Through this single order , I intend to decide the above titled writ petition along with connected Writ Petition Nos.35654, 35405, 35573, 35714, 35733, 35603, 35622, 35785, 35961, 35860 , 36001, 36002, 36003, 36004, 35999, 36000, 35502, 35525, 35490, 35491, 35492, 35495, 35498, 35499 of 2020 as common questions of law and facts are involved in all these writ petitions.
2. Through these writ petitions, the petitioners have challenged the vires of Notification No.2106- 2019/753-CL(I) dated 13.09.2019 issued by the Colonies Department, Government of the Punjab being illegal, void, without jurisdiction, corum non-judice and unconstitutional.
3. Brief facts of the instant writ petitions are that all the writ petitioners are/were lessees over the respective chunks of the state land as given in the writ petitions. The leases were renewed by the Government of Punjab/Board of Revenue, through statement of conditions. Government of Punjab promulgated fresh policy bearing No.2106- 2019/753-CL(I) on 13.09.2019 whereby it has been decided that all the State agricultural lands situated in Prohibited Zone, Municipal Limits or State Charagah land be leased out for temporary cultivation through unrestricted public auction for a term of three years. In all these petitions the vires of the Policy dated 13.09.2019 as well as the issuance of proclamation of auction of said lands has been called in question.
4. I have heard the arguments of the learned counsels for the petitioners as well as the learned law officer and gone through the record with their able assistance.
5. Admittedly , suit land is state agricultural land situated within the prohibited zone or municipal limits and state Charagah land which was allegedly allotted to the petitioners on lease under Temporary Cultivation Scheme, 1978 and last extension was granted in terms of Notification dated 13.09.2019 (under challenge) till 30.06.2020. The Government of Punjab while invoking the powers under Section 10 (2) of the Colonization of Government Land (Punjab) Act, 1912 (hereinafter called as the "Act") issues statements of conditions/policies for the lease of state land. For ready reference, section 10 of Act ibid is reproduced as under:- "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 Board of Revenue, allot land to any person, to be held subject to such statement of 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)
Under the above provisions of the Act, Colonies Department, Government of the Punjab/Board of Revenue issued statements of conditions for the lease of the state land under Temporary Cultivation Scheme initially in the year 1944 whereafter from time to time issued notifications/statements of conditions/policies on different occasions for the lease of the state land. The subject matter of these writ petitions is to the extent of land situated within the prohibited zone or the state charagah land, as such, it is appropriate to reproduce the history of notifications issued under Section 10(2) of the Act ibid by the Colony Department, Board of Revenue and Government of the Punjab on different occasions in this regard as under:-
(i) In the notification dated 07.02.1968, the state land was to be leased for a period of 5 years with certain exemptions. Relevant clause of the aforesaid notification is reproduced as under:
2. Period of tenancy (cultivated) . The state land already under cultivation including that leased out under Temporary Cultivation Conditions on yearly tender , shall, henceforth, be leased out for a period of 5 years; Provided that such state land situated 10 miles of the outer limits of a first class municipality , 5 miles of the limits of other municipalities/T own Committees/Cantonment Boards, one mile from a railwa y station and that earmarked as Charagah, shall be leased out for a period of 3 years; Provided further that the existing leases shall, however , be valid for their present terms and thereafter leases shall be given under the present Conditions.
(emphasis supplied)
According to Clause 4 of the aforesaid notification, the period of unit and tenancy of land is mentioned as under:
4. Period of unit and tenancy (uncultivated) . The un-cultivated Banjar Qadim State land which requires little effect for leveling etc., to be brought unde r plough and which has sweet sub-soil water or for which supply of canal water can be arranged immediately shall be leased out for a period not exceeding ten years, in lots ranging upto 50 acres, Provided that such falling within 10 miles of a first class municipality , 5 miles of the outer limits other municipalities/T own Committees/Cantonment Boards, or one mile of railway station or earmarked as Charagah, shall be leased out in lots not exceeding 25 acres each.
(emphasis supplied)
Clause 24 of the aforesaid notification emphases that no proprietary rights will be conferred on any lessee under any circumstances. The said clause is also reproduced as under: Peaceful Surrender . The lease shall terminate at the expiry of the period of lease and shall not be extended. No proprietary rights will be conferred on any lessee under any circumstances whatsoever . The lessee shall surrender the land peaceably to the Government at the expiry or sooner determination of the lease for breach of conditions, or for any other reason.
