Tassaduq Hussain Jillani, J--Facts giving rise to this appeal by leave of the Court briefly stated are that one Brigadier (Retd) Abdul Rehman was allotted land subject matter of this appeal on 20.10.1994 under the Army Welfare Scheme. As required under the terms & conditions of the said scheme, the allottee executed sale agreement on 5.6.1994 with the Provincial Government and was put in possession thereafter. After a few years i,e, 24.12.1997, he executed sale deed in favour of respondent Abdul Sattar after having obtained permission from the Commissioner, Bahawalpur Division under Section 19 of the Colonization of Government Lands Act, 1912 vide the order dated 10.12.1997. Ever-since then respondent Abdul Sattar is cultivating the land. He applied for "Patta Malkiyat" i,e, propriety rights which request was ultimately turned down by the Board of Revenue vide the letter dated 28.1.2006 on the ground that "the case has been considered and regretted as state land can not be allotted that agricultural land which falls in Prohibited Zone". This order was challenged in Constitutional jurisdiction of the Lahore High Court and the learned High Court vide the impugned judgment dated 18.7.2006, allowed the same on the ground that at the time of allotment of the land to the original allottee, the land did not fall within the prohibited zone.
Reliance was placed by the Court on a judgment of this Court reported at Province of Punjab through District Collector Vehari Vs. Ohulam Muhammad (1994 SCM R 975).
2. Learned Assistant Advocate General in support of this appeal submitted that admittedly the land falls within the prohibited zone of Municipal Committee Yazman and in view of the notification issued by the Board of Revenue dated 12.12.1972, the propriety rights cannot be granted with regard to such a land. He further submitted that the respondent, the original allottee, after the allotment order, had executed a sale agreement in favour of the Provincial Government/Collector and clause 3(f) of which specifically provided that the allottee shall not transfer or alienate the land without the permission in writing of the Government.
3. Learned counsel for the respondent Mr. Ejaz Ahmed Ansari, defended the impugned judgment by submitting that both the allotment made in favour of the original allottee Brigadier (Roth) Abdul Rehman and the latter's sale deed in favour of the respondent Abdul Sattar are of a prior date then the notification, which extended the limits of Municipal Committee, Yazman (dated 15.1.1998) to be hit by the prohibited zone provision of notification dated 12.12.1972 and therefore, could not have any retrospective effect. In support of the submissions made, learned counsel relied on Province of Punjab supra.
4. Leave was granted by this Court in terms of the order dated 2.11.2006, which reads as follows:- "Brig. (R) Abdur Rehman having acquired the spelt out 400 kanals of land under the Army Welfare Scheme briefly thereafter alienated half of the same onto the respondent for a sum of Rs: 1500,000/- and the remainder to one Zafar Ali, who was declined Patta Malkiati by the Revenue departmental hierarchy, on account of location thereof being within the prohibited Zone of the Town Committee, Yazman, however, succeeded in getting a direction in the nature of a mandamus from a learned Judge of the Lahore High Court, Bahawalpur Bench vide impugned order dated 18.07.2006, against which leave to appeal is being sought by the learned Additional Advocate General Punjab contending that the allotment of land under the Army Welfare Scheme is subservient to the rubric of "rehabilitation of serving/retired Defence Personnel" and is designed to cater for resettlement of the latter in life by bringing the allotted land under cultivation of the latter in life by bringing the allotted land under cultivation which expression by no stretch of imagination could envisage to deploy the same as a spring board conduit for making a quick buck as an unjust enrichment; further sale prior to the conferment of proprietary rights could have not been effected under Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 on which count the Commissioner Bahawalpur Division was not vested with unbridled powers to approve the sale without application of independent mind taking into account all the attending circumstances of the case objectively being a trustee as a State functioning who conversely has simply acted in a mechanical fashion rendering the banked upon order bereft of any legal sanctity.
2. The contentions urged, warrant deeper appraisement; consequently petition for leave to appeal is allowed; and meanwhile operation of the impugned judgment is suspended.
5. Having considered the submissions made and the law declared, we find that admittedly when the land was allotted to Abdul Rehman, the same did not fall within the prohibited zone aid therefore? would not be hit by a subsequent notification to which reference has been made above.
This Court was seized of a similar issue in Province of Punjab through District Collector Vehari Vs. Ghulam Muhammad (1994 SCM R 975) wherein the judgment of the learned High Court was not interfered with because "as regards the prohibited zone, the instructions were that the distance should be measured as required when the allotment was made and not as when the proprietary rights are conferred. On this test, the allotment of the respondent was beyond three miles limits then applicable to him when he got the allotment but within five miles i,e,, with the limits when he was to be given proprietary rights. The Collector applied the latter." (Emphasis is supplied).
6. To appreciate the argument of learned Law Officer that the sale deed executed by the original allottee in favour of Abdul Sattar respondent is violative of the terms of allotment, a reference to the clause of the scheme, violation of which is alleged by the learned Law Officer would be in order, which reads as follows:-- "In pursuance of the provisions of sub-section (2) of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, the Governor of the Punjab is pleased to issue the following statement of conditions applicable to the tenancy of State Land for agriculture in the Province of Punjab.
