' MUHAMMAD KHALID MEHMOOD KHAN, J.---One Ghulam Muhammad son of Fateh Muhammad Predecessor-in-interest of the petitioners was conferred proprietary rights of land measuring 318 Kanal under the Government Punjab Policy 1986, a Conveyance deed was registered in their favour on 26-2-1989. The respondent Revenue Official attempted to review order of conferment of proprietary rights but was declined by the Deputy Commissioner/Collector. One Allah Ditta filed an application and petitioners' case was referred to Deputy Commissioner who vide order dated granted the permission for reviewing the conferment of proprietary rights vide order dated 19-10- 1993 and consequent upon the conveyance deed was cancelled. The petitioner challenged the order through Writ Petition No,43-R/93, this court while deciding the said petition held on 27-3-2001 that order dated 19-10-1993 will remain in abeyance till the final resolution of dispute by the Board of Revenue. The Member Board of Revenue vide order dated 3-9-2005 upheld the order dated 19- 10-1993 and issued show-cause notice to petitioner under section 32 of the Colonization Government (Lands) 1912. The petitioners challenged notice through Writ Petition, the Petition was disposed by this court on 13-10-2004 directing to approach the Deputy Commissioner/Collector with reference to Show-Cause Notice. The petitioner challenged the order through an appeal before the Hon'ble Supreme Court of Pakistan which was finally withdrawn and honourable Supreme Court of Pakistan dismissed the same vide order dated 26-6-2009, The petitioner filed the application in terms of orders of the Supreme Court of Pakistan, the said application was dismissed and all efforts of petitioners proved unsuccessful.
2. Notices were issued to respondents who filed the report and/parawise comments and all documents pertaining to dispute between the parties, they asserted that under Notification dated 28-5-1995, the petitioners were not eligible for the following reasons;
(A) The land in dispute is situated in the Prohibited Zone.
(B) The petitioners never paid the rent of the alleged leased land.
(C) The petitioners predecessor has failed to deposit half of the rent of leased land.
(D) The lease was never renewed from one settlement to other settlement.
(E) The petitioners under the lease deed was to dig well in the land with in three years from the date of grant of lease which they failed to dig, nor they have cultivated the 100% land in terms of lease deed.
(F) The petitioners have sublet the portion of land in violation of the lease deed.
(G) It was further asserted that out of resumed land measuring 777 Kanal 14 Marla has already been transferred to Government Employees Housing Foundation, and another project of Danish School System is being established on the resumed land, other projects of public interest are planned to be constructed on the resumed land.
(H) The petitioners lease stand expired in 1990 and after that petitioners are in illegal possession of land in dispute, the respondents opposed the petitioners claim.
3. The Government Employees Housing Foundation filed an application under Order 1 Rule 10 for becoming party to the petition.
4. The District Bar Association Dera Ghazi Khan appeared and claimed that respondents have agreed to transfer land measuring 471 Kanal, 19 Marla of the resumed land to them for establishing the Lawyers Housing Colony. The respondents accepted their claim but petitioners opposed the same. However the petitioners finally consented the claim of Dera Ghazi Khan Bar Association. On 11-10-2010, the respondent Tehsildar/Niab Tehsildar along with DCO were directed to demarcate the land claimed by the Bar Association without demolishing and construction .If available, on the site and restraining order to that extent was vacated, the Committee in presence of the parties visited the site and demarcated the land and handed over possession of vacant land to Bar Associatibn Dera Ghazi Khan on 12-10-2010.
5. Learned Counsel for the petitioner submits that impugned order is not a speaking order and is against the facts available on record. The land measuring 777 Kanal allegedly allotted to Government Employees. Housing Foundation was withdrawn vide order dated 27-11-2004 and as such the entire land is available for transfer of petitioners. He submits that leased land was waste land and the petitioners have developed same and invested huge amounts in this behalf, hence the resumption of land is illegal and without jurisdiction. The land was leased out to their predecessor-in-interest against their services rendered to crown and as such it could not be resumed being against consideration, The lease was under settlement to settlement basis and up to 1999 the land continued to be renewed. He submits that after the issuance of Notification dated 28-5-1995 the condition of renewal become ineffective. The petitioners rights are covered under section 11 of the Colonization of Land Act, 1912. Adds that petitioners are in un disputed possession of land since 1908, they have fulfilled all the terms and conditions and as such their application for transfer of proprietary rights have wrongly been dismissed. He further submits that once a conveyance deed is executed .And in the absence of allegation of fraud the same could not cancelled by the respondent. He submits that respondent No,1 has not considered the petitioners case in its true letter and spirit. The petitioner is the bona filed purchaser of the proprietary rights in the land and as such these could not be withdrawn and cancelled. Learned Counsel alternatively argued that If this honourable Court come to conclusion that Conveyance deed in their favour was rightly cancelled even then the petitioners are entitled 100 Kanal of Land under Notification 28-5- 1995. The impugned orders are thus without jurisdiction.
