1. ' NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment dated 29-11-1981 passed in Writ Petition No, 606 of 1981 by a learned Single Judge of the Lahore High Court sitting at Multan whereby be set aside the order dated 29-7-1980 passed hy the District Collector, Sahiwal, which was upheld by the Additional Commissioner (Revenue), Multan Division as also the Member (Colonies), Board of Revenue, Punjab resuming a grant of land made in favour of respondent No, I.
2. ' The facts, which form the background, are that land measuring about 12J acres comprising Khasra Nos, 11/2, 12/2, 13/2, 13/3, 14/2, 15/2, 16 to 20, 21/1, 21/2, 22 to 26, 29 Of Rectangle No, 80 situate in Chak No, 7/11-L, Tehsil Chichawatni, District Sahiwal had been reserved even prior to the Independence as Lambardari garnt. The abovetnentioned land, immediately before the Partition, was allotted to Tehl Singh, Lambardar of the estate but was resumed in due course on his migration to India. After Independence, on 19-2-1948, Adalat Khan, the brother of respondent No. 1 was appointed temporary Lambardar of the Chak and the said land was allotted to him as Lambardari grant which continued in his possession after his appointment as a permanent Lambardar on 20-3-1958 also until his death which occurred in 1962, Adalat Khan having died issueless, he was succeeded as Lambardar by his real brother Taleh Muhammad, respondent No. 1 herein. In the meanwhile, on 3-5-1960, Breeding of Pedigree Livestook Scheme had been enforced (vide West Pakistan Government Notification No, COL-7/1-1/58 dated 3-5-1960). The land in dispute was allotted on 25-7-1964 to him for a period of ten years under the said Pedigree Livestock Scheme and the respondent agreed to abide by the conditions thereof which he thumb-marked in token of their acceptance.
3. ' The purpose of this. Scheme is given in para. 3 which states :- "Purpose.-The tenancy shall be used for the sole purpose of breeding pedigree livestock and shall not be used for the purpose of building, except such buildings as are, in the opinion of the Regional or Divisional Deputy Director, Animal Husbandry Department of the Zone, required for breeding purpose."
4. ' The conditions for Breeding of Pedigree Livestock Scheme as set out in para. 11 thereof are as follows "Conditions for breeding of pedigree livestock.-(a) The tenant shall undertake to maintain one cow/buffalo approved by the officer-in-charge of Scheme/Animal Husbandry Department, Livestock Breeding and its progeny up to the age of three years for every 12k acres of irrigated land ; provided that the officer-in-charge of the Scheme, Animal Husbandry Department may require the maintenance of one bull/bull buffalo instead of a cow/buffalo if he considers this necessary in the interest of livestock husbandry of the local area.
(b) If any animal of the breeding stock becomes unsuitable for the purpose of the tenancy, the officer-in-charge of Scheme Animal Husbandry Department may reject it and require the tenant to replace it with an approved animal within three months."
5. ' The admitted position is that the respondent did not maintain any animal whatsoever on the land until the year 1978. In fact, his case was that he was not bound to do so. We may therefore, advert to this aspect of the matter in the first instance. On 7-5-1973, the Government of Punjab in the Colonies Departmen issued a general circular on the subject of "Lamardari Grants" wherein, 1s.
6. Supersession of all previouts orders and instructions on the said subject, the Governor of the Punjab was pleased to direct that "the Lambardari Grants" of 124 acres held by Lambardars in the Punjab, whether under Pedigree Livestock Breeding Condition or under the Scheme dated 12-5-1971 shall be subject to the condition that the Lambardars maintain the following animals :---
(1) Bull 1
[2) Sheep 15 ' Ile ram was to be provided by the Government.
