This is a revision petition against the order dated 4-8-1969 of the Commissioner, Khairpur, whereby he rejected the appeal of the petitioners in respect of tax holiday concession for cultivation of S. Nos, 194 and others of deh Sobho Lund, taluka Mirpur Mathelo, District Sukkur, for the year 1967-68.
2. The facts of the case are that the petitioners had purchased the land in auction and they were put into possession of the land in April 1963. The grant was, however, cancelled by the Barrage Authorities on 13-4-1968 with effect from Raibi 1967-68. The petitioners were, therefore, penalized to the extent of Rs, 1941.84 for unauthorised cultivation during 1967-68 (Rabi). They preferred an appeal, which was accepted by the Deputy Commissioner, Sukkur, vide his order dated 13-2-1969 as the Barrage Authorities had shifted the instalments for two years (obviously meaning that their grant did not stand cancelled).
3. The petitioners had requested the Deputy Commissioner, Sukkur, for allowing them tax holiday concession in respect of the land but the request was rejected by him vide his order dated 13-2- 1969 on the ground that the possession was delivered to them in 1963, and the concession could not Le granted after the lapse of three years. The appeal of the petitioners was rejected by the Commissioner, Khairpur, vide the impugned order.
4. The petitioner contended that they had got the possession of the land in 1965-66 and irrigational facilities had been provided to the land since 1967-68 and that they were, therefore, entitled to the concession vide instructions contained in letter No, 2694-63/1082-R (S), dated 5-6-1963 of the Board of Revenue West Pakistan.
5. Munshi Allandino, Supervising Tapedar conceded that had the cultivation by the petitioners not been treated as unauthorized due to cancellation of their grants, they would have been allowed the tax holiday concession and that in view of restoration of their grants, they were entitled to the tax holiday concession, during 1967-68.
6. I have codnsidered the arguments put forth by the parties and seen the record. The Deputy Commissioner, Sukkur as well as Commissioner, Khairpur, refused the tax holiday concession to the petitioners on the ground that they were put in possession of the land during April 1963 and could not claim concession for 1967-68 after lapse of three years after taking over the possessions vide instructions contained in letter No, 2694-63/1082-R (S), dated 5th June 1963.
7. The instructions for grant of tax holiday concession were initially contained in letter No, 1850- 61/1156-R(S), dated 19-6-1961. Para. 2-I(ii) of the letter concerning the allottees/ grantees/auction purchasers read as follows :- "(ii) In respect of allottees/grantees/auction purchasers of state land in the new barrages the period of concession shall commence from the harvest from which the allottee/grantee/ auction purchaser is required to take possession of the land and shall remain in force for a period of three years, irrespective of the facts whether the area or a part thereof has been brought under cultivation or not. The concession shall apply to the entire holding and no exemption shall be given after the lapse of the period of three years from the date of taking possession."
According to para. 2 of the letter No, 2694-63/1082-R (S), dated 5th June, 1963, the concession was admissible only to those allottees/grantees/auction-purchasers of state land, who were put in possession of land in Kharif 1961 or any time thereafter.
8. I, however, find that para. 2-1 (ii) of the letter No, 1850-61/1156-R (S), dated 19th June 1961, was substituted vide corrigendum issued by the Board of Revenue, West Pakistan vide their endorsement No, 6035-65/129-R (S), dated 20th January 1965, which was subsequently replaced by instructions contained in Memo. No, 592-68/298 (S), dated 16th February 1968 and para. 2.1 (ii) of the memorandum dated 19-6-1961 finally reads as follows:-- "In respect of allottees/grantees/auction-purchasers of State land in the Barrages, the period of concession shall commence from the harvest from which the allottee/grantee/auctionpurchaser is required to take possession of the land or from the date of providing irrigation facilities, whichever is later and shall remain in force for a period of three years, irrespective of the facts whether the area or a part thereof has been brought under cultivation or not. The concession shall apply to the entire holding and no exemption shall be given after the lapse of the period of three years from the date of taking possession or availability of irrigation facilities."
9. The perusal of orders of the Deputy Commissioner, Sukkur, and Commissioner, Khairpur show that they have lost sight of the amendment of para. 2-E (ii) described above, whereby the tax holiday concession would be admissible to the allottees/grantees/auction-purchasers from the harvest from which he was required to take possession of the land or from the date of providing irrigation facilities, whichever is later and would remain in force for a period of three years. Para. 2-1
(ii) was amended as above in January 1965 and subsequently in February 1968, but it appears from the wordings of the instructions issued by Board of Revenue vide their letter No, 7475-69/2752(S), dated 31-12-1969 that original intention of the instructions was that the concession would be admissible from the harvest from which the allottee/grantee/auction-purchaser was required to take possession or from the date of providing irrigation facilities whichever was later and I am therefore inclined to hold that amendment made vide two memos, dated 20-1-1965 and 16.2-1968 of Board of Revenue, West Pakistan, takes effect from the date of issue of the original instructions contained in the Memorandum dated 19-6-1961 of Board of Revenue, West Pakistan and is applicable to the case of the petitioners.
10.The petitioner has produced an unattested copy of letter No, IC-D-55(b)/121, dated 10-1-1963 from the Executive Engineer, Mirpur Division, Ghotki addressed to the Colonization Officer, Mirpur Mathelo, which indicates that the sanctioned source of irrigation was inconvenient to the petitioners and separate outlet was sanctioned to them vide order No, IC/D-55(b)/282, dated 20-1- 1967 of the Superintending Engineer.
11.According to the order dated 13-2-1969 of the Deputy Commissioner, Sukkur and 4-8-1969 of Commissioner, Khairpur, the petitioners are stated to have been put in possession of the land during April 1963. The petitioners claim that they have been put in possession of the land in 1965-
66. In any case they, have been put in possession of the land, after Kharif 1961 and the tax holiday concession is, therefore, admissible to them in view of para. 2 of letter No, 2694-63/1082-R (S), dated 5-6-1963.
12.The petitioners have also claimed that the irrigation facilities were provided to the land since 1967-68. The petitioners would be entitled to tax holiday concession for the land or part thereof for 3 years from the date the possession of the land or part thereof, had been handed over to them or from the date the irrigation facilities had been provided to the land or part thereof, whichever was later. The fact as to from which date the irrigation facilities had been provided to the land had not been taken into consideration by the lower authorities. In view of these facts. I accept the revision petition and remand the case to the Deputy Commissioner, Sukkur, for fresh decision in light of the above observations after affording due opportunity to the parties of being heard. In case the petitioners had been allowed the irrigation facilities for the land or part thereof from 1967-68 or any date after getting possession of the land, as asserted to by them, they would be entitled to tax holiday concession for such land for 3 years from the date of pro-vision of irrigation facilities but if the irrigation facilities in respect of the land existed at the time the petitioners got possession of the land they would be entitled to the concession for 3 years from the date taking over the possession.