(emphasis supplied)
(ii) As per notification dated 24.04.1971, the land which is lying within the prohibited zone, is also excluded from grant of proprietary rights. Relevant clause of the aforesaid notification is reproduced as under: "2. Exceptions . The following categories of land shall not be leased out under these conditions:--
(a) land which lies within 10 miles of the outer limits of a Corporation, within five miles of the outer limits of a First Class Municipal Committee or within three miles of the outer limits of any other Municipal Committee/T own Committee.
(b) Land which is already leased out for a fixed period, till the expiry of lease period or termination thereof which ever is earlier;
(c) Land reserved as Charagah ; and
(d) Land which has been reserved for sale, lease or allotment under any approved scheme.
(emphasis supplied)
(iii) The notification dated 12.06.1972 restricts from permanently disposing of land falling within the prohibited zone.
Relevant portion of the aforesaid notification is reproduced as under: "There is state agricultural land situated within 10 miles of the outer limits of a Corporation, five miles of the outer limits of a first class Municipality and three miles of the outer limits of any other Municipal committees/town Committee. This area is at present on yearly lease for agricultural purposes. The tenure of these lease will expire after Rabi 1972. Such areas cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other ancillary urban requirements. These were deliberately excluded from various land disposal schemes introduced by Government for time to time."
(emphasis supplied)
(iv) According to Clause 2 of the notification dated 07.02.1980, the land situated within the prohibited zones or comprising charagahs was given on temporary leased for a period of two years as per following criteria:
2. As regards the State lands which are not covered under the afore-said Notificat ion and are still lying un-utilized as Baqaya Sarkar , it has been decided that the same should be disposed of in the following manner:
(i) Such lands as are outside the prohibited zones other than Charagah be given on temporary cultivation lease by open auction for a period of five year in the lots not exceeding 12-1/2 acres per family to the landless tenants or self-cultivation owners who own less than four of land.
(ii) Such lands as are situated within the prohibited zones or comprise Charagahs be given on temporary cultivation leases by open auction for a period of two years in the lots not exceeding 12-1/2 acres per family to the landless tenants or self-cultivating owners of less than four acres of land. As regards the existing lease of such lands expiring in Rabi, 1098 no further extension should be allowed and the land becoming so available be similarly disposed of by open auction after every two years.
(emphasis supplied)
(v) The policy notification dated 23.10.1986 Clause 2(a) whereof allows the leasing of the land lying within the prohibited zone or Charagah for a period of two years. Relevant portion of the aforesaid Clause is reproduced as under: "2. The Government of the Punjab has been pleased to lift the ban imposed on the leases of State land. Future disposal of State land will be as follows:
(a) State agricultural land may continue to be leased out as before through restricted auction, open to landless or self-cultivating tenants owing land 4 acres or less. Lands situated in the prohibited zone or State Charagah land which is mainly meant for the extension of Abadi Deh or establishment of Government projects etc. may be leased out through restricted auction for a period of two years . For other State lands that already unde r plough will also be leased out for a maximum period of two years while in case of Banjar land the lease period may extend upto 5 years."
(emphasis supplied)
(vi) The notification dated 20.09.1993 allowed the leasing of the state land through auction situated in prohibited zone or Charagah for a period not exceeding two years. Relevant part of the said notification is reproduced as under:
2. a) Agricultural state land, situated within Municipal limits, should be leased out in lots not exceeding 12-1/2 acres, for a period of two years through general open auction . Any agriculturist/Cultivator will be eligibl e to take part in auction proceedings. b) Agricultural State land situated within the prohibited zone may continue to be leased out as before, through restricted auction . c) ............ d) State land within the Prohibited zone, charagah and cultivated state land may be leased out for a period not exceeding two years which Banjar state land situated outside prohibited zone may be leased out for a period of 5 years . The land will be re-auctioned after the expiry of prescribed period.
(emphasis supplied)
(vii) The clause 2 of notification dated 24.06.1999 lays down a criteria for lease of land situated in prohibited zone or Charagah land. The same is defined as under: "2. The temporary Cultivation Lease Scheme was promulgated in the Province in 1993 vide this office circular memo under reference wherein it was laid down that all available agricultural state land should be leased out after carrying lots upto 12-1/2 acres. State land situated within Municipal limits is to be leased out through general open auction for a period of two years. The state land situated within prohibited zone, charagah and already cultivated land is to be leased out for a period of two years and Banjar state land situated outside the prohibited zone is to be leased out for a period of five years through restricted open auction to the landless tenants or self cultivating owners of less than four acres of land who are bonafide residents of the chak/villag e/revenue estate where the land is situated.
