' G. M. ROUREJO, J.-This Constitutional Pttition is directed against the order dated 14th May, 1978 passed by the respondent No. 1, Member (Land Utilization), Board of Revenue, Sind, Hyderabad, as being without lawful authority and of no legal effect.
2. The facts leading up to the filing of this petition briefly stated are, that the petitioners are in cultivating possession of the agricultural land comprising of Block Nos. 401 to 404 and 409 to 412 measuring 128 acres, situated in Deh Bhanero Taluka Mirpur Sakro, District Thatta. It was purchased by the respondents 2 to 5 in auction held by the land grant authorities in the year 1961. The tyrant was to commence from Kharif 1961-62. The grant was governed by terms embodied in the agreements executed by the respondents 2 to 5 at the time of grant. The terms and conditions amongst other were as follows :-
(1) Condition 5.-The respondents had initially to pay up all the arrears in 5 equal instalments commencing two years after date of grant.
(ii) Condition 18. -The grantees would reside in the village as far as possible but his agent must reside permanently in the village, The grantee would construct his house in the village within one year from the date of execution of agreement.
(iii) Condition 19. -The grantee would bring 1/3 of the land under cultivation within two years from the date of taking over the possession of the land. He would bring entire land under cultivation within 4 years from the date of grant and would continue to cultivate the land proportionately, according to density of cultivation prescribed by the P.W.D. Authorities.
(iv) Condition 24.-The land would be liable to forfeiture to Government on account of infringement of any conditions and terms of the grant.
' It is contended that the respondents 2 to 5 committed breach of the terms and conditions of grant in as much as neither they nor their agent resided on the land and that they also did not bring the land in dispute under cultivation in accordance with the terms and conditions of the agreement.
Consequently, the Revenue Officer Kotri Barrage was approached by the petitioner for the grant of the land in dispute to them. In May, 1972, the Revenue Officer, Kotri Barrage directed the Barrage Mukhtiarkar, Mirpur Sakro to visit the site and to ascertain on the spot as to whether the respondents 2 to 5 have committed breach of terms and conditions of the agreement as alleged against them. The Barrage Mukhtiarkar submitted his report. But the Revenue Officer Kotri Barrage did not cancel the land in question. The petitioners then filed an appeal before the Additional Commissioner, Hyderabad, and these were also dismissed. The petitioners against the order of dismissal filed Revision Petitions before Additional Member-1 Board of Revenue, Hyderabad. The Revisions filed by the petitioners were accepted and the grant of land in dispute in favour of the respondents 2 to 5 was cancelled,-vide order dated 23rd September, 1976, In April, 1977 the land in dispute was published in a schedule and was offered for grant to tenants and small Khatedars under a land grant policy. The petitioners finding themselves eligible for the grant of land applied for it, In the meantime the respondents 2 to 5 tiled the Review Petition before the Additional Member Board of Revenue which was dismissed for non-prosecution on 12th February, 1978. On restoration application the Review Petition was heard and by order dated 14th May, 1978, it was accepted and the grant of land in dispute in favour of respondents 2 to 5 was restored. Thereafter, respondent No 4. The attorney of the respondents 2, 3 and 5 approached the Mukhtiarkar Mirpur Sakro to evict the petitioners from the land in dispute. The Mukhtiarkar called some of them and directed them to vacate the land otherwise they will be ejected forcibly. The petitioners finding that even their alleged tenancy rights which were protected under the provisions of the Sind Tenancy Act, 1950 were likely to be seriously affected though they were prepared to give Batai as provided by law, they have come in this Constitutional Petition.
3. We have heard the learned counsel for the parties at sufficient length and have also gone through the material evidence available on the record. The pleas raised by Mr. A. Q. Halepota, the learned counsel of the petitioners mainly are, that the Review Petition was legally incompetent as no new important matter or evidence had been discovered or that some mistake cr error apparent on the face of the record had been detected justifying the review of the order dated 23rd September, 1976 passed in revision by the competent authority, as provided by section 8 of the West Pakistan Board of Revenue Act, 1957, that there was an infringement of the terms and conditions of the grant and that no notice under section 24 of Colonization of Lands Punjab Act, 1912, was issued for rectification ; and that the petitioners cannot be deprived of their tenancy rights and ejected from the land except in accordance- with the provision of Sind Tenancy Act, 1960.
