This will dispose of Writ Petitions Nos. 1211, 1212, 1213, 1214, 1215 and 1216 of 1969 as common question of fact and law arise in all of them.
2. The petitioners are members of the same family. They were granted land under what was known as the More Grow Food Scheme in the years 1956 and 1957. The grantee in Writ Petition No.1212 of 1969 was S. Muhammad Din and grantees in the remaining petitions are his sons, S. Abdur Rahim, S. Muhammad Nazir, S. Abdul Aziz, S. Muhammad Idrees and S. Abdul Majid petitioners. S. Muhammad Din died in the year 1965 and the petitioners in Writ Petition No.1212 of 1969 arc his widow and the above named five sons. The area of land, subject-matter of W.Ps. Nos. 1211 and 1212 is 24 acres each; the area of land in W.P. No.1215 is 20 acres; the area of land in W.P. No. 1213 is 4 acres and the area of land in W.P. No. 121.1 and 1216 is 12 acres each.
3. The land is situate in Chak No.39/UCC, Tehsil Ferozewala, District Sheikhupura.
4. In order to induce the people to grow more food, a Scheme known as Grow More Food Scheme was formulated by the Provincial Government in November, 1956. The salient features of this Scheme so far as relevant were as follows:- (i)Land should be leased out in compact blocks not exceeding 12-1/2 acres: (ii)only food grain crops should be grown:
(iii) the (case should be for a prescribed period of three years:
(iv) the (case might be terminated at any time if the land was required for other public purposes, without compensation, except for the standing crop; and (v)no rent in cash or kind should be charged for the first year, for canal irrigated land, and for the first two years, for non-irrigated lands.
Accordingly, lease of such land in various canal Districts of the Punjab were granted for a maximum period of three years beginning from Rabi 1956 and ending in Kharif, 1959, on account of the failure of a large number of lessees to cultivate the land in Rabi, 1956, their leases were terminated, but the Government vide a memorandum issued in July, 1957, directed that all suchleases should be restored so that "these might run their full life upto and including Kharif, 1959, provided the lessees hereafter comply with all the conditions of their leases punctually." By another memorandum, dated 7-12-1957, the Government directed that the Scheme should remain in operation but file conditions regarding the cancellation of the lease in the event of the failure to cultivate the land during Kharif, 1955-51) should be strictly enforced. The leases under the Scheme were, by a memorandum, dated 29-10-1958, extended for a period of two years, if such areas "cannot otherwise be utilized in a better and more productive manner." Thus, the leases originally granted under file instructions issued in November, 1956, were to continue for a period of live years only unless determined for the breach of conditions of a lease or if file area covered by the lease was required for other public purposes. It was further laid down in this memorandum that extension of the lease period from 3 to 5 years should be allowed freely unless a lessee had failed to cultivate less than 50% of the area under lease.
5. By a Letter No.9363-60/5873-C(G), dated 18-8-1960, tile Board of Revenue informed the Commissioners and the Deputy Commissioners in file Province that "all the leases under Grow More Food Scheme have been extended upto 5 years and so naturally the period is expected to expire in Rabi 19(,1. Moreover, the question of conferment of proprietary rights to tile lessees under the Grow More Food Scheme is under consideration of Government. So, the Grow More Food Lessees should not be displaced on the expiry of the period of their (case, but should be allowed to remain in possession of tile land on payment of usual rent till the decision of Government in the matter". By another letter viz. Letter No. 9253-61/5824-C(G)Ill, dated 8th December, 1')61, the Board of Revenue conveyed to all the Commissioners in the Province that "the Governor of West Pakistan is pleased to decide that all 'cases granted under the Grow More Food Scheme should be terminated after the expiry of their lease period of rive years as Government have neither the legal nor moral obligation to accept the request of these lessees for the continued extension to their leases" and by another Letter dated 23rd February, 19(,2, the Board of Revenue conveyed the decision that "the area resumed form the Grow More Food lessees (after the completion of five years tenure period) should be leased out on year to year temporary cultivation basis by tenure system till further order". However, by its Letter No.4125-62/2120-S(G)III, dated the 10th July, 1962, the Board of Revenue conveyed the Government's decision to the Deputy Commissioners of Lahore, Sheikhupura, Gujranwala, Sargodha, Lyallpur, Multan, Muzaffargarh, Bahawalpur, Bahawalnagar, Rahimyar Khan and Gujrat that "all bona fide Grow More Food leases of 12-1/2 acres or thereabout whether operating singly or jointly through a tube-well, will be excluded from the schedule of auctions. Only the land of those lessees will be included in the auction schedule, which substantially exceed the limit of 12-1/2 acres, or arc within live mile radius of any mandi town or other town, or of those lessees who have obtained large blocks of land over and above 12-1/2 acres or so, under Grow More Food Scheme, or of those lessees who are not cultivating the holding and arc merely interested in them as financiers or middlemen or as owners of tube-wells. In other words it is only the lands of second category that will be auctioned, whereas the holdings of the first category viz. Bona fide cultivators or small land holders, would be settled with them at a fixed price".
6. For this purpose, the Deputy Commissioners were required to prepare three lists of the Grow More Food lessees: (i)Those, who, in their opinion, were bona fide lessees: (ii)those who were not bona fide lessees and were not eligible to the concession proposed to be granted i.e., purchase of proprietary right by private treaty; and
(iii) those who had put up tube-wells.