(viii) The auction and re-auction of the lease of state land under Temporary Cultivate Lease Scheme was suspended vide notification dated 09.10.1999. Relevant portion of the aforesaid notification is reproduced as under: "To review the availability of state land in the Province, it has been decided to suspend the auctions and re- auctions of the state land under T emporary Cultivation Lease Scheme with immediate ef fect."
(ix) Vide notification dated 09.06.2001, further extension of the lease of state land situated within municipal limits and/or state charagah land was not extended any further and possession of the land was ordered to be resumed after expiry of the lease. Relevant portion of the aforesaid notification is reproduced as under:
2. The Government of the Punjab in the Colonies Department has been pleased to decide that leases given under Temporary Cultivation Lease Schemes issued from time to time in respect of land situated within the municipal limits, prohibited zone, charagah and that reserved for permanent schemes/public purposes should not be extended after expiry of the existing lease period and the possession should be resumed forthwith.
3. It is further decided that all the state land of the categories mentioned in para 2 above which may be lying un- allotted or which may become available after expiry of the lease period, may henceforth be leased out in the following manner:- a) Agricultural state land situated within municipal limits, of the categories mentioned in para 2 above should be leased out in lots not exceeding 12-1/2 acrs for a period of two years through open auction . Any agriculturist/cultivator will be eligible to take part in auction proceedings.
(emphasis supplied)
(x) The above restrictions withdrew through notification dated 13.01.2010 and the lease of land situated within the prohibited zone was allowed on certain conditions. Relevant portion of the aforesaid notification is reproduced as under: "1). Selected agricultural state land, situated within prohibited zone/Municipal limits or Charagah land, may be leased out in lots not exceeding subsistence holding (i.e. half a square, or half a rectangle or 12-1/2 acres which- ever is more) for a period of one year through restricted auction..."
(emphasis supplied)
(xi) Through notification dated 11.05.2010, the lease period for land situated within the prohibited zone was extended upto 30.05.2010. Relevant portion of the aforesaid notification is reproduced as under: "2. I am directed by the Competent Autho rity to convey you that the times schedule for the following three schemes has been extended upto 30.05.2010.:- a) Allotment of state land under Temporary Cultivation Lease Scheme for one year situated within the Prohibited Zone and Charagah."
(emphasis supplied)
(xii) Under notification No.917-2013/932-C.L(I) dated 26.11.2013, selected agricultural land or charagah land situated within the prohibited zone was allowed to be leased out on certain conditions. Relevant portion of the aforesaid notification is reproduced as under: "1). Selected agricultural state land, situated within prohibited zone/Municipal Limits or Charagah land, may be leased out in lots not exceeding subsistence holding of 100-kanals for a period of one year through open auction..."
(emphasis supplied)
According to the Act as well as all above said notifications/policies made under Section 10(2) of the Act ibid on the subject issued by the Colonies Department, Government of the Punjab/Board of Revenue, Punjab a constant approach was/is followed throughout that land situated within the prohibited zone or state Charagah land can only be given on lease under Temporary Cultivation Lease Scheme only through auction for specific period and after lapse of stipulated lease period the lessee was/is duty bound to peacefully vacate/surrender the possession of land in favour of the state. Such areas/land cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other urban requirements.
6. It is pertinent to elaborate the salient characteristic of the Charagah Land as well as its expected objects and purposes of utilization as described in the policy of Charagah land dated 04.02.1998, relevant text whereof is reproduced as under:- "i). The Charagah land around the village abadis as also alongwith roads shall not be converted into State land and shall not be used for any purpose excep t with the prior permission of the Board of Revenue and that for a public purpose only. A recommendation in this behalf should invariably be initiated by the District Collector through the Commissioner of the relevant division."
After scanning the policies on the subject for the grant of lease or proprietary rights, it clearly evinces that the Charagah land has expressly been exclud ed from any further allotment/grant. This principle is manifestly described in Notification dated 3rd September 1979 (under Temporary Cultivation Lease Scheme) and Notification dated 20th April, 1983 issued by Colonies Departme nt, Government of the Punjab. Further , the Colonies Department issued notification No.3215-79/3973-C II dated 3rd September , 1979 for grant of proprietary rights under Temporary Cultivation Lease Scheme. In Clause 2 of the aforementioned notification, the charagah land has been excluded from every grant which is reproduced as under:-
2. Exceptions and Reservations . Unless it is otherwise specifically provided, the following lands shall be deemed to have been expressly excluded from every grant under these conditions;
(i) lands already allotted under permanent grants;
(ii) lands reserved or earmarked but not yet allotted under permanent grants;
(iii) charagahs ;
(iv) lands lying within a belt of:--
(a) ten miles running along and on the outer side of outer limits of a Corporation;
(b) five miles running along and on the outer side of the outer limits of a Municipality;
(c) three miles running along and on the outer side of the outer limits of a Town Committee or a Mandi Town;
(v) lands which are/may be reserved for any purpose.
