This judgment is intended to dispose of the following writ petitions as these are with respect to the same subject-matter:---
(1) Writ Petition No. 2607 of 1991 titled as Muhammad Saleem v Member, Board of Revenue, Punjab, Lahore and six others.
(2) Writ Petition No.573/92 namely Mir Satwat Hussain v. Member, Board of Revenue, Punjab, Lahore and six others.
2. The facts giving rise to these writ petitions are that a Horse Breeding tenancy comprising an area of 200 kanals -in Chak No. 92/10-R, Tehsil and District Khanewal was initially allotted to one Farhat Hussain who surrendered the same under Martial Law Regulation No. 115. The same was resumed and was declared open. The applications were invited by the Deputy Commissioner, Khanewal who called for the report from the District Remount Officer, Sahiwal.
Vide order, dated 31-1-1987 the District Remount Officer, Sahiwal recommended Satwat Hussain writ petitioner son of the old breeder Farhat Hussain at priority No. 1, Mahr Maqbool Ahmad respondent at No.2 and Ziadat respondent at No.3 for allotment of the vacant Horse Breeding tenancy.
Muhammad Saleem writ petitioner was also a candidate/contestant whose case was not recommended by the District Remount Officer. Vide order, dated 19-9-1988 the Deputy Commissioner, Khanewal allotted Horse Breeding tenancy to Muhammad Saleem and transferred the possession of the relevant property in his favour who at present is in possession of the same.
On appeals the Commissioner, Multan Division, Multan set aside aforesaid order, dated 19-9-1988 passed by the Deputy Commissioner, Khanewal vide his order, dated 28-3-1989 and remanded the case for fresh consideration to the Deputy Commissioner, Khanewal. Mahr Maqbool Ahmad, Muhammad Saleem, Satwat Hussain and Sadar Din (all contestants) filed the respective revision petition before the Board of Revenue, Punjab, which were decided on 28-9-1991. After hearing the parties the Member, Board of Revenue, Punjab, Lahore accepted the revision petition of Mahr Maqbool Ahmad on the ground that he was recommended at No.2 in priority by the District Remount Officer, Sabiwal who owned sufficient land in the village and had the experience of maintaining bound animals. The remaining revision petitions were dismissed.
3. Feeling aggrieved by the aforesaid order, dated 28-9-1991 passed by the Member, Board of Revenue, Punjab, Lahore Writ Petition No.2607/91 has been filed by Muhammad Saleem while Writ Petition No.573/92 has been preferred by Satwat Hussain. Each of them has agitated his own merit for the purpose of allotment of the tenancy. Mahr Maqbool Ahmad died on 29-7-1994 and his legal heirs Muhammad Aslam Farooq, Muhammad Asghar, Azhar Javed, Imran Pervez (brothers), Mst.
Fateh Bibi (mother) and Mst. Fauzia Sultana (sister) have been impleaded in the list of the respondents of both the writ petitions. Mahr Maqbool Ahmad died unmarried.
4. Both the writ petitions have been contested by the legal heirs of Mahr Maqbool Ahmad deceased respondent in whose favour impugned order, dated 28-9-1991 has been passed by the Member, Board of Revenue, Punjab, Lahore. The writ petitioners and the heirs of Mahr Maqbool Ahmad respondent since deceased have agitated their respective merits.
5. Sadar Din and Ziadat respondents were also the contestants. Sadar Din filed the revision petition before the Board of Revenue, Punjab, Lahore which was dismissed on 28-9-1991. He has not filed any writ petition against the said order. Ziadat respondent was recommended at priority No.3 by the District Remount Officer, Sahiwal who did not file the revision petition against order, dated 28- 3-1989 passed by the Commissioner, Multan Division, Multan before the Board of Revenue, Punjab, Lahore. He has also not filed the writ petition.
Thus, both Sadar Din and Ziadat stand eclipsed from the list of the candidates/contestants.