1. All bona fide Grow Food lessees of 12-1/2 acres who arc self--cultivators of small holders (self cultivators) owning upto 12-1/2 acres of their own, whether cultivating through tube-wells, open wells, canal water or otherwise whose term has expired in Rabi 1962 or will expire in subsequent years would be given the concession of sale by private treaty:
2. Save as provided in Para. 1 above, all lands leased out under the Grow More Food Scheme whether cultivated by tube-well, open wells, canal water or otherwise and the term of which has expired in Rabi 62 or earlier will be included in the schedule of auctions. Leases, the terms of which will expire of subsequent years, will be put to auction subsequently:
3. The concession of sale by private treaty does not apply to leases which have terminated in Rabi 1961 or earlier whether the same lands arc now cultivated by the same persons or others on temporary cultivation basis. Such lands will be included in tile schedule of auction:
4. The concession of sale by private treaty does not apply to leased areas lying within 5 miles of the outer limits of a mandi town or a municipality or within 1 mile of a railway station. Such lands will be sold in open auction and should be included in the schedule:
5. The concession will not apply where a tube-well has been put up on land cultivated under the Grow More Food Scheme by acquiring more than one lot in the names of wife, children or other dependents. Such cases will be treated as mala Fide and will be included in tile schedule of auction:
1. The State lands situated within 5 miles radius of a municipality, mandi town or other towns, arc to be sold by auctions and the proprietary right arc not to be granted through sale by private treaty within this belt:
2. That it was only where "lots of lands" had been acquired in the names of wife, dependent children or other dependents who could not be self-cultivating, that the allotments arc to be considered as mala fide for purposes of sale by private treaty:
3. That 13 acres will be maximum upper limit upto which an allottee under the Grow More Food Scheme could be considered entitled for sale by private treaty, if otherwise qualified. The area over and above 13 acres should be included in the schedule of auctions.
7. By a Memorandum No.8400-62/3438-C(G)III, dated the 8th October, 1962, the Deputy Commissioners of the above- mentioned districts were informed that "the Ex-Grow More Food lessees who were given lands in 1956 and whose leases expired in 1961 should not be given proprietary rights and, therefore, all those lands whose leases expired in 1961 should be included in the auction schedules".
8. The last memorandum on tile subject of the grant of proprietary rights is Memorandum No.4826- 62/1419-S(G)I11, dated the 22nd October, 1962. Its relevant portion reads: "The Government of West Pakistan have decided to dispose of all State lands in the Old Colony Districts by auction. Some of the State lands had been given on lease in connections with the Grow More Food campaign. In such cases it has been decided that the State land should be sold by private treaty to bona fide Grow More Food lessees of 12-1/2 acres, the maximum upper limit being 13 acres, who are self-cultivators or small holders (self-cultivators owning upto 12-1/2 acres of their own) whether cultivating the land through tube-wells, open wells, canal water or otherwise whose term has expired in Rabi 1962 or will expire in subsequent years. Whether a lessee is entitled to the concession of sale by private treaty or not under the above scheme shall be decided by the Collector."
This was followed by instructions relating to the fixation of the price of the land and how that price would be payable.
9. The petitioners claim that they made applications for the grant of proprietary rights and one of the applications was rejected by the Collector's order, dated 4-12-1962. An appeal was preferred before the Additional Commissioner, Lahore, and the case was remanded to the Collector for fresh decision. The Collector, however, filed the papers without deciding the matters by his order, dated 24-1-1964. The aggrieved petitioner had approached tile Board of Revenue "requesting that no action has been taken on the application of the Petitioner and that the matter be finally concluded". The Board of Revenue called for a report from the Deputy Commissioner who stated in his report, dated 20-7-1966 that "the petitioners have built 5 quarters, garrage and godowns for dwelling and storage of the produce and have brought under cultivation more than half of the land"; that "it is alleged that sufficient amount has been spent on the development of this land which is situated 7 miles from the limits of Town Committee, Mandi Muridke and 2 miles from Railway Station Kala Shah Kaku"; and that "out of the said allotted land 312 Kanals 17 Marlas have been reported to be reserved charagah land which should not have been allotted under this Scheme. Action for exclusion of this area is being taken separately". According to the petitioners, the Board of Revenue accepted the Deputy Commissioner's recommendations and authorised the Deputy Commissioners to finalise the matter with the remarks: "Forwarded to the Deputy Commissioner, Sheikhupura. You arc competent to take action in the matter". This according to the petitioners "in effect meant that the Board of Revenue accorded sanction as to the sale of the land and the details were to be settled by the learned Collector".
10. It is stated that "the Collector seems to have ultimately issued notice to the petitioner to appear before him. No notice was, however, served on the petitioner. The petitioner deputed one of his employees Haji Shuja-ud-Din to go to Sheikhupura and to find out as to the fate of the case.
Incidentally the matter was before the Collector on 14-5-1969 for consideration. The said employee appeared before the Collector and apprised him of the fact that no notice had been served on any of the petitioners and that a dale in the case be given. In any case the employee further stressed the Collector as to the circumstances relevant to the case". The Collector, however, proceeded ex parte against the petitioners and cancelled the allotments. In doing so, the Collector observed: "During scrutiny by the Governor's Inspection Team, it was discovered that the allotment was illegal and against spirit of the Scheme. Efforts were made to secure the attendance of the respondent through due service, but he failed to appear" and concluded as follows:- "The allotment is more than 12-1/2 acres and was within five miles radius of the Town Committee Shahdara at the time of allotment. At present too it is within five miles boundary of the Lahore Corporation. The allotment is against the intention of para. 1 of the Statement of Conditions as notified in No. 6539/56/589-C(G), dated 7-12-1957, issued by the Board of Revenue, West Pakistan".
11. The petitioners appealed against the Collector's order, dated 14-5-1969 before the Additional Commissioner, Lahore. Before him, the Legal Adviser of the Lahore Municipal Corporation appeared to state that "the land resumed from the appellants is proposed to be utilised for the purposes of establishing a Colony of Gowalas of Lahore" on behalf of the Deputy Commissioner, Sheikhupura, it was staled that the land was liable to be resumed on the following grounds:- (a)that the allottees were already owners of 12-1/2 acres of land: (b)that the allottees were known Industrialists and could not be considered as self-cultivating farmers; and (c)that some of the land allotted was Charagah and some of it was barani "irrigated at the time of allotment".