(emphasis supplied)
Through another Notification No.1925-83 /1253-CLI dated 20th April, 1983 the Colonies Department, Govt. of the Punjab issued terms & conditions for the grant of proprietary rights in the state land given on temporary leases and also excluded the following state lands including Charagah from every grant. The relevant clause is as under:- Exceptions and Reservations. Unless it is otherwise specifically provided, the following categories of State Land shall be deemed to have been expressly excluded from every grant under these conditions; i) land already allotted under permanent grants; ii) lands already reserved or earmarked for permanent grants or for a public purpose; iii) reserved Charagah or Charagah Baqaya in Colony chaks; iv) lands lying within 10 (ten) miles of the outer limits of a Municipal Corporation, within 5 (five) miles of the outer limits of a Municipality or with 3 (three) miles of the outer limits of a Town Committee/Mandi Town; v) land lying within 5 (five) miles of the outer limits of a Cantonment Board area; vi) lands allotted or leased out under service grants viz, Lambardari grants, House/Mule Breeding tenancy , Livestock Breeding tenancy and River Action Scheme.
(emphasis supplied)
The subsequent Notification No.7402-86/374-CLI dated the 1st Feb, 1995 further clarified the term prohibited Zone mentioned in notification of 1979 and 1983 for the purpose of grant of proprietary rights and vide Notification No.1997-2001/1 174-CLI dated 9th July, 2001, the following lands has been excluded from every grant, Clause 3 is as under:-
3. Exceptions and Reservations . Unless it is otherwise specifically provided the following categories of state land shall be deemed to have been expressly excluded from every grant to be made under these conditions.
1. Land already reserved under any other scheme including permanent grants/schemes and service grants.
2. Reserved Charagah or Charagah Baqaya in colony Chaks;
3. Lands lying inside municipal limits and within prohibited zone which will be upto i). 10 (T en) miles beyond the outer limits of a Metropolitan/Municipal Corporation as existed on 1.1.2001. ii). 5 (Five) miles beyond the outer limits of a Municipal Committee as existed on 1.1.2001 iii). 3 (Three) miles beyond the outer limits of a Town Committee/Mandi Town as existed on 1.1.2001.
(emphasis supplied)
From the perusal of the afore quoted notifications as well as Clause-2 of notification dated 03.9.1979, it is abundantly clear that Charagah lands / state land have expressly been excluded from every grant/allotment, as such, its any alienation or grant of proprietary rights thereof are not in consonance with the policies. Further , from the perusal of aforementioned policies, it is very much clear that Charagah land cannot be converted into state land for its onward allotment against any sort of claim and the same shall not be used for any other alternative purpose except with the prior permission of the Board of Revenue and any change of character of the Charagah land was only subservient to any manifestly described wider scope of glorified "public purpose", which change of character / nature of the Charagah is only vested with the Board of Revenue who has to objectively ascertain the public purpose with the judicious application of mind by demonstrating all superior objectives of public purpose.
Otherwise, its character cannot be modified as per policy on the subject.
It is proved on record that the respondent-Government in order to save the state land situated within the prohibited zone/Charagah land is only empowered to grant leases for specific period and in the said notification it was specifically mentioned that if at any time the Government may require the said land for public purpose, the lessees will vacate the same. The notifications dated 04.04.2016 & 13.09.2019 were also issued on the same footing by Colonies Department, Government of Punjab/the Board of Revenue by invoking the jurisdiction under section 10(2) of the Act ibid. The notifications dated 04.04.2016 and 13.09.2019 are reproduced as under:- Phone No.99210799 No.922.2016/261-CL-I, Board of Revenue, Punjab, Lahore, dated 04.04.2016.
To
1. All the Commissioners, in the Punjab.
2. All the District Collectors, in the Punjab.
3.Managing Director . Cholistan Development Authority , Bahawalpur .
Subject: EXTENSION IN TIME LINE FOR PRO-POOR INITIA TIVE IN PUNJAB. (TEMPORAR Y CULTIVATION LEASE SCHEME)
I am directed to refer to this office circular No. 2111-2013/757-CL-I dated 09.09.2013, on the subject captioned above.
2. The Government of the Punjab, Colonies Department issued two notifications No.222-2010/1 17-CL-l and No.224-2010/1 19-CL-l, dated 13.01.2010 for grant of state land for temporary cultivation on lease falling within and outside the prohibited zone and charagah. The said leases expired on 31.12.2015.
