ORDER SYED IFTIKHAR HUSSAIN SHAH, J.---Qamar-uz-Zaman, petitioner has assailed the legality of the orders dated 5-7-2010, 11-1-2011, 7-5-2011 passed by the learned Member Board of Revenue and the order dated 28-4-2009 passed by the Executive District Officer (Revenue), Sahiwal, through this writ petition.
2. Waryam son of Sadaullah wasAllottee of Square No.9 situated in Chak No. 69/4-R Tehsil and District Sahiwal under the Horse Breeding Scheme. Waryam died on 29-5-2007. According to the mutation of inheritance, following are the successors of the deceased breeder:--
(a) Mst. Slabat Bibi (widow) - died earlier. (1) Muhammad Aslam (son) - died earlier.
(a) Noor Bhari (daughter-in-law)
(i) Rizwan (grandson)
(ii) Nusrat Bibi (granddaughter)
(2) Ashraf Bibi (daughter).
(3) Faizan Bibi (daughter).
(4) Nusratt Bibi(daughter)..
3. The performance and track-record of the deceased breeder Waryam was satisfactory. Therefore, the District Remount Officer, Sahiwal called for legal heirs of the original allottee. Only Rizwanrespondent No.3 grandson of Waryam appeared before the District Remount Officer, Sahiwal who ultimately recommended- the name of Rizwan for allotment of the said land. Qamar-uzZaman, the present petitioner made a petition before the District Officer (Revenue) Sahiwal for allotment of the said land and the District Officer (Revenue), Sahiwal vide order dated 22-11-2008 allotted the land in question to the petitioner.
Rizwan respondent No.3 aggrieved by the said order, preferred an appeal before the Executive District Officer (Revenue) Sahiwal which was dismissed vide order dated 28-4-2009 with the observation that 10-acres of land out of the said square in one block be given to Rizwan for subsistence. The petitioner and Rizwan respondent No.3 challenged the legality of the order dated 28-4-2009 before the Member Board of Revenue through separate revision petitions. The learned. Member Board of Revenue accepted the revision petition of respondent No.3-Rizwan bearing No. 711 of 2009 while dismissed the revision petition filed by Qamar-uz-Zaman, the petitions bearing No. 278 of 2010 and directed the District Officer (Revenue) Sahiwal to allot the tenancy in question to Rizwan respondent No.3 which shall remain on superdari with his mother (Mst. Noor Bhari) till he attains the age of majority. The present petitioner filed Review Petition No. 278 of 2010 against the aforesaid order of Board of Revenue dated 5-7-2010 which was dismissed on 1-11-2011.
Thereafter the petitioner filed review petition before the Full Board, Board of Revenue, Punjab, Lahore which was dismissed vide order dated 7-5-2011. Hence the present writ petition.
4. Learned counsel for the petitioner has contended that respondent No.3 is minor and has got no experience to look-after the mare whereas the petitioner, who is brother of the original allottee, had got a lot of experience of looking after the mare and he had been doing so in the life time of the original allottee-Waryam. It is also contended that respondent No.3 being minor cannot enter into a contract with the government regarding the allotment of tenancy. It is also stated that the District Officer (Revenue), Sahiwal has passed a lawful and legal order dated 22-11-2008 which has been reversed by respondents Nos.1 and 2 erroneously. Learned counsel for the petitioner has relied upon in Abdul Baqi v. S. Abad Hussain (PLD 1960 WP (Rev.13), Sub-Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435), Muhammad Shafique v. Rashid Sultan (2002 YLR 2426) and Ghulam Muhammad v.
Member (Judicial) Board of Revenue (2006 YLR 45).
5. The learned counsel for respondent No.3 has contended that the petitioner being step-brother of the original allottee Waryam did not fall within the ambit of legal heirs of the deceased. The District Remount Officer has recommended the name of respondent No.3 for the allotment in question in accordance with the Policy of the Government contained in Memorandum. No. 868-C dated 19-2- 1952. The District Officer (Revenue) Sahiwal had ignored the recommendations of the District Remount Officer and has allotted the tenancy rights to the petitioner illegally. The orders passed by the learned Member Board of Revenue are in accordance with law and are liable to be maintained.
It was further contended that there is no bar for the allotment of the tenancy right in favour of a minor. Learned counsel for respondent No.3 has relied on Muhammad Ibrahim and 3 others v.
Moulvi Abdul Rehman's and 2 others (PLD 1986 Rev. 37) and Sub-Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435). The learned A.A.-G. Has also adopted the arguments of the learned counsel for respondent No.3 and has contended that the impugned orders of the Member Board of Revenue are in accordance with law.
6. Waryam was allotted the land situated in Square No.9 Chak No. 69/4-R Tehsil and District Sahiwal under the Horse Breeding Scheme. It has been mentioned in the Copy emorandum No. 868-C dated 19-2-1952 at in case of a tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant.
7. Qamar-uz-Zaman, the petitioner is not legal heirs of Waryam deceased and he is allegedly his step-brother whereas Rizwan respondent No.3 is grandson of Waryam and is the only male descendant of the family.
8. The statement of conditions of Remount Breeding Scheme was enforced vide No. 2838-C dated 1-7-1942 for Horse Breeding Scheme and Condition No. 24 of the Scheme has provided special conditions of Remount Breeding Tenants which is re_ produced-below: --
(a) No tenant shall have any right or title in the land allotted to him under these conditions or shall enter into possession of the same until he shall have produced a mare which is fit for breeding remount for the any and which has been approved by an officer of Government appointed for the purpose and braided by him. The tenant shall regularly braid from the mare, horses, and/or mules as the Superintendent shall from time to time direct utilizing only the service of a horse or donkey stallion' selected by the Superintendent.