6. I have heard the learned counsel for the parties and gone through the record before me. Before the arguments in the presence of the contesting parties their learned Advocates imparted the following information about the two alive contestants and the legal representatives of Mahr Maqbool Ahmad since deceased: --
1. Mahr Maqbool Ahmad since deceased is at present represented by his legal heirs Muhammad Aslam Farooq aged 50 years, Muhammad Asghar aged 42 years, Azhar Javed aged 40 years, Imran Pervez.Aged 39 years (brothers), Mst. Fateh Bibi aged 70 years (mother) and Mst. Fauzia Sultana aged 33 years (sister). Mahr Maqbool Ahmad owned five acres of land while he and his legal heirs inherited three squares of land on the death of his father Muhammad Ramzan. The same was cultivated by the canal water. The family is a resident of Chak No.92/10-R as well as Khanewal City and in between the distance is said to be five miles. Muhammad Aslam Farooq and Muhammad Asghar are stated to be the cultivators. Azhar Javed carried on his business. Imran Pervez is an Advocate who also claims to be cultivator. Mahr Maqbool Ahmad was recommended at priority No.2 by the District Remount Officer who also mentioned in his report that Mahr Maqbool Ahmad surrendered his rights in favour of Satwat Hussain before him. It is the admitted position that Muhammad Ramzan father of Mahr Maqbool. Ahmad was allotted Horse Breeding tenancy comprising 200 Kanals of land and on his death the same has been allotted in favour of his son Muhammad Asghar during the year 1983 who at present has become a contestant due to the death of his brother Mahr Maqbool Ahmad.
2. Satwat Hussain: He is aged 30 years. He is the son of old breeder Farhat Hussain. He is a married person and has minor issues. He has only four Kanals of land in Chak No.92/10-R and has his permanent place of abode in Multan city. According to report of the District Remount Officer he was recommended at priority No. 1. Mahr Maqbool Ahmad surrendered his rights in his favour.
3. Muhammad Saleem: He is aged 35 years and at present is unmarried. He has 16 acres of land in Chak No. 92/10-R which is being cultivated by his tubewell. He has his permanent residence in Chak No.92/10-R. He is keeping his own mare. He is in cultivation of the disputed land after its possession was delivered to him on the basis of order, dated 19-9-1988 passed by the Deputy Commissioner, Khanewal who allotted the Horse r ding tenancy pertaining to the suit property in his favour.
7. The first contention of the learned counsel for Satwat Hussain petitioner is that under rule 6-A of the Punjab Land Revenue Rules, 1968 in an appeal under section 161 or a revision petition under section 164 of the Punjab Land Revenue Act against the final order of 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 28-3-1989 passed by the Commissioner, Multan Division, Multan is illegal and inoperative whereby order, dated 19-9-1988 passed by the District Collector, Khanewal allotting Horse Breeding tenancy in the name of Muhammad Saleem was set aside and the matter was remanded. I do not agree with him. During the proceedings of revision petition before the Member, Board of Revenue, Punjab, Lahore this matter was neither agitated nor argued. All the contestants/candidates pleaded their case according to their version and I hold that at present this objection is not available which is discarded.
8. The contention of the learned counsel for Satwat Hussain petitioner is that he has the merit as he is the son of old breeder Farhat Hussain and thus he is entitled to the allotment of the Horse Breeding tenancy. It would be an error to agree with him. According to Memorandum No.868-C, dated 19-2-1952 issued by the Additional Secretary, Government of the Punjab, Re-Settlement and Colonies Department, the Horse Breeding tenancy could be allotted to the heirs of the allottee in case the old breeder died. In the instant matter Farhat Hussain surrendered the tenancy during his lifetime at whose request the tenancy was resumed and declared open by the District Collector, Khanewal. This contention has no legal force.
9. It was argued on behalf of both the writ petitioners that the heirs of Mahr Maqbool Ahmad since deceased could not step into the shoes of the said deceased as, his right was simply personal which could not survive and thus impugned order, dated 28-9-1991 stood abated which had become infructuous. According to them it was not a right to succeed being a personal qualification. I do not agree with them. As rightly pointed out by the learned counsel for the heirs of Mahr Maqbool Ahmad respondent since deceased the right was not personal only especially when the heirs have landed property in the same Chak. The suitable allottee has to be chosen by the District Collector and on the death A of Mahr Maqbool Ahmad contestant his rights devolved on his heirs. Hence I hold that on the basis of this reasoning the matter cannot be decided against the heirs of Mahr Maqbool Ahmad since deceased which has to be decided on merits. . .