7. ' As the respondent had not complied with these conditions, one Muhammad Hussain submitted an application dated 14-2-1980 to the Colony Assistant/Collector, Sahiwal, complaining that the respondent had not been maintaining any bull or sheep according to the terms and conditions of the allotment and, therefore, the tenancy granted to him was liable to be resumed. An inquiry was thereupon held with regard to the allegations made in the above application by the Colony Assistant. He visited the spot on 18-2-1980 and recorded the statement of certain right-holders of the Chak who informed him that the respondent had not been maintaining any bull, etc. Since the Colony Assistant could not finalize the inquiry himself on the said date he sent the case on 1-3-1980 to the Tehsildar, Sahiwal with the directions that he should verify the correctness or otherwise of the allegations at the spot. The Tehsildar, accordingly, visited the' Chak on 11-3-1980 but could not contact the respondent. He, therefore, decided to re-visit the Chak on 25-3-1980 and left a notice with his son Rashid Ahmad, who was also a Sarbrah Lambardar for affecting service on the said respondent. On 25-3-1980, the Tehsildar held an inquiry on the spot in the matter and also recorded the statement of Rashid Ahmad aforesaid. The position taken up before the Tehsildar was that the respondent had been maintaining a bull for the last two years but it was admitted that he, had never maintained any sheep. On these facts having come to light, the Colony Assistant put up the file to the Deputy Commissioner/District Collector, Sahiwal for resuming the tenancy.
8. ' The District Collector after issuing notice to respondent No. 1 in connection with this matter and after hearing the parties passed an order on 29-7-1980 ordering the resumption of the grant. He held that as the conditions for maintaining the livestock had not been complied with by the respondent, the tenancy was liable to be resumed.
9. ' The respondent filed an appeal against the above order which was heard by the Additional Commissioner, Multan and disposed of by him by an elaborate order. He held that the Government had directed the grantees to maintain one bull and a unit of, 15 sheep within one month from 7-5- 1973, but this condition was not fulfilled by the respondent and his plea, that the above instructions dated 7-5-1973 were cot applicable to him, was not correct. As regards the contention that since the breach was rectifiable he should be given an opportunity to do so, especially when he had already obtained a bull' it was observed that this plea could not be accepted because the respondent herein was constantly in breach of the conditions and had not bothered to rectify them earlier during the entire period when the matter was under enquiry by the Tehsildar and then by the Colony Assistant. In these circumstances, the penalty of resumption imposed by the Collector did not appear to be excessive. On this view of the matter, the appeal was, accordingly. Dismissed vide his order dated 7-1-1981.
10. ' Feeling dissatisfied with this order, the respondent filed a revision against it before the Board of Revenue. The learned Member, Board of Revenue, also dealt with the matter very fully. After recounting the entire background of the case he went on to observe that the real points falling for determination in this case were 3 in number:-
(a) whether according to the conditions applicable, the Lambardar was bound to maintain a bull and 15 sheep?
(b) whether the Labrador had been maintains these animals? And (c)whether a regular notice was given to the Lambardar before the resumption of the land? If answer is (not?) in the affirmative what is its effect?
11. ' As regards point No. 1, the conclusion of the learned Member, Board of Revenue on this point was that the respondent was legally bound to maintain one bull and 15 sheep.
12. ' As regards the second point, he opined that the respondent had been maintaining a bull at least after 1978 and, therefore, according to him, the condition of maintaining a bull stood rectified.
13. However, the condition for maintaining sheep which was equally obligatory had not been satisfied.
14. ' Coming to the third point he observed that although no formal notice to rectify the breach of condition was served on the respondent personally but open enquiries were conducted against him with regard to the observance of the conditions of the grant and the statement of his son in this connection was also recorded. He also pointed out that proceedings against the respondent herein commenced on 18-2-1980 while the lot was resumed on 29-7-1980. During this entire period of more than five months, the respondent, his son and his counsel had all participated in the proceedings and pleaded their case but that the respondent had not cared to rectify the breach of procuring and producing a standard bull and 15 sheep meanwhile. The conclusion expressed was that though no formal notice for rectifying the breach had been issued, the said irregularity stood cured in view of the circumstances noted above and that no miscarriage of justice had taken place.. The revision was, 'accordingly, dismissed vide his order dated 26-5-1981.
15. ' Having failed before all the revenue authorities the respondent thereupon filed a writ petition in the Lahore High Court. This petition was heard by a learned Single Judge of the said learned Court, who was of the opinion that the short question for consideration involved in the same was whether the tenancy could be resumed without a proper notice for rectification of .The breach of condition and ultimately reached the conclusion that this could not be done. In this connection, he observed that although the condition of maintaining one bull and 15 sheep was not provided in the Scheme of 1960, under which the respondent was granted the land and the same was imposed through instructions issued by the Government on 7-5-1973 the said condition was valid and obligatory. He was, however, further of the view that in view of all the circumstances of this case, the failure to comply with the conditions imposed on 7-5-1973 could not be regarded as wilful. In this background, the question was whether the issuance of a notice for rectification was essential?
