' This petition is directed against the order passed by the learned Member, Board of Revenue, dated 29-1-1984, cancelling the lease order, dated 17-5-1974 and the order of Collector, dated 11-6-1980 and that of the Commissioner, dated 14-9-1981, confirming proprietary rights on the petitioner being void ab initio.
2. Brief facts of the case are that disputed land comprising square Nos. 53 Killas Nos. 18 to 24, Square No. 56 Killas Nos. 13/1, 17 measuring 8 acres 5 Kanals and 5 Marlas situated, in Chak No.454/G.B., Tehsil Samundari District Faisalabad was temporarily leased out for five years commencing from 1970 to 1974 to one Ahmad. During the subsistence of this lease the same land was allotted to one Ghulam Muhammad, father of respondent No.2 under Lambardari scheme on 28-6-1977, pursuance to section 10(4) of the Colonisation of Government Lands Act, 1912; but somehow the possession of the land remained with the aforementioned Ahmad, the earlier lessee; consequently the tenancy could not come into operation. Thereafter, on 31-3-1972 a notification was issued by respondent No.1, (Annexure 'B/1'), to the effect that where possession of the land has not been delivered under Lambardari Scheme to the Lambardars then it should not be given constructive or actual possession because the Government is contemplating modification of that scheme. Subsequently, on 1-3-1974 by virtue of a memo. /instruction issued by respondent No.1 (Annexure 'B'). It was stated that where possession of land had not been parted under the Lambardari Scheme, the said land may be given to the landless tenants under Grow More Food Scheme. This was followed by another memo., dated 19-6-1974, issued by respondent No.1 reiterating the substance of the memo./instruction, dated 1-3-1974.
3. In view of these relevant instructions, petitioner, on 17-5-1974, acquired through auction the land in question comprising 11 Acres 7 Marlas for a period of 5 years vide Annexure 'C' to the petition. It is relevant to mention that Ghulam Muhammad (father, predecessor-ininterest of respondent No. 2 did participate in this bid, but petitioner being the highest bidder, he could not succeed. The said Ghulam Muhammad filed a Writ Petition No. 610 of 1975, in this Court, which was withdrawn on the ground that he wanted to seek remedy before departmental forum (Annexure. 'E'). Subsequently, the Government introduced a new scheme styled as Grant of Proprietary Rights vide notification, dated 3-9-1979 (Annex. F). Petitioner pursuance to this applied on 9-10-1979 to the Collector/A.C., Samundari for grant of proprietary rights. The application was granted and the petitioner was allowed proprietary rights vide order, dated 11-6-1980, by the learned Collector Samundari.
Respondent No.2 feeling aggrieved, filed an appeal against this order before the learned Commissioner, Faisalabad, which was rejected by order dated 14-9-1981 (Annexure 'H'). Still dissatisfied with this, respondent No.2 filed a revision before the Board of Revenue, being R.O.R. No. 2891/1981, which was also dismissed vide order, dated 25-1-1983 (Annexure 'I') for the reason that Writ Petition No. 610 of 1975, instituted by respondent No.2 was still pending in the High Court. As mentioned above, respondent No.2; subsequent to this withdrew, the writ petition, on 2-3-1983, and filed a miscellaneous application before learned Member, Board of Revenue seeking restoration of the earlier revision petition, but the same was rejected by order, dated 13-10-1983 (Annexure 'K').
Though the application of respondent No.2, was rejected by respondent No.1, but in his own wisdom, he preferred to issue notice to petitioner in exercise of his suo motu power under section 30(2) of the Colonisation of Govt. Lands Act, 1912. The learned Member passed the impugned order and cancelled the original lease as well as the subsequent proprietary rights granted to the petitioner being void ab initio. It is relevant to mention at this juncture that petitioner owned a piece of land measuring 194 Kanals which was sold to his children through registered sale-deeds, concerning which mutation Nos.266 and 267 were sanctioned on 15-7-1979.
