1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed; against a judgment of the Lahore High Court; whereby appellants' Regular Second Appeal in a case under Colonization of Government Lands Act, 1912 was dismissed.
2. ' The appellants held tenancy rights in the suit land under Colonization of Government Lands Act.
3. Their predecessor-in-interest had also occupied illegally another parcel of State land. He was proceeded against under the said Act regarding illegal occupation of this second piece of land.
4. Accordingly, he was made to pay what is generally known as Tawan which was ordered to be recovered as arrears of land revenue. The recovery not having been effected by any other means, the first mentioned piece of land which was under lawful tenancy with the appellants' predecessor-in-interest was put to auction for the realisation of the Tawan amount. The respondents' side is the purchaser of that land. It happened in 1966.
5. ' In 1967 the appellants' side filed a civil suit with a view to seek annulment of the auction. It was decreed in 1976 but the appeal of the respondents' side succeeded with the result that the appellants suit stood dismissed. In the Regular Second Appeal filed before the High Court the appellants' counsel argued that section 28 of the Colonization of Government Lands Act by virtue of which authority was assumed for the recovery of the amount through auction of the land under appellants tenancy related to "penalties" in connection with land under tenancy and not regarding the land which was under illegal occupation. It was also argued that the so-called Tawan which became recoverable from the appellants in respect of illicit cultivation of some other land could not be realised by auction of the land under tenancy. Presumably help was sought from section 18 of the Colonization of Government Lands Act in this behalf.
6. ' The learned Judge in the High Court observed and held as follows:-- "I have read section 28 closely with the help of the learned counsel. The section has two parts. The first part obviously relates to tenancy. The second part relates to the penalties and fines which can also be recovered as arrears of land revenue. Tawan is a category of fine which is covered by the second part of section 28. It is clear, therefore, that Tawan can be realised as arrears of land revenue and for the recovery of arrears Land Revenue Act gives wide powers to the Revenue Officers and the rights which the petitioner enjoyed in the tenancy under the State could also be proceeded against."
7. ' Petition for leave to appeal was then moved in this Court. It was granted in order to examine inter alia, the question: "whether for the recovery of the Tawan the land under lawful tenancy of the petitioners could be auctioned".
8. ' Learned counsel for the appellants has contended; firstly, that section 18 of the Colonization of Government Lands Act barred the impugned action for the recovery of Tawan through sale of land under lawful tenancy. Section 18 reads as follows:-- "Section 18. Rights of tenant not to be attached or sold. --None of the rights or interests vested in a tenant from Government of land to which this Act applies shall be attached or sold in execution of a decree or order of any Court or in any insolvency proceedings."
9. ' According to learned counsel the recovery as arrears of land revenue is in the nature of sale in execution of a decree or order of any Court. We do not agree with him. Admittedly no Court or insolvency proceedings were involved in the present case. Orders for the recovery of so-called Tawan were passed by the departmental authorities functioning under the Colonization of Government Lands Act. In its terms, accordingly, section 18 is not attracted. Learned counsel then relied on the combined reading of sections 28, 32, 33 and 34 of the Act. They are reproduced below:-- ' Section 28. Sums due to Government to be recoverable as arrears of land revenue.- -"All sums due to Government in respect of tenancy granted in pursuance of the Government Tenants (Punjab) Act, 1893, or under the provisions of this Act or of the rules and conditions issued thereunder, and all sums due on account of fines, confiscations, costs and penalties, shall be recoverable as if they were arrears of land revenue."
10. "Section 32. Power of re-entry in case of squatters and trespassers.--When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of. Government without payment of any compensation whatsoever."
11. "Section 33. Penalties.--If any person, without permission of a Revenue Officer of a grade to be specified by the Board of Revenue.
12. "(a) clears or breaks up for cultivation, or cultivates any land which is owned by, or is in the possession of Government and is not included in any tenancy or allotted residential enclosure or which has been set apart for the common purposes of a town or village community or section of the same or for a road, canal or water course; or
(b) erects any building on any such land; or
(c) fells or otherwise destroys standing trees on such land; or
(d) otherwise encroaches on any such land; or
(e) makes an excavation or constructs a water channel on any such land he shall, on complaint made by order of or under authority from the Collector, be punished on conviction by any Magistrate with a fine not exceeding Rs, 200.
13. "Section 34. Additional power of Collector in regard to offences.--When the Collector is satisfied that an act punishable under section 33 has been committed, he may in lieu of proceeding against the offender under that section or after conviction of the offender under that section--in the case of an offence under section 33(a), confiscate the crops growing on any land cultivated in contravention of this Act or, if the crops have been cut, recover such sum as he may assess as the value thereof from the offender;
(ii) in the case of an offence under section 33(c), recover such sum as he may assess as the value of the trees or tree destroyed;
(iii) in the case of an offence under section 33(b), (d) or (e), cause the building or pther encroachment to be demolished or removed or the excavation or channels to be filled up and levy the costs of doing from the person responsible for such act'."
14. ' As argued from the appellants' side Section 28 permitted recovery of sums due to the Government as arrears of land revenue. Its first part relates to the land under lawful tenancies. But the second part; namely, of sums due on account of fine, confiscations, costs and penalties under the Colonization of Government Lands Act were made recoverable as arrears of land revenue.