4. Mr. Fazle Ghani, the learned counsel for the respondents, raised the pleas mainly that the petitioners have no locus standi to challenge the grant of land to the respondents 2 to 5 as they are no better than trespassers ; that there has been no infringement of terms and conditions, and, infringement if at all has been rectified ; and lastly that the petitioners cannot invoke the provisions of Tenancy Act as the land belongs to the Government and they are as good as trespassers on it.
5. There is no dispute that the respondents failed to cultivate the land for a number of years and the reasons assigned have been that there were floods and rains in the region which prevented the cultivation of the land during all these years. The learned Member, Board or Revenue, while dealing with this issue has relied on the various orders of the Board of Revenue and Government referred to by the counsel of the respondent to the effect that there had been heavy rains and waterlogging in that area and, therefore, found adequate justification for the land having remained uncultivated.
The learned Member, Board of Revenue in the impugned order has failed to specifically refer to such orders, notifications rules in that respect and has made only a passing reference to such orders simply justifying his conclusion in that respect in favour of the respondents 2 to 5. Mr. A. Q.
Halepota, the learned counsel for the petitioners, has contended that so far condition with regard to the breach of personal residence was concerned it could be rectified, whereas non-cultivation of the land was not capable of rectification and that the learned Member, Board of Revenue should not have disposed of such an important issue simply by making a passing reference to the standing orders or the notifications and the rules of the Board of Revenue and the Government in support of his conclusion, when they are neither available on the record nor it is possible that they can be located. What we further find is that section 24 of Colonization of Lands Punjab Act, 1912, which the learned counsels appearing on behalf of the parties find relevant to the circumstances of the present case has not been considered while passing the order dated 23rd September 1976 passed in revision, whereas it has not been seriously considered while passing the impugned order dated 14th May, 1978 in review. The learned Member, Board of Revenue while passing the impugned order dated 14th May, 1978 has simply said that according to section 24 of the Colonization Government Land of Punjab Act, 1912, a grantee is to be issued notice to rectify the breach of terms and conditions of his grant within a prescribed period and the grant is not liable to cancellation if the breach is rectified and that in the present case the infringements if any stood already rectified and as such the grants were not liable to cancellation. Beyond that the learned Member, Board of Revenue has failed to show as to how the infringement stood rectified within the meaning of provisions of section 24. Section 24 read as under :- "When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy he may, after giving the tenant an opportunity to appear and state his objections--
(a) impose on the tenant a penalty not exceeding one hundred rupees, or
(b) order the resumption of the tenancy : ' Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice."
In the instant case, the learned Member, Board of Revenue has not seriously considered as to whether there was breach of conditions or not. He hase-failed to consider as to whether in case there was breach of conditions he would impose a penalty or order the resumption of the tenancy.
He has also failed to consider in case there was breach as to whether it was capable of rectification or not and in case it was capable of rectification a written notice should have been ordered requiring the tenant to rectify the breach within reasonable time which has not been done in the present case. In any case, it is very clear on the record that in the order dated 23rd September 1976 passed in revision the provisions of section 24 were not at all considered, whereas in the impugned order dated 14th May, 1978, passed in review the provisions of section 24 were not seriously considered, with the result that material prejudice appears to have been caused to the parties in the case.
6. Accordingly, we set aside both the orders dated 23th November, 1976 passed in revision and dated 14th May, 1978 passed in review and remand the case to the Member (Land Utilization), Board of Revenue, Sind, Hyderabad, for reconsideration in the light of the above observation.
However, the parties shall be at liberty to raise any pleas they would like to raise before that authority. Respondents shall be entitled to their share of Batai from the petitioners that is due to them. There shall be no order as to costs.