1. JAVID IQBAL, J.-This appeal is directed against judgment of learned Single Judge of the Lahore High Court Lahore, dated 20th December, 1974 passed in Writ Petition No. 1478 of 1.965.
2. Briefly the facts are that shop site No. 75 in Chak No. 113/N. B. Tebsil and District Shargodha was allotted to Muhammad Sadiq respondent No. 3 (hereinafter called the respondent) in 1948 on payment of rent of Rs. 56 per annum. After a lapse of about 15 years, on 2nd May, 1963, he moved an application for the purchase of proprietary rights in the said shop site. While his application was forwarded to the Revenue Officer for verification and report, the present appellant objected to the sale of proprietary rights in favour of the respondent, by pointing out that in fact the disputed shop was sublet to him, was being run by him and that he had been in possession of the same for a number of years. He further stated before the Renvenue Officer that he had built two rooms and a boundary wall besides sinking a hand pump. He then claimed that the annual rent of the shop was also being paid by him. On the basis of the statement of the appellant the Revenue Officer reported that the shop in dispute was in possession of the appellant who was running it for a number of years and that the residential portion attached to it was also in possession of the appellant.
3. According to the report of the Revenue Officer the professional tax had been assessed on the appellant, was being recovered from him and that the receipts of the professional tax as well as of shop rent were in his possession. After hearing the parties the Collector Sargodha vide his order, dated 1st August, 1964 arrived at the conclusion that since the respondent had sublet the shop site in dispute to the appellant and was not running it himself, it was resumed from the name of the respondent and that since the appellant had been running the same for a number of years it was allotted to him on the basis of his application for allotment. The aforesaid order of the Collector, Sargodha was challenged in appeal by the respondent before the Additional Commis--sioner (Revenue), Sargodha Division who vide his order, dated 7th October. 1964 rejected the appeal holding that the respondent had not been able to controvert the fact of his subletting the said shop to the present appellant and that consequently it was correctly allotted to the present appellant after its resumption from the respondent. Thereafter, the respon--dent challenged the orders of the Collector as well as Additional Commis--sioner by way of a revision petition before the Member, Board of Revenue, West Pakistan, who vide his order dated 22nd January, 1965 rejected his revision, and upheld the order passed by the Collector and subsequently confirmed by the Additional Commissioner. Aggrieved by the orders passed by the Revenue authorities the respondent challenged them by filing a writ petition which was heard by a learned Single Judge of the Lahore High Court, Lahore and vide impugned judgment, it was accepted and the orders of the Revenue authorities were quashed on the ground that there had been no violation of the statement of conditions in this case and therefore, no restriction could be placed in the way of conferment of proprietary rights in favour of the respondent.
4. Leave to appeal was granted by this Court to the present appellant in order to consider whether the High Court in its writ jurisdiction was right in setting aside the concurrent findings of the Revenue authorities reached in the proper exercise of their jurisdiction.
5. It may be pointed out, that the statement of conditions of tenancies of village sites are laid down in Notification No. 837-C, dated 1st March, 1933 as amended subsequently. The statement of conditions had been issued in pursuance of the provisions of section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Colony Act). Sites occupied by shopkeepers are included in such tenancies. Paras. 1 and 2 of the statement of conditions run as follows "(1) This statement of conditions is issued subject to the provisions of the Colonization of Government Lands (Punjab) Act, 1912, hereinafter referred to as `the Act aforesaid' and in accordance with section 10(2) thereof.
(2) Tenancies granted in accordance with these conditions, unless in connection with a grant of agricultural land, shall be deemed to be scheduled tenancies within the meaning of section 4 of the said Act."
6. Thus, it is evident that in the present case in accordance with the statement of conditions the disputed shop site was a scheduled tenancy within the meaning of section 4 of the Colony Act and that furthermore the provisions of the Colony Act applied to it. Section 4 of the Colony Act reads as follows "This Act shall, unless the Provincial Government otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act, 1893, have been applied and to any other land to which the Provincial Government may by notification in the official Gazette apply it and which at the time of the notification was the property of the Provincial Government Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23 or in the proviso to section 14. Of this Act shall, apply to tenancies specified in Schedule I of this Act, or to any class of tenancies created hereafter which the Provincial Government may declare to be schedu--led tenancies."
7. The other relevant section in this case is section 17 of the Colony Act which is as follows :- ".Saving of certain tenancies and conditions.-(1) Nothing in sections 24, 25 or 26 shall apply to --
(a) . . ` "
(b) .
