This revision petition filed by Mian Zafar lqbal petitioner is directed against the order dated 27-9- 1987 of Additional Commissioner (Cons. & Rev), Lahore Division, whereby he dismissed the appeal of the petitioner against the order of the District Collector dated 15-7-1985.
2. Briefly the facts of the case arc that one late Ch. Muhammad Khan father of the respondent held a Horse Breeding Tenancy at Chak No.49/3-R, Tehsil and District Okara. Upon his death the Horse Breeding Tenancy was allotted to Ghulam Bari, the second son of the deceased Muhammad Khan.
The respondent (the eldest son of the deceased) was at that time serving as a Police Officer. Upon the death of Ghulam Bari the tenancy was allotted to Mst. Salima Begum, widow of Ghulam Bari.
She applied that allotment in her name may be cancelled as for various reasons she was not in a position to manage the tenancy any further. Her allotment was thereafter cancelled and the land was ordered to be resumed by District Collector on 6-5-1985. The case was further processed by the District Remount Officer who submitted his recommendations to the Collector for fresh allotment. Six persons namely, M/s. Ghulam Sarwar Cheema (respondent), Mian War Iqbal (Petitioner), Abdul Majid, Mu7affar Oadir; Ahmad Hasan and Muhammad Hanif had applied for the allotment of the tenancy. The District Remount Officer recommended the respondent at priority No.1 and the petitioner at No. 2. The District Collector allotted this tenancy to the respondent vide his order dated 15-7-1985. Mian Zafar lqbal petitioner filed an appeal against the said order which was dismissed by the Additional Commissioner (Cons. & Rev.) Lahore Division by a detailed order dated 27-9--1987. Hence this revision petition.
3. I have heard the counsel for the parties at lenght. The learned counsel for the petitioner stressed that upon cancellation of the tenancy from the name of Mst. Salima Begum this became a case of fresh allotment and therefore the claim of the respondent as heir of Muhammad Khan, a previous allottee was totally baseless. Moreover he was not the heir of the last allottee i.e. Mst. Salima Begum. Therefore, the case should have been examined on comparative merits of the applicants.
He further stated that respondent was a retired S.P. And that the District Remount Officer had said nothing about the suitability of the respondent as a breeder. His recommendation was based only on one ground that he was son/heir of late Mohammad Khan a previous allottee. He also stated that Ghulam Sarwar Cheema respondent retired S.P. Was an old man and even on this ground he was not suitable to hold this tenancy. He also stated that Ghulam Sarwar Cheema respondent was permanently residing at Lahore and was not resident of the chak. In respect of the petitioner he stated that the petitioner had experience of horse breeding, that he was a permanent resident of the chak concerned, that he was the most suitable person to hold the tenancy and, therefore, this tenancy should be allotted to him. He also stated that the petitioner had suffered in this case because he was denied the opportunity of hearing by the District Collector and therefore, his version was not taken into account before the case was decided by the District Collector. The District Collector had also acted with unusual haste with a view to deny the petitioner the opportunity to state his case before him.
4. The counsel for the petitioner also stated that the respondent took over possession of the tenancy in an illegal manner and that proceedings of ejectment and Tawan were pending against him before the District Collector. The learned Additional Commissioner took no notice of this misconduct on the part of the respondent while dismissing the petitioner's appeal. He vehemently stressed that for these reasons stated by him the impugned orders may be set aside and this tenancy be allotted to the petitioner.
5. The arguments of counsel for the parties were heard on 4-3-1990. On the previous date fixed in this case which was 11-2-1990. The learned counsel for the petitioner informed the Court that the petitioner could not appear due to illness and since the petitioner wanted to also address the Court personally the case be adjourned to another date. The request was granted and the case was adjourned to 4-3-1990. On 4-3-1990 the petitioner was present with his counsel and after his counsel had at length addressed the Court the petitioner did not feel the need to argue his case himself.
6. The learned counsel for the respondent did not dispute the fact that after cancellation of this tenancy from the name of Mst. Salima Begum it was a case of fresh allotment. He also stated that the case was processed by the District Remount Officer and decided by the District Collector on merits, that the petitioner himself did not avail of the opportunity to appear before the District Collector, that the petitioner was a busy practising lawyer and was a permanent resident of Okara city. He was not residing in Chak No.49/3-R. He also stated that the respondent had better experience of horse breeding because his close family members like his father, his brother and his sister-in-law had been successful allottees of this tenancy and he had been actively associated with them while according to the District Remount Officer the experience of the petitioner was based on the fact that his one uncle and one cousin were breeders. The District Remount officer had recommended the respondent as a first priority and had given the respondent rating as good in column No.5 of his report, while rating of Mian Zafar 1qbal was fair in the same column. The learned counsel for the respondent also pointed out that the petitioner was given full opportunity of hearing by the learned Additional Commissioner during appeal and that the petitioner had voluntarily stated that he had dropped this objection. The petitioner could not raise this matter now at this stage. The learned counsel also stated that the petitioner was not an agriculturist but a whole time practising and a busy lawyer while the respondent now after having retirement as Superintendent of Police was concentrating on agriculture and this tenancy. He also pointed out that the respondent was awarded a certificate of proficiency in respect of this tenancy. He concluded that the respondent was the most suitable person to be allotted this tenancy and therefore, there is no justification for interfering with the, concurrent findings of the two lower courts.
