assailed the order dated 01.12.2009 passed by the Member Board of Revenue Punjab and order dated 27.3.2009 passed by the E.D.O (R) Nankana Sahib.
2. Briefly stated the facts of the case are that the petitioner being Lumberdar applied to the District Officer Revenue for allotment of land under Notification No, 81-2006/50-C(v) issued on 17.1.2006 as per his entitlement. The District Officer Nankana Sahib vide order dated 27.3.2009 allotted state land measuring 100 kanals comprised of Square No, 35, 74 situated in Chak No, 17-G.B Tehsil and District Nankana Sahib to petitioner under Lumberdari grant. The District Officer Revenue directed the Deputy District Officer Revenue Nankana Sahib to deliver the possession of the allotted land to the petitioner. The revenue staff field in compliance with the order of District Officer (R) delivered the possession of the allotted land to the petitioner and the fact of delivery of possession was recorded in Roznamcha Waqiati being Rupt No, 307. The petitioner after taking over the possession of land started cultivating the same as is evident from Khasra Girdawri issued on 12.2.2010. The Respondent No, 3 filed an application with the Respondent No, 2 claiming that the land allotted to the petitioner was leased out to him and he is in possession of the same. He has invested, a huge amount for its development and prayed that land may be leased out to him. He further submitted that a litigation between him and one Nazir Ahmad is pending disposal before the civil Court and the learned Civil Court has issued restraining order on 27.11.2002. The Respondent No, 3 further claimed that petitioner to whom the land has been allotted is not the resident of the said village and as such he is not entitled to the allotment of land out of his village under the Lumberdari grant scheme.
2-A. On the application of Respondent No, 2, the allotment of the petitioner was cancelled vide order dated 28.10.2009 holding that the petitioner is not entitled for the allotment of land out of his village under the notification dated 17.1.2006 and subsequently amended on 22.10.2007.
3. The petitioner assailed the said order through the revision petition before the Board of Revenue.
The Member Board of Revenue vide order dated 01.12.2009 dismissed the revision petition. Hence, this constitutional petition.
4. Notices were issued to the respondents who submitted their parawise comments and supported the impugned orders.
5. All the learned counsel requests that the writ petition may be decided as PACCA case on the basis of available record and as such this writ petition is being decided as PACCA case.
6. Learned counsel for the petitioner submits that petitioner being Lumberdar is entitled for allotment of land measuring 100 Kanals under a lumberdari grant scheme. The scheme provides that the Lumberdar appointed Under Rule 17(i) of the land Revenue rules shall be provided state land not exceeding to 121/2 acres provided land is available in Mouza/Chak where the Lumberdar is appointed. The said notification was further amended vide Amendment No, 1762-2007/1263C dated 22.10.2007 and under Clause-8-A the petitioner is entitled for the allotment of land even other village and as such the land was rightly allotted to him. The allotment is a right of Lumberdar which cannot be withdrawn once allotted. He further submits that the possession has been handed over to the petitioner, he has invested huge amounts and his crops are available on the land.
7. Learned counsel for Respondent No, 1, on whose application the land allotted to the petitioner was cancelled/withdrawn, submits that the land was leased to him under respondent's policy for five years. He is in possession of the land and is cultivating the same. The suit between Respondent No, 3 and one Nazir Ahmad and Govt. of Punjab is pending disposal before the learned civil Court.
He further submits that the Respondents No, 2 and 3 have no authority to declare him an unauthorized occupant of the land. When asked whether he assailed the order dated 28.10.2009, his answer was in negative. So the order against him attained finality and as such he is no more in the field.
8. Learned Assistant Advocate General submits that no doubt the notification has been amended but the amendment shows that the land allotted to the Lumberdar should be physically joining village/adjoining villages. He submits that the land allotted to the petitioner is not in the petitioner's village nor the suit land is in physically joining village/adjoining villages and as such the order passed by the learned Courts below are in accordance with law.
9. Heard. Record perused.
10. The Notification (policy) dated 17.1.2006 is read as under: "Clause-8 of the grant "Lumberdar appointed Under Rule 17 (1) of the Land Revenue Rules shall be provided state land not acceding 121/2 acres provided land is available in, Mouza/Chak where the Lumberdar is appointed."
