' This judgment is intended to dispose of the following writ petitions as these are with respect to the same subject-matter:---
(i) Writ Petition No,2622 of 1992 namely Ghulam Mustafa Khan v. Member, Board of Revenue and others.
(ii) Writ Petition No,3443 of 1992 namely Hussain Khan v. Member, Board of Revenue and others.
(iii) Writ Petition No,4113 of 1992 namely Capt. Sarfraz Khan since deceased represented through his legal heirs Abdul Ghaffar Khan and 5 others v. Member, Board of Revenue and others.
2. The facts of the dispute in hand are that a Horse Breeding Tenancy situated in Chak No,56/10-R, Tehsil Jahanian, District Khanewal comprising an area of 200 Kanals and 2 Marlas of land was initially allotted in the name of Ahmad Khan on whose death during the year 1962 the same was allotted in the name of his son Major Hassan Khan. However, at the request of Major Hassan Khan regarding his inability to manage the tenancy the same was resumed by the District Collector, Khanewal on 9-10-1988. At the time of resumption the tenancy was declared open and the District Remount Officer, Sahiwal was directed to invite fresh applications and recommend a suitable person for its allotment.
3. Without the report of the District Remount Officer the District Collector, Khanewal after getting the report from the Assistant Commissioner, Khanewal allotted the tenancy in the name of Ghulam Mustafa writ petitioner on 6-6-1989. The other contestants namely Capt. Sarfraz Khan (having died during the pendency of the writ petition) Hussain Khan, Usman Ghani and Munawarud-Din filed the appeals under section 161 of the Land Revenue Act. The same were accepted by the Commissioner, Multan Division, Multan on 13-11-1989 who remanded the matter to the District Collector, Khanewal for decision of the dispute afresh after getting the report from the Remount Officer, Sahiwal who had to invite fresh applications and had to examine the suitability of the candidates including one of the appellants before sending up the requisite report to the District Collector, Khanewal. The District Remount Officer gave his report dated 3-3-1990 wherein he placed Ghulam Mustafa, Hussain Khan and Usman Ghani at 1st to 3rd priority. However, he did not recommend the names of Sarfraz Khan and Munawar-ud-Din Khan for allotment due to old age, nonresident of the Chak and poor experience in animal management/breeding. The merits pertaining to Ghulam Mustafa Khan, Hussain Khan and Usman Ghani were mentioned by him. After hearing the parties the District Collector, Khanewal allotted the land in the name of Hussain Khan on 9-5-1990. An appeal was preferred by Ghulam Mustafa Khan, Capt. Sarfraz Khan and Usman Ghani before the Commissioner, Multan Division, Multan who selected the name of Ghulam Mustafa being a better candidate and accepting his appeal on 28-5-1995 passed the order of allotment of the Horse Breeding Tenancy in his favour. The remaining contestants namely Usman Ghani, Sarfraz Khan and Hussain Khan filed the revisions before the Board of Revenue, Punjab, Lahore. The revision filed by Usman Ghani was accepted on 26-8-1992 and the Horse Breeding Tenancy was allotted in his name. The revision petitions of Sarfraz Khan and Hussain Khan were dismissed. Feeling aggrieved Ghulam Mustafa Khan, Hussain Khan and Sarfraz Khan filed the aforesaid three writ petitions wherein they have questioned the vires of order, dated 26-8-1992 passed by the Member, Board of Revenue, Punjab, Lahore. Each of them has agitated his own merit for the purposes of the allotment of the tenancy.
4. Captain Sarfraz Khan died during the pendency of the writ petition and his legal heirs Abdul Ghaffar aged 48 years, Abdul Sattar aged 42 years, Abdus Samad aged 34 years, Abdul Jabbar Khan aged 32 years (sons) as well as Mst. Roshan Begum aged 30 years and Mst. Jeuni aged 55 years (daughters) have been impleaded in the list of the writ petitioners.
5. All the three writ petitions have been contested by Usman Ghani in whose favour impugned order, dated 26-8-1992 has been passed by the Member, Board of Revenue, Punjab, Lahore. The writ petitioners and the contesting -espondent Usman Ghani have agitated their respective merits.
The written reply as been submitted by Usman Ghani in each matter who has taken up the plea hat the writ petitions are not maintainable against the order of the Member, 3oard of Revenue, Punjab, Lahore.
6. I have heard the learned counsel for the parties as well as special attorney of Hussain Khan writ petitioner and gone through the record before me. Before embarking upon the arguments in the presence of the parties, their learned Advocates and the Special Attorney of Hussain Khan; I gathered the following information about the three alive contestants and the legal representatives of Captain Sarfraz Khan since deceased:---
(1) Ghulam Mustafa Writ Petitioner ' He is aged 57 years. He is in possession of the disputed area of Horse Breeding Tenancy. He is an owner of 22 Kanals of land in Chak No,56/10-R. He was allocated first position by the District Remount Officer. He is resident of Chak No,56/10-R and is living alongwith his family. Since he is in possession of the area of the Horse Breeding Tenancy he claims to have the experience of horse breeding.