6. Learned A.A.-G. Submits that Land in dispute is situated in the Prohibitory Zone and as such proprietary rights under Notification dated 28-5-1995 could not be granted to petitioners. He submits that out of resumed land measuring 471 Kanal, 19 Marla has already be allotted to District Bar Association Dera Ghazi Khan and its possession has already been handed over to them. Land measuring 777 Kanal has been transferred to Government Employees Housing Foundation, the respondents are establishing Danish School System on the resumed land and have also planned different projects of public interest and such resumed land is not available for transfer to petitioners. The land was leased to the predecessor of petitioners on settlement to settlement basis, the petitioners have not got renewed the lease and as such they have no rights in the land and their possession is of a trespassers and not more. The petitioners never paid the rent, nor their predecessor deposited half of the lease money, further the petitioners have also not paid any amount towards the payment of lease money. He further submits that Government has the power and authority to resume its land for public purpose. Lastly submits that petitioner are illegal occupants of land and as such no equitable relief could be granted to them. He supports the impugned orders. He adds that the petitioners have obtained proprietary rights by wrongly representing that they are occupancy tenants of the land in dispute and coming to know the true facts, the conveyance deed was rightly cancelled. He adds that conveyance deed in favour was an out come of fraud and as such it was rightly cancelled.
7. With the consent of parties the petition is being decided as pacca case as the parties have filed their respective admitted documents:
8. Heard and record perused.
9. It is an admitted fact between the parties that petitioners predecessor was leased out land measuring 318 Kanal vide conveyance deed dated 26-2-1989 admitting that they are occupancy tenants of land but coming to know about the misrepresentations and concealment of facts the deed was cancelled.
10. The petitioners were granted proprietary rights in the land admitting them as the occupancy tenants. Corning to know that petitioners are not the occupancy tenants the deed is the outcome of fraud and collusion and as such the same was cancelled. The argument of learned counsel that petitioners is the occupancy tenants is not borne out from any document rather it is established that petitioners are lessee without occupancy rights.
11. The question arose whether before cancellation of conveyance deed it was necessary that it should be declared fraudulent transaction. The record shows that petitioner were never been the holder of occupancy tenants, their predecessor was allotted land without occupancy rights and as such under the deed of conveyance it was agreed between the parties that in case any informations provided by the petitioner were found wrong the conveyance deed will be liable to cancelled. No doubt there is no allegation against the petitioners of fraud but the record shows that revenue officials wrongly submitted report in favour of petitioners declaring that they are occupancy tenants. This act of petitioner amounts to fraud and as such the respondents have rightly cancelled the conveyance deed. The petitioners never informed the respondent that their predecessor was holding the rights on settlement to settlement basis. The finding to this effect has become final when this court dismissed their Writ Petition No, 5496 of 2004 and held as under:-- "Having thus, examined the order, I do agree with the learned Member Board of Revenue that the petitioner cannot at all be termed as a occupancy tenant within the meaning of section 5 or 6 of the Punjab tenancy Act, 1887"
12. The said finding of this court was challenged through Civil Appeal No, 768 of 2006 which was finally withdrawn and honourable passed the following order:- "The learned counsel for the appellant seeks to withdraw the appeal as appellant contemplate making of an application for the grant of proprietary rights under the Policy Letter No,3393- 95/1854-CLV dated 28-5-1995 issued by the Government of Punjab, Colonies Department.
' In view of the matter, this appeal is dismissed as withdrawn. Let the appellant make an application to the District Officer Revenue, Dera Ghazi Khan, for the grant of proprietary rights under the scheme dated 28-5-1995 within two weeks which shall be decided on its merits and in accordance with law expeditiously with in period of one month, thereafter, as the matter had remained pending before various authorities and the courts since 1989."
13. The order of this court dated 13-10-2004 attained finality after dismissal of appeal by the honourable Supreme Court and as such the above argument is not available to the petitioner hence repelled.
14. The petitioner by making the statement before the Hon'ble Supreme Court of Pakistan waived his right to challenge the orders of cancellation of conveyance deed however the Hon'ble Supreme Court has permitted them to file an application under the Notification supra hence the petitioner case is restricted only to the extent of Notification date 28-5-1995.
15. It is not denied by the respondents that petitioners have applied under Notification supra.
16. The relevant clauses of Notification supra are reproduced as under:-- ' GRANT OF PROPRIETARY RIGHTS TO THE LESSEE/PATTEDARS/TENANTS OF THE STATE LAND IN THEIR POSSESSION FROM SETTLEMENT TO THE NEXT SETTLEMENT.