3. Now, the Government has decided to extend the lease period of the subject leases till 30.6.2016 on the existing terms and conditions. After this date, the said land will be resumed and existing the lessees will be allowed to reap their existing crops. The lessees will not cultivate the land beyond the cut-of f date. All the lots will then be put up to open auction and first right of refusal will be given to the existing lessees.
4. You are, therefore, requested to proceed further in the matter accordingly .
Secretary (Colonies)
Board of Revenue, Punjab.
(emphasis supplied)
GOVERNMENT OF THE PUNJAB LA W AND P ARLIAMENT ARY AFFAIRS DEP ARTMENT NOTIFICA TION (70 of 2019) 18 September , 2019 Notification No.2106-2019/753-CL(I), dated 13.09.2019, issued by Government of the Punjab, Colonies Department, Board of Revenue is hereby published in of ficial Gazette for general information: "GOVERNMENT OF THE PUNJAB COLONIES DEP ARTMENT Dated Lahore, the 13th September , 2019 NOTIFICA TION.
No.2106-2019/753-CL(I). 1n exercise of the powers conferred under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912) and in supersession of Notifications No. 224-2010/1 17-CL-l, dated 13.01.2010 and No.917-2013/932-C.L(l), dated 26.11.2013, Governor of the Punjab is pleased to issue the following Statements of the Conditions for grant of leases of certain available State agricultural lands situated within prohibited zone, Municipal limits or State charagah land for temporary cultivation with Immediate ef fect:
1. Existing leases. The temporary leases of the State agricultural lands situated within prohibited zone or State charagah land in the Punjab shall be extended till 30.06.2020 in favour of existing lessees who shall pay arrears of rent from 30.06.2016 till 30.06.2020 with annual increase of ten percent (10%). After expiry fresh auctions shall be conducted for a term of three years under these Statements of the Conditions.
2. Procedure for new lease.(1) Selected agricultural State land situated within prohibited zone, Municipal limits or charagah land may be leased out in lots not exceeding subsistence holding of one hundred kanal (100-kanal) for a term of three years through an open auction and the eligibility for participation therein shall be as under:-
(a) the landless tenants or seIf-cultivators not owning more than four acres of land;
(b) bona fide residents of the same chak, village or revenue estate, where such State land is situated;
(c) in the absence of the above category of persons, bona fide residents of the adjoining chaks, villages or revenue estates where such State land Is situated; Explanation: bonafide residence of a person shall be determined, inter alia, on the basis of the address mentioned in the computerized National Identity Card.
(d) eligibility of tenants or self-cultivators will be determined on the basis of Khasra Girdawari of last five years; and
(e) one family shall not be eligible to get lease for more than one lot.
Explanation: for the purpose of this clause, the word "family" means husband, wife or wives, un-married children excluding major married son of the lessee living independently .
(2) No employee of the Provincial or Federal Government, autonomous bodies and corporations or their dependents or minors shall be eligible to participate for lease of State land.
(3) The Assistant Commissioner concerned shall prepare schedules of State land in lots not exceeding subsistence holding of one hundred (100) kanals in respect of each village and get them approved by the District Collector concerned.
(4) For auctioning of State land on Lease, the reserve rent shall be determined by District Rent Assessment Committee on the basis of the prevailing market rent of similar land in the vicinity .
(5) The possession of State land shall stand reverted to the State after expiry of the lease term and it shall be re- auctioned under these Statements of the conditions.
(6) Publicity of the open auction shall be made in the revenue estate concerned through print media, electronic media, beat of drums and announcements over loud speakers at least one week before the date of auction. In addition to this, announcements over loud speakers installed in the village mosques shall be made again before the auction is actually conducted. Record of such publicity shall be maintained by the auctioning of ficer.
(7) The open auction to be conducted by the Assistant Commissioner concerned shall be held in the village or revenue estate concerned in a common assembly and the proceedings shall be recorded in writing.
(8) Each participant shall deposit one fourth of the reserve rent to the Auctioning Officer and affix his signatures or thumb impression on the terms and conditions of lease before commencement of the auction proceedings.
(9) After completion of bid in respect of each lot, signatures or thumb impressions of all the participants and village Lambardar shall be obtained on the `Fard Nilam' in authentication of the genuineness of the auction proceedings.
(10) The `Fard Nilam' appended to these statements of the conditions shall be properly , legibly and completely filled in at the time of holding of open auction of State land by the Auctioning Of ficer.
