' ABDUL SHAKURUL SALAM, J.-This order will dispose of I. C. A. No, 543 of 1980, I. C. A. No, 98 of 1981, I. C.
A. No, 97 of 1981, I. C. A. No, 174 of 1938, I. C. A. No, 175 of 1981, Writ Petition No, 32Q1, of 1981, Writ Petition No, 4132 of 1981, Writ Petition No, 3612 of 1981, and Writ Petition No, 875 of 1982 as these concern the same dispute.
2. The appellants or the petitioners were temporary lessees of State land in village Rakh Jharkal (some in Rakh Bambool), District Khushab. Vide memo. Dated 13-5-1976 it was communicated to the Deputy Commissioner, Sargodha that "the Government of Punjab is pleased to allocate 60562 acres of State land for the re-settlement of displaced persons of Atomic Energy plant in Mianwali district as under :-
1. Sargodha District: Available State land outside prohibited zone.20302 acres
2. The Colony (Khushab Tehsil).
Available State land which is outside irrigation boundry in Rakhs Noorpur, Mahmood Shaheed and Shahwala.40260 acres Total60562 acres ' For further disposal, constitution of allotments were also prescribed vide memo, dated 25-6-1976.
Subsequently, on 29-4-1978 the Board of Revenue directed the officer concerned "to reserve and draw up lots of 15 acres each of State land measuring 8080 acres in Rakh Bhambool, 8823 Acres in Rakh Jharkal and 9189 acres in Rakh Tahla Khatwan for allotment to the Atomic Energy Plant Evictees of Mianwali District....." The Commissioner concerned was informed vide endorsement in the aforesaid memo. That "The allocation of 20302 acres made in Sargodha district is hereby cancelled." Vide Notification dated 5-9-1979 it was provided that the temporary cultivating lessees of State land may be conferred proprietary rights. Since the lands under the possession of the appellants or the petitioners were reserved for allotment to the Atomic Energy Plant Evictees vide the aforesaid memo. Dated 29-4-1978 the appellants or the petitioners apprehending that they will not be conferred proprietary rights under the notification dated 3-9-1979 challenged the aforementioned memo. Of the Board of Revenue dated 29-4-1978 through Constitutional petitions.
Those were dismissed by our two learned brothers Mr. Justice Gul Muhammad Khan and Mr. Justice Muhammad Zaffarullah vide separate orders against which the afore-titled 1. C. As. Have been filed. Since the matter was pending in appeals, the other constitutional petitions afore-titled have been directed to be heard alongwith the aforesaid appeals.
2. In support of the appeals and the petitions Rana Muhammad Sarwar, Advocate has contended, firstly, that the decision of the Government communicated vide memo. Dated 13-5-1976 by which the land in Sargodha was reserved, could not be arrived by the Board of Revenue vide memo.
Dated 29-4-1978 by excluding the aforesaid land and directing for reservation of the land in the Rakhs mentioned in the memo. Dated 29-4-1978 for the reasons that the decision of the Government cannot be modified or varied by the Board of Revenue much less by a single member as has happened in the present cases. Learned counsel has referred to section 6 of the Board of Revenue Act, 1957. He also referred to sections 10 and 29 of Colonization of Government Lands Act, 1912. These provisions have been referred to contend that grants of State Land or the conditions therefor, are subject to the approval of the Government and the Board of Revenue cannot act on its own. Learned counsel has also referred to Article 6 of the Chief Martial Law Administrator's Order I of 1977 wherein it is provided that "The Powers of a Governor shall be those which he would have had the Federal Government directed him to assume on its behalf all the functions of the Government of the Province under the provisions of Article 2 2 of the Constitution". It is submitted that since the decision of the Government dated 13-5-1976 will be deemed to be that of the Governor, it could not be varied or changed by the Secretary/Member, Board of Revenue or Secretary to the Government. Learned counsel then contended that the action of excluding the lands of Sargodha and instead reserving the lands in the Rakhs where the appellants or the petitioners have the land under lease is mala fide because the people from Sargodha have manipulated that.