STATEMENT OF CONDITIONS ON WHICH THE PUNJAB GOVERNMENT IS PREPARED TO GRANT TO ARMY PERSONAL THE TENANCY FOR AGRICULTURE IN THE DISTRICT BAHAWALPUR.
1 ...............................
2 ..............................
3 ..............................
(a) ................................
(b) ...............................
(c) ...............................
(d) ..............................
(e) ..............................
(f) Without the permission in writing of Government first obtained not to assign, sub-let or transfer by mortgage or otherwise or part with the land or any part thereof except by way of sub-lease for agriculture to such sub-tenants as he has reasonable caise to believe will cultivate the land with their own hands in the manner provide by this agreement." (Emphasis is supplied)
7. In terms of clause/condition T reproduced above, the allottee can "assign, sub-let or transfer by mortgage or otherwise or part with the land or any part thereof except by way of sub-lease for agricultural to such sub-tenants". Thus the allottee can do any of the afore-referred transactions but not "without the permission in writing of Government. The expression "assign" has been defined in Black's Law Dictionary as "to convey; to transfer rights or property". The allottee, it is not denied, had duly applied to the Commissioner, Bahawalpur Division, Bahawalpur and obtained permission in writing vide the order dated 10.12.1997, which reads as follows:-- "IN THE COURT OF CH. RIAZ AHMAD COMMISSIONER, BAHAWALPUR DIVISION, BAHAWALPUR Brig (Retd) Abdul Rehman S/o Ghulam Hussain caste Mmanhaz Rajpot 10-Chaklala Aksary 6 Rawalpindi. .... Petitioner Vs. The State ...
Respondent. PETITION U/S. 19 OF COLONIZATION OF GOVERNMENT LANDS ACT, 192 (sick) -------- ------------ ORDER: This is a petition U/S. 19 of Colonization of Government Lands Act, 1912 for the sale/alienation of land measuring 400 Kanals situated in Chak No, 44/D&B tehsil Yazman District Bahawalpur in favour of Ch. Abdul Sattar S/o. Rehmat Ullah R/o. 13/A Arain R/o. Chak No, 42/D&B tehsil Yazman.
(2)A report was called for from the District Collector Bahawalpur who has reported vide his Letter No, COI/3764 dated 11.10.1997 that the land was allotted under "Army Scheme". The terms and conditions of the allotment have been-fulfilled.
(3)The statements of the parties have been recorded who have consented for this sale/alienation. In view of the above position, permission for the sale/alienation of above land is hereby accorded as recommended by the District Collector Bahawalpur under Section 19 of Colonization of Government Lands Act 1912. Sd/- (Ch. RIAZ AHMAD), BAHAWALPUR DIVISION.
ANNO UNCED.
10.12.1997."
8. The afore-referred order indicates that the Commissioner Bahawalpur Division had accorded permission for "sale/alienation on the recommendation of the District Collector Bahawalpur under Section 19 of Colonization of Government Lands Act, 1912". This order was neither challenged by anyone nor it was ever varied. It further strengthens the case of the allottee and the subsequent transferee in two ways. First; the alienation of the land made pursuant to this order was for all intents and purposes, an assignment permissible under clause 'F' to which reference has been made in para 6 above. If the propriety rights had not been granted till the afore-mentioned date, the permission to alienate or to sell granted by the Commissioner on the recommendation of the District Collector could be treated as an agreement to sell, which is enforceable under the law. In Muhammad Iqbal vs. Muhammad Hussain (PLD 1986 SC 70), this Court concurred with a Full Bench judgment of this Court in Civil Appeal No, 216/1978 arising out of C.P.L.A 444/1978 wherein this Court held as follows:-- "On the facts case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantees had acquired the proprietary, rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of the contracting parties to keep themselves well; within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provisions of Section 19 of the Act or of the public policy behind such a statutory provisions."
Secondly, it reflect that both the allottee Brig (R) Abdul Rehman and respondent were aware of the bar contained in Section 19 of the Colonization of Government Lands Act and they applied to the competent authority for according permission, which was duly granted and the District Collector had recommended that permission be granted because the original allottee had fulfilled all the terms and conditions of the scheme.
9. The afore-referred view was followed in Muhammad Siddique Vs. Muhammad Ramzan (2002 SCM R 1821) whereitht was observed as follows:-- "In the light of the above discussion, we hold that sale of Government land by the allottee without proprietary rights would not take legal effect and operation of the same would remain suspended till the proprietary rights of the property are not acquired by the vendor."
10.The case in hand stands on a better footing then the precedent case law to which reference has been made in the preceding paras because not only there is a prior permission of the Government as required in Section 19 of the Colonization of Government Lands Act but also the original allottee having fulfilled all the terms and conditions was entitled at the relevant time to be granted the propriety rights. In these circumstances, the impugned judgment is unexceptionable.
Finding no merit in this appeal, it is dismissed.