On behalf of the petitioners, grievance was made of the fact that in pursuance of Additional Commissioner's order, dated 11-12-1962 remanding tile case "with the directions that it should first be ascertained whether the present appellants were or were not entitled to the conferment of the proprietary rights on the land allotted to them and the question of the auction of this land be taken up accordingly", no final orders were passed by the Collector but the Additional Commissioner dismissed this plea on the ground that the appeals before the Additional Commissioner were against the order of Collector "placing the disputed land in the auction list to be held on 8-12-1962" and observed that" as the auction of State land and appeals stopped by the Government, therefore, these appeals obviously became infructuous and were correctly filed by the learned Collector". The question, so observed the Additional Commissioner, whether the petitioners were entitled to the conferment of the proprietary rights was taken tip later and it was found that the petitioners were not so entitled and therefore, their allotments were resumed. It was also argued before the Additional Commissioner that the previous order of the Board of Revenue amounted to the acceptance of the recommendations made by the Deputy Commissioner. The Additional Commissioner was, however, of the view that "the Board of Revenue left the matter to the D.C. And obviously did not accept the request of tile appellants for the grant of proprietary rights; nor the D.C. Was directed to grant proprietary rights to the appellants". The Additional Commissioner then proceeded to say that "the main point is whether the lend could be resumed on account of the fact that the land allotted was within 5 miles of the limits of a municipal area" and observed that "the record above shows that the land is situated within a mile or two of the outer limits of the Lahore Municipal Corporation". His attention was called to the Board of Revenue memorandum, dated 22- 10-1962 and it was pointed out by the petitioners' counsel that in that memorandum" it is nowhere mentioned that proprietary rights would not be conferred on lands situated within 5 miles of the Municipal area." The Additional Commissioner agreed that in that letter "there is no express ban on the grant of proprietary rights on the allottees of land situated within 5 miles radius of the outer limits of a municipality" but observed that "the last sentence of para. l of the said letter says clearly that it will be for the Collector to decide whether the lessee should be given the concession of the sale by private treaty or not. If it was the intention of the Board of Revenue to grant proprietary rights to every allottee or lessee of land of Grow More Food Scheme irrespective of the fact whether the land allotted to him fell within the radius of 5 miles of the outer limits of a municipality, there wits no idea of leaving the matter of the grant of the proprietary rights to the discretion of the Collector. The obvious intention of the sentence quoted above was that the Collector had to abide by the conditions laid down by tile Board of Revenue in its earlier instructions. As according to the conditions earlier issued by the Board of Revenue, "proprietary rights could not be conferred in respect of land situated within a radius of 5 miles of the outer limits of a municipality", the Additional Commissioner found no force in the contention "that the latter, dated 22-11)-1962 omitted this conditions." The Additional Commissioner was also of the view that the land had been "earmarked for establishing a Colony of tile Gowalas of Lahore who arc being asked to move out of the limits of Lahore Municipal Corporation." The Additional Commissioner, therefore, dismissed the petitioners' appeals by his judgment, dated 13-6-1969.
12. The petitioners then invoked the revisional powers of the Board of Revenue but a learned Member of the Board of Revenue by his order, dated 22--7-1961) dismissed their revision petitions.
There, among others, the points tried to be made were that the petitioners had been condemned unheard by the Collector; that the Scheme for the grant of proprietary rights was enforced in the year 19611: that at that time, Shahdara," was not attached with Lahore District and there was no separate Municipal Committee Shahdara" the nearest local authority to the area in dispute was the Municipal Committee Mandi Muridke and as observed by the learned Deputy Commissioner in his report, dated 20-7-1966 the land was, outside the five miles limit from Muridke Mandi Town Committee," that the' petitioners had in terms of the Scheme become vested with the proprietary rights." Memo. Issued in 1962 only amplified the scheme issued in 1960 and did not operate retrospectively; that a Town Committee was started in Shahdara and it was joined with Municipal Committee of Lahore in which case the area would fall within the 5 miles radius of the outer limits of Municipal Committee of Lahore, the same will not affect the petitioners' case. On the Lahore side the area did not fall within the prescribed limits at the time of enforcement of the scheme. The August, 1962 letter would not affect retrospectively nor would it affect the future cases. If the intention was to cover the future cases at any time, the limits of Town Committees can be extended by the Provincial Government thereby leaving no area in which the proprietary rights were given to the allottees." The learned Member Board of Revenue observed that "the petitioners have not denied that they were served and it seems to have been their choice to send their employee rather than to pursue the case themselves. They had, however, ample opportunity before the Additional Commissioner and before the Court to voce their grievance and state their case and any prejudice that could conceivable have been caused has been removed. "Dealing with the" central issue" whether the land in question fell within a radius of five miles of outer limits of Lahore Corporation", the learned Member referred to the Deputy Commissioner's report, dated 20- 7-1900 and observed that the petitioners "have admitted the position vis-a-vis Lahore Corporation.
Any alleged finding by the Collector does not therefore cover the ground." As to the contention that the Government could defeat a grantee's right of proprietary rights by, at any time, extending the limits of a Municipality, the learned Member referred to the instructions in Memo. No.1670-66/16140- GG-111, dated the 20th May 1966" in which it has been pointed out for the purpose of examining the eligibility that the distance from the outer limits of a Municipality etc., must be reckoned as on the date of passing the final orders." In the view of the learned Member, the instructions contained in the Board of Revenue Memo. Dated 22-10-1962 "are in no sense in replacement of the August, 1962 instructions. The August 1962 instructions spoke of the conditions of eligibility and the October 1962 deal with the price and the procedure of payment. By reading the two instructions together, it is clear that the latter instructions neither purported to be nor intended to be in supersession of earlier instructions".
13. By this petition, the petitioners seek to have the orders of the Revenue authorities declared to have been made without lawful authority and of no legal effect on the following grounds:-- (i)that the Collector's order, dated 14-5-1969 was made "without taking into consideration the directions of the Additional Commissioner contained in his order, dated 11-12-1962"; (ii)
(iii)
(iv)
(v)Municipal Committee. On the Lahore side the area did not fall within the prescribed limits at the time of the Scheme. August, 1962 letter would not affect retrospectively nor would it affect the future cases. If the intention was to cover the future cases at any time the limits of the Town Committee could be extended by the Provincial Government thereby leaving no area in which proprietary rights could be given. In any case October 1962 letter does not impose any such condition under the Grow More Food Scheme.":
(vi) that the petitioners could not be deprived of the land until due compensation was paid;
(vii) that in making the order, dated 14-5-1969, the Collector "does not seem to have applied his own mind" to the facts of the case and "seems to have been influenced by a note of the Governor's Inspection Team"; and (viii)hat the Additional Commissioner was in error in assuming that the land had been resumed for a public purpose.
