The petitioners are the heirs of Sh. Mumtaz Hussain who was granted the tenancy of 4 squares of Government land on Horse Breeding Conditions. The land is situate in Chak No. 29/2-R, Tehsil Okara, District Sahiwal. According to the Conditions of the grant, the grantee was required to maintain a stipulated number of brood mares on the land, so that he could sell their progeny to the Government at the price and on terms mentioned in the Conditions. The petitioners having failed to keep the required number of brood mares, the District Collector, Sahiwal, by his order dated 20-10- 1979, ordered inter alia that--- "proportionate income of the stud land (less the tenants' share) be resumed from the grantee."
The petitioners' appeal against the order which was filed before the Commis--sioner failed. Their revision against the appellate order having also been dismissed by the Board of Revenue, they have brought this Writ Petition.
2. Action against the petitioners was initiated by the District Remount officer, who by his letter dated 17-6-1979, informed the District Collector Sahiwal that in the stud of Sh. Mumtaz Hussain, the following breaches of terms and conditions were noted
(a) Stud grantee is deficient of two mares were. f. 31-10-1976 and 4-11-1976.
(b) He is deficient of 3 stables, 3 foaling boxes, 4 dry paddocks and 3 grazing paddocks. Fodder producing area not demarked by him.
(c) Purchasing result of the stud is not satisfactory as the grantee has given only 3 foals to Government since 1970."
The officer also made a request to the District Collector that: "a notice be issued to the grantee under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 to rectify the above breach of conditions within a reasonable time, and to resume the proportionate income of the land (less tenants' share) for the deficient number of mares vide clauses (9) and (10) of the Statement of Conditions."
The District Collector issued a notice under section 24 of the Colonization of Government Lands Act, which was received by petitioner Safdar Hussain, The petitioners' representative and their counsel appeared before the Collector. The Departmental Representative was also heard. The Collector found that the "deficiency of mare is a rectifiable breach" but it was for the grantee to rectify the breaches and to get in touch with the Remount Officer to obtain "O. K. Report from him," which had not been done. The Collector ordered that since the deficiency had not been made good- "the proportionate income of the Stud land (less the tenants share) be resumed from the grantee for the deficient number of mares as required under clauses (9) and (10) of the Statement of Conditions issued vide Punjab Government Colonies Department Notification No. 5184] 63-G dated 6-I1-1963. The grantee is given a period of one month to make good the deficiency, failing which the grant can be resumed."
Against the order of the Collector, the petitioners went in appeal before the Commissioner. They urged in their grounds that there was no deficiency in mares and that they had procured one mare which had not been rejected by the District Remount Officer. They also submitted in their grounds that they had offered to pay Rs.10,000 per mare to the District Remount Officer through cheque, but the same was returned to them. It was also urged that the order of resumption of proportionate income, amounted to resumption of land, and this could not be done without giving a notice to the petitioners in accordance with the law.
3. While rejecting the appeal the Commissioner observed as follows : "On the previous date of hearing, i.e. 24-2-1980 the appellants were directed to produce the mares of prescribed standard before the District Remount Officer and submit a certificate of the District Remount Officer in this respect in the Court. The learned counsel for the appellants has not been able to produce the requisite certificate of the District Remount Officer, in this Court which shows that the appellants have not complied with the directions of this Court with regard to the making good of deficiency of mare. In view of the above-mentioned circumstances, I see no reason to interfere with the order of the District Collector, Sahiwal dated 21-10-1979."
4. While dismissing the petitioners' revision, learned Member Board of Revenue found that the petitioners had failed to .Rectify the default even after notice, and observed that the Collector was fully justified in making the order of recovery of proportionate income under clauses (9) and (10) of the Statement of Conditions.
5. The petitioner's learned counsel submitted that the maximum penaIt3 that could be imposed on a tenant was Rs.100 as mentioned in section 24 of the Colonization of Government Lands Act, and that even if the Condition, provided for a larger sum as penalty, the same could not override the provisions of the Act. A reference in this behalf was made to section 2~ which reads as follows : "24. When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection-
(a) impose on the tenant a penalty not exceeding one hundred rupees ;or
(b) order the resumption of the tenancy, ; Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed, to comply with such notice."