(b) The tenant shall not sell or otherwise transfer the mare or any interest therein without the permission in writing of the Superintendent.
(c) The tenant shall not without the permission in writing of the Superintendent sell or otherwise transfer the progeny of the mare or any interest therein, except to Government until it has attained the age of 18 months.
(d) The tenant shall be bound to sell the progeny at any time before it has attained the age of 19 months to Government at such price as may be determined by the Superintendent within limits to be fixed by the Director-General, Army Remount Department, with the concurrence of the financial commissioner. If the progeny has attained the age of 18 months and has not been purchased by Government the tenant may dispose of it as he thinks fit. -(e) The tenant shall maintain and manage the mare and its progeny in such manner, and at such place, as shall be deemed satisfactory by the Superintendent and shall at any time when required to do so produce the mare and its progeny for the inspection of any officer of Government appointed to inspect brood mares and young stock in the colony at such places, as he may appoint.
(t) If any mare maintained by the tenant under the provisions and stipulations herein contained shall die or otherwise cease to be in his possession or be found or become incapable of bearing foals fit to become remounts for the any, the tenant shall within three months from the date of the happening of any such contingency produce another mare fit for breeding, remounts for the any to be approved, branded, maintained, utilized for breeding, managed, produced and in case of need replaced as herein provided in respect of the mare furnished on allotment; and the same rules shall apply throughout the duration of his tenancy to all mares maintained hereunder and their progeny.
(g) The tenant shall if so required subscribe to an insurance found for the replacement of mares at such rates and at such times as may be fixed by the Director-General Army Remount Department with the concurrence of the Financial Commissioner.
(h) The tenant shall if so required by the Superintendent permit the progeny to be hoof-branded.
Every colt shall be castrated before reaching the age of 18 months unless the Superintendent gives the tenant written permission to keep it entire.
9. From the bare reading of the above said conditions of the tenancy, it reveals that the land under the Scheme has only been allotted to the tenant for the Horse Breeding Scheme and the tenant was bound down to keep a mare for further production of the animals. The Government issued a letter vide Memo. No. 4245-C dated 31-10-1945 wherein the Government of the Punjab had decided with the concurrence of the Government of Pakistan Ministry of Defence '(Army Branch), that the allotment of horse/mule breeding tenancies falling vacant owing the confiscation or other-reasons should in future be made purely on merits and refugees, ex-servicemen and local farmers should be equally eligible for such tenancies. However, in the case of a tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant. Another statement of conditions was enforced by the Government on 22-9-1977 and condition No. 50 of the Scheme had contemplated that if the tenant dies during the period of tenancy or of any extension thereof, the land shall revert to the Government and may be granted to any one of his heirs considered to be fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease or to some other tenant subject to such compensations to be paid to the estate of the deceased as may be decided by the Collector.
10. The legal heirs of the deceased tenant cannot claim the tenancy as a matter of right but according to the instructions issued by the Government a preference be given to the legal heirs of the deceased over any other applicant in case the lessee had got good breeding record. Both the learned counsel for the parties have relied on Sub-Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435) wherein the august Supreme Court has observed that recommendations made by the District Remount Officer were entitled to due weight and the revenue authorities vested with the discretion to allot the tenancy rights should give due consideration to such recommendations.
11. It is a well-settled proposition of law that in the allotment of such tenancy, the District Remount Officer, being legal representative of the Army Remount Department be consulted, and his recommendations be given due weight before the allotment of tenancy. In this case the District Remount Officer, Sahiwal in his letter dated 20-7-2007 addressed to the District Officer (Revenue) Sahiwal has observed "that respondent No.3 Rizwan, the grandson of deceased breeder along with his mother Mst. Noor Bhari remained associated with his grandfather during life time and gained adequate knowledge/ experience in horse breeding operations and tenancy affairs and he is keeping/managing the bound animals up to the satisfaction of the undersigned. Viewing above, Rizwan grandson of deceased breeder Waryam is considered suitable candidate and recommended for allotment of horse breeding tenancy for a period of six years with effect from 29-5-2007". The District Officer (Revenue), Sahiwasi passed an order in utter disregard to his recommendations. Government of the Punjab vide Letter No. 868-C dated 19-2-1952 has also recommended that in case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant. Qamar-uz-Zaman, the petitioner is allegedly a step-brother of Waryam, the original allottee, who did not fall within the definition of legal heirs of the said deceased allottee. But the District Officer (Revenue) did not look into this aspect of the matter. There is no legal bar in granting the tenancy to the minor but District Officer (Revenue) has also ignored this fact and illegally deprived the respondent No.3 from his legal right.
12. The Provincial Government retains absolute discretion in selection of tenants for State land. No person is entitled to A become tenant of state land as of right. The petitioner Qamar-uz-Zaman was not legal heir of Waryam and was not connected with the tenancy in question and there is nothing on record that his case was ever considered by the Remount Officer for allotment of tenancy in dispute.
13. Rizwan respondent No.3 is direct descendant of Waryam deceased being his grandson. According to the recommendations made by the District Remount Officer, Sahiwal the track-record of the deceased allottee was satisfactory. The learned Member Board of Revenue vide impugned orders has rightly held Rizwan respondent No.3 eligible for the grant of tenancy in question. The impugned orders of BOR are in accordance with law and the same are maintained.
The writ petition has no merits and the same is, hereby, dismissed.
Occurrence and such delay had not been explained reasonably---Co-accused involved in the matter with the same and similar role, having been granted bail, on the principle of rule of consistency, accused was also entitled to the same treatment---All said lacunae in the B prosecution would be answered by the prosecution at the trial, and accused could not be kept behind the bars for an indefinite period---Accused having made out a case for further inquiry, he was allowed bail, in circumstances. [p. 3086] A 2009 SCMR 786 and 2011 SCMR 710 ref..