14. In the written statements contesting these petitions, it is stated that the petitioners had fabricated documents "showing a fake auction of the land in dispute". They prepared bogus and fictitious documents and fabricated the signatures of the Assistant Commissioner, Ferozewala, "and were prosecuted. It was further stated that in a meeting held " under Chairmanship of the Chief Secretary Punjab on 14th March, 1982, it was decided that land measuring 103 acres 1 kanal m Chak No.39 Union Council Ferozewala and the other adjoining land in village Dargai Gill shall be immediately transferred to the Forestry and Wild Life Department by the Board of Revenue for the purposes of setting up public park. The land reserved in Chak No.39 UCC includes the land which is the subject-matter of this writ petition and the connected writ petitions." Under the relevant Scheme, it was maintained, the petitioners' allotment was to be treated as mala fide, for "the petitioners are not genuine agriculturists but are big industrialists of Pakistan running the business of manufacture of National Electric Fans etc. The allotment was thus not genuine, the sole purpose of the petitioner was to grab State land for commercial purposes." The Deputy Commissioner's report dated 20-7-1966 was admitted "but its accuracy and the inference sought to be drawn by the petitioners, therefore, are not admitted." On facts it was stated that the land in question " is lying within five miles radius from the outer limits of Lahore Corporation situation within the prohibitory zones is to be seen with reference to the time when proprietary rights are conferred. The land in dispute is situate within the prohibited radius from the Lahore Municipal Corporation".
15. Some of these grounds can be dealt with shortly. It should be clear from what has been stated above that the Additional Commissioner's order, dated 11-12-1962 had some relation to instructions, whereby the Deputy Commissioners were directed to include all those lands whose leases had expired in 1961 in the auction schedules. As the question raised before the Additional Commissioner was that the petitioners were entitled to the concession of sale in accordance with the Memos, referred to above, the Additional Commissioner directed that the question of the petitioners' eligibility to the concession of sale should be decided by the Collector. True that the Collector did not decide that question then but that was obviously for the reason that the Government had in the meantime issued instructions that the possession of such leases should not be interfered. The question whether the petitioners were or were not eligible to the concession of sale or the grant of proprietary rights was considered and decided by the Collector's order, dated 14-5-1969 and nothing, therefore, turns upon the Collector's failure to decide that question in pursuance of the Additional Commissioner's remand order, dated 11-12-1962. It was argued that in making the order, dated 14-5-1969, the Collector was influenced by the objections noticed by the Governor's Inspection Team and, therefore, the Collector had not applied his independent mind to the facts of the case. We do not know what the objections raised by the Governor's Inspection Team were.
What we know is that the Collector had found, as a matter of fact, that the allotment of the petitioners was "more than 12-1/2 acres and was found 5 miles radius of the Town Committee Shahdara at the time of the allotment" and also "five miles of the outer limits of Lahore Municipal Corporation." It cannot, therefore, be said that the Collector was in making his order, dated 14-5- 1969 influenced by any extraneous consideration. The Collector indisputably had the power to make the order and what was otherwise lawful could not be rendered unlawful because the Governor's Inspection Team had brought certain things to the notice of the Collector. This was, therefore, not a case in which the state of mind of a person doing the act could affect the right to do it. Nothing has been brought on the record to show that in proceeding to make the order, dated 14-5-1969, the petitioners had been condemned unheard. There is a statement of fact in his order, dated 14-5-1969 that "efforts were made to secure the attendance of the petitioner through due service but he failed to serve. "One Haji Shujaud Din, an employee of the petitioners had in fact appeared before the Collector but as he had no authority to appear or act on behalf of the petitioners, the Collector proceeded ex parte against them. To this, no valid exception can be taken; nor is there any material to show that the statement in the Collector's order that despite the efforts to secure their attendance, they had failed to appear, was incorrect.
16. As to the ground that the Board of Revenue had given sanction to the sale of this land in favour of the petitioners, after obtaining Deputy Commissioner's report dated 20-7-1966, it suffices to say that no such order of the Board of Revenue has been placed on the record. The Board of Revenue's order which has been reproduced in the petitions merely forwarded the papers to the Deputy Commissioner, Sheikhupura, saying that he was competent to take action in the matter. This hardly amounted to according sanction to the sale of the land in favour of the petitioners.
17. Though it was claimed before the Additional Commissioner that the land in question was required for another public purpose, namely, for the rehabilitation of the Gowalas at Lahore and m the written statement filed in this Court that the land in question was required for being developed into a public park, yet under the instructions contained in the Memos. Referred to above, the decision that the land is required for another public purpose has to be the decision of the Government and no such decision has been placed on the record.
18. That brings us to the crucial question whether the petitioners were entitled to what is described as "the concession of sale" and whether the Revenue Authorities were wrong in law in depriving them of that right.
19. Learned counsel for the petitioners, Mr. Khalid Anwar, Advocate, argued that the instructions contained in the memoranda referred to above were issued in the exercise of the power vesting in the Government under section 10, subsection (2) and have, therefore, the force of law. As a corollary, he contended that these instructions conferred a right to "the concession of sale" upon the petitioners. Learned Additional Advocate-General, on the other land, was of the view that at best what the instructions give is a `concession' and not a right; that, in any case, the transfer of land under section 10 is a mere grant, a gift or a grace and, therefore, no right enforceable at law exists in the petitioners' favour.
20. There has been a cleavage of opinion on the point. At one end of the spectrum is the view taken by two Division Benches of this Court, namely, in Raja and others v. Member Board of Revenue and another PLD 1967 Lah. 329, a case under the Ejected Tenants Scheme and in an unreported case viz. W.P. No.684/60, a case under the More Grow Food Scheme, and at the other end of the spectrum is the view taken by another Division Bench of this Court in Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155. In the first two cases, the view taken was that such memos "cannot be read as conferring upon grantees of land under the Ejected Tenants Scheme an absolute right to claim the transfer of the proprietary rights in the land even if they fulfilled the conditions laid down in the memorandum. It merely makes them eligible for the grant and it rests entirely with the Provincial Government whether or not to accept their option for the grant of proprietary rights in the land. In other words, option exercisable by the eligible tenants is open to acceptance or rejection by the Government and it would be erroneous to read the memorandum so as to make the option exercised by the eligible tenants as absolute and binding leaving no choice to the Government. "It was, therefore, held that even "if in any given case, the Government declines to accept the option of any eligible tenant, then a tenant even if eligible cannot on any known principle enforce his option by means of a writ unless it is accepted by the Government".