4. The learned counsel for petitioner has assailed the impugned order on the following grounds: ' Firstly, that the impugned order is patently wrong as it proceeds on the basis of notification, dated 24-4-1971, which was only applicable for leases designed to run for 15 years and the petitioner's case was not covered by that. Secondly, that memo./ instruction, dated 12-12-1974 (Annexure 'N) is subsequent to the grant, therefore, it does not affect the rights of the petitioner in terms of eligibility. Thirdly, the revision petition of the respondent having been dismissed as infructuous, no action could have been initiated by the learned Member, Board of Revenue under section 30(2) of the Colonisation of Govt. Lands Act, 1912. It is also contended that no misrepresentation or fraud is attributable to the petitioner; therefore, the revisional powers were not invokable. Lastly, it is contended that respondent No.2 has no right to be heard in these proceedings.
5. On the other hand, learned counsel for respondent No.2 has inter alia contended that the category of land leased out and subsequently proprietary rights whereof were conferred on the petitioner does not fall within the scheme since it is relatable to land which is waste and unutilised.
Secondly it is contented that the area of the lot in question is 11 acres 7 Kanals, whereas the minimum area comtemplated by memo/instruction under which it was allotted to the petitioner is 12 acres; therefore, being below the prescribed minimum size, such land could not have been allotted and lastly the land in question was not available for allotment in view of notification, dated 3-9-1979 because it was previously reserved and earmarked for Lambardari grant.
6. The learned Assistant Advocate-General supports the impugned order primarily on three counts.
Firstly, it is submitted that at the relevant time the only scheme available for temporary cultivation was the one contemplated by the notification, dated 24-4-1971 and the learned Member, Board of Revenue had rightly referred to para. 3 thereof, enshrining the eligibility factor notwithstanding the fact that notification catered for leases of 15 years. It has also been pointed out that the proprietary rights were conferred on petitioner under notification, dated 3-9-1979, which has prescribed eligibility for proprietary grants in its para. 3 and by virtue thereof the terminous qua to determine the eligibility was Kharif 1977 on which point of time the petitioner was lawfully in possession and had the ownership of land measuring 194 Kanals, therefore, was not eligible for the grant of proprietary rights.
7. I have heard the arguments of the learned counsel for the parties and have also gone through the entire record made available on the file; and prefer to deal with the contentions of the learned counsel for petitioner, firstly.
8. The first point raised by the learned counsel for petitioner is that learned Member, Board of Revenue has acted illegally in determining eligibility by making reference to notification, dated 24- 4-1971, which was in fact designed to cater for lease of 15 years only. On the face of it, it seems that the notification in question was only designed to deal with leases for 15 years only and not to other leases granted by the Government under different schemes. Therefore, I am of the view that this being a statutory instrument affecting rights of the private individuals, would require stringent interpretation and the disqualification in the nature of eligibility prescribed therein cannot by reference or analogy be attracted, or made applicable to any other scheme which may be available or implemented by the Board of Revenue. If the Board of Revenue was so minded, then they could have specified so or even by reference legislation could have referred to it, which has not been the case. The argument of the learned Assistant Advocate-General that since that was the only scheme available, therefore, the learned Member, Board of Revenue has rightly invoked the same for determining the eligibility, I am afraid by such a reference the eligibility factor cannot be imported into a scheme which are otherwise, regulated in self-contained mechanism.
Therefore, I am of the view that the learned Member, Board of Revenue has acted erroneously in determining eligibility of petitioner on the basis of condition set out in sub-para. (b) of para. 3 of the notification, dated 24-4-1971, in question.