7. The counsel. For the petitioner availing the right of reply further stated that Chak No. 49/3-R was at distance of only 8 miles from Okara and therefore, the possession of a house at Okara by the petitioner did not mean that he was not residing in the chak. The learned counsel also stated that certificate of proficiency was given to the respondent after the allotment had been made and this was not relevant. He also pointed out that the term concurrent finding will not apply in this case as the District Collector had passed the order without hearing the petitioner.
8. Having given careful consideration to the arguments addressed by the learned counsel for the parties and examining the record I would now deal with the material points raised before me. Let me first take up the matter of denial of opportunity of hearing to the petitioner by the District Collector. Although in this case it does appear that the District Collector had acted with haste yet I would like to reproduce below a portion of para 8 of the order dated 27-9-1987 of the learned Additional Commissioner: - "At the very outset, it is pointed out that whether the appellant was afforded reasonable opportunity of hearing at every appropriate stage before the passing of the impugned order or not, the fact remains that before the hearing of this appeal, the appellant categorically stated before me that since the entire case would be re-opened at the appeal stage, he would not like to press his objections in this regard and would submit to the jurisdiction of this court. Therefore, the arguments made in support of and against this contention, need not be considered."
9.Now that except for the petitioner and the respondent the others are out of the field, it was to be examined as to who is more suitable from the two. Mian Zafar lqbal is a practising lawyer while Ghulam Sarwar Cheema (Retd S.P.) respondent is an agriculturist. Very close members of the family of the respondent were successful breeders namely respondent's father, his younger brother and his sister-in-law Mst. Salima Begum. Mst. Salima Begum gave up this tenancy herself and also requested that this may be allotted to Ghulam Sarwar Cheema. The tenancy of Muhammad Khan and Ghulam Bari remained intact during their lifetime which shows that there was nothing wrong with them as breeders. On the other hand one uncle and one cousin of Mian War Iqbal are breeders. Obviously he cannot match his experience with that of Ghulam Sarwar Cheema. The District Remount Officer had of course erred in mentioning the rule of primogeniture in support of the claim of Ghulam Sarwar Cheema because this rule is not applicable in Horse Breedings Tenancies. Even on merits Ghulam Sarwar Cheema has a better claim than that of Mian Zaffar lqba1. The petitioner's counsel has stated that .The respondent was residing at Lahore and produced a copy of Form P.I. According to this copy of form House No.73-C Gulberg-111, Lahore is in the name of three sons and were of Ghulam Sarwar C Cheema. The annexe is self-occupied while the remaining house is on rent. The respondent's counsel produced Form PT I in respect of House No.189 of Okara City. The owner is Mian Zafar lqbal son of Muhammad Sharif and is occupied by the owner himself. Thus according to the documentary evidence. House No.73-C Gulberg III is owned by three sons and the were of the respondent while House No.189 Okara belongs to Mian Zafar Iqbal and he is residing there. The PT I Form does not show that Ghulaw Sawar Cheema is permanently residing at the said Gulberg house. On the contrary there is reliable evidence that he has pucca house and sheds in the chak. The affidavits and counter-affidavits produced before the lower Court also lead to the conclusion that more weighty and reliable evidence supports the claim of the respondent that he resides in the chak. Of course every well-to-do Zamindar keeps his children in a city for education and other purposes and this arrangement should not be taken to conclude that Ghulam Sarwar Cheema has no residence or does not reside at Chak No.49/3-R. I am inclined to agree with the learned counsel for the respondent that the respondent was now concentrating on his lands and this tenancy after retirement from the Police Department. The learned counsel for the petitioner had said that the respondent was an old man and therefore, was not suitable to hold this tenancy. He is about 65 years of age but he is physically fit and active. I do not see that a man at this age and as physically fit as the respondent is should be ignored on the ground that he is 65 years of age.
10. A lot of emphasis was put by the learned counsel for the petitioner on the ground that proceedings of ejectment/Tawan were pending against the respondent for taking over the land in question unauthorisedly. He stated that the learned Additional Commissioner had not taken notice of this serious matter. It is wrong. The Additional Commissioner had taken due notice of this objection and had rightly observed in paragraph 10 of the impugned order that the question of proceedings which were pending in respect of alleged illegal possession should not be simultaneously gone into by him as it would be premature. He also observed and rightly so that the competent authority would look into this question, pass appropriate orders and the parties would be free therefore to agitate against the said order in such manner as they deemed necessary.
11. From the discussion above of the respective claims of the parties, I find that allotment of the horse breeding tenancy made to Ghulam Sarwar Cheema was strictly on merits and in accordance with law and therefore, I do not rind any D justification to interfere with the impugned order. Consequently the revision petition is dismissed.