21. In Muhammad Ashrafs case, which was also a case under the Grow More Food Scheme, a view contrary to the view taken in Raja's case and W.P.No.684/60 was taken and the earlier view was expressly dissented from. It was held that the proposed transfer of proprietary rights was not a mere grant or a gift or a grace but was in furtherance of the Scheme formulated under section 10 and the instructions contained in the memorandums dated the 8th August, 1962 and the 8th October, 1962 (referred to above) "had the force of law and were not mere departmental instructions issued internally for the information of the Revenue Officers:" In taking this view it was noticed that the instructions contained in the abovementioned memorandums were in modification of the statement of the conditions governing temporary cultivation leases which were issued on the 22nd of September, 1944, and which were expressly issued under subsection (2) of section 10 of the Act. The instructions of 1944 could not be modified except in exercise of power conferred by the above section. We must conclude, therefore, that the modified instructions which were issued on the 8th of August, 1962, and the 22nd of October, 1962, were issued under the same section." It was further held that the form in which the instructions were issued was not the determining factor.
22. It should be mentioned here that in Muhammad Ashraf's case, the petitioners before the High Court were held disentitled to the grant of proprietary rights on the grounds that the period of their lease had started from the date of allotment and not from the date of possession. The question turned on the interpretation of the expression "in Rabi 1962" in the Board of Revenue's memorandum dated 22-11-1962, the question being whether that expression referred to the crop which was sown in 1962 or to the crop which was only reaped in 1962.
It was held that "the five year period of the leases partly overlapped with the season of the Rabi crop and were extended by virtue of the Memorandum of the 22nd of October, 1962, upto April or May 1962. Thus, the petitioners in these constitutional petitions, who were allotted land or to whom leases were granted in 1956 and who have observed the relevant conditions, are entitled to have proprietary rights in the lands to be transferred to them".
23. In consequence of the judgment in Muhammad Ashraf's case, the Government of the Punjab, Colonies Department, issued instructions vide its Memorandum No.1488-71/1217-CL-III, dated 26th April, 1971, saving that" without referring to the date of allotment and the period of the termination of the lease allottees under the Grow More Food Scheme shall be granted proprietary rights provided that they fulfil the terms and conditions on which leases were granted.
24. 1 found it stated in a case reported as Province of West Pakistan v. Rahim Bakhsh (1968 SCMR 1328), also a case under the Grow More Food Scheme, that leave to appeal had been granted by the Supreme Court in the case of Ghulam Ahmad and others v. Member Board of Revenue to consider the question whether the promise of "concession of sale" contained in the memorandum of the Board of Revenue, dated the 8th October, 1962, "was not by its nature or expression an enforceable undertaking." I also learnt from another case that for the determination of the same question, the Supreme Court had granted leave to appeal in Muhammad Ashraf's case. I, therefore, asked the learned counsel for the parties to find out if the question had been finally decided by the Supreme Court. Learned counsel for the petitioners and the learned Additional Advocate-General Mr. Tanvir Ahmad Khan were kind enough to procure copies of the judgment of the Supreme Court in Civil Appeal No.243 of 1969 and others, dated the 8th April, 1975.
25. The judgment shows that the question requiring determination was not determined because in view of the above mentioned letter, dated the 26th April, 1971, "the appeals filed by the lessees are not contested by the Assistant Advocate-General appearing on behalf of the Provincial Government." Consequently, the appeals of Government were dismissed as withdrawn.
26. In support of his view that what the petitioners claim is a mere grant and the concession of sale allowed by the abovementioned instructions is not enforceable at law, learned Additional Advocate-General referred to Muhammad Amir v. Member Board of Revenue (1970 SCMR 364). In that case, the petitioner had succeeded his father as a temporary Lambardar and enjoyed the lambardari grant. He became a permanent lambardar on 25th October, 1958, and on the following day he filed an application for permission to deposit the requisite amount for the acquisition of the proprietary rights in accordance with the schedule of rates approved by the former Bahawalpur Government which, he alleged, was Rs.130 per acre. The Commissioner, however, fixed the price at Rs.800 per acre, which was confirmed by the Board of Revenue. The land was offered to the petitioner at that rate but he refused the offer, insisting to acquire the land on his own quoted price of Rs.130 per acre. The result was that the land was resumed. The petitioners' writ petitions were dismissed in limine "on the ground that the petitioner had no vested right to acquire the proprietary rights on a price which he proposed to pay" and it was in this context that it was held that" it is well- settled that a grant is a favour and not a vested right and therefore a grantee who is a beneficiary cannot set up his own conditions in receiving a grant".
27. That the statement of conditions issued under section 10, subsection (2), of the Colonization of Government Lands Act, 1912, has the force of law is also vouched by the dicta of the Supreme Court in Sub. Muhammad Asghar v. Mst. Safia Begum PLD 1976 SC 435, the ratio of that case being that such statements of conditions are in the nature of delegated legislation; and that though all that amanates from the Board of Revenue is not law, yet, if the instructions contained in the memorandums such as are under consideration here have been expressed with precision and possess such generality as to be capable of application to a large number of cases, they can be treated as the statement of conditions issued under section 10, subsection (2), of the Act.
28. I need not labour the point further, for, in Muhammad Ashrafs case, the instructions contained in the memoranda, dated the 8th August and 22nd October, 1962 were considered and were held to have the force of law entitling the petitioners in that case to the grant of proprietary rights subject to their satisfying the requisite conditions. Muhammad Ashraf's case being later in time, what it decided is binding upon me. Also, the Government, by issuing the instructions contained in the memorandum, dated the 26th April, 1971, and then by withdrawing the appeal before the Supreme Court, appears to have adopted the view taken in Muhammad Ashrafs case.
