Shahid Jamil Khan, J:- This judgment shall decide the captioned and connected petitions (Writ Petitions No. 5185, 5186, 5380, 5391, 5392, 5393, 5420, 5421, 5431, 5436 & 5455 of 2018), as petitioners are aggrieved of not entertaining appeals against rejection of their applications for allotment of State land under Notification dated 05.03.2013.
2. The Notification dated 05.03.2013 was issued under Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 ("Act of 1912") bringing amendment in an earlier Notification dated 23.06.2010 for allotment of State land for 'Temporary Cultivation in Cholistan'. Under amended 'Statement of Conditions', the available land was classified into A, B and C Categories. The lands falling in Category A were to be leased out, for five years, through restricted auction and the lands in Categories B and C through balloting. Eligibility of the persons, who could participate in the auction or balloting, was defined in following words:- "The following shall be eligible to participate in the restricted auction or balloting as the case may be. i) Bonafide residents of Cholistan shall be determined inter-alia on the basis of CNIC and existence of his name in the V oter List of last Election. ii) The landless Cholistanis or petty farmers not owning more than 6-acres of land will produce copy of Tirni alongwith family history of Tirni Guzari prior to 1980 and a proof of his residence in the Cholistan Area.
Explanation If any Cholistani has obtained his CNIC after the last Election and is married and independent of his elder , his eligibility as regards to Voter List shall be determined on the basis of existence of his Father 's or other family elder 's name in the V oter List." [emphasis supplied] The petitioners moved applications for participation in auction or balloting for allotment of the State land in respective categories, but their applications were rejected on the ground of eligibility . The petitioners approached respondent No. 4/Commissioner Bahaw alpur and voiced their grievance of rejection of applications but their appeals were not entertained, hence this and connected petitions.
3. Ch. Faraz Munir , Advocate, representi ng the petitioners ' side, apprised that a Grievance Redressa l Committee was constituted vide Notification dated 30.01.2017, to substitute the remedy of appeal, for redressing petitioners and other applicant 's grievance. To argue that constitution of the Grievance Redressal Committee was illegal, he referred to minutes of meeting dated 25.02.2015 whereby proposal for its constitution was declined by Board of Revenue, Punjab vide letter dated 25.02.2 015 in a meeting under Chairmanship of Member Colonies. The minutes of meeting, as referred, are reproduced hereunder:- 5 Possibility of formulating a grievance redressal committee to Act as appellate forum.The proposal of constituting a separate grievance redressal committee by involving local political representatives/ parliamentarians to act as a forum for appeal of rejected applications. The matter was discussed at length and it was brought to the notice of the committee that as per practice in vogue the Divisional Commissioner, takes cognizance and redress the grievances of the Cholistanis against orders made by CDA.
Decision The possibility of constituting a grievance/redressal committee within the legal frame of CDA was examined and committee concluded that Commissioner Bahawalpur Division has a precedential powers to redress grievance of the applicants for land allotment, the same arrangement to continue and separate establishment of complaint redressal grievance cell is not tenable.
To build his argument that rejection of application on the ground of ineligibility was an appealable order , learned counsel read various provisions of the Act of 1912 and referred to Section 7 in particular which borrows, amongst other laws, the provisions of Punjab Land Revenue Act, 1967 ("Act of 1967 ") for proceedings under this Act. Since the Act of 1912 is silent about appeal, therefore, Section 161 of the Act of 1967 is required to be read in, which provides appeal against an order of Collector before Commissioner . He read definition of 'Collector ' under Section 3 to submit that respondent No.2, known with the title of Managing Director , Cholistan Development Authority ("CDA ") (by virtue of Cholistan Development Authority Act, 1976) ("Act of 1976 ") is the Collector . He concluded that any act done by Collector under the Act of 1912, including rejection of application for allotment of State land, was appealable before Commissioner/respondent No.4.
