' AJMAL MIAN,. J.--This is an appeal with the leave of this Court against the judgment dated 18-1- 1992 of a learned Single Judge of Lahore High Court passed in Writ Petition No, 2223 of 1991 filed by the respondent against the orders dated 19-11-1989, 19-8-1990 and 17-11-1990 passed by appellant No,3, appellant No 2 and appellant No,1, respectively, allowing the same in the following terms:-- "This letter shows that Labradors of the whole Province shall be given 12/1-2 acres of land out of the State land. The objection of the learned Law Officer is that the policy letter on the subject was issued by the Government in the year 1990 and as such it would not cover the case of the petitioner in any manner. It is evident from the aforesaid letter that all the Labradors shall be given 12/1-2 acres of land. Even otherwise there is absolutely nothing on record to show that the petitioner violated any terms and conditions of his allotment of the land. The impugned orders are unjust on the face of record. Learned Law' Officer failed to make out a case for upholding the orders under challenge. The land in question is admittedly in the allotment and physical possession of the petitioner and as such it shall be deemed to have been given to him according to the Policy tenner issued by the Government, Annexure '0'. In this view of the matter, I proceed to set aside the impugned orders passed by the respondents. Accordingly the petition succeeds and is allowed will-1*n order as to costs."
Leave to appeal was granted to consider, whether the High Court was right in setting aside the above orders of the revenue authorities for resumption of the land in view of the fact that possession of the grant had not been given to the respondent in terms of section 10(4) of the Colonization of Government Lands Act. 1912, hereinafter referred to as the Act.
2. The brief facts are that the respondent was a Labrador. He applied for grant of land in terms of the Government Policy contained in Notification No, 1838-71/1721-CV dated 12th May, 1971, hereinafter referred to as the Policy of .1971. He was allotted land measuring 100 Canals 5 Marla's situated in Chak No, 76 R.B., Tehsil Jaranwala, District Faisalabad, hereinafter referred to as the suit land, for one year from Kharif 1971. Formal allotment order was issued on 13-1-1972 (Annexures A' and .13' to the memo of appeal, respectively). It appears that appellant No, !Is his order dated 1C-11- 1989 directed the inclusion of the suit land in the schedule. Against the above order, the respondent filed an appeal, which was disposed of by appellant No,2 through his above order dated 19-8-1990 dismissing the same on the ground that the respondent failed to take possession of the suit land in terms of section 10(4) of the Act. It was also found that the documents relied upon by the respondent to show his possession were not genuine and reliable. Then, the respondent filed a revision, which was dismissed by appellant No 1 by the above ,order dated 17-11-1990, who concurred with the above findings of appellant N'o.2 in his aforesaid order. After that the respondent filed aforementioned writ petition, which was allowed in the above-quoted terms.
Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Yawar Ali Khan, learned Additional' Advocate-General Punjab appearing for the appellants, has vehemently contended that the learned Judge in Chambers was not justified in allowing the aforesaid writ petition as. The finding of fact recorded by the hierarchy under the revenue laws that the respondent had not taken the possession of the suit land in terms of section 10(4) of the Act, particularly keeping in view that the above forums also found that the alleged copies from the revenue record produced by the respondent indicating his possession were not genuine. His further submission was that the respondent in spite of expiry of considerable period failed to bring the suit land under cultivation.
' On the other hand, Mr. Ch. Muhammad Ashraf Wahla, learned ASC appearing for the respondent, has urged that there was no condition in the Policy of 1971 to the effect that the allotment could have been cancelled on the ground of non-cultivation as the same could have been cancelled on the grounds mentioned in Para. 17 of the Policy of 1971. He has further submitted that the findings recorded by the appellants to the effect that the possession of the suit land was not taken by the respondent and that the documents produced by him were not genuine, are not sustainable in law.
It was lastly contended by him that in any case, under Para. (i) of Memo. No,3158-90/1535-CV dated 15-10-1990 issued by the Deputy Secretary to the Government of Punjab, Colonies Department, the respondent is entitled to the allotment of 12/1-2 acres of State land and therefore, the appellants were not justified in taking the impugned action.
4. We may first deal with the question, whether under, the Policy of 1971 the respondent was required to cultivate the land or not? It is true that para.17 provides that the grantee shall surrender the whole or so much of the land as may be required or demanded by the Collector--
(a) it the land or any portion thereof is required for, any public purpose; or
(b) if it should be found that the whole or any part of the land has already been granted or allotted to any other person But, it does not mean that there was no condition in the Policy of 1977 requiring the grantee to cultivate the land. In this behalf, reference may be made to Para. 2 of the same, which reads as follows:-- "2. General.--(i) This statement of conditions is issued subject to the provisions of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Act) and any tenancy granted on these conditions shall be a scheduled tenancy under section 4 of the said Act.