29. The matter is susceptible of being examined in another way. Section 10 of the Colonization of Government Lands Act, 1912, it seems to me, proceeds on the general principle that the State and the servants of the State exercising the right of disposing of the State property have at best the rights of private owners of making the disposition, in any way that appears to them to be best in the interests of the State. The servants of the State, if given disposing power by Statute, must comply with the terms of the Statute, but within those terms their duty is to act honestly in what they conceive to be the ultimate interests of the State or of the public. (See Commissioner v. Kader Bhai (1931) A.C. 652, 658-a case relating to land vesting in the British Crown).
30. Section 10 has two distinct parts; the first, vesting the power to grant land in the Board of Revenue, subject to the general approval of the Government "on such conditions as it thinks fit" {(subsection (1)} and the second, empowering the Provincial Government to issue statement or statements of the conditions on which it is willing to grant land in a Colony " to tenants ", and where such a statement of the conditions has been issued, vesting the power of disposition in the Collector { (subsections (2) and (3) } 1. Hence, when the land was granted to the petitioners under the Grow More Food Scheme, it was granted to them as tenants under subsections (2) and (3) of the Act. That stage has long passed. The period of tenancy expired in 1962, and, therefore, what is now at stake are not the tenancy rights but proprietary rights. So, viewed, the instructions contained in the memoranda referred to above should, I think, be regarded to have been issued under subsection (1).
31. In either case, the result produced is the same. If a person fulfils the requisite conditions, he is, as held in Muhammad Ashraf's case, entitled to the transfer of the land.
32. Learned counsel for the petitioners did not dispute the proposition that in order to be entitled to the grant of land, the petitioners must fulfil the conditions laid down in the memoranda referred to above. As has been noticed above, one of the conditions mentioned in the memorandum, dated 10-7-1962 was that the land should not be "within 5 miles radius of a Mandi Town or other Towns "and according to the memorandum, dated the 8th August, 1962, that the land should not be " within 5 miles of the outer limits of a Mandi Town or a Municipality".
33. In the petition, the stand taken by the petitioners was that "the Scheme of granting the proprietary rights was enforced in the year 1960". In point of fact, no such Scheme existed then. All that had been said in the Board of Revenue's Letter No. 9363-60/5873-C(G), dated 18-8-1960 was that "the question of conferment of proprietary rights to the lessee under the Grow More Food Scheme is under consideration of the Government." There has been a controversy" as to which Municipal limits would be taken into account for the purpose of the grant of proprietary rights to the eligible lessees", the view adopted by the Board of Revenue being that the relevant time was the time when the Collector considered the question of the grant of the proprietary rights. If that view were correct, then the relevant time in this case was the year 1969 when the impugned order was made. The learned Additional Advocate-General conceded, and in my view rightly conceded, that the municipal limits for the purposes of the grant of proprietary rights were the Municipal limits at the time the Scheme allowing the concession of sale to the petitioners came into force and not the time when the Collector made the impugned order. If the Government's view point were accepted, the expression " 5 miles radius " in the abovementioned memoranda will have no constant meaning and it will be subject to change at the will of the Government. For, the Government can, to defeat the rights of a person or a group of persons, alter or change the limits of a Municipality or Municipal Corporation at any time. Learned Additional Advocate-General himself referred to the Board of Revenue's Memorandum No.3040-78/1816-CL-III, dated the 29th June, 1978 which says: "the matter has been reconsidered on the analogy of orders passed in respect of tenancies under various other schemes and it has been observed that the allottees falling outside the prohibited zone at the time of making a provision of proprietary rights cannot be excluded from the operation of this concession on account of subsequent changes in the limits of municipalities", and "that in future the Municipal Limits existing at the time of making a provision of proprietary rights or subsequently at the time of alternate allotment under the said two schemes should be determined for the purpose of conferment of proprietary rights."
34. Learned counsel for the petitioners then referred to the Deputy Commissioner's report dated 20-7-1966 to show that the land in question was more than 7 miles from the Town Committee, Mandi Muridke and 2 miles from the Railway Station Kala Shah Kaku and, therefore, it was situated outside the prohibited zone. The position taken up by the Government on the other hand is that the land in question is situated within a radius of less than 5 miles from Shahdara which has always been the part of the Lahore Municipality or Lahore Municipal Corporation. Learned counsel for the petitioners, Syed Iqbal Haider Zaidi conceded that in the year 1962 when the Scheme basis of the petitioners' claim came into force, Shahdara was part of the Lahore Municipality or Lahore Municipal Corporation, Learned Additional Advocate-General has placed on the record a copy of a notification, dated the 8th August, 1960, made by the Governor of West Pakistan in the exercise of powers vesting in him under section 5 of the Punjab Land Revenue Act,-1887, ordering that the Revenue estate of Shahdara would form part of the Lahore Tehsil in Lahore District. Syed Iqbal Haider Zaidi, Advocate, however, tried to make three points; (i) that in the memorandum, dated the 10th July, 1962, the expression used is "within 5 miles radius of a Mandi Town or other Town", the same expression was used in the memorandum, dated the 6th September, 1962 and the expression in the memorandum, dated the 8th August, 1962, namely," within 5 miles of the outer limits of a Mandi Town" should be ignored; (ii) that in the memorandum, dated the 22nd October, 1962 which contained the last instructions on the subject, no expression such as within 5 miles radius of a municipality or within 5 miles of outer Town or a Mandi Town or a Municipality was used, and therefore, the intention was that proprietary rights should be granted in all lands irrespective of their situation subject to the fulfilment of other conditions; and (iii) that even if the instructions are held applicable, the use of the term "radius" indicates that the distance of the land in question should be measured from the centre of the area forming part of the Lahore Municipal Corporation.