10. All the contestants agree through their learned Advocates that the eligibility and the merit of the concerned personals can he gone into by this Court while disposing of these writ petitions. My view is that the Member, Board of Revenue, Punjab, Lahore has eclipsed a very important matter while disposing of the dispute in favour of Mahr Maqbool Ahmad. His father Mahr Muhammad Ramzan was allotted the Horse Breeding tenancy which has been transferred/allotted in the name of his brother Muhammad Asghar during the year 1983. Even if Mahr Maqbool Ahmad was recommended at priority No.2 keeping in view this aspect of the matter he could not be allotted the Horse Breeding tenancy. It was neither fair nor just to allot the other land comprising 200 Kanals under the same type of Horse Breeding tenancy to the other son of the old breeder. After all the other members of the area are also entitled to their own share. It is specifically mentioned in the report of the District Remount Officer, Sahiwal that Mahr Maqbool Ahmad surrendered his right in favour of Satwat Hussain. This aspect can also not be lost sight off. If the weight has to be given to the opinion of the District Remount Officer regarding priority No.2 pertaining to Mahr Maqbool Ahmad then this aspect of the matter can also not be ignored. A person who is willing to surrender his rights in favour of another person. Is not entitled to the allotment of the Horse Breeding tenancy. My view is that it happened as Satwat Hussain is a resident of Multan and not that of Chak No.92/10-R.
Muhammad Asghar brother of Mahr Maqbool Ahmad had acquired the Horse Breeding tenancy on the death of his father Mahr Muhammad Ramzan and this conduct was adopted by Mahr Maqbool Ahmad keeping in view his future that Satwat Hussain being a non--resident of the Chak he (Mater Maqbool Ahmad) may be able to get some share in the property if the same is allotted in his (Satwat Hussain's) name. Keeping in view this discussion I hold that the impugned order,. Dated 28-9-1991 passed by the Member Board of Revenue, Punjab, Lahore is without merit which, as such, is illegal and inoperative. Thus, Mahr Maqbool Ahmad and consequently at present his heirs stand eclipsed from the list of the contestants. I, therefore, set aside impugned order, dated 28-9-1991 passed by the Member, Board of Revenue, Punjab, Lahore in favour of Mahr Maqbool Ahmad.
11. Now the contest is between Satwat Hussain and Muhammad Saleem writ petitioners. Learned counsel for Muhammad Saleem writ petitioner has correctly pointed out that Muhammad Saleem has the better merit. Satwat Hussain is a permanent resident of Multan City and has no place of abode in Chak No. 92/10-R while Muhammad Saleem is residing in Chak No. 92/10-R. Satwat Hussain has only four Kanals of land in Chak No. 92/10-R while Muhammad Saleem owned 16 acres of land which was under his self-cultivation. He has installed a tubewell in his land with which he can easily irrigate the disputed land which is already under his possession on the basis of order, dated 19-9-1988 passed by the Deputy Commissioner. Khanewal. Satwat Hussain writ petitioner has no experience of cultivation of land while this experience is with Muhammad Saleem writ petitioner. Even if Muhammad Saleem writ petitioner was not recommended by the District Remount Officer Sahiwal that carries no weight in view of the demerits of Satwat Hussain writ petitioner. Rather the aforesaid facts mentioned thereof have made out that the opinion of the District Remount Officer was incredible and devoid of legal force. I, therefore, hold that Satwat Hussain has no merit for the allotment of Horse Breeding tenancy in dispute. I accordingly dismiss Writ Petition No.573/92 filed by Satwat Hussain.
12. Muhammad Saleem writ petitioner has the better merit. I accept Writ Petition No.2607/91 and pass the order for the allotment of the disputed area under the Horse Breeding tenancy in the name of Muhammad Saleem writ petitioner. The entry shall be made in the Revenue Record accordingly. He is already in possession of the disputed land.
13. No order as to costs.