(2) Hussain Khan Writ Petitioner ' He is aged 68-1/2 years. He is owner of 22 Kanals of land in the Chak and is having one square of land on Well Sinking Scheme which is cultivated by him. He was allocated second position by the District Remount Officer. He has two daughters and no male issue. He is a resident of the same Chak.
(3) Captain Sarfraz Khan since deceased at present represented by his legal heirs.
' Abdul Ghaffar Khan aged 48 years, Abdus Sattar Khan aged 44 years, Abdus Samad aged 34 years, Abdul Jabbar aged 32 years (sons), Mst. Roshan Begum aged 30 years, Mst. Jeuni aged 55 years (daughters) who are the heirs of Captain Sarfraz Khan who died during the pendency of the writ petition at the age of 76 years. At present his heirs are the owner of one square and fourteen acres of land who claim that the same was being cultivated by them. Abdul Ghaffar Khan and Abdus Samad Khan claim that they lived, in the Chak No,56/10-R as well as in Khanewal and they had installed two tubewells in their land which was under self-cultivation. Sarfraz Khan was not recommended by the District Remount Officer on the ground of his old age.
(4) Usman Ghani allottee ' He, is a retired Army Official. He worked in cavalry and at present is aged 58 years. He is owner of two Kanals of land in Chak No,56/10-R which is said to be cultivated with a tractor. He purchased one Kanal of land through Mutation No,163 attested on 31-10-1990 and the other one Kanal through Mutation No,164 dated 24-11-1990 i,e, after the tenancy was resumed and declared open on 9-10- 1988. He is a permanent Lumbardar of Chak No,81/1-L, Tehsil Haroonabad, District Bahawalnagar where he is owner of one square of land and is in possession of half a square of land on the basis of being a Lumbardar. He was allocated 3rd position by the District Remount Officer. His wife and his children live in Haroonabad, District Bahawalnagar. He claims that he has his house in Chak No,56/10-R as well.
7. At the very outset learned counsel for Ghulam Mustafa Khan argued that on the basis of rule 6-A of the Punjab Land Revenue Rules, 1968 in an appeal under section 161 or in a revision under section 164 of the Punjab Land Revenue Act against the final order of a Revenue Officer in a case, no appellate or revisional authority other than the Board of Revenue had the power to remand the case and thus the order, dated 13-11-1989 passed by the Commission , Multan Division, Multan is illegal and inoperative whereby order, dated 6-6-1989 passed by the District Collector, Khanewal allotting the Horse Breeding Tenancy in the name of Ghulam Mustafa Khan was set aside and the matter was remanded. I do not agree with him. As rightly pointed out by the learned counsel for the remaining contestants against order dated 13-11-1989 passed by the Commissioner, Multan Division, Multan no revision was filed by Ghulam Mustafa Khan writ petitioner who rather joined the proceedings before the District Collector, Khanewal thereafter. Even before the Board of Revenue this assertion was not raised. Now in the writ petition, as rightly pointed out by the learned counsel for the adverse parties, this objection is not available which is brushed aside.
8. The next contention of the learned counsel for Ghulam Mustafa Khan writ petitioner is that on the basis of Memorandum No,868-C dated 19-2-1952 issued by the Additional Secretary to the Government of Punjab, Re-Settlement and Colonies Department the Horse Breeding Tenancy was to be allotted to the heirs of the allottee. It would be an error to agree with him. Learned counsel for the remaining contestants have taken me through the aforesaid memorandum dated 19-2-1952.
According to the same the refugees, ex-servicemen and local farmers were held equally eligible for Horse Breeding Tenancy. However, in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it was to continue to be allotted to the heirs of the deceased in preference to any other applicant. In the instant matter Major Hassan Khan was the son of the initial allottee Ahmad Khan and on the death of Ahmad Khan his son Major Hassan Khan was allotted the Horse Breeding Tenancy at whose own request the tenancy was resumed and declared open vide order, dated 9-10-1988 passed by the District Collector, Khanewal. In such a situation created by Major Hassan Khan the heirs of Ahmad Khan are not entitled to take any benefit out of the aforesaid Policy Letter dated 19-2-1952. This contention has no legal force.
9. It was argued on behalf of the three contestants namely Ghulam Mustafa Khan, Hussain Khan and Usman Ghani that the heirs of Captain Sarfraz Khan writ petitioner since deceased were not competent for the allotment of the Horse Breeding Tenancy as the right of their father Captain Sarfraz Khan was simply personal which would not survive and thus Writ Petition No,4113 of 1992 stood abated which has become infructuous. They added that it was not a right to succeed being a personal qualification. On the contrary learned counsel for the heirs of Captain Sarfraz Khan writ petitioner laid the emphasis that the right was not personal only especially when the heirs have landed property in the same Chak. I agree with the learned counsel for the heirs of Captain Sarfraz Khan. Suitable allottee has to be chosen by the District Collector. Captain Sarfraz Khan was the contestant and his right devolved on his heirs out of whom one heir is held competent to contest with the other applicants. I, therefore, hold that Writ Petition No,4113 of 1992 would proceed and has to be decided on merits.