10. The said notification was further amended vide Notification No, 1762-07/1263-C(v) dated 22.10.2007 and an amendment made in Clause-8 is read as under: "(a) In case estate land is not available in the village of Lumberdar he may be provided state land in physically joining village/adjoining villages.
It is an admitted fact between the parties that "petitioner is a Lumberdar and he is also entitled to 12 1/2 acres land under the Luberdari grant scheme. Allotment of said land to the petitioner is not disputed. The dispute is only that said land is not situated in the village of appointment of Lumberdar nor is situated in a physically joined village and the land is not in an adjoining village.
11. The idea for allotment of land to the Lumberdar shows that, Government wants to compensate the Lumberdar for the services which he is rendering to the Government free of costs. In revenue set-up the Lumberdar although is an important person but he is not on the pay role of the Government. The scheme was prepared for compensating the Lumberdar and it was firstly decided that land allotted should be in the village of the Lumberdar, but when the Government came to know that in most of the villages the state land is not available and the land was not allotted to Lumberdar he may refuse to act as Lumberdar and in the absence of Lumberdar in the village the interest of Government will be at stake. Keeping in view of the importance of Lumberdar, the Notification was amended vide amendment dated 20.10.2007 the following terms: "8-SIZE OF THE GRANT: The Lumberdar appointed under Rule 17(i) of the Land Revenue Rules shall be provided state land not exceeding to 12% acres, provided the land is available in the "Mauza"/"Chak" where the Lumberdar is appointed.
An amendment made in the policy vide Notification No, 17622007/1263-CV dated 22.10.2007 reads as under: Clause 8(a)
In case state land is not available in village of Lamberdar he may be provided state land in physically joining village/adjoining villages.
12. The amendment shows that after adding slash the word adjoining villages has been added. The word physically joining village/adjoining villages shows that in case the land is not available in the village of Lumberdar, he may be provided state land in village which is physically joining village with the village of Lumberdar and if the land is not available in physically joining village then it can be allotted in adjoining villages. The word adjoining villages has been inserted intentionally keeping in view of the fact that state land may not be available in the adjoining village. The Tehsil is an administrative unit under the District. The Tehsil is comprising of number of villages and the Tehsildar is the administrative head of a Tehsil. All sale, purchase of the land of a village is under the control and legal authority of Tehsil.
Learned Assistant Advocate General under instructions admits that the land allotted to petitioner situates in the village which is under the administrative control of the Tehsil.
13. The above said factual position shows that the word villages has been intentionally mentioned in the amended notification permitting the authorized officer to allot the land to the Lumberdar in any village but under one Tehsil if the land is not available is physically joined village the land can be allotted adjoining villages and not village. If this was not the intention of the author of the amended Notification there was no need to add the word /adjoining villages. The word villages denotes the bundle of villages, hence it is clear that land can be allotted in any village of Tehsil of Lumberdar provided the land is not available in the village of Lumberdar or in physically joining village or even adjoining village. If the intention of the author of the' Notification was that land can be allotted only in physically joining village/adjoining village, there was no need to mention the word "villages". The word villages denotes the longer scope of word village. It is an establish principle of interpretation of statute that interpretation should be constructive and not the destructive. If we construe the word adjoining villages in singular form the very purpose of grant of land to Lumberdar will fail. The purpose of the Notification/Scheme is to give incentive to Lumberdar to support the Government in managing the affairs of the land and to recover the Government fees and revenue etc. without any financial burden on Government's exchequer. It is no one case that land was available in the physically joining village or adjoining village but the case of respondent is that land allotted is situated far away from the village of Lumberdar.
14. In view of the above, in my humble view word villages has a large scope which denotes that the land could be allotted to the Lumberdar in any other village but should not be out of the administrative control of the Tehsil of Luniberdar. Hence, in these circumstances, I have no option except to declare the two impugned orders dated 27.3.2009 and 01.12.2009 illegal and without lawful authority. The result is that two impugned' orders are hereby set-aside and the allotment of land to the petitioner is declared in accordance with law.