16. According to the learned Judge, the answer to this question depended upon whether the case was covered by para. 26 or para. 29 of the conditions of the Scheme of 1960. Para. 26 reads as follows :- "26. If the Government is satisfied that the tenant has committed a breach or non-observance of the conditions herein contained, the Collector shall, after giving the tenant an opportunity to appear and (sic) his objections-
(a) impose on the tenant a penalty not exceeding one hundred rupees Or
(b) order resumption of the tenancy: Provided that if the breach is capable of rectification the Collector shall not impose any penalty or order resumption of a tenancy unless he has issued a notice in writing 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. In the case of resumption the tenant shall only be entitled to the value of any building erected, well sunk, and trees planted he him with the sanction in writing of the Collector, and in case of dispute as the value thereof the same shall be settled by the Collector but in no case shall it exceed the original cost after the deduction of proper depreciation. The right of resumption shall be without prejudice to the powers of the Government under section 28 of the Act."
17. ' As for para. 29 the same is couched in the following terms:- "29. If any tenant fails to perform or commits any breach of any of the terms or conditions of his tenancy or suffers or permits such breach or non-performance, or if the tenant is sentenced to a term of imprisonment for one year or longer and the order of sentence is not set aside, or the sentence is not reduced to a term of less than one year on appeal or revision the Collector may at any time thereafter determine the tenancy and resume possession of the land."
18. ' After discussing the provisions of these two paras. The learned Judge was of the view that the present case was governed by the provisions of para. 26 and, therefore, the Collector was under a legal compulsion to give the respondent an opportunity to rectify the breach of the condition. Since the tenancy was resumed without affording the respondent with an opportunity to rectify the breach it was held that the order of resumption passed by the Collector was liable to be set aside.
19. Accordingly, the writ petition was allowed and the order of resumption passed by the Collector was set aside. Hence this appeal by leave of this Court.
20. ' Ch. Khalil-ur-Rehman, learned counsel for the appellant presented a three-fold argument in support of this appeal. In the first place it was submitted that the Pedigree Livestock Scheme dated 3-5-1960 was superseded by the Governor of the Punjab and a new statement of conditions was issued, in which the Punjab Government was willing to grant State land to Lambardars in various districts including the district of Sahiwal vide Notification No, 1838-71/1721-CV, dated 12-5-1971.
21. Under clause (b) of para. 6 of the said conditions, which dealt with the question of eligibility, it was laid down that :- "all grants held by Lambardars, as such, under the pedigree livestock breeding conditions, shall be converted, at the option of the grantees into grants under these conditions, and in such cases fresh allotment orders shall be issued by the Collector and fresh agreement shall be executed."
22. ' In the result, the tenancy granted in favour of respondent No. 1 came to an end on the issuance of the notification of 12-5-1971. At best, his lease expired on 24-7-1974, when the 10 years period under the earlier tenancy expired. Consequently, the respondent, who did not get his earlier tenancy under the Pedigree Livestock Breeding Conditions converted under para. 6(b) of the notification dated 12-5-1971, his position was, therefore, merely that of a 4respasser and he could be dispossessed any time after the expiry of the lease period.
23. ' It was next submitted that the tenancy granted in favour of respondent No. 1 under the Pedigree Livestock Breeding Conditions in view of para. 1 of the said conditions was a Scheduled Tenancy under section 4 of the Colonization of Government Lands Act, 1912. Accordingly, the terms of the proviso to section 24 of the Act did not apply to the said tenancy, whereunder it was 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 certify the breach within a reachable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice." The result was that there was no statutory backing in respect of the requirement for the issuance of a notice for rectification and such a requirement, if any, might have been provided for only in the conditions of the tenancy. So far as the conditions of the Pedigree Livestock Scheme were concerned, such a requirement was provided in para. 26 thereof but according to the terms thereof it was only where the tenant had committed a breach of or not observed the conditions contained in the said Scheme that the issuance of a notice to rectify the breach was necessary. This was not the case here because the tenant had not committed any breach of the conditions laid down in the Scheme itself. In fact, the tenant had committed a breach of terms and conditions of the tenancy, not contained in the Scheme itself.
24. Hence his case fell within the ambit of para. 29, which did not require issuance of any notice before determination of the tenancy.