The petitioners' side also pleaded, during arguments, that bona fide residents of Cholistan, fulfilling the terms of the Statement of Conditions, under different Schemes, are being denied the allotment of State land by refusing their applications at initial stage and also by allowing sublease to non Cholistanies in reckless manner.
4. Learned AAG, assisted by Jamshed Iqbal Khakwani, Senior Legal Advisor, Cholistan Development Authority read Clause 9 from the Notification dated 05.03.2013, whereby a Scrutiny/ Allotment Committee was constituted, as Collector could not apply his mind on each and every application to determine eligibility of the applicants, therefore, all the applications were scrutinized by the Scrutiny/Allotment Committee. He submitted that applications of the petitioners were rejected due to non-fulfillment of any of the condition stipulated in Clause 1 of the Notification.
Instead of controverting the arguments by petitioners' side regarding availability of appeal, learned AAG submitted that to address the grievance, voiced through these petitions, Grievance Redres sal Cells were constituted vide Notification dated 30.01.2017, which was an efficacious alternate remedy against the administrative decision of rejecting petitioners' applications by Scrutiny/Allotment Committee.
Responding to the plea, during argumen ts, regarding sublease to non-Cholistanies, learned AAG submitted that sublease is sanctioned under Section 19 of the Act of 1912 with consent of the original allottee/ lessee.
5. Heard, record perused.
6. The legal proposition; regarding availability of appeal under Section 161 and revision under Section 164 of the Act of 1967 against an order under the Act of 1912, has already been dealt with and answered in affirmative by superior courts.
Learned Division Bench of this Court in Karam Din v. Member Board of Revenue West Pakistan, Lahore, etc. (PLD 1968 Lahore 321 ), examined this proposition and held:- "4.....
The provision contained in section 10(3) clearly indicates that the Collector has the discretion to allot land to any person in accordance with the statements of conditions but this discretion is subject to the control of the Financial Commissioner, now Member, Board of Revenue. Again, from the provision contained in section 7 of the Act making applicable the relevant provisions of the Punjab Land Revenue Act and Chapter VII of the Punjab Tenancy Act and the rules made thereunder to all proceedings under the Colonization of Government Lands Act right of an aggrieved person to file an appeal, revision or review can be clearly spelt out. Section 7 reads as follows:- "7. Applicability of the Punjab Land Revenue Act and Punjab Tenancy Act. - Subject to the provisions of this Act, the Punjab Land Revenue Act, and Chapter VII of the Punjab Tenancy Act and the rules made thereunder shall, in so far as they are applicable, apply to all proceedings under this Act. But nothing in the Punjab Land Revenue Act or the Punjab Tenancy Act, 1887, shall be so construed as to vary or invalidate any condition entered in any statement of conditions."
It is thus obvious that there was no bar to the respondent filing an appeal or revision against the order of the Collector or Commissioner made under the Act. Section 7 creates an exception only in respect of the statement of conditions which in a way becomes sacrosanct so that no conditions are varied or invalidated by the revenue authority functioning under the Punjab Land Revenue or the Punjab Tenancy Act. The two provisions contained in section 7 and 10(3) of the Act read together leave no manner of doubt that the order of the Collector would be subject to appeal or revision. Even if the former provision regarding the amenability to appeal or revision of the Collector's order were not there, the latter provision per se vests the Member, Board of Revenue, with adequate power of interference in proper cases, where in the latter's view the discretion vesting in the Collector has not been judiciously exercised. It would thus be incorrect to say that the appeal and revision were not competent in the instant case..." [emphasis supplied] Availability of appeal and revision was endorsed by learned Single Benches in their judgments reported as Muhammad Azam etc. v. Bashir -Ud-Din etc. (NLR 1988 Revenue 113), Province of Punjab through District Collector , Vehari v . Rana (1989 MLD 1009 ) and Nazir Hussain and others v . A.C. and others (2002 YLR 3484 ).
