1. MUHAMMAD HALEEM, Actg. C. J.---This appeal, by special leave, arises from the judgment of the Lahore High Court,- Lahore, dated 6th of November, 1969, by which Writ Petition No. 302 of 1964 was dismissed.
2. The Tube-well Sinking Scheme was promulgated for leasing out the entire uncommanded Government waste land lying uncultivated in blocks of 200 acres each as a tube-well installation on conditions mentioned therein under section 10 (3) of the Colonization of Government Lands Act, 1912. Khasra Nos. 1 to 29 in Square No. 35, Khasra Nos. 1 to 31 in Square No. 36 and Khasras Nos. 1 to 26 in Square No. 38, all situate in Chak No. 18/8-B. R., Tehsil Khanewal, District Multan, were included in lot No. 1 and notified as available for being leased out under the aforesaid Scheme after being included in the schedule of lands prepared by the District Authorities for this purpose. The appellant and respondents Nos. 2 to 7 in the Writ Petition respec--tively applied for the land of this lot; and lots were drawn under para. 6 of the Scheme by the Collector, Multan, on 24th of October, 1961, and the appellant was declared as successful He was delivered possession of this lot on 12th of November, 1961, and thereafter be spent about Rs. 61,158 in sinking a tubewell for which a certificate was granted under para. 10 of the Scheme and for otherwise improving the land.
3. Respondents Nos. 2 to 7, thereupon, filed three appeals before the Additional Commissioner, contending therein that some area, out of the land leased out to the appellant, was allotted to them under the Grow More Food, Scheme in March, 1958, for a period of three years and, therefore, that area could not be included in the schedule but the Additional Commissioner rejected the appeals on 18th of November, 1961. The respondents next preferred a Single Revision before the Board of Revenue which was accepted by a learned Member, by order dated 21st April, 1963, and the lease in favour of the appellant was cancelled. In his view, condition 3 of Notification No. COL 16/2-5544 dated 23rd of September, 1959, was violated as Khasra Girdawari of Rabi 1961-62 and Kharif 192 62 reflected that the entire Squares Nos. 35, 36 and 38 were "Nehri cultivated lands" except for petty areas which were used as path-ways, canals, etc. Aggrieved by this order the appellant filed the aforementioned Writ Petition m the former High Court of West Pakistan. In the parawise comments, submitted by the Deputy Commissioner, it was given out that the area was included due to some misunderstanding and could not be leased out as such it was a commanded area. There was, therefore, a violation of para. 3 of the conditions notified under the Notification dated 23rd of September 1959, and it was rightly withdrawn under para. 20 (iv) of the notified conditions It appears that the appellant, on 17th of October, 1969, applied to the Sub-Divisional Officer, Khanewal for a certificate to the effect as to whether this area was uncommanded or -commanded; and on 20th of October, 1969, the Divisional Canal Officer, Khanewal Division, L. B. D. C., replied, after due inquiry, as under :- "Returned in original that the reports of A/C and H. P. Are detailed. The disputed land of Squares Nos. 35 to 39 has not been included in the Chakbandi for canal water. Copy of Survey Register is enclosed. For entries Khasra Numbers. Nehr, no canal irrigation has been found. Canal water has not been sanctioned in any way."
4. The appellant, thereupon, submitted an application (C. M. No. 4732 of 1969) in the High Court on 24th of October, 1969, stating therein that the order of the learned Member, Board of Revenue, suffers from an error apparent on the face of the record, namely, that the disputed area was "Nehri" but that it was uncommanded and necessary corrections had been made in the Jamabandis.
5. Alongwith this application, the appellant also annexed the report of the Divisional Canal Officer, his own application which led to the inquiry in that connection, and the corrected Jamabandis. Notice of this application was issued to respondents Nos. 2 to 7, However, another Civil Miscellaneous Application No. 5029 of 1966 was filed earlier on 9th of July, 1966, in which additional grounds were raised so as to include this plea and the others. The High Court, without adverting to the grounds in these applications, upheld the conclusion of the learned Member, Board of Revenue, in para. 6 of the judgment which reads as under :- "This argument overlooks the finding given by the learned Member, Board of Revenue, that the land in dispute could not lawfully form part of the Tube-well Sinking Scheme. That being so, it could not have been let out under the said Scheme and any order, to the contrary, would not be covered by the provisions of the aforesaid Act and would be ultra vires the Collector who granted the lease. It is not necessary to point out that a public functionary does not have any power which is not specifically conferred upon him by law. Since `cultivated areas and areas already leased out under any of the Schemes of the Government' could not be let out under the Tube-well Sinking Scheme, any lease granted by a public functionary regarding such land was void ab initio."
6. Leave to appeal was granted to consider as to the validity of the order of the Member, Board of Revenue, in the context of the report stating that the disputed land was uncommanded.
7. The learned counsel for the appellant vehemently urged; firstly that respondents Nos. 2 to 7 had no locus standi to challenge the leave as their leases had expired in March, 1961 before the lots were drawn and had further waived their right by participating in the drawing of lots; and secondly, that the High Court had failed to consider the ground as to the disputed land being uncommanded although raised- in the successive applications.
8. We asked Mian Nusratullah who represented respondent No. 1 in this appeal as to whether he was in a position to dispute the correctness of the report of the Divisional Canal Officer to which he replied in the negative. However, he supported the finding of the learned Member, Board of Revenue, as to the violation of the notified conditions (iv) and (v) which were a bar to the inclusion of the land in the schedule for being leased out under the Tube-well Sinking Scheme. As we felt that the report of the Divisional Canal Officer and the corrected Jamabandis obviously reflected to the land being uncommanded, condition (fv) could not come in the was of the land being included in the Schedule; and as for condition (v) respondents Nos. 2 to 7 were no longer lessees as their term had expired which was not extended. The High Court also relied on the finding o the learned Member, Board of Revenue, without examining the report of the Divisional Canal Officer, which was a factor in the inclusion of the land in the Tubewell Sinking Scheme. As by the grant of the lease under the aforesaid Scheme vested rights accrued to the appellant, it is obvious that these rights could not be defeated by the finding of the learned Member. Board of Revenue, on the basis of an incorrect revenue record such as the Khasra Girdawari of Rabi 1961-62 and Kharif 1962. Therefore, in the light of the unrebutted report of the Divisional Canal Officer that the disputed land was uncommanded and the corrected Jamabandis, we feel that the matter requires further consideration. However, in view of our order, it is not necessary to decide the first submission as to the locus standi of respondents Nos. 2 to 7 to challenge the lease of the appellant.
9. Accordingly, we would set aside the impugned orders of the nigh Court and that of the Member, Board of Revenue, and remand the case to the latter for deciding it afresh.
10. The appeal is allowed but with no order as to costs.