(11) Auction proceedings shall be subject to the approval by the District Collector after having been satisfied with the genuineness of the proceedings.
(12) The District Collector shall approve or decide otherwise of auction proceeding s within a period of fifteen days.
In case of rejection of the auction proceeding, the highest bidder shall be provided an opportunity of hearing before such rejection and reasons shall be recorded in writing.
(13) The possession of State land shall be delivered immediately after auction proceedings have been confirmed by the District Collector and subject to payment of the lease rent for one year by the successful bidder and after adjustment of the one-fourth of the reserve rent already paid by him.
(14) Rent for the first year of the lease shall be paid by the lessee within fifteen days from the date the lease is granted and in the ensuing years, it shall be paid on or before the fifteenth day of January each year and such rent shall be for the whole year i.e. for Kharif and Rabi harvests.
(15) The rent for the second year and subsequent years shall be paid with fifteen percent (15%) annual increase.
(16) In case of default in payment of rent for a period of more than six months from the due date, the lease shall be liable to be cancelled by the District Collec tor provided that before passing such order for cancellation, the Collector shall afford the lessee an opportunity of being heard. All outstanding dues shall be recovered as arrears of land revenue.
(17) The lessee shall not assign, sublet, mortgage or transfer in any manner the leased area or any part thereof.
(18) In case of death of the lessee during the currency of the lease, the tenancy shall devolve on the legal heirs for the un-expired period with the approval of Collector of Tehsil.
(19) No defaulter of rent or lease money shall be eligible to take part in the auction proceedings.
(20) The Board of Revenue, Punjab and the District Collector , at any stage, shall have the power to stop, postpone and cancel the auction proceedings.
(21) Plantation of local species of trees shall be carried out by the lessee in the leased land as per instructions issued by the Government from time to time.
(22) The lessee shall execute a bond or undertaking on non-judicial stamp paper to the effect that if during the currency of the lease, the land in entirety or a part thereof, is required by the Government for any public purpose, the lessee shall surrender its peacefu l possession without demur immediately and shall not claim any compensation in respect of development effected on the leased land or that of trees planted thereon. However , no lessee shall be ejected before he has reaped the main standing crops or is paid full compensation at market rates for such crops. He shall also undertake to hand over possession of the land peacefully to the Collector or his nominee on the expiry of the lease term.
(23) If at any time, it is found that the lessee has obtained the lease through fraud, misrepresentation and concealment of facts, the lease shall be cancelled forthwith by the Collector .
(24) Leases under these statements of the conditions shall be governed under the Colonization of Government Land (Punjab) Act, 1912 read with the General Colony Conditions 1938 and the temporary cultivation lease conditions issued by the Government of the Punjab in 1944.
MEMBER/ SECRET ARY GOVERNMENT OF THE PUNJAB COLONIES DEP ARTMENT"
7. Admittedly all the petitioners availed the benefits of the statements of conditions of lease issued from time to time by the Government of the Punjab under Section 10(2) of the Act, 1912 and now they are challenging the vires of the said Notification No.2106-2019/753-CL(I) dated 13.09.2019. They are beneficiaries of the policies/statement of conditions issued by the Government of Punjab under Section 10(2) of the Act, as such, the case of the petitioners is fully hit by principle of approbate and reprobate. Reliance is placed on the cases titled as A.R. Khan Vs. P.N.
Boga through Legal Heir (PLD 1987 SC 107). For ready reference, relevant portion of the judgment (supra) is reproduced as under:- "It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J., in Smith v. Baker (SC 350) at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage. See also per Lord Kenyon, C.J., in Smith V . Hodson (2 Sm. L C 140)."
The Hon'ble Apex Court in another case titled as M/s. Home Comforts Vs. Mirza Rashid Baig & Others (1992 SCMR 1290 ) held that:- Thereafter fresh ejectment application should have been filed against M/s. Home Comforts as tenant. Contention is untenable for the reason that at the very outset of the ejectment proceedings when written statement was filed such objection was not raised that ejectment application should be dismissed as non-maintainable simply for the reason that Ibrahim son of Hussain Ali was not tenant but positive assertion was made in the written statement that M/s. Home Comforts were the tenant and not only that but stand was taken that defau lt of 8 months in the payment of rent was not committed as alleged against Ibrahim son of Hussain Ali in the application for eviction and proper explanation was given in details as to how rent was paid by M/s. Home Comforts for the period of default. In the evidence also attempt was made to prove that there was no default and rent was paid to the landlady . In such circumstances it was rightly held by the learned Rent Controller that the tenancy is admitted by Home Comforts and default is proved against them. No person can be allowed to approbate and reprobate in the same breath.