Supreme Court of Pakistan, in Muhammad Ali v. Province of Punjab and others (2005 SCMR 1302 ) while dealing with a petition against dismissal of suit in view of bar contained in Section 36 of the Act of 1912, refused leave to appeal with following observations:- "4. We have heard the learned counsel for the petitioner at length. We find that the petitioner did not avail the statutory remedies of appeal and revision before the Commissioner and the Board of Revenue respectively against the orders passed by the Collector. The learned counsel failed to satisfy us that such remedies, even if availed, would have been an exercise in futility. The averments in the plaint do not spell out that the orders of the Collector were illegal or beyond the scope of the powers of the Collector and in any other way suffered from any jurisdictional defect so as to be amenable to the jurisdiction of the Civil Court in view of the dicta of this Court in Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Bashir Ahmad and others v. Manzoor Ahmad and others 1987 SCMR 1620. The High Court has taken a correct view that the plaint was liable to be rejected on account of bar of jurisdiction of Civil Court under section 36 of the Act. The High Court has also given valid reasons for not remanding the case on the question of rejection of plaint independently of the stay matter in the peculiar facts and circumstances of this case. Therefore, we need not express any opinion on this aspect of the case. The impugned judgment does not call for any interference by this Court. This is not a fit case for grant of leave to appeal."
7. The law laid down, ibid, leaves no room for further deliberation on the issue. It can be summarised that appeal under Section 161 and revision under Section 164 of the Act of 1967 are available against an order by Collector , as defined in Section 3 of the Act of 1912.
8. What needs to be examined is whether rejection of application, declaring the applicant as ineligible, is an order by Collector?
The Notification dated 05.03.2013 was under subsection (2) of Section 10 of the Act of 1912, whereby Statement of Conditions, issued through an earlier Notification dated 23.06.2010, were amende d for grant of lease of available State land, outside prohibited zone, for Temporary Cultivation in Cholistan. Under Clause 9 of the subsequent/amending Notification, auction was to be conducted by respective Colonization Officers of Cholistan Development Authority , however , for the purpose of balloting, a Scrutiny/Allotment Committee was constituted.
Receipt of the applications was to be acknowledged by the Colonization Officer and the applications were to be scrutinized by the Committee, whereas outcome of the scrutiny was required to be announced by the Chairman CDA in Ijlas-e-Aam. It is important to note here that the Chairman CDA is, admitt edly, also a Collector under the Section 3 of the Act of 1912, as appointed by the Board of Revenue under the Act of 1967. The Clause 9 further envisages that the Chairman shall satisfy himself about genuineness of the proceedings and will give decision regarding approval or otherwise of the balloting proceedings. Collective reading leads to an inescapable conclusion that all the powers under Clause 9 vest in the office of the Chairman (Collecto r under the Section 3) and the functions performed by other officials, including Scrutiny/ Allotment Committee, are on his behalf. Necessary corollary is that filing and rejection of applications by the Committee, being part of balloting proceedings, is an order by the Chairman, who is a Collector in terms of the Section 3, hence is an appealable order .
9. Provisions of the Section 10 are also examined, which is reproduced for facility:- "10. Issue of statements of conditions of tenancies.- (1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit.
(2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants.
(3) Where such statements of conditions have been issued, the Collector may, subject to the control of the Board of Revenue , allot land to any person, to be held subject to such statement or conditions issued under sub- section (2) of this section, as the Collector may by written order declare to be applicable to the case.
