' IRFAN ALI, MEMBER (JUDICIAL-VII).--- Through the present revision petitions, order of the Executive District Officer (Revenue), Sahiwal, dated 23.10.2009 has been assailed upon. Manzoor Ahmad in his appeal before the Executive District Officer (Revenue) took the plea that his predecessor Muhammad Bakhsh son of Gamoon was allotted 36k-Om land in Chak No,145/EB, Tehsil Arifwala, District Pakpattan under Ejected Tenants Scheme in the year 1957-58. After his death, the inheritance mutation was sanctioned in his name. Later on, the appellants were refused proprietary rights as this land came within 5 miles of the municipal limits of Arifwala. The District Collector, Sahiwal, vide his order dated 30-11-1992, ordered the resumption of the said land from the petitioneRs, However, the Additional Commissioner (Revenue), Multan Division, Multan vide his order dated 23-2-2000, directed that the petitioner be treated as tenant. The petitioner has also stated that the Board of Revenue, Punjab, on 1-6-1970 had directed that allottees of the scheme, who fall within 5 miles of urban area may not be dispossessed without giving them alternate land whereas the District Officer (Revenue) has not kept the above facts in mind and neither have they be given a chance to be heard while allotting this piece of land as Lambardari Grant to Muhammad Ashraf.
2. The petitioner Shaukat Ali, in his petition before the Executive District Officer (Revenue) has stated that the Lahore High Court, Multan Bench, in its order dated 12-6-1991, has directed that if the said land is within 5 miles of the Municipal Committee, Shaukat Ali etc. Must not be dispossessed unless they are given alternate land. Shaukat Ali etc. Had challenged the order of District Officer (Revenue), in which he had asked an opinion from the Advocate-General vis-a-vis Shaukat Ali's case.
3. Learned counsel for the respondents Muhammad Ashraf etc. Has submitted written arguments stating that area measuring 200-Kanals in Chak No,145/EB is a part of Lambardari schedule and that its basic allotment in 1953 to Muhammad Bakhsh son of Gamoon, Rehma son of Muhammad Bakhsh and Ruldu son of Phumman was illegal. He has stated that the said land was resumed by the Collector, Pakpattan on 17-6-1965 as it was in the prohibited zone. The allottees went to the Civil Court, Pakpattan, where it was decreed in their favour on 16-12-1966. The Government of the Punjab filed an appeal before the District Judge, Sahiwal, who set aside the decree of the civil court on 21- 10-1968. Muhammad Bakhsh, the predecessor of Manzoor Ahmad did not file an appeal against the orders of the District Judge, Sahiwal and hence the same attained finality against him but mutation in favour of the successors of Muhammad Bakhsh was done illegally on 20-10-1976.
4. The other two parties filed an appeal before the Lahore High Court who ordered on 20-6-1991 that the appellants would file an application before the District Collector within 30 days for alternate land and the District Collector would allot them with alternate land. They did not file an application before the District Collector and, therefore, cannot benefit from this order.
5. The District Collector resumed land in possession of Manzoor Ahmad on 30-12-1992 on the basis of District Judge's decision, dated 21-10-1968. They filed an appeal before the Additional Commissioner (Revenue), Multan Division, Multan, who, in his order dated 23-2-2000, held that the petitioners cannot get proprietary rights in this land, but he allowed them to continue as temporary lessees and declared that they would be bound to vacate the land if needed for any public purpose. The respondents have said that the Additional Commissioner had no right to hear the appeal, as the matter had been decided by the District Judge.
6. Rana Muhammad Ashraf, respondent No,1 submitted an application on 10-6-2006 for allotment of a Lambardari Grant, on which the Member (Colonies), Board of Revenue, Punjab asked for a report from the District Officer (Revenue) and after receipt of report, the District Officer (Revenue) was directed by the Member (Colonies), Board of Revenue, Punjab on 8-6-2006 that as the said land was a part of the Lambardari schedule, therefore, the District Officer (Revenue) may proceed in the light of Board of Revenue, Punjab's Notification dated 17-1-2006.
7. The District Officer (Revenue) requested for legal opinion from the Executive District Officer (Law), Pakpattan, who opined that the land allotted to Muhammad Bakhsh son of Gamoon can be resumed and allotted to Rana Muhammad Ashraf. Lambardar whereas in the land of Rehma son of Muhammad Bakhsh, legal advice may be sought from the Advocate-General, Punjab. In the light of this advice of the EDO(Law) and Board of Revenue, Punjab's directions, the District Officer (Revenue) resumed the land in possession of Manzoor Ahmad etc. And ordered for an advice from the Advocate-General, Punjab in land with Shaukat Ali etc. The allottees filed appeals with the Executive District Officer (Revenue), who in his order dated 23-10-2009 dismissed both the appeals.