None of these contentions is, in my view, entitled to succeed. It seems to me that the two expressions " within five miles radius of any Mandi Town or other Town" and within "five miles of the outer limits of a Mandi Town or a Municipality" though couched in different language do not mean different things. The preposition "of' among others means from, among, different from and, therefore, the expression within five miles radius of a Mandi Town or other Town also means within five miles from the outer limits of a Mandi Town or other Town. Though this question was not directly in issue in Ghulam Muhammad and another v. Board of Revenue and another (1968 SCM R 455), yet, this is what this expression was taken to mean by the Supreme Court in that case. That was a case under the Ejected Tenants Scheme 1952, wherein a similar expression occurred and with reference to that expression it was observed that a Scheme for transfer of proprietary rights to allottees was put into operation "subject to the condition inter alia, that no land lying within the belts defined above outside Municipalities was to be transferred in proprietary right, so that all such land should be available for future expansion of the city concerned". As regards the second contention, it appears that the instructions contained in the memorandums beginning with the memorandum, dated the 10th July, 1962, and ending with the memorandum, dated the 22nd October, 1962 were issued in continuation of and as supplementary to each other. As is seen above, the decision of the Government that the lands of all bona fide Grow More Food lessees "would be settled with them at a fixed price" was conveyed by the memorandum, dated the 10th July, 1962.
The memorandum dated the 8th August, 1962 was in continuation of the memorandum, dated the 10th July, 1962, and similarly the memorandum, dated the 6th September, 1962, was also in continuation of the memorandum, dated the 8th August, 1962. In the same way, the memorandum, dated the 22nd October, 1962 was issued with reference to the memorandum, dated the 6th September, 1962. 1 am, therefore, unable to agree that the memorandum, dated the 22nd October, 1962, had the effect of superseding the instructions contained in the earlier memoranda. The proper approach in my view is to read all these memoranda together as parts of the same Scheme. The third contention is a corollary of the first contention and in view of what has been said above, it too has no merits.
35. Haji Sh. Ghias Muhammad, Advocate, contended that the Collector's order, dated 14-5-1969 amounted to the review of the original order of allotment and this the Collector could not do without the prior permission of the Commissioner. As the Collector did not obtain the prior sanction of the Commissioner for the review of the original order of allotment, the order, dated 14-5-1969 and all subsequent orders, so goes the contention, were without jurisdiction. With respect, I am unable to agree. The allotment of land under the Grow More Food Scheme was for a fixed period and the tenancy terminated on the expiry of that period. At the date of the order of the Collector, therefore, there was no question of cancelling the allotment; the only question at the date was whether the petitioners were entitled to the concession of sale, for, if they were not so entitled in accordance with the terms and conditions of the memoranda referred to above, then all that remained to be done by the Revenue Authorities was to resume the land. The Collector, no doubt, in making the order, dated 14-5-1969, considered the grounds that the allotment in some cases was of more than 12 acres of land and that land was allotted in the same village to five sons of deceased Muhammad Din "but these were relevant considerations for the purposes of determining whether the petitioners were bona fide- Grow More Food lessees within the meaning of instructions contained in the memorandum, dated the 8th August, 1962. Learned counsel for the petitioners then argued that the instructions contained in the notification, dated 7-12-1957 by which Grow More Food Scheme was introduced, do not mention any municipal limits and, therefore, the order of the Collector, dated 14-5-1969 proceeded on an irrelevant consideration. The petitioners claim to the grant of proprietary rights is founded upon the instructions contained in the memoranda of the year 1962 and not upon the notification, dated 7-12-1957. As has been noticed above, it was conceded that in order to be entitled to the grant of proprietary rights, the conditions contained in the memoranda of the year 1962 must be fulfilled by the petitioners. I do not, therefore, think that the notification, dated 7-12-1957 is relevant. It was also said that the condition of the maximum of 12 acres of land was directory in nature and in any case, the maximum that the Revenue Authorities could do was to cancel the area in excess of 12 acres. Cancellation of the whole area, it was said, was arbitrary and unjust. As I have held that the land is situated with a radius of five miles of Shahdara, which is part of the Municipal Corporation, this question does not arise. Learned counsel for the petitioners was then of the view that the petitioners were entitled to show-cause notice why their allotments should not be cancelled. As held above, the question before the Revenue Authorities was whether or not the petitioners were entitled to the concession of sale. The tenancy, as observed above, had come to an end with the expiry of the period of five years. I am, therefore, unable to agree that the petitioners were entitled to show-cause notice.
36. It was stated that the Board of Revenue had directed the land to be auctioned and allowed the petitioners to take part in the auction despite the fact that the land lay within the prohibited zone. It was argued that if the land could be sold by auction, the action of the Revenue Authorities in not selling it to the petitioners by private treaty was capricious and arbitrary. It is, however, clear from the terms and conditions of the memoranda referred to above, that the land situated within the prohibited zone was not to be transferred by private treaty to its allottees. If these terms and conditions applied, and there appears no doubt that they did, then the petitioners cannot be heard to say that instead of selling the land by public auction, it should be sold to them by private treaty.
In point of fact, according to the petitioners, auction was held and they were the highest bidders.
Learned Additional Advocate-General disputed the correctness of this statement; according to him, no such auction had taken place and the petitioners were prosecuted and convicted by a Martial Law Court for having forged the documents of auction, etc. Be that as it may, the petitioners cannot choose their own terms and conditions for the transfer of the land; they must fulfil the conditions contained in the memoranda of the year 1962 to be entitled to the transfer. It was then argued that under section 25 of the Colonization of Government Lands Act, 1912, the petitioners are entitled to compensation for the improvements made by them. In this connection, he referred to the order, dated 22-7-1969 of the Member Board of Revenue expressing sympathies with the petitioners for having invested money on improvements. Section 25, it seems to me, does not in terms apply. That section applies where an order resuming tenancy has been passed under section 24 of the Act; the latter section applies where the Collector is satisfied that the tenant in possession has committed a breach of conditions of his tenancy and the tenancy is resumed after giving the tenant an opportunity to appear and state his objections. Here, the order in question was not made under section 24, and therefore, section 25 had no application. Lastly, Haji Sh. Ghias Muhammad referred to the Memorandum No.7875-80/6296-CL-111, dated the 15th October, 1980 to point out that even if the petitioners had become ineligible for the grant of proprietary rights because of the situation of the land within the prohibited zone, they are entitled to alternate lands "and would not be dislodged from the existing tenancy unless they are provided with alternate lands elsewhere". The instructions in that letter did provide for the allotment of alternate lands to allottees such as the petitioners but then such allottees were required to apply to the Collector before the 31st March. 1981, for the allotment of alternate land outside the prohibited zone "failing which H their existing tenancy within the prohibited zone will be resumed without providing them alternate State land". These instructions were issued long after the institution of this petition and in any case, the petitioners had to apply for the allotment of alternate land outside the prohibited Zone. I do not, therefore, think that the petitioners can be allowed to press their claim to the allotment of alternate land in these petitions.