(ii) The temporary cultivation conditions with Punjab Government Notification No,2664-C, dated 22nd September 1944 (as subsequently amended) shall apply to the tenancies created under these conditions in so far as they are not inconsistent with the conditions hereinafter appearing."
A perusal of the above Para indicates that its sub-Para. (ii) expressly provides that the temporary cultivation conditions with Punjab Government Notification No,2664-C dated 22-9-1944 (as subsequently amended) shall apply to the tenancies created under these conditions in so far as they are not inconsistent with the conditions contained hereinafter.
5. In this view of the matter, the above contention of Ch. Muhammad Ashraf Wahla, learned ASC for the respondent, seems to be not correct. However, since the case of the appellants is that the respondent had not taken possession in terms of section 10(4) of the Act, he could not have cultivated the land without possession.
6. Adverting to the above first submission of the learned Additional Advocate-General, it may be observed that Mr. Wahla has referred to alleged Photostat copy of Khasra Girdawari for the year 1973-74 to contend that factually the respondent had taken the possession. The appellants Nos. 2 and 3 recorded a finding of fact to the effect that the above documents are not supported by the record maintained by the department and, therefore, they are not genuine. There is no document produced by the respondent to show that he had taken the possession of the suit land in terms of section 10(4) of the Act. We cannot, therefore, hold that the above finding of the appellants Nos.2 and 3 is contrary to the record.
7. The effect of the above finding that the respondent had failed to take the possession in terms of section 10(4) of the Act is that in law there was no grant in his favor as is evident from the- above provision of the Act, which reads as follows:-- "Section 10. Issue of statements of conditions of tenancies.--(1)
(2)
(3) ................................
(4) No person shall be deemed to be a tenant or, to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto."
' In this view of the matter, Para. 1 of the above memo dated 15-10-1990 issued by the Deputy Secretary to the Government of Punjab, Colonies Department, is applicable to the respondent as admittedly he is even now performing the functions of a Lambardar. The above para. (i) reads as follows:-- Those permanent Lamberdars in Colony Chaks, who had not been given Lambardari Grants so far or who (including their predecessors-ininterest) had not obtained proprietary rights of old Lamberdari Grants, will be given 12/1-2 acres of State land on lease basis as Lamberdari Grant. There will be henceforth, no provision of proprietary rights attached with all existing Lamberdari grant and the abovementioned leases;"
We are, therefore, of the view that the respondent is entitled to have his case examined by the competent authority in terms of above-quoted Para.(i) for allotment of the suit land as the same has not yet been auctioned and there is no other land available in the above Chack for making fresh allotment to the respondent, according to the learned counsel for the respondent.
8. We are also of the view that the learned Judge in Chambers was not justified in ordering that the suit land shall be deemed to be allotted in terms of above Para. 1 of the memo. Dated 15-10-1990 as it is for the authority concerned to examine the case first and to pass appropriate order in accordance with law.
9. We would, therefore, allow the above appeal and set aside the judgment under appeal subject to the condition that the authority concerned shall examine the case of the respondent for allotment of the land in terms of above-quoted Para. (i) of above memo dated 15-10-1990 and till the time the above question is decided, status quo in respect of the suit land shall be maintained.
The appeal stands disposed of in the above terms, with no order as to costs.
Case remanded.
1996 SC M It-1516 [Supreme Court of Pakistan] Present: Zia Mahmood Mirza and Raja Afrasiab Khan, JJ WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA, WAPDA House, Lahore and another---Petitioners versus Ch. BASHIR AHMAD and others---Respondents Civil Petition No 127-L of 1994, decided on 7th June, 1995.
(On appeal from the judgment/order of the Lahore High Court, Multan Bench, Multan dated 29-11- 1993 passed in Civil Revision No,537-D of 1993).