(4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector . After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. "
[emphasis supplied] Its subsection (1) gives power to Board of Revenue, subject to general approval by Government of Punjab, for grant of land in a colony to any person on such conditions as it thinks fit. However under subsection (2), the Provincial Government may issue a Statement or Statement of Conditions on which it is willing to grant land in a colony to tenants. If such Statement of Conditions is issued, the Collector is bound to see, in every case, whether the conditions applicable are fulfilled and pass the order of allotment in writing. The powers of the Collector , under Section 10(3) are subject to control by Board of Revenue. The legislature, in its wisdom, has used the word "control" instead of "supervision" which is of much significance with regard to grievance of the petitioner or any other person arrived of the proceedings of allotment, its subsistence, or transfer under Section 19. The procedure for allotment given in the Notification dated 05.03.1013, or any other Notification, may have administrative validity but shall lose its binding force if it conflicts or contradicts with the provisions of Section 10 in particular and other provisions of the Act of 1912 in general.
10. The 'Grievance Redressal Cell' consti tuted through Notification dated 30.01.2017 cannot be taken as substitute of appeal or revision available under the Statute. This Notification is silent about the statutory or legal authority in exercise of which it is issued. At best it can be regarded as an administrative forum to redress the complaints, coming to the executives, regarding exercise of administrative powers/proceedings under the Notification dated 30.01.2017. This forum cannot abridge the control of Board of Revenue over the allotment procedure and the issues arising as a consequence. Board of Revenue, Punjab, vide its letter dated 25.02.2015, had rightly rejected the proposal of formulating a Grievance Redressal Committee to act as appellate forum. The argument of learned AAG of addressing petitioner 's grievance through Grievance Redressal Cell as substitute of appeal has no force.
11. The plea, taken during arguments, of reckless transfer of allotted lands through sublease is also examined.
Caption of Section 19 of the Act of 1912 is, "Transfer of rights to be void", which denotes that a clog on transfer of rights in land is a general rule. However provisions of Sections 17 and 19 are providing narrow exceptions and those too subject to fulfillment of the conditions mentioned therein. The eligibility clause under the Notification dated 05.03.2013 stipulates that the allotment for temporary cultivation is for "Bonafide residents of Cholistan ".
To determine the bonafide, a procedure of verifying CNIC and voters list is provided.
Where Statement of Conditions has imposed 'obligation of residence', it has been guarded by various provisions of the Act of 1912. Section 12 provides for exception of temporary absence of tenant if his permanent residence is in Cholistan, which means on change of residence out of Cholistan/estate the grant of land becomes void. Proviso to the Section 19 stipulates that "right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated". Section 10(4) tells, "the grant shall be held subject to the conditions declared applicable thereto". Section 16 envisages false information as breach of the conditions of tenancy and Section 17 allows exchange on the same conditions and subject to the same obligations.
If a grant is meant for "Bonafide residents of Cholistan" being 'landless' or 'petty farmers', whether it could be transferred, under Section 19, to a non Cholistani, is serious question to be looked into by Board of Revenue, being in control of such tenancies under Section 10 of the Act of 1912 read with powers under Section 164 of the Act of 1967. Jurisdiction of revision under the Section 164 can be exercised, at any time, by the Board on its own motion or on an application. Supreme Court of Pakistan gave similar directions for probe to the Board of Revenue in Khuda Bakhsh and others v. Cholistan Development Authority through Managing Director, Bahawalpur and others (1998 SCMR 2231), relevant part is reproduced.
"4. In support of the above petitions, it has been vehemently contended by the learned counsel that the above findings recorded by the High Court are contrary to factual as well as legal posit ion inasmuch as Shahi Muzara Scheme was notified as stated above. Similarly , other schemes were also notified. The learned Advocate-General, Punjab, Mr. Ashtar Ausaf Ali has candidly conceded that the finding of the High Court that the Colonization of Government Lands Act, 1912 is not applicable, is not correct. He has also submitted that if the said Act is applicable, it must follow that the Board of Revenue and the other hierarchy provided under the West Pakistan Land Revenue Act, 1967 would also have jurisdiction. The above concession seems to be in consonance with law .