3. Ch. Muhammad Shafi, Advocate appearing for the public authorities has submitted that the appellants and the petitioners have no right to maintain these appeals or the petitions because they had obtained the lands in question in pursuance of policy decision dated 22-9-1976 where under leases were extended subject to the condition that the lands will be surrendered when those were needed for resettlement of ousters of Atomic Energy Complex and to ensure that it was required that persons concerned "will file affidavit that will surrender the peaceful possession when required for allotment to the ousters Atomic Energy Complex, Kala Bagh Dam, Chashma Barrage or for permanent schemes or any other public purposes at any time by the Government. It is stated with reference to documents that the appellants and that the petitioners submitted applications expressly stating that they wanted to have the lands under the latest conditions prescribed by the Government and also filed affidavits to that effect. It is, therefore, submitted that since the lands were expressly taken by the appellants and the petitioners on lease with the proviso that they shall surrender the same if those were needed for the evictees of Atomic Energy Complex and since those are required for those persons allotments have been made to them, the appellants and the petitioners are honour bound to surrender peaceful possession. It is next submitted that the basis of the claim of the appellants and the petitioners to retain the lands for conferment of proprietary rights is Notification dated 3-9-1979. This expressly vides para. (2) excludes "land reserved are earmarked for permanent grants". It is submitted that since the lands in question have been reserved or earmarked by the Board of Revenue for allotment to evictees of Atomic Energy Complex, the appellants and the petitioners have no right in law to ask for conferment of proprietary rights or maintain the appeals of the petitioners. The period of their lease has already expired. Learned counsel also submitted that the Member (Colonies) Board of Revenue who has passed the order of reservation of the land in dispute can act and does not act on behalf of the Board of Revenue and as a Secretary on behalf of the Government. Consequently, he was within his rights to have modified the earlier memo. Dated 13-5.1976 where-under the land in Sargodha was reserved and there is no question of mala fide because the lands in Sargodha were in fact not available as pointed out by the Deputy Commissioner of the District as late as 28-12-1981 too, that the lands have been disposed of under various Schemes.
4. Ch. Muhammad Abdul Salim, Advocate appearing for some of the private respondents who are evictees of Atomic Energy Complex and have been allotted lands in question, has submitted that the lands of these evictees were acquired by the Government for the public purposes of Atomic Energy Plant and in lieu thereof the Government have given them the land in question, they are better entitled than the appellants and the petitioners who have lost nothing of their own and were only lesees of the State land.
5. After hearing the learned counsel for the parties and reading the record with their assistance, we find that the appellants and the petitioners got the land on lease on the express condition that they shall surrender it when it is needed for evictees of Atomic Energy Complex. They said so in their applications as well as in affidavits attached thereto. They are bound by their own commitments both in honour and law. Secondly, their rights to retain land they claim on the basis of Notification dated 3-9-1979 which provides for conferment of proprietary rights on lessees but that Notification itself excludes land reserved or earmarked for permanent grants. The lands in question have been reserved or earmarked for permanent grant to the evictees of Atomic Energy Plant whose lands were acquired for the Plant. Therefore, it is obvious that the appellants and the petitioners have no right under the Notification, nor, better entitled to the private respondents. As regards the contention of the learned counsel for the appellants and the petitioners that the earlier memo.
Dated 13-5-1976 says that the Government of the Punjab had decided to earmark the land in Sargodba district and this could not be given up and instead land in the Rakhs where the lands in question are situated could be reserved by the Board of Revenue vide its memo. Dated 29-4-1978, it may be noticed that the Member (Colonies) Board of Revenue who has passed the subsequent order acts on behalf of the Boar of Revenue and is also a Secretary to the Government. This is in accordance with the Rules of Business order cannot be said on the motion of the appellants and the petitioners to be without lawful authority. As regards mala fide, it is to be noted that it is open to the Government to change its decision as to that does not affect vested rights. In the cases in hand, the Government has changed its decision because of the fact that the Local Deputy Commissioner had said that the lands in the district of Sargodha had already been utilized in five different schemes and were no more available. The fact that the decision was taken on the representation of the persons from Sargodha or others, does not make the order mala fide because the Government quite often does or should take decision in view of the requirements or needs or on the representations of the citizens concerned. The reference to the provisions of Colonization of Government Lands Act is not quite apt for the reason that the two sections deal with different matters of grant or conditions thereof. Appellants and the petitioners' rights are not concerned. Since the appellants or the petitioners have themselves taken the lands on lease on the condition that they shall surrender the same when needed for evictees like the private respondents and under the Notification dated 3-9-1979 on which they rely, the lands in question are excluded from conferment of proprietary rights for having been reserved or earmarked for the Atomic Energy Plant, there is no possibility to grant them relief a against the persons who are being or have been allotted land in lieu of their own lands acquired for the aforesaid public purposes. The appeals and the petitions are, therefore, dismissed. It is, however, open to the Govern-I meant that the appellants and the petitioners who are numerous in numbers, may be accommodated on that land which is not needed for the persons for whom the lands have been reserved or earmarked. In the circumstances of the cases, the parties shall bear their own costs.