Electricity Act (IX of 1910)--- ----Ss. 12 & 51---West Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 12--- Telegraph Act (XIII of 1885), Ss.10 & 11---Constitution of Pakistan (1973), Art.185(3)---WAPDA installing Electricity poles in and passed electric wires over the land of plaintiff---Plaintiff's civil suit for mandatory injunction against WAPDA and its functionaries was decreed--- WAPDA's appeal and revision were dismissed against judgment and decree of Trial Court on the ground that under S.12, Electricity Act, 1910, if owner or occupier of any building or land raised objection to the fixing of any aerial line over that building or land, WAPDA could proceed further only after obtaining order in writing from. Bistrict Magistrate but no such prior permission was obtained by WAPDA from District Magistrate-Validity---Plea raised by WAPDA was that in terms of S.51, Electricity Act. And S.12, West Pakistan Water and Power Development Authority Act, 1958, Governor (on behalf of Provincial Government) had conferred on Authority (WAPDA) all 'the powers which Telegraph Authority possessed under Part III, Telegraph Act, 1885, with respect to placing of telegraph lines and posts-- -WAPDA on account of conferment of such powers could lawfully erect poles and lay the wires without consent of plaintiff and without obtaining prior permission of District Magistrate---Leave to appeal was granted to consider the points raised by WAPDA. [p. 1518] A Muhammad Aslam Khan and others v. West Pakistan Province and another PLD 1962 (W.P.) Lah. 925; Malik Haji Nazar Muhammad and another v. WAPDA and another PLD 1991 SC 715 and Pakistan Water and Power Development Authority through its Project Director v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society Ltd., Islamabad PLD 1993 Lah. 237 ref. Muhammad Ilyas Khan, Advocate Supreme Court with Ch. M.Z. Khalil, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 7th June, 1995.
' ZIA MAHMOOD MIRZA, J.--This is a petition for leave to appeal from the judgment/decree of Lahore High Court, Multan Bench dated 29-11-1993 dismissing the petitioner's revision petition filed against the judgments and decrees of the Courts below decreeing the respondents' suit.
2. Petitioner/WAPDA installed Electricity Poles in and passed electric wires over the land of the respondent which led the latter to file a civil suit for mandatory injunction against WAPDA and its functionaries. The suit has been decreed by the trial Court and the petitioner's appeal against the judgment and decree of the trial Court has been dismissed by Additional District Judge. Revision petition filed by the petitioner in the High Court has also met no better fate as the learned Judge in the High Court has dismissed it holding that under section 12 of the Electricity Act, 1910, if an owner or occupier of any building or land raised objection to the fixing of any aerial line over that building or land, the Authority i,e, WAPDA could proceed further in the mattex only after obtaining order in writing from the District Magistrate but in the instant case, before installing transformer over the property of the respondent, "prior permission as visualized by section 12 was not obtained from the District Magistrate.
3. Learned counsel appearing for the petitioner has contended that in taking the aforesaid view, the learned Judge of the High Court has overlooked the provisions of section 51 of the Electricity Act and the Notification issued thereunder. Section 51 reads as under:-- "Notwithstanding anything in sections 12 to 16 (both inclusive) and sections 18 and 19, the Provincial Government may, by order in writing for the placing of appliances and apparatus for the transmission of energy, confer upon any public officer or licensee, subject to such conditions and restrictions (if any) as the Provincial Government may think fit to impose, and to the provisions of the Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to placing of telegraph-lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained."
4. The notification issued under the aforementioned provision on the 6th of June, 1961 is as follows:- - "In exercise of the powers conferred on him by section 51 of the Electricity Act, 1910 read with section 12 of the West Pakistan Water and Power Development Authority Act, 1958, the Governor of West Pakistan is pleased, for the placing of appliances and apparatus for the transmission of energy, to confer on the West Pakistan Water and Power Development Authority (hereinafter referred to as the Authority) all the powers which the Telegraph Authority possesses under Part III of the Telegraph Act, 1885, with respect to the placing of telegraph lines and posts for the purposes of telegraph established or maintained by the Government or to be so established or maintained."
5. Learned counsel has submitted that by the notification aforementioned, all the powers which the Telegraph Authority possesses under Part III of Telegraph Act with respect to the placing of telegraph lines and posts were conferred on WAPDA for the purpose of placing of appliances and apparatus for the transmission of energy. It is argued that by virtue of the powers conferred' on WAPDA by the Notification above-referred, it could lawfully erect the poles and lay the wires without the consent of the respondent and without obtaining prior permission of the District Magistrate which according to the learned counsel was not necessary to obtain. In support of his submission, learned counsel has relied upon:
(1) Muhammad Aslam Khan and others v. West Pakistan Province and another (PLD 1962 (W.P.)
Lahore 925), (2) Malik Haji Nazar Muhammad and another V. WAPDA and another (PLD 1991 SC 715),
(3) Pakistan Water and Power Development Authority through its Project Director v. Pakistan Atomic Energy Commission Employees' Cooperative Housing Society Ltd., Islamabad (PLD 1993 Lahore 237).
6. The point raised by the learned counsel, in our view, needs examination. Leave to appeal, is, therefore, granted to the petitioner.
' Operation of the impugned judgment shall remain suspended till the final disposal of the appeal.