RASAAL HASAN SYED, J.---Order dated 22.1.2019 of the Member Board of Revenue respondent No. 1, is subject matter of challenge in the instant writ petition.
2. Land in square No. 40, Chak No. 117/15-L, Tehsil Mianchannu, District Khanewal was statedly allotted to Mutalli son of Sardara who died in the year 2002; his legal heirs applied for allotment on the terms as were applicable to their predecessor but they were not found to be entitled to seek allotment. Land was resumed and thereafter by inviting applications, short listing the same, it was allotted to the petitioner; the order was challenged in appeal unsuccessfully and thereafter in revision before the Member Board of Revenue where the case was remanded on 15.3.2010; the order was challenged in Writ Petition No. 2934/2010 wherein the case was remanded to the Member Board of Revenue. In post-remand proceedings the impugned order was passed.
3. It was argued on behalf of the petitioner that while sending the case to the District Collector for grant of tenancy rights through open auction, the learned Member Board of Revenue allowed all the interested persons to participate in the proceedings, ignoring, that the matter before him was allotment of tenancy under Horse Breeding Scheme which exercise could not be made through open auction keeping in view terms and conditions of tenancy as framed under the provisions of Colonization of Government Lands Act, 1912. It was added that the Horse Breeding Scheme was meant to allow tenancy so as to enable the tenant to supply the horses to the Remount Department and it could not be disposed of through open auction. Learned counsel submitted that notwithstanding the fact that the revision petition was dismissed which would have resulted in automatic restoration of impugned order of District Collector and EDO(R) by which the allotment was made in favour of the petitioner yet the order of open auction was made, which is self-conflicting. It was submitted that the order of District Collector and EDO(R) were set aside by the learned Member Board of Revenue without giving any reasons and therefore, the impugned order being perfunctory cannot sustain. Contrarily, it is argued by the learned AAG that as per prevailing policy, the lease could not be given through any other mode than public auction and that in such exercise the best public interest is taken care of and that the possibility of allotment under political influence is ruled out. Further submitted that very objective of the scheme can be better taken care of if an open competition is allowed through auction which enable the Authorities to assign right of tenancy in favour of most eligible and competent persons. Learned counsel for the private respondents does not, oppose the remand of the matter to Member Board of Revenue for disposal of the matter in accordance with law and for passing a speaking order containing reasons for the conclusion drawn.
4. Careful review of the record indicates that land in Square No. 40, Chak No. 117/15-L, Tehsil Mianchannu, District Khanewal was initially allotted to Mutalli son of Sardara pursuance to the Horse Breeding Scheme who died in the year 2002, his legal heirs applied for the allotment of land on the same terms and conditions on which their predecessor was allotted the land; their request was not accepted, the order was challenged by them in the hierarchy of jurisdiction and thereafter in writ petition which was dismissed by this Court. The land was resumed, fresh applications were invited, in response, 30 persons statedly applied for the allotment; the Remount Officer shortlisted the applications and selected six applicants and, in his report, dated 18.6.2005, placed the petitioner at serial No. 1 in the priority list. It is observed' that vide order dated 06.3.2006 the District Officer (Rev)/District Collector, Khanewal, allotted 200 kanals 2 marlas in Chak No. 117/15-L, Tehsil Mianchannu, District Khanewal in favour of Abid Hussain son of Ameer Hussain (present writ petitioner) for a period of six years. The order was challenged in appeals by the other applicants which was dismissed by Executive District Officer (Rev) [EDO(R)] vide order dated 21.3.2007. The orders of the forums below were challenged in four revision petitions i.e. R.O.R Nos. 611/2007, 703/2007, 767/ 2007 and 1349/2007 by Muhammad Ashraf, Muhammad Nawaz, Muhammad Yaseen and Muhammad Saleem. It appears from the final order of the Member Board of Revenue that the revision petitions of Muhammad Nawaz and Muhammad Yaseen were dismissed for non-prosecution on 07.7.2009. Muhammad Yaseen thereafter submitted an application for restoration of the revision and then made a statement on 05.1.2010 that he did not wish to pursue his case; in result, his revision petition was also dismissed as withdrawn on 05.1.2010 in favour of Muhammad Ashraf. After hearing all concerned, the Member Board of Revenue set aside the orders of Executive District Officer (Rev.), Khanewal dated 21.3.2007 and remanded the case for passing of fair and just order after making an 'independent inquiry. This was vide order dated 15.3.2010. The order was challenged in Writ Petition No. 2934/2010 which was allowed on 10.11.2016, the order dated 15.3.2010 of the learned Member Board of Revenue was set aside, and all the four revision petitions were ordered to be treated as pending and the learned Member Board of Revenue was directed to decide the lis after hearing the parties on the basis of available record. In the post-remand proceedings, the impugned order dated 22.1.2019 was passed by the Member Board of Revenue whereby the District Collector was directed to dispose of the tenancy rights through open auction.