Reliance is also placed on the case titled as Federation of Pakistan Vs. Amir Hamza (2001 SCMR 1959 ), relevant portion whereof is reproduced as under:- The very factum of his invoking jurisdiction of the Tribunal and preferring proceedings before this Court, negates legal and constitutional objections raised by him. It may be observed that the appellant' cannot be permitted to approbate and reprobate in the same breath i.e. to challenge the constitutionality and jurisdiction of forum which he has himself invoked for seeking relief under the law .
In Noor Muhammad, Lambardar Vs. Member (Revenue), Board of Revenue, Punjab, Lahore & Others (2003 SCMR 708 ), the August Court of the country observed as under:- In our opinion, this objection is not available to him for the reason that learned counsel on behalf of legal heirs of Subedar Asghar Ali had also filed a separate petition being No. 1651-L of 2002, assailing the same order , therefore, he cannot be allowed to blow hot and cold in one breath.
In another case titled as Overseas Pakistanis Foundation & Others Vs. Spn. Ldr. (Retd.) Syed Mukhtar Ali Shah & Another ( 2007 SCMR 569 ), the August Court of the country observed as under:- It is also a settled law that nobody is allow ed to approbate and reprobate as law laid down by this Court in Ghulam Rasool' s case PLD 1971 SC 376 .
8. The petitioners called in question the policy/notification dated 13.09.2019 for the auction of lease hold rights of the state land / charagah land situated within the prohibited zone through unrestricted public auction giving a fair and transparent chance to all the people of the said vicinity on the sacred principles of equality and indiscrimination as well as to fetch fair suitable amount qua the utilization of the state assets and also to protect or safeguard the public interest and issue the instant policy . The policy can only be called in question before this Court through constitutional jurisdiction on the grounds;
(i) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(ii) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(iii) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.
(iv) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(v) It is dehors the provisions of the Act or legislations.
(vi) If the delegate has acted beyond its power of delegation.
But the policy under question is neither inconsistent with law nor issued in violation of the constitution rather it safeguards the state property which is ultimate property of public at large. It is settled law that constitutional courts ordinarily avoid to interfere in the policy matter or the policy decision making of the Government if it is not in violation of any law or Constitution of Pakistan, 1973. Even no argument has been advanced as to how the policy is against any provision of law or the Constitution inasmuch as the petitioners have also not proved any mala fide of the government regarding making and issuance of the policy/notification dated 13.09.2019, whereas under Section 10 of the Act, the Government is competent to issue the statement of conditions/policies. It is un-deniable that this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 may annul an order or a policy framed by the Executive, if it is proved to be violative of law & Constitution and is product of malafides but no vice, flaw, infirmity has been pointed out to demonstrate that the impugned policy is violative to any law. Hence, from this aspect of the matter , this writ petition is not maintainable.
Reliance is placed on the case titled as Dossani Travels Pvt. Ltd. & Others Vs. Messrs Travels Shop (Pvt) Ltd. & Others ( PLD 2014 SC 1 ) wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "26. One of the seminal principles of the Constitution of Islamic Republic of Pakista n is the concept of trichotomy of powers between the Legislature, Executive and the Judiciary . This principle underp ins the rationale that framing of a government policy is to be undertaken by the Executive which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills. The Legislature which represents the people enacts the law and the law so enacted acquires legitimacy . The judiciary on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individual and the State. We may remind ourselves that judiciary neither has sword nor purse. The legitimacy and respect of its judgments is dependent on peoples' confidence in its strict adherence to the Constitution, its integrity , impartiality and independence. In changing times and judicialization of political issues, a certain degree of judicial activism by fearless and impartial judiciary is also essential for maintaining its integrity and peoples' trust. In most of the modern democracies, judiciaries have been called upon to provide wider meanings to various provisi ons of the Constitution so as to meet the challenges of modern times and to fill the gap between the law and the requirements of substantive justice. Every institution has to play its role in enforcing the Constitution and the law. It is a multi-disciplinary exercise. However , implementation of rule of law is the primary function of judiciary . This role is multi-dimensional and the most challenging facet of this role is to keep various institutions and the judiciary itself within the limits of their respective powers laid down in the Constitution and the law. The legitimacy of its judgme nts does not arise from the beauty of the language or the use of populist rhetoric. Rather it radiates from the dynamism reflected in interpreting the Constitution and in particular its Fundamental Rights provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law ."