8. The respondent has, in his written arguments stated that this land was a part of the permanent scheme of Lambardari and could not have been allotted in any new scheme. 100-kanals of land from this area, has already been resumed and allotted to Lambardar Talib Khan. The District Judge had given a final order in the presence of which, the Additional Commissioner had no right to give relief to the allottees. Manzoor Ahmad had concealed the fact of the District Judge's order in his appeal to the Additional Commissioner. The grant of the land to Rana Muhammad Ashraf is legal and should be maintained.
9. I have thoroughly examined the issue and all previous papeRs, It is clear from the record that the petitioners were allotted land under the Ejected Tenants Scheme, introduced in 1952 and later superseded by the Scheme of 1955. The petitioners were refused proprietary rights as the land allotted to them was within 5-miles radius of municipal limits. The District Judge, in his order, has held the Government's competency for resumption of land. The District Judge's orders in dismissing the suits of the respondents, are clear in their implications as he says "I am not convinced that the respondents were able to show that the order passed by the Collector refusing to sell the land in dispute in their favour and to resume this land suffered from any legal defect". The respondents in the said matter, except Manzoor Ahmad etc. Went to the High Court, which in its order dated 20-6- 1991, directed as under:--
(i) The appellants will make applications to the District Collector for the grant of proprietary rights within one month from today;
(ii) after considering the said applications, the Collector shall try to adjust the appellants against the lands which are in their possession, provided there is no legal impediment;
(iii) if it is not possible to adjust the appellants against the lands in their possession, then the respondents shall make all efforts to adjust the appellants against alternative lands in the same district and the Board of Revenue shall ensure providing alternate land in the relevant Division;
(iv) till such time i.e. The grant' of proprietary rights, after going through the necessary formalities, the possession of the appellants over the lands in dispute shall not be disturbed; and
(v) this agreement is a concession granted to the present appellants and would not be a precedent for otheRs, 10.. The orders of the District Judge dated 21-10-1968 and the High Court are clear. However, what is evident from the record is that the land was not resumed by the District Revenue authorities and the petitioners remained in possession long after when the Deputy Commissioner, Sahiwal, in his order, dated 30-11-1992 ordered for resumption of this land in favour of the State. This is a very important fact. The land was resumed on 30-11-1992 but this decision was not upheld by the Additional Commissioner, Multan Division, Multan, who allowed the petitioners Manzoor Ahmad etc. To continue as tenants. The implementation of the orders of the District Judge and the High Court was not carried out right after these decisions and hence a fresh order from the Deputy Commissioner, Sahiwal in 1992. In the intervening period, various instructions from the. Board of Revenue made it incumbent upon the Revenue authorities to follow them.
11. It is important to note that the Board of Revenue, Punjab issued various instructions from time to time regarding allotment of alternate land under Ejected Tenants/Grow More Food Schemes. In this behalf, paras 2 and 3 of the instructions contained in Notification dated 4-5-1988 are reproduced as under:--- "2. Allottees under Ejected Tenants Scheme or Grow More Food Scheme within the prohibited zone were asked to apply for alternate allotment by 30-6-1983, because no proprietary rights could be given in the prohibited zone. A number of such allottees have already obtained alternate allotments but quite a large number of them are still occupying the land originally allotted. Actually most of them have not even bothered to apply for alternate allotment within the time allowed.
3. As earlier stated no proprietary rights are to be given within. Municipal limits/prohibited zone.
Allottees under the 'two schemes can at best be treated as lessees under the Temporary Cultivation Scheme provided they have paid all Government dues and are eligible for such leases.
In order, therefore, to finalize this outstanding issue, it has been decided that:---
(a) The present occupants of State land situated within the urban limits or prohibited zone 'who were allotted such lands under the Ejected Tenants or Grow More Food Scheme and who had applied for alternate allotment by 30-6-1983 should be shifted subject to eligibility and availability of State land, outside the prohibited zone by 30-6-1989. If alternate land is offered but an allottee does not avail himself of the opportunity and continues to occupy the originally allotted land he will be treated as an unauthorized occupant and dispossessed accordingly. They will be charged market rent/Tawan for the period of unauthorized occupation from 1-7-1989 to the date of ejectment;
(b) Allottees, who cannot be provided with alternate land, will be considered as lessees under temporary cultivation scheme subject to eligibility. If such lands are required, for public purpose, these shall be got vacated by the Collector after observing due formalities and after permitting the regular lessee to harvest the standing crops' unless required immediately for a . Government project. In such a case reasonable compensation for the standing crops will be assessed, by the Collector and paid to the lessee by the acquiring agency. If rent etc. Is due from the lessee, it will be the first charge on the amount of compensation assessed.