5. Deeper scrutiny of the orders and the proceedings referred hereinabove manifests that on the demise of late Mutalli, the original allottee, his legal heirs did apply for the allotment of rights under Horse Breeding Scheme on the terms on which their predecessor had held the land; the request did not find favour as the report of the concerned officer was that their predecessor did not perform according to the conditions of tenancy, there were serious reports against him and that despite warning and reminders, he could not perform according to objective of the scheme and did not supply the requisite quantity of horses. It was also noted that the legal heirs were not eligible as of right to claim the lease rights under Horse Breeding Scheme. It is also ordered that the heirs of late Mutalli unsuccessfully challenged the order in appeal before the EDO(R), and revision before the Member Board of Revenue which too was dismissed. Land on resumption was allotted to the petitioner, on the basis of report of District Collector.
6. The District Remount Officer Sahiwal observed that Muhammad Yasin, the applicant was son of ex-breeder and that as per report the performance of ex-breeder was not satisfactory; his legal heirs were given many chances to improve their performance regarding animal breeding operation, they did not take any interest in the breeding operation and therefore they were not found entitled to the tenancy. As regards Abid Hussain, the present petitioner, it was observed that he was a young man having sufficient knowledge of Horse Breeding Tenancy and was resident of Chak No. 117/15-L; he owned his land in the said Chak and his name was recommended. In view of these observations, the District Collector Khanewal vide order dated 02.6.2006 allotted land measuring 200 kanals 2 marlas in Chak No. 117/15-L, Tehsil Mianchannu, District Khanewal in favour of Abid Hussain petitioner, pursuant to the Horse Breeding Scheme with effect from 12.2.2002. The order of the District Collector was challenged before Executive District Officer (Rev), Khanewal who affirmed the findings recorded by the District Collector. In his detailed order he examined the comparative merits and de- merits of all the applicants including the petitioner and gave detailed reasons for holding the other applicants ineligible or incompetent and also reasons for accepting the petitioner to be entitled for allotment of rights. The indepth discussion of facts, the reports of the Revenue Officials, the reasons for rejecting the application or for allowing the application contained in paragraphs 3 to 10 of the order dated 21.3.2007 of the Executive District Officer (Rev), Khanewal. It is discernible said officer gave reasons in detail to justify the allotment in favour of the petitioner which of course were subject to reconsideration in revision by the Member Board of Revenue. It was observed by him that the performance of the deceased Breeder was unsatisfactory, his legal heirs despite being given opportunities failed to improve; the land had to be resumed because of the poor performance of the deceased Breeder as also his legal heirs; the petitioner Abid Hussain was owner of the land in the same Chak and was more conversant with the Horse Breeding Scheme's requirements and was therefore more suitable for the purpose of leasing out the land under the Scheme. The Member Board of Revenue, in order dated 15.3.2010 did not give any reasons to disagree with the findings which were concurrently recorded by the two forums below and in a mechanical manner remanded the case directing that a just, fair and independent inquiry be made by the Executive District Officer (Rev), Khanewal and thereafter a decision should be taken without any political pressure or influence. The order dated 15.3.2010 of the Member Board of Revenue was challenged in Writ Petition No. 2934/ 2010 by the writ petitioner Abid Hussain wherein the main thrust of challenge was that the order was perfunctory and non-speaking as it did not take care of concurrent finding nor gave any ground or reason to ignore the same and make an order of remand simplicitor. The writ petition was allowed on 10.11.2016 by learned Single Judge of this Court; operative part whereof is as under:--- "Learned counsel for the petitioner submits that order dated 15.3.2010 passed by the Member (Judicial-V), Board of Revenue, Punjab is based on misreading and non-reading of record and without any reason. When confronted to the learned counsel for the respondents with the above proposition, he agreed that no reason has been mentioned while passing the impugned order, as such, with the concurrence of the learned counsel for the parties, this writ petition is allowed and the impugned order dated 15.3.2010 is hereby set aside and ROR Nos.