9. Now I advert to the second contention advanced by the learned counsel for petitioner. In pith and substance what the learned counsel for petitioner is trying to argue is that memo./instruction, dated 12-6-1972 (Annexure 'M') and subsequent memo./instruction, dated 12-12-1974 (Annexure 'N') are two independent instructions, wholly unrelated bearing no context with each other; and the subsequent does not affect the former. This I am afraid is not the correct interpretation. I have minutely considered the two documents. The object of the scheme was specified is memo. /instruction, dated 12-6-1972 (Annexure 'M') which demonstrates intention of the Board of Revenue to accommodate as many persons as one possibly conceive who fall in the categories of low income group and could be granted land as "landless" or "small owners" or "tenants" so that they may be able to earn their livelihood independently and at the same the land thus given be put to better yeild. The subsequent memo./instruction, dated 12-12-1974 (Annexure 'N') is not to be read in isolation or independant of the above. There is inbuilt nexus of the two. Though the opening words used in the later memo./instruction is "partial modification of the instructions" of the former, but in fact it is not a modification. It is just an elucidation and in furtherance of and in obedience to setting out its practical details. It was mentioned in the former instructions that the method for disposal of the land in question would be left to the Deputy Commissioner by making proposals in the orders; however, subsequently they deemed it fit to provide the guidelines to the Deputy Commissioners, which is deemed to be in continuation of the former instructions and operative from the date of those very instructions i.e. 12-6-1972. It may further be pointed out that mechanism mentioned in the subsequent instructions is in furtherence of the former and is not in derogation therefrom.
10. Now the next question is as to the terminous qua i.e. The date on which eligibility in terms of land holding is to be judged. The lease was acquired for 5 years in an auction which took place on 17-5- 1974. Consequently, the memo. /instructions, dated 12-6-1972 (Annex. M) read with memo/instructions dated 12-12-1974. (Annexure 'N') were in the field at that point of time. Thus the, petitioner was not eligible to the grant of leasehold rights.
' I may hasten to deal with question of proprietary rights also. The notification, dated 3-9-1979 under which the petitioner acquired the proprietary rights includes eligibility condition in its para.
3. At the relevant time the petitioner was certainly holding land much above the specified land holding. He was owner of land measuring 194 Kanals. Since terminous qua mentioned in that para. Is Kharif 1977, and the sale took place on 11-7-1979; therefore, petitioner was neither eligible to acquire leasehold rights, nor the proprietary rights could have been conferred in accordance with the statutory instructions or the scheme as formulated by the Board of Revenue.
11. Now I advert to question of misrepresentation and fraud. It has been submitted that petitioner made no misrepresentation nor any fraud was committed by him with a view to acquiring land in question. His precise contention is that-suo motu power under section 30(2) of the Colonisation of Government Lands Act, 1912 is invokable only in cases of misrepresentation or fraud, which is non- existent in this case. I may say that exercise of revisional jurisdiction is not confined to any misrepresentation or fraud, but it also relates to eligibility. Respondent No.1, was well within his limits to examine the eligibility and merits of the case.
' Independent of the above, I am impelled to observe that the very fact that by that time the notification conferring proprietary rights had come into play, thus petitioner wanted to take advantage of the same for proprietary rights to be conferred upon him; therefore, the alienation of land visualized in this perspective would obviously speak volumes of the latent and intrinsic intention of the petitioner which would not be far from fraudulent intent.
12. The last contention was that the respondent has no right to be heard. I hold the view that he was an interested party and accordingly was impleaded as such. The petitioner in first place should have on its own impleaded him as the party rather than leaving it to the respondent to make a special application for his impleadment; thus has the right to be heard.
13. So for as the contention raised by the learned counsel for respondent is concerned that the minimum area of the lot which can be allotted under the scheme is 121 Acres and not below that as in the instance case 11 Acres 7 Marlas. I have read the instructions in question. The upper limits have been given, but the lower limits only go to show the minimum land holding intended to be given. It does not contemplate that if the piece of land is lesser that 121 Acres then it should remain uncommanded. There is no force in this contention.
14. The last point needs to be considered is as to whether instructions embodied in memo., dated 12-6-1972 only deal with waste or unutilised land and does not cover within its periphery lands which is under cultivation. I believe it has escaped the notice of the learned counsel because earlier part of this paragraph of the instructions deals with lease hold lands which preconcieves the notion that it has been brought under cultivation, and is waste or unutilized.
15. In view of the above discussion, the impugned order is upheld and consequently the writ petition is dismissed. However, the parties are left to bear their own costs.