6. I regret my inability to find any substance in the contention that section 24 prevents the Government from recovering proportionate income under the Conditions of the Grant. There is no doubt that under section 24, the penalty that can be imposed for the breach of a condition of tenancy cannot exceed Rs.100, but the recovery of proportionate income, which has been ordered to be made, is itself and enforceable condition of tenancy. The recovery cannot be regarded as penalty for breach of a condition so a to be controlled by subsection (a) of section 24. Paragraph 9 of the condi--tions, the relevant portions of which are reproduced below, clearly shows that the recovery of proportionate income is a condition of the grant: "9. (a) For every 50 acres of land allotted the tenant shall maintain one imported brood mare, fit in the opinion of the Director of Remounts Veterinary and Farms, for breeding remounts for Army use . . . . . . . . He shall procure and maintain a total number of . . . . . Brood mares of the specification laid down by the Director.
(b) The grantee shall purchase the prescribed number of mares before the expiry of 2 years from the date of taking possession of the land failing which his tenancy shall be liable to be cancelled.
(c) .
(d) .
(e) .
(f) .
(g) If any mare maintained by the tenant under these Conditions dies or otherwise ceases to be in his possession, or is found incapable of breeding foals fit to become remounts for the Army, the tenant shall within one year from the date of happening of any such contingency produce another mare fit for breeding remounts for the Army to be approved, branded, maintained, utilized breeding, managed, produced, and in case of need replaced as herein provided in respect of mare furnished on allotment, and the same rules shall apply throughout the duration of his tenancy to all mares maintained hereunder and their progeny. If the deficiency continues to exist after the lapse of twelve months, as aforesaid, the tenant shall pay to Government-
(i) When the duration of deficiency after the first twelve months is six months or less, half the annual income (less tenants share therein) from 50 acres of land per. Each mare deficient.
The same rules shall apply for subsequent years for so long as the defi--ciency continues to exist.
The condition of recovery of penalty for deficiency in the number of mares may, at the discretion of Quarter-Master-General, be relaxed in exceptional circumstances."
7. It is contended on behalf of the petitioner that the recovery is termed in the above para. As the "recovery of penalty" and as such it must be regarded as being so. I do not find any force in this argument. The consideration for the grant is maintaining of `mares in the 'manner provided in the condi--tions, and in supplying foals to the Government. If the required number of mares is not maintained, the grantee has to surrender a proportionate part of his income from the land. It is immaterial whether this resumption is termed as a penalty in the Statement of Conditions, or whether it is described by any other name. What is material is that the maintenance of the required number of mares, and the surrender of proportionate income are alternative conditions. If one is not fulfilled, the other must follow. It cannot be regarded as being a penalty in the sense in which the word is used in section 24. If a grantee chooses not to maintain any mares, be cannot be allowed to get away by merely paying a penalty of Rs.100. Penalty mentioned in section 24 can be imposed when a breach of a condition in general is made. I, therefore, hold that the presumption of proportionate income as ordered by the concerned authorities, was in accordance with the conditions of tenancy and therefore in accordance with the law.
8. It is next contended on behalf of the petitioners that no notice under section 24 was issued to them before the imposition of the "penalty" referred to above.
9. The notice prescribed under section 24 is necessary only when al penalty under subsection (a) of that section is intended to be imposed, or c when an order for resumption of tenancy under subsection (b) is to be made.1 The action taken against the petitioners does not fall within any of the two subsections, and as such it cannot be the grievance of the petitioners that the statutory notice was not issued to them. However, learned counsel for the respondents has shown to me the notice which was issued in this behalf, which shows that service had been affected on Safdar Hussain petitioner on 1-'8-1979. This notice meets the argument of the petitioners' learned counsel that in any case, some opportunity to show cause against the proposed action should have been given. There was ample opportunity for the petitioners to show cause against the recovery of proportionate income. The action taken against the petitioners being in terms of the conditions of the grant, the same cannot be regarded as being without lawful authority. There is no merit in this writ petition, which accordingly is dismissed. How--ever, there shall be no order as to costs.