611/2007, 703/2007, 767/ 2007 and 1349/2007 are deemed to be pending. The Member (Judicial-V) Board of Revenue, Punjab, is directed to decide the lis between the parties after hearing them on the basis of the available record as early as possibly preferably within a period of three months positively under intimation to the Deputy Registrar (Judicial) of this Court. The parties are directed to appear before the Member (Judicial-V), Board of Revenue, Punjab on 30.11.2016"
7. On due consideration of the impugned order, the facts noted supra, and the earlier order in writ petition whereby the case was sent back for fresh decision by the learned Member Board of Revenue, it is observed that the impugned order does not record any cogent reason for ignoring the points raised before the Member Board of Revenue. The lis before him stemmed from concurrent findings recorded by the forum below with detailed reasoning in support thereof to justify the conclusion drawn. The Member Board of Revenue was expected to examine those reasons and thereafter agree or disagree by passing a speaking order giving cogent reasons for his own conclusion. It is settled rule that the appellate revisional forum shall consider the reasons as prevailed with the forum below; the points raised before the revisional appellate court and to deliver a judgment by giving supporting reasons of taking the decision. In the instant case, the Member Board of Revenue did not give any reason whatsoever for ignoring the reasons in the impugned orders nor give any reason to ignore the entire exercise of inviting applications seeking report and of ultimate orders passed in result thereof on the basis of the prevailing terms and conditions of lease under Horse Breeding Scheme. The argument of the learned counsel for the petitioner that the order is non-speaking appears to be sound in the circumstances as noted supra. In this view of the matter, the impugned order cannot be deemed to be either lawful or a result of proper exercise of jurisdiction. The case needs to be remanded for decision afresh; the Member Board of Revenue shall attend to reasons as prevailed upon the forum below for upholding the claim of the petitioner; in case he is not satisfied he should record appropriate findings duly supported by reasons., He shall also examine if there is change in the policy or rules pertaining to the lease of property under the horse Breeding Scheme; and if so, whether it will apply to the cases which were processed and completed under the previous scheme and whether there is sufficient evidence to satisfy that the earlier recommendation of petitioner was under any police influence and was not on merits and if so its effect; and whether in the special circumstances, the auction of the lease rights is the only course available, to rule out any political influence in the lease of public property under the Horse Breeding Scheme, and that the public auction will save the possibility of any extraneous intervention and will be more appropriate to take care of the public interest and to ensure the assignment of lease to the rightful and eligible persons who has the real potential to perform according to the objective of the Scheme and in case the public auction is considered to be the only course open, as to what would be the criteria for determining the eligibility of the persons who shall be entitled to participate for the lease of property under the Scheme by taking into consideration all these matters. Since all these important aspects of the case have not been examined or factored in by the Member Board of Revenue in rendering his decision, the case needs to be sent back to him for re-determination and fresh decision.
8. As upshot of the above, this writ petition is allowed; the impugned order of respondent No.1 is set aside, in result, the revision petition shall be deemed to be pending before Member Board of Revenue, who shall decide it in accordance with law and on its on its own merits, by considering and keeping in view the observations, factors, and the requirement of rule noted supra.