25. ' In any case, it was lastly contended, that even if the case fell within the purview of para. 26 its terms had been substantially complied with in practice and the respondent had not, in any way, been prejudiced by the non-issuance of the notice. Hence, the learned Judge in the High Court had erred in considering that on account of the absence of a formal notice as required under para. 26 the order of resumption of the tenancy was bad in law.
26. ' Ch. Khalilur Rehman also pointed out that the appellant had nothing to do with the resumption of the tenancy of respondent No. 1. The tenancy had been resumed by the order of the District Collector, Sahiwal, on 29-7-1980. Thereafter, the land in question was reserved for allotment to army officers who were recipients of gallantry awards. In this connection, the Punjab Government had placed this area on 15-1-1981 at the disposal of the G. H. Q. For allotment to such awardees. The appellant having been made an award for gallantry, he was, accordingly, allotted the same on 21- 1-1981 long after it stood resumed, in the ordinary course. It was emphasised that the appellant came into the picture only after the resumption of the area in dispute from respondent No, I and not at any point of time prior to it.
27. ' Dr. Khalid Ranjha, learned counsel for respondent No, I in reply to the contention raised by the learned counsel for appellant submitted that so far as the first contention was concerned, namely, that the tenancy granted in favour of respondent No. 1 had expired by efflux of time, on 24-7-1974, and thereafter the position of respondent No. 1 was no better than that of a trespasser and he could, therefore, be ejected at any time, such a contention had not been agitated either before the Revenue Courts or before the High Court and could not, therefore, be raised for the first time before this Court. In this connection, he, however, explained that respondent No. 1 was continuing in possession under a general order of status quo issued by the Board of Revenue on 9-11-1974 and as a tenant "holding over" the conditions of the Pedigree Livestock Breeding Scheme continued to apply to him. In support of this submission he relied upon Mian Ghulam Muhammad v. The Collector, Montgomery and others . He, however, agreed with the learned counsel for the appellant that the proviso to section 24 of the Colonization of the Punjab Government Lands Act was not attracted to this case. The respondent No. 1, being a lessee of a scheduled tenancy, according to him his case was governed by para. 26 of the said Scheme and, therefore, he was entitled to a notice for rectification of the breach if any committed by him. In this connection, he relied upon All Ahmad and others v. The Crown and another . In this case, a learned Financial Commissioner had1 2 held that the provisions of section 24 of Colonization of Government Lands (Punjab) Act should be strictly followed and the order of resumption of the grant without giving an opportunity to rectify omission was liable to be set aside.
28. ' Sh. RiarAhmad, learned Advocate-General, Punjab appearing on behalf of respondents Nos, 2 to 4 supported the orders of resumption passed by the Revenue Authorities and submitted that the appeal filed by the appellant should be accepted. According to him, not only were the provisions of the proviso to section 24 of the Colonization of the Government Lands Act not applicable but that the conditions of Pedigree Livestook Scheme of 1960 themselves were invalid being inconsistent to the provisions of section 24 (OM). However, he failed to elaborate the above submission to any considerable extent and we also do not think that this plea is of any direct relevance to the resolution of this case.
29. We are inclined to agree with. Mr. Khalid Ranjha that the first contention raised by Ch. Khalilur Rehman that the tenancy in favour of respondent No. 1 having expired, the respondent had become a trespasser and the grant made in his favour could be resumed at any time thereafter cannot be allowed to be canvassed for the first time before us, as this contention was neither raised nor considered by any of the Courts below.
30. ' The short question, therefore, is whether the present case fell to be governed by the provisions of para. 26 and, therefore, issuance of a notice for rectification of any breach was necessary or the case was covered by para. 29, wherein the tenancy could be resumed on the commission of any breach without any further ado The further question in this connection that arises is that if para. 26 is, indeed, applicable whether it must be complied with literally or a substantial compliance with its terms would suffice.
31. ' The learned Judge in the High Court has held and rightly so that the conditions with regard to the maintaining of one bull and 15 sheep introduced by the instructions issued by the Government on 11-5-1973 were applicable after 1974 to respondent No. 1 after his lease of 10 years came to an end.