10. At this stage learned counsel for Usman Ghani respondent took up the plea that the question of fact cannot be considered in the writ petitions as the determination of the qualification is the sole jurisdiction of the revenue authorities. I, however, do not agree with him. As rightly pointed out by the learned counsel for the remaining contestants the eligibility and the merit of the concerned persons can be gone into while disposing of the writ petitions. About Usman Ghani respondent the Member, Board of Revenue, Punjab, Lahore has proceeded in a perfunctory manner. He is owner of two Kanals of land in the Chak which he acquired through two transactions vide Mutation No,163, dated 31-10-1990 and Mutation No,164, dated 24-11-1990. He has his landed property in Chak No,81/1-L, Tehsil Haroonabad, District Bahawalnagar where his wife and children live. He is a whole time Lumbardar of the said Chak No,81/1-L, Tehsil Haroonabad, District Bahawalnagar which is at a considerable distance from Chak No,56/10-R, Tehsil Jahanian, District Khanewal. I am at a loss to understand as to how Usman Ghani has been declared as the person having the best merit for the allotment of the Horse Breeding Tenancy. It is better for him to look after his land in Chak No,81/1-L, Tehsil Haroonabad, District Bahawalnagar where he has already been allotted half .a square of land due to the factum of his being a Lumbardar. He seems to have entered in the run after coming to know through some reliable source that the Horse Breeding Tenancy pertaining to the disputed land has to be allotted. On the basis of this reasoning, expressed after making an analysis of the arguments addressed by the learned counsel for the remaining contestants, I hold that the impugned order dated 26-8-1992 passed by the Member, Board of Revenue, Punjab, Lahore is simply devoid of merit which, as such, is illegal and inoperative. Thus Usman Ghani stands eclipsed from the list of the contestants. I, therefore, set aside impugned order, dated 26-8-1992 passed by the Member, Board of Revenue, Punjab, Lahore in favour of Usman Ghani.
11. At this stage learned counsel for Ghulam Mustafa Khan writ petitioner pointed out that the matter shall have to be sent to the District Collector, Khanewal for its decision afresh. I do not agree with him. The parties have already consumed the remedies before the Revenue Courts. The protracted litigation between the parties needs to be closed now.
12. Hussain Khan writ petitioner is aged 68-1/2 years at present. Unfortunately he has no male issue.
He has two daughters. According to him one is aged 8 years and the other is aged 6 years. In my view he is not in a better position to look after the Horse Breeding Tenancy and the purpose for which the allotment of the same is made. He has already been allotted one square of land under the Well Sinking Scheme. Thus he has no merit and stands eclipsed from the list of the contestants.
Accordingly Writ Petition No,3472/92 is dismissed.
13. Ghulam Mustafa is an owner of 22 Kanals of land in the village. No doubt he is in possession of the disputed land of Horse Breeding Tenancy. However, his possession is of no help to him. The tenancy was left open and any experience gathered by him cannot be given the weight keeping in view the nature of his possession. He has been awarded the 1st position by the District Remount Officer. He has not achieved any knowledge of animal management/breeding at a different property. The experience, if any, gathered by him on the disputed property shall not ornament his position and case. He is a person of advanced age. His entitlement being step-brother of Major Hassan Khan has no blessing from the rules. The first position awarded to him by the District Remount Officer, Sahiwal is simply based on conjectures. I, therefore, hold that he has no merit for the allotment of the Horse Breeding Tenancy in dispute. I, therefore, dismiss Writ Petition No,2622 of 1992 filed by Ghulam Mustafa Khan.
14. Then remain in the field the heirs of Captain Sarfraz Khan. My opinion is that Abdul Ghaffar Khan is the best person from amongst the other heirs of Captain Sarfraz Khan. He has also merit as against the remaining contestants.
' His family has installed two tubewells in the land situated in relevant Chak No,56/10-R where the disputed Horse Breeding Tenancy has to be allotted. He is stout person aged 48 years. He can better work for the purpose the Horse Breeding Tenancy is allotted. He can seek the assistance of his other three brothers. He has the experience of being an ex-employee of a bank and can utilize the experience in the present enterprise as well. He is not in service since October, 1993. He has his house in Chak No,56/10-R as well as in Khanewal city. Chak No,56/10-R is at a distance of 30 kilometres from Khanewal. At present the land owned by him is under his self-cultivation. He can better manage the disputed land than the other contestants. He has considerable landed property in the village. I, therefore, hold that Abdul Ghaffar Khan is the person having the best merit to which the Horse Breeding Tenancy is allotted. I, therefore, accept Writ Petition No,4113 of 1992 and pass the order for the allotment of an area of 202 Kanals and two Marlas of land in dispute under the Horse Breeding Tenancy in the name of Abdul Ghaffar Khan son of Sarfraz Khan. Legally the entry shall be made in the Revenue Record and the possession shall be delivered to him by the District Collector, Khanewal in accordance with law.