' General
(a) The Government is prepared to grant proprietary rights in the States land to those lessees/pattadars who fulfil these conditions: ' Provided that no lessee shall be entitled as of right to the purchase of proprietary rights and the Board of Revenue retains its absolute discretion in the grant of such rights and selection grantees.
(3) ELIGIBILITY:--No person shall be eligible for the grant of proprietary rights under these conditions unless;
(i) he is either landless or owner of land less than subsistence holding of 100 Kanals and
(b) has been in continuous cultivating possession of the said land since before Kharif 1993.
(5) EXTENT AND SIZE OF GRANT: The grant of proprietary rights of State land under these conditions shall not exceed:-
(a) In the case of land lessee tenants/lessee land held him on pattedari/lease subject to maximum of 100 Kanals.
(b).
(c).
(d). (9)
(6) EXERCISE OF OPTION
(a) A lessee who is eligible for the grant of proprietary rights under these conditions shall exercise his option in writing for acquisition of proprietary rights in State land under his possession by or before 31-12-1995.
(b)
(c)
(d) .
(18) INTERPRETATION: For the purpose of this statement of conditions, unless there is some thing repugnant in the subject or context; (a)
(b) .
(c) .
(d) .
(e) Family means the lessee, his parents, children, husband, wife/wives and dependants, (adults/minors included)
(0 ..............................
(g) .
(h) Lessee means a person holding State land under settlement to settlement scheme and shall not be deemed to include any holder of power of attorney on behalf of the lessee;
17. The Prohibited Zone has been defined in the Notification dated 28-5-1995 in the following:- 2(d) land within 10(ten) miles of the outer limits of Municipal Corporation, 5 (five) miles of the outer limit of a Municipality or 3 (three) miles of the outer Limits of a Town Committee/ Mandi Town.
18. It is and admitted position that land in dispute is situated at 10/12 Kilo Meter from the Municipality of Dera Ghazi Khan and as such it is proved on record that land in dispute is not located in the Prohibitory Zone and the learned courts below have failed to appreciate this aspect of the case.
19. Admittedly Ghulam Muhammad was the lessee of land in dispute and it is also not disputed that petitioner are not their legal heirs/legal representatives of deceased lessees. The issuance of Notification supra is not disputed by the respondents, as it has been proved on record that land in dispute is not situated in the prohibited zone as per the Notification and as such it established that petitioners are entitled to take the benefit of Notification supra.
20, The Notification provides that eligible lessee is entitled for the transfer of 100 Kanal, the petitioners are admittedly the lessee of land and as such they are entitled for the grant of proprietary rights of 100 Kanal of land, the argument of learned counsel of petitioners is that all the legal heirs are entitled to grant of 100 Kanal of land independently being the lessee of the land. This argument of the learned counsel is devoid of any merit. The definition of Lessee is given in the Notification is as under:-- ' Lessee means a person holding State land under settlement to settlement scheme and shall not be deemed to include any holder of power of attorney on behalf of the lessee;
21. The above said definition of the iessee will show that lessee is a person only in his personal capacity. It is an admitted proposition of law that legal heirs of a person can inherit the estate of the person according to their share under Islamic law or the Fiqah applicable to them.
22. The word family is also defined in the Notification as under; ' Family means the lessee, his parents, children, husband, wife/wives and dependants, (adults/minors included).
23. The above said definition will show that all expected legal heirs of the lessee are included in the definition of family.
24. The conjunctive study of the above said two clauses show that under the Notification the Lessee alone entitled to be granted the proprietary rights of 100 Kanal of land but the legal heirs of lessee are not entitled of 100 Kanal of land individually.
25. The petitioners admittedly have not challenged the vires of the Notification and applied for grant of proprietary rights under the Notification admitting the same as valid legislation, hence this argument of petitioners is not tenable.
26. As the petitioners are entitled to 100 Kanal of land only out of 318 Kanal and such the other argument of learned A.A.-G. Are need to be considered, the surplus land is available to the respondent for establishing their projects like Danish School System and other projects, the land allotted to Government Employees Housing Foundation was withdrawn by the respondent vide letter dated 23-11-2004 and as such they are not the necessary party to the petition and as such their application is dismissed. The land measuring 471 Kanal and 19 Marla has already been transferred to Dera Ghazi Khan Bar Association and the possession of the same has been handed over to them hence transfer of land in their favour is affirmed as the respondents have admitted the said transfer.
27. The upshot of above discussion is that impugned orders are set aside to the extent of 100 Kanal of land under their possession as they are entitled for the grant of proprietary rights of 100 kanal of land as lessee as per Notification dated 28-5-1995.
28. The petition is allowed. There is no order as to costs.