In the same judgment, the Hon'ble Supreme Court further held as under:- 52 .......(i) that the order of the learned High Court dated 24-6-2013 passed in Writ Petition No. 7253 of 2013 is violative of the principle of trichotomy of powers, which is one of the foundational principles of the Constitution of Islamic Republic of Pakistan;
(ii) that it is not the function of the High Court exercising jurisdiction under Article 199 of the Constitution to interfere in the Policy Making Domain of the Executive;
(iii) that the learned High Court in the exercise of its Constitutional jurisdiction directed selection of Hajj Group Organizers through bidding process and thereby substituted the criterion laid down in the Hajj Policy framed by the Ministry of Religious Affairs without hearing the appellants/Hajj Group Organizers and others who had already been allocated quota and had made arrangements for intending Hujjaj, which is not tenable in law;
(iv) that the High Court can under Article 199 of the Constitution annul an order or a Policy framed by the Executive, if it is violative of the Constitu tion, law or is product of mala fides. However , nothing has been placed before this Court to indicate that the Hajj Policy challenged before this Court seriously suffered from any of these infirmities; and
(v) that Ministry of Religious Affairs shall continue to regulate the operation of Hajj i.e. enrollment, registration and allocation of quota every year in the light of a fair and transparent policy and the guidelines to be laid down by this Court in the detailed judgment."
In another case titled as Messrs Power Construction Corporation of China Ltd. through Authoriz ed Representative Vs Pakistan Water and Power Development Authority through Chairman WAPDA & 2 Others (PLD 2017 SC 83 ), the Hon'ble Apex Court held as under:- "27 ......Such decision falls within the realm of the Public Policy and the Courts in the exercise of their powers of judicial Review , ordinarily , do not interfere therewith and exercise judicial restrain, as has been held by this Court not only in the case, reported as Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop Pvt. Ltd. and others (PLD 2014 SC 1) but also in the judgment, reported as Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743 ). While we may not totally agree with the interpretation of the paragraph 2(a) of the Appendix-I of the Guidelines, as has been done by the learned High Court by way of the impugned judgments but such an exercise is not necessary by this Court, as in our opinion, the Constitutional Petition filed by the Petitioner Company was not maintainable, as it sought to encroach into the domain of the Policy Matters in respect whereof the judicial restrain is to be exercised."
Reliance is also placed on the cases titled as Dr. Akhtar Hassan Khan & Others Vs Federation of Pakistan & Others (2012 SCMR 455), JDW Sugar Mills Ltd. & Others Vs Province of Punjab & Others (PLD 2017 Lahore 68), Advocate Mian Asif Mehmood Vs Federation of Pakistan through Principal Secretary & 2 Others (2019 MLD 1210 ) & Jurists Foundation through Chairman Vs Federal Government through Secretary , Ministry of Defence & Others (PLD 2020 SC 1).
9. According to the statement of conditions / policies made under Section 10(2) of the Act ibid, the land situated within the prohibited zone or state charagah land has been excluded from the grants and proprietary rights of the said land cannot be given to anyone and in this regard, the policies made under the Act, 1912 are consistent since 1944 to onward. The state agricultural land situated within prohibited zone cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other ancillary urban requirements. So far as the arguments of some of the learned counsels that the petitioners" application for getting proprietary rights are still pending and land was outside the prohibited zone at the time of initial allotment, suffice it to say that as per the provisions of the Act ibid as well as in all the policies/notifications reproduced above, the state land situated within prohibited zone/Charagah land were excluded from any kind of grant of proprietary rights and mere pendency of any application automatically does not create any legal right. Moreover in the judgment cited as Commissioner Multan Division, Multan and others VS Muhammad Hussain and others (2015 SCMR 58), the Hon?ble Supreme Court of Pakistan has settled that accrual of cause of action will be considered from the date of filing of application for getting proprietary rights and status of the land whether it is situated within prohibited zone or otherwi se would also be determined as it was on the date of application and not from the date of initial lease. Relevant portion of the judgment (supra) is reproduced as under: "....in the absence of rules or settled instructions on the subject, it seems fair that the limits of a prohibited zone ought to be reckoned with effect from the date of written application by a qualified and eligible allottee for conferment of proprietary rights.
Admittedly the land in question falls within the prohibited zone or is a state Charagah land, as such, petitioners have failed to establish any right and also failed to point out any illegality and perversity in the impugned policy which does not require any interference by this Court in its constitutional jurisdiction.
10. In view of above, these writ petitions are dismissed in limine being devoid of any merits. However , all the petitioners are allowed to participate in the auction proceedings subject to fulfillment of the terms and conditions mentioned in the Notification No.2106-2019/753-CL(I) dated 13.09.2019 issued by the Colonies Department, Government of the Punjab.