15. Section 18, as already observed, not being a bar the recovery of fines, confiscations, costs and penalties could be effected as arrears of land revenue. But the question arises: whether, so-called Tawan which was ordered to be recovered from the appellants did fall within the scope of fine", or "confiscation" or "costs" and/or "penalties". It seems an undisputed position that the recovery of the sum involved was under section 34 and not under sections 32 and 33. It could not be under section 32 because it related only to the power of the Collector, "in addition to any other powers he may possess" to re-enter upon the land under illegal cultivation as was in this case and to resume the possession thereof together with crops, trees, buildings etc. This section does not empower the Collector directly to make any recovery for illegal use and occupation of the land. It, however, preserves the power of the Collector in the expression "in addition to any other powers he may possess". Section 33 which specifically deals with the penalties no doubt, inter alia, deals with the illegal cultivation of Government land and also provides against the encroachment otherwise on such land. But the penalty provided therein is through conviction by a Magistrate who would impose the penalty in the form of fine not exceeding to Rs, 200. In this case no Magisterial proceedings were at all involved--nor any fine was imposed. On the other hand the recovery of the so-called Tawan from the appellants was in thousands and not in hundreds. Accordingly, Section 33 is not attracted. The only provision on which there is no disagreement before us under which the so-called Tawan was recovered is section 34. But in its relevant sub-clauses i.e, (i) to (iii) which by reference incorporated therein section 33 clauses (a) to (e) including illegal cultivation and encroachment on waste land, there is no imposition in the form of a penalty; because regarding illegal cultivation either of the growing or confiscated crops or if they had already been cut and appropriated a sum which might be assessed "as the value thereof' could be recovered from the delinquent. Similarly for the encroachment of the land in addition to the removal of the encroachment the costs of the removal incurred by the Government could be recovered from the person concerned. None of these recoveries which were either in the nature of value of the crops which might have been grown and appropriated or the costs incurred by the Government for removal of the encroachment are involved. The present case does not relate to any recovery regarding removal of encroachment. It relates to the value of the crops which the appellants' side had appropriated to their own use without any justification. In the proceedings it was described as Tawan though in reality as the nature of the recovery shows it could not be so described. Looked at in this sense this recovery is neither a "fine" nor "confisaction" nor "costs" nor a "penalty". It is simply the equal value of the crops appropriated by the appellants' side. Accordingly, the appellants' land under lawful tenancy could not be auctioned by the support or under the cover of the afore- discussed provisions. They had no real application nor even purported application. Therefore, it cannot be held that the sale of the appellants' land under lawful tenancy through its auction for the recovery of the aforementioned amount wrongly described as Tawan, was lawful. That being so, it merits to be set aside.
16. ' The next question arises: whether, as a result of the aforementioned discussion, observations and findings the suit of the appellants' side must be decreed in its entirety. Admittedly it was a suit for declaration with consequential relief in such form that its grant is within the discretionary jurisdiction of the Court. The appellants' side was at fault for having indulged in illegal cultivation.
17. Although the law is on their side but on the question of equity it can be applied for both the sides-- If the appellants land in question which is almost ancestral one and is comprised of vast area-- about 240 kanals is valuable for the respondents also the stake is not insignificant. They having for no fault of theirs purchased the land nearly 35 years ago. As a result of the above finding it will go out of their possession without any compensation. In such circumstances the Court has the power to strike a reasonable balance. The appellants' side which was in addition to their counsel represented by one of the appellants namely Muhammad Iqbal who is an Advocate, have shown grace by offering and surrendering 80 kanals of land (nearly about 1/3rd) to the respondents.
18. Accordingly, a written memorandum having been drafted at the conclusion of the hearing of the appeal, it was placed on record and after hearing both the sides on this question the Court accepted it in the light of the principle discussed above. The memorandum reads as follows:-- "(1) That the description of the suit land iS detailed at page 59 of the Paper Book.
(2) That out of that land the appellants abandon and hereby surrender their claim quo the following land in favour of the respondents: 47 Sqr. 46 Sqr.
19. "Killa. 15, 14, 13, 6, 5 10, 9, 3, 2, 1 (80 Kanals)
(3) The appeal may be allowed qua other land.
(4) The appellants shall urge no claim in regard to the land above-mentioned the nor shall the respondents have any claim in regard to title as owner or possessory title and shall not disturb the possession being held presently by the tenants who shall be taken to be the tenants of the appellants.
(5) The counsel for the appellants has the authority to abandon and relinquish the claim on behalf of the appellants in regard to the above-said land which he has done also with the consent of Muhammad Iqbal, Advocate, one of the appellants who is present in Court.
20. Sd/x.x.x.x.x.x Sd/x.x.x.x.x.x.x. Muhammad Iqbal (M. Pervaiz Akhtar)
21. Appellant 15-4-1990. Advocate (Mirza Saeed Baig)
22. Advocate for the respondents Counsel for the appellants 15-4-1990.
23. ' Shamusdin Respondent ' It is, therefore, prayed that the appellants hold no objection to the allowing of the appeal partially by allowing them to retain the land in Sqr. No, 45(Killa Nos. 20, 21) Killa Nos. 25 of Sqr. No, 46, Killa Nos. 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 18, 19, 20 of Sqr. No, 51 and Killa Nos. 1, 2, 10 of Sqr. No, 52 in the revenue estate of Chak No, 79-M, Tchsil Shujabad, District Multan."
24. 'In the light of the foregoing discussion this appeal is allowed. The suit filed from the appellants' side is decreed in terms and subject to the exclusions contained in the afore reproduced memorandum. There shall be no order as to costs.