37. This also disposes of C.M. No. 1310 of 1986 in W.P. No.1211/69 seeking to amend the writ petition so as to take the additional grounds that Section 24 of the Colonization of Government Lands Act, 1912, applies and that even if the petitioners case is hit by the condition that the land is situated within the prohibited zone, "then the petitioner is not liable to be ejected without providing him alternate land according to the latest instructions of the Board of Revenue after prior notice of an offer in that behalf, which was not made to the petitioner".
38. Basing his contention upon a Memorandum No.9363-60/5873-C(G), dated the 18th August, 1960, and relying upon a case reported as 1949(1) K.B. 227 and a case from the Indian Jurisdiction, namely, M/S. Motilal Padampat Sugar Mills Co. Ltd. v. The State (AIR 1979 Supreme Court 621) as also the judgment in Writ Petition No.1213/R/69 in Jamal Din v. Chief Settlement Commissioner, learned counsel for some of the petitioners, Kh. Habibullah, Advocate, argued that the letter, dated the 18th August, 1960, contained a promise and as on the faith of that promise the petitioners had invested a large amount of money on the improvement of the land, the doctrine of "promissory estoppel" applies and the Government is, therefore, estopped from resuming the land. I have my doubts that the equitable doctrine as propounded in the above--mentioned cases can be invoked in the exercise of this Court's jurisdiction under Article 199 of the Constitution, which jurisdiction is to declare that an act was done or an order was made without lawful authority and is of no legal effect. Even in England, as a result of a series of judicial decisions since about 1950, both in the House of Lords and in the Court of appeal, there has been a dramatic and indeed a radical change in the scope of judicial review "for the purpose of controlling what would otherwise be unfettered executive action whether of central or local Government". The evolution of the power of judicial review there has established that executive action will be the subject of judicial review on three separate grounds, namely, (i) illegality, that is to say where the authority concerned has been guilty of an error of law in its action; (ii) irrationality, that is to say where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what arc called, in lawyers shorthand, Wednesbury principles (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp (1947) 2 All ER 080); and (iii) procedural impropriety, that is where it has acted contrary to what are often called principles of natural justice or duty to act fairly (See the speeches of Lord Diplock and Lord Roskill in Council of Civil Unions and others v. Minister for the Civil Service (1984) 3 All ER 935 at 950, 951, 952, 953 & 954). Then the grant of the land was governed by statute, that is Section 10 of the Colonization of Government Lands Act, and as that section, by its express terms, empowers the Government and the Board of Revenue to impose conditions, and there is no estoppel against statute, the petitioners, I am afraid cannot invoke an equitable doctrine and on its basis lay claim to the grant of the land. Assuming, however that the doctrine does apply, I am wholly unable to glean anything from the memorandum, dated the 18th August, 1960, in the nature of a promise capable of giving rise to a "promissory estoppel". All that the letter, dated the 18th August, 1960, said was that "the question of conferment of proprietary rights to the lessees under the Grow More Food Scheme is under consideration of Government" and that the lessees should not be displaced" till the decision of the Government". In any case, one of the conditions of allotment was that the petitioners should make the land fit for cultivation and it was, therefore, necessary for the petitioners to invest money.
39. Learned counsel, Kh. Habibullah, then went so far as to contend that as the petitioners have been in possession of the land and had made it fit for cultivation at considerable expense and labour, they had become owners. For this contention, he referred to Ahmad Yar Khan and others v.
Secretary of State for India in Council and another (1901) 28 Indian Appeals 211(J.C.) That was a case in which the predecessor of the appellants before the Privy Council had obtained the sanction of the Government to construct a canal in Government and private lands and the question was what rights the appellants, their predecessors, had acquired from the Government. This question turned upon the interpretation of the order sanctioning the construction of the canal and it was held that "under the circumstances the undertakers acquired a proprietary interest in so much of the Government lands taken for the purpose of the canal as was required for its construction and maintenance, and also a right to have the waters of the Sutlej admitted into the canal so long as the canal was used for the purpose for which it was originally designed". It should be obvious that no such general proposition of law, as has been canvassed by the learned counsel, was laid down in that case.
40. It remains to dispose of C.M. No.1534 and C.M. No.1535 of 1988 in Writ Petition No.1212 of 1969. As has been noticed above, the land in W.P. No.1212 of 1969 was allotted to S. Muhammad Din and the petitioners in the writ petition are his heirs. S. Muhammad Din had died long before the impugned order, dated 14-5-1969. The petitioners in the writ petition are S. Muhammad Din's heirs other than S. Abdul Hameed, son. It is stated that S. Abdul Hameed was not impleaded as a party before the Collector; he was also not impleaded as a party in the subsequent proceedings. Even in the writ petition, he was not joined as a petitioner. It is also stated that S. Abdul Hameed was a person of unsound mind and it is prayed that his mother Mst. Rehmat Bibi maybe appointed as his next
41. These writ petitions have been pending since 1969. These miscellaneous petitions were filed in April, 1988. The petitioners in W.P. No.1212 of 1969, who, as stated above, are the widow and sons of `S. Muhammad Din, must have been aware of the rights, if any, of S. Abdul Hameed in the land in question. As it is, neither the petitioners nor S. Abdul Hameed appears to have any right to the grant of the land in question. Be that as it may, it is too late in the day to allow S. Abdul Hameed to join as a party. C.M. Nos. 1534 and 1535 of 1988, are therefore, rejected.
42. In the result, all the petitions fail and are dismissed with costs.
A.A./A-625/L