12. In its instructions dated 15-10-1980, the Board of Revenue, Punjab has directed all Deputy Commissioners in the Punjab, as following'.---
3. You are, therefore, requested to call upon all such allottees, by written notices, to apply to the Collector before the 31st March, 1981, for the allotment of alternative land outside the prohibited zoned, failing which their existing tenancies within the prohibited zones, will be resumed without providing them any alternative State land else-where. Those who apply within the stipulated time should be given alternate allotments out of the baqia State land or the land that may lie surrendered or become available as a result of termination or resumption of temporary cultivation leases in terms of clause 13 of Government Notification No,3215-79/3973-CL-I1 dated the '3rd September, 1979. All such allotments should be finalized within a period of three months ending 30th June, 1981 under intimation to the Board of Revenue.
4. Where any allottee fails to apply for alternative land in response to the notice given to him under para 3 above, his tenancy in the prohibited zone may be resumed after hearing his objections, if any, in accordance with section 24 of the Colonization of Government Lands (Punjab) Act, 1912.
13. In the light of the above discussion, this court has reached the conclusion that before granting Lambardari Grant to Rana Muhammad Ashraf, in such a hasty manner, it was necessary for the District Officer (Revenue) and the Executive District Officer (Revenue) to examine the Board of Revenue, Punjab's instructions regarding the possibility of alternate land to allpttees. I agree that nobody can be given proprietary rights in the prohibited zone but the Board of Revenue, Punjab's directions starting from 1970 onwards are meant to accommodate the allottees, who fall within the prohibited zone. There were certain responsibilities on the allottees also. They had to abide by the 'conditions prescribed by the Board of Revenue in these instructions and apply for alternate land within the prescribed timeframe. The District authorities had also to issue notices to such allottees asking them to do the needful. It is quite evident that the land of the allottees was left in their possession and not finally resumed till 1992. The Board of Revenue, Punjab's instructions about alternate land were prior to 1992. The District Officer (Revenue) could not have resumed land belonging to Manzoor Ahmad without calling him and seeing whether Manzoor Ahmad has been given the opportunities as defined by the instruction mentioned above and whether he has availed of this opportunity within the prescribed time? The same is too for Shaukat Ali etc. They could not be and cannot be dispossessed without ascertaining whether they had been given an opportunity for alternate land and whether they had availed this opportunity or not? As the Government has not resumed land immediately after the order passed by the District Judge in 1968, the intent of the Government to resume land right after that judgment is doubtful. In subsequent orders, the Board of Revenue, Punjab has come up with various instructions for alternate land to such tenants, who fall within prohibited zone. For anybody to resume this land and dispossess the allottees, it was necessary that their case be examined in the light of the instructions, issued by the Board of Revenue, Punjab from time to time. That has not been done in these cases. As far as the impugned land, being a part of Lambardari schedule is concerned, such an objection was not raised from 1952 to 2006 while the allottees were given rights under various schemes. The petitioners were not declared illegal occupants at any stage on this ground and a Lambardari Grant is not a right preceding the rights of previous allottees.
14. I have also in looking at the order of the District Officer (Revenue), Pakpattan, dated 19-9-2006, seen a grave irregularity. Through this order, the District Officer (Revenue) resumed the land allotted previously to the petitioner Manzoor Ahmad and given it as Lambardari Grant to Rana Muhammad Ashraf. This is an order, in which the petitioners have not been given the opportunity to be heard but the serious irregularity lies in non-implementation of section 24 of the Colonization of Government Lands Act, 1912. No such procedure as laid down in section 24 ibid has been followed.
No reference to any procedures, as laid down in section 24 and 25 ibid is to be seen. This irregularity, in itself, is sufficient to set aside the said order of the District Officer (Revenue) and the order of the Executive District Officer (Revenue), in which the said court has failed to notice the same.
15. I feel that the case of the petitioners had to be seen in the light of the BOR's instructions from 1970 onwards. In dealing with that, the Revenue courts have failed to examine their issue in the light of these instructions and to give legal decisions citing these instructions and also considering the failures, if any, on the part of the petitioners and the Revenue authorities in implementing these instructions. The Lambardari Grant given to the respondents by dispossessing petitioners without considering their issues in the above light is unjustified and is not sustainable.
16. In view of the above discussion, the revision petitions are accepted, orders of the District Officer (Revenue), Pakpattan and Executive District Officer (Revenue), Sahiwal, dated 19-9-2006 and 23- 10-2009 are set aside and the matter is remanded to the Commissioner, Sahiwal Division, Sahiwal with the directions that the parties be called, petitioners' case be examined in the light of various instructions of the Board of Revenue, Punjab on the subject and the merit of the petitioners vis-a- vis these instructions be ascertained.
17. A copy of this order be sent to the Commissioner, Sahiwal Division, Sahiwal, for further necessary action.