(c) any tenancy scheduled under the provision to section 4, except to such extent as may be specified in the statement of conditions applicable to such tenancy."
8. Section 24 of the Colony Act reads as follows :- "Power of imposing penalties for breaches of conditions.-When the Collector is satisfied that a tenant in possession of land has commit--ted a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection-
(a) impose on the tenant a penalty not exceeding one hundred rupees; or
(b) order the resumption of the tenancy Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice."
9. At this stage condition No. 16 of the statement of conditions applicable to this case may also be noted "The tenant shall not use, or allow to be used, the said land for any purpose inconsistent with that for which the said land has been granted, that is, for any purpose other than that of only a retail shop . --- Under condition No. 17, after the lapse of five years from the date of allotment, the proprietary rights in the site could be purchased by the tenant. Another section which is relevant for the purposes of this case is section 19 of the Colony Act which is reproduced below "Transfers of rights to be void. Except as provided in section 17, none of the rights or interests vested in a .Tenant by or under the Govern--ment Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of ? Tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."
10. The crux of the arguments of the learned counsel for the appellant is that although the disputed shop site was used as a shop and, therefore, its purpose in that sense was not inconsistent with that for which the said shop site had been granted to the respondent, still the respondent commit- -ted breach of the statement of conditions by subletting the shop site in question to the appellant and, therefore, the shop site was rightly resumed from his name and allotted to the appellant who had applied for the same and was considered as deserving by the Revenue authorities. Thus, the concurrent findings of the Revenue authorities arrived at in the proper exercise of their jurisdiction should not have been disturbed by the High Court while exercising its constitutional jurisdiction. On the other hand, learned counsel for the respondent argued that if subletting of the shop site in question by the respondent to the appellant was considered as a breach of the statement of conditions, it was such a breach which could be rectified by the Revenue authorities if the respondent had applied for it under the provisions of section 24 of the Colony Act, as the original allottee was no other person than the respondent himself. But he did not do so. Consequently according to the learned counsel the High Court had correctly quashed the orders of the Revenue authorities in this case in the exercise of its writ jurisdiction. Unfortunately both the learned counsel have not been able to properly assist and to satisfy us about the legal question involved in this case.
11. In the light of the facts of the present case the shop site in question was allotted to the respondent in 1948, but he did not run it as a shop himself. Instead he sublet it to the appellant. There is no bat in the statement conditions in subletting the premises except that consent in writing was required of the Commissioner or of such officer as he may by written order empower in this behalf as provided by section 19 of the Colony Act, and' if the rights had been transferred through subletting without such consent in writing, then any such transfer would be void, and if the transferee had been in possession he would have to be ejected under the orders of the Collector. In this background now the question can be examined whether the allottee of the shop site in question namely the respondent had committed any breach of the statement of conditions when he sublet it to the appellant? Imposition of penalties for breaches of conditions is governed by section 24 of the Colony Act and some of the breaches are capable of rectification. But section 24 of the Colony Act is not applicable to the scheduled tenancies within the meaning of section 4 of the Colony Act as its application in such cases has been specifically excluded by section 27 of the Colony Act. In the present case the tenancy in question being a scheduled tenancy, it stood in the name of the respondent and if he had wanted to transfer his rights in the said tenancy to a sub-tenant by subletting the shop site in question, he could have moved an application for that purpose under section 19 of the Colony Act before the Revenue authorities, which was not done in the present case. The result is that subletting of the said shop site by the respondent to the appellant amounted to a transfer of his rights, which, in the absence of a written consent of the Revenue authorities, was void under section 19 of the Colony Act, and consequently if the transferee, i. e. the appellant was in possession, his possession was unauthorised and he was liable to be ejected. This legal aspect has not been examined at all by the Revenue authorities in this case although the Board of Revenue had itself held it .A11ah Yar v. State (PLD 1965 (,W. P.) Rev. 16) that according to para. 2 of Notification No. 837-C of 1st March, 1933 as amended subsequently, if the tenancy is a scheduled tenancy within the meaning of section 4, then the application of section 24 stands excluded by virtue of section 27 of the Colony Act. Cousequertly on legal plane the orders of the Revenue authorities in favour of the appellant were erroneous and liable to be set aside.
12. The learned Single Judge also did not deal with the legal point involved in this case and decided it in favour of the respondent on other grounds, However, since he set aside the orders of the Revenue authorities which were even otherwise liable to be set aside, no interference is called for in the impugned judgment of the High Court. The result is that there is no substance in this appeal which is accordingly dismissed with costs.