5. In our view, the basic question in issue is as to who are the allottees of the suit land and who are occupying it unauthorisedly. This is a question of fact, which is to be determined on the basis of allotment orders/title documents to be produced by the alleged allottees before the competent forum. The occupants who have no title have no legal right to remain in occupation and, therefore, they are liable to be ejected. In our view, it will be just and proper to remand the cases to the Board of Revenue Punjab with the direction to ask the occupants to produce their allotment/title documents, if any, and in case some of the occupants succeed in producing the allotment/title documents and also show that they have complied with the conditions of the allotment and the breach, if any, is condonable under the law, they will be allowed to continue to remain in possession.
The occupants who will fail to satisfy the Board of Revenue as to their entitlement to be in possession, shall be ejected. The Board of Revenue may issue public notices before adjudicating upon the question of title so that nobody may have a grievance that he was not heard. We may also observe that the cases, which were remanded by the Board of Revenue to the Commissioner should be recalled and the same should also be decided by the Board of Revenue.
The above petitions are converted into appeal and they are disposed of in the above terms. " [emphasis supplied] In another case Muhammad Aslam and others v. Shabbir Ahmad and others (PLD 2003 Supreme Court 588), while holding that transactions under the Act of 1912 are not pre-emptible. The Apex Court has ruled in favour of 'dominant discretion ' of the Government to select a person as transferee of colony land. Relevant excerpt is reproduced:- "10. A close perusal of Act V of 1912 would indicate that a right to acquire property is a grant by the Government. At the time of such grant in the initial stage referable to section 10 thereof, the Government has all the authority to allot or refuse allotment of a property but to a specific person. This dominant discretion of the Government to select the person as transferee of colony land is so important that even the original allottee cannot transfer or sell the land in his occupation to a third person unless permitted by the Collector under section 19 of the Act, Meaning thereby that so long as the ownership vests in the Government, there can be no transfer, alienation or sale of rights unless permitted by the Government. Which person is eligible or entitled to acquire the land, is a matter to be appreciated and approved by the Government in the light of all the attesting circumstances prevailing with reference to Sections 10 and 19 of the Act.
11. What we intend to bring home is that every acquisition of land under Act V of 1912 is specific and not automatic in routine. No one can occupy the land either as original transferee or subsequent vendee unless permitted by the Collector . Such permission is personal and specific in nature and not general. The same argument, if put in other words, would mean that right to occupy land can neither be acquired by automatic sale nor by substitution because in case of substitution, which essentially is the right of pre-emption, the provisions of section 19 are violated. When a vendee cannot purchase a right without permission, no one can step into his shoes without such permission, provided the land still belongs to the Government. In nutshell, we hold that a right to acquire or purchase property in colony area is a right specifically permitted by the Government and it cannot be substituted by ignoring the provisions of section 19 of the Act. If not susceptible to substitution, the obvious conclusion would be that any such transaction is not pre-emptible." [emphasis supplied]
12. For the reasons stated above, this and connected petitions are allowed with following directions:-
(a) Appeals of the petitioners shall be entertained by the Commissioner/respondent No.4.
(b) Respondent No.4 (Commissioner) is directed to consider the applications for condonation of delay sympathetically, keeping in view the anomaly regarding availability of appeal, which is resolved in this judgment.
(c) Powers under Section 164 of the Act of 1967 may also be exercised, in appropriate cases, to ensure that allottees under the Notification dated 05.03.2013, are Bonafide residents of Cholistan being landless or petty farmers.
(d) Member (Colonies), Board of Revenue is directed to ensure control of the Board of Revenue, as envisaged under Section 10 of the Act of 1912, and call for record of allotments which are transferred under the Section 19 to non Cholistanies. If the transfer is in violation of the Statement of Conditions read with the Sections 10 and 19 of the Act of 1912, he shall proceed in accordance with law.
He shall also ensure that the state land is allotted to maximum landless Cholista nies as first priority and then to petty farmers.
A compliance report shall be submitted to Deputy Registrar (Judl.) of this Court after every three months till the directions are complied with.