32. He has, also held that these conditions were not complied with in that he did not maintain 15 sheep at all on the ground that he was not required to do so. However, the learned Judge was of the opinion that this was not a wilful disregard of the conditions. Furthermore, the Collector was under a legal obligation to give an opportunity to the tenant to rectify the breach of the conditions in view of the provisions of para. 26, which was not done. He, therefore, held that the order of resumption passed by the Collector was bad in law. While coming to the conclusion' that the case was governed by para. 26 and not by para. 29, the learned Judge observed "The Scheme as designed gives a successive progression of various conditions. Para. 26 provides for imposition of penalties and resumption of tenancies ; para. 27 deals with arbitration by the Commissioner in case of any difference or dispute between the Government and the tenant, para. 28 deals with damages and para. 29 deals with re-entry by the Collector. Even though the text of para. 29 does not specifically say so yet considering the structure of Livestock Breeding Scheme the only reasonable construction to be placed on para. 29 is that it is the final stage of re-entry on the land by the Collector in pursuance of order of resumption passed under para 26."
33. ' We are not inclined to share the above view of the learned Judge in the High Court. The provisions of para. 26 come into play "if the Government is satisfied that the tenant had committed a breach or non-observance of the conditions herein contained." (underlining is ours). Thus, it is only where the tenant commits any breach or does not observe any of the conditions which are laid down in the Scheme itself that the provisions of para. 26 are attracted. In the Scheme we find that the conditions . Of Breeding of Pedigree Livestook are given in considerable detail. Thus, para. 11 provides that the tenant .Shall undertake to maintain one cow/ buffalo approved by the officer-in- charge of Scheme/Animal Husbandry Department, Lives took Breeding and its progeny up to the age of three years for every 12it acres of irrigated land ; if any animal of the breeding stock becomes unsuitable for the purpose of the tenancy, the officer-in-charge of Scheme Animal Husbandry Department may reject it and require the tenant to replace it with an approved animal within three months. According to para. 12 any decrease in the strength of the livestock through any cause shall be made up within two months. According to para. 13, the cow/buffalo/bull/bull buffalo shall be of the breed approved by the officer-in-charge of the Scheme. According to para. 14, the strength of the stock mentioned in Condition No, 11 shall be made up within three months of taking possession of the land. According to para. 15, all the livestock maintained under these conditions shall be branded or tattooed as directed by the officer-in -charge of the Scheme.
34. According to para. 16, the tenant shall undertake to keep all the progeny up to the age of three years. Under para. 17, the tenant shall carry out breeding, feeding, management and treatment of the stock strictly in accordance with the instructions of the officer-in-charge of the Scheme. Under para. 18, the tenant shall maintain breeding and other records in such forms and registers as may be prescribed by the Director. Under para. 19, the tenant shall not dispose of any animal out of the stock maintained under these conditions without the previous permission in writing of the officer- in-charge of the Scheme. Under para. 20, all the livestock maintained under the grant shall be the property of the tenant. Under para. 21, the tenant shall report the sickness, disablement, loss or death of any animal of the stock immediately to the nearest Animal Husbandry Hospital. According to para. 22, the tenant shall build at his own expense such structures for the livestock as may be prescribed by the Director, Animal Husbandry. Under para. 23, the tenant must keep at his own expense adequate quantities of drugs and medicines which may be prescribed by the Director, Animal Husbandry. These are the conditions, which are given in the Scheme itself. It is, however, significant that none of these conditions, which have been laid down in the Scheme itself were violated by the tenant in the present *(Here in italics) case. It will be recalled that a new condition was introduced by the Government, vide its instructions issued on 7-5-1973, namely, that the lambardars, who were granted tenancies, were required to maintain one bull and 15 sheep. This condition was to be complied with, within one month from the date of issue of the said instructions failing which the grant was to be resumed. As already noticed, this condition was not one of the conditions contained in the Scheme of 1960 itself, but was undoubtedly a condition of the tenancy which was being enjoyed by the respondents and that the same was violated by him.
35. Consequently, in his case, the provisions of para. 29 of the Scheme were, therefore, attracted, according to which "if any tenant fails to perform or commits any breach of any of the terms or conditions of his tenancy" the same can be determined forthwith rather than those of para. 26 thereof. The view of the learned Judge in the High Court that the Scheme as designed gives a successive progression of various conditions and that para. 29 was attracted only after an order of resumption had been made under para. 26 by the Collector, overlooks that the two provisions cater for different situations and para. 29 is not merely an executing provision inserted in the Scheme with a view to executing the order passed under para.
26. In this connection, it may be noted that it has been provided in para. 29 that if the tenant is sentenced to a term of imprisonment for one year or longer and the order of sentence is not set aside on appeal or revision the Collector may at any time thereafter determine the tenancy and resume possession of the land. No such condition is provided in the entire Scheme from para. 11 right up to para. 26 ; thus no order for resumption of a tenancy can be passed under para. 26 on this account and it is for the first time that such a condition is laid down in para.
