MUSHTAQ HUSSAIN, J.-Five squares of land in Chak No, 18/8 R.B., Tehsil Khanewal, District Multan, comprising Lot No, 1 were allotted to Muhammad Shah petitioner under the Tubewell Sinking Scheme as a result of his having successfully drawn a lot on 24th October, 1961. This allotment was made by the Collector. Possession of the entire land was delivered on 22nd November, 1961 to him and he deposited a sum of Rs, 1,250 on account of land revenue. He also installed a tubewell within a year.
2. Three squares out of this land were in possession of Salmana, etc. Having been allotted to them under the 'Grow More Food Scheme' much earlier. They were dispossessed of it, although they were the allottees under the 'Grow More Food Scheme' and had a subsisting lease. Instead of challenging the order whereby the lease of the land was put to auction under the Tubewell Sinking Scheme they preferred to participate in the drawing of lots. Having been unsuccessful they filed an appeal to the Commissioner, Multan.
3. This appeal was rejected by the Commissioner on 18th November, 1961 and they assailed this order by filing a revision petition before the Board of Revenue which was accepted on 21st April, 1963 by order of Mr. A. M. Khan Leghari, Member, Board of Revenue, to the extent that the allotment of the land under the Tube well Scheme to Muhammad Shafi was cancelled, By the same order the learned Member. Board of Revenue, held that the land could not be disposed of under the Tube- well Sinking Scheme because it was canal irrigated and it was actually under cultivation.
' Hence this petition.
4. Learned counsel for the petitioner has argued before us that even if the basis of the order of the learned Member, Board of Revenue, was accepted to be correct it would affect only three squares out of five, allotted to the petitioner, because only three squares had been the subject-matter of allotment under the Grow More Food Scheme to Salmana, etc. He has, therefore, urged before us that, at least, the remaining two square could not have been lawfully resumed from the petitioner.
We asked learned counsel if there was a minimum area fixed for a lot under the Tubewell Sinking Scheme and he informed us that five squares was the minimum area which could form a lot and be disposed of under the Tubewell Sinking Scheme. As has been seen above, Lot No, 1 comprised ' only five squares and when the three squares, which were admittedly allotted to Salmana, etc. Under the Grow More Food Scheme, are excluded by virtue of the order of the learned Member, Board of Revenue. Only two squares are left. Since two squares could not form a lot under the Tubewell Sinking Scheme, the question of their retention by the petitioner does not arise.
5. It was further contended that since the possession of the property in dispute had been admittedly delivered to the petitioner, he had become a tenant and the lease had come into operation. It was argued that he could be ejected and the land could be resumed only if he committed any breach of the conditions of the lease as laid down in section 20 (4) of the Colonization of Government Lands (Punjab) Act.
6. This argument overlooks the finding given by the learned Member, Board of Revenue, that the land in dispute could not lawfully form part of the Tubewell Sinking Scheme. That being so it could not have been let out under the said Scheme and any order, to the contrary, would not be covered by provisions of the aforesaid Act and would be ultra vires the Collector who granted the lease. It is not necessary to point out that a public functionary does not have any power which is not specifically conferred upon him by law. Since "cultivated areas and areas already leased out under any of the Scheme of the Government" could not be let out under the Tubewell Sinking Scheme, any lease granted by a public functionary regarding such land was void ab initio.
7. It was pointed out to us that the Collector had held an enquiry before the preparation of the Schedule and the same had been approved by the Board of Revenue. Since the Schedule, which was approved, contained the land in dispute also, the same should be deemed to have been validly included in it. This argument cannot be countenanced for the simple reason that even the Board of Revenue was bound by the conditions of the Tubewell Sinking Scheme and it could not have authorised the inclusion of any land in it if the same did not qualify for such inclusion under the Scheme.
8. This Petition has, therefore, no force and is dismissed, but since no one has appeared on behalf of the Board of Revenue, we leave th parties to bear their own costs.