29. This instance is sufficient to show that the provisions of para. 26 and para. 29 are independent provisions and apply to different situations and that para. 29 is not meant merely to provide for re- entry on the land by the Collector in pursuance of an order of resumption under para. 26, as the learned Judge in the High Court appears to think. In this view of the matter, the respondent having committed a breach of the condition regarding maintenance of sheep on his tenancy, the same was liable to be determined forthwith without issuance of any further notice.
36. ' We are further of the view that even if the provisions of para., 26 were held as applicable to the facts of this case there was a substantial compliance with its terms in actual practice. We have already noted that in this case, the tenancy was a Scheduled Tenancy ; therefore, the provisions of the proviso to section 24 of the Act requiring notice for rectification were not attracted. Thus, there was no statutory requirement with regard to the issueance of a notice and the issuance of a notice was a direction that was contained in. The terms and conditions of the tenancy viz. In para.
26. In this case, as pointed out by the learned Member, Board of Revenue that in pursuance of a complaint that the respondent was not complying with the terms of his tenancy proceedings for its resumption commenced on 18-2-1930; there were open inquiries on the spot with regard to the question whether the respondent was indeed observing the conditions of the tenancy by the Colony Assistant and the Tehsildar. The statement of the son of the respondent was also recorded and his counsel also participated in these proceedings; therefore, the respondent was clearly aware of the ground on which the proceedings were going on and he was being asked to explain why his tenancy should not be resumed on the ground that he had not been maintaining the requisite number of animal, as required by the instructions issued by the Government on 7-5-1973.
37. In these circumstances, the issuance of a notice for rectifying the breach would only have been a technical formality, because the tenant was fully aware that action would be taken against him if he did not rectify the breach. The failure to issue a notice for this purpose was, therefore, only an irregularity whic4 stood cured in the circumstances of the case. Even otherwise, the proviso to para. 26 would be attracted only in case the Collector considered that the breach was capable of rectification. The respondent was required to keep 15 sheep under the terms of the tenancy. He failed to keep them for nearly 7 years (7-5-1973 up to 29-7-1980). It is, therefore, difficult to conceive how the breach could be rectified if the grantee had failed to keep any sheep at all for the period of 7 years. The requirement to keep sheep by a grantee was necessitated by shortage in the meat supply. In so far as the grantee failed to contribute towards the meat supply for a period of 7 years it is not understood how such a breach could be rectified. In The District Remount Officer, Montgomery v. Jamadar Sultan Ahmad Mr. Akhtar Hussain. Financial Commissioner dealt with somewhat similar situation observing as follows :- "He overlooked the act that such a notice is only necessary in case where the breach is capable of rectification. In this particular case, the grantee, according to the complaints recorded against him, has been guilty of breach of conditions ever since the grant was made to him. He has not been properly maintaining the mare and its breed from the very start, and I do not see how these breaches of conditions could be rectified. According to his own admission, over a period of 20 years he has been able to supply only two foals to the Remount Department. I, therefore, hold that no written notice was necessary under section 24 of the Colonization of Government, Lands Act."
38. ' In the present case, the obligation for issuance of a notice is contained only in the Scheme and its non-compliance cannot be equated to a noncompliance with a statutory provision. Consequently, when the provisions of the Scheme have been substantially complied with and respondent No. 1 not prejudiced by the non-issue of the formal notice for rectification under para. 26 of the Scheme, the action of resumption will not be vitiated merely on account of the failure to comply literally with its provision. It may also usefully be mentioned that the reason why the respondent was not maintaining the sheep was not because he was not aware :of this requirement and a notice to rectify the omission would have alerted him to the necessity of doing so. This omission was quite deliberate and was based on his oft repeated plea that he was not, in fact, obliged to maintain them. This Stand has not even been accepted by the learned Judge in the High Court.3 ' The overall conclusion is that this appeal must succeed. The judgment of the learned Judge of the High Court is, therefore, set aside and the order of the Board of Revanue, dated 26-5-1981, upholding the orders of the Additional Commissioner and the District Collector is restored.
39. ' The parties, however, are left to bear their own costs. PLD 197$ Lab. PLD 1955 Pub, Rev. 35 PLD 1950 Pb. (Rev). 588