The instant writ petition was filed by Kamal petitioner who died on 21-12-1995, his legal heirs filed C.M. No. 1130 of 1996 to bring them on record as legal heirs of the deceased petitioner which was allowed. Mst. Amiran Bibi widow of Kamal, Jalal Din and Ata Muhammad brothers of Kamal deceased were arrayed as petitioners vide order of this Court dated 18-6-1996.
2. Brief facts of the instant case are that the petitioner Kamal deceased was allotted land measuring 97 Kanals and 11 Marlas situated in Chak No. 499/E. B. Tehsil Burewala District, Vehari bearing Khasras Nos.4/1 to 4, 5/1, 5/2, 6 to 12, 13/1 under Cooperative Farming Scheme. The Collector on 11-6-1969 found the petitioner ineligible to acquire proprietary rights for the reasons that his father was alive and was owner of 8 acres of land in Chak No.509/E.B. On appeal against the said order the petitioner was declared eligible for the grant of proprietary rights by the learned Commissioner Multan Division, Multan vide order dated 1-10-1969. They were recommended to be granted the proprietary rights by the officers of the Cooperative Farming Societies in the year 1987.
The Collector did not agree for confirming the proprietary rights to the petitioners rather ordered resumption of the same in the year, 1987. On appeal the order of Collector was upheld vide order dated 7-9-1987. A revision petition R.O.R. No.2498 of 1987 was filed before the learned Member (Colonies) which was dismissed on 27-1-1988. The orders dated 9-8-1987, 7-9-1987 and 27-1-1988 have been challenged through the instant writ petition. Learned counsel for the petitioners submits that grounds for which the petitioners were held ineligible to acquire the proprietary rights were that they did not remain in cultivating possession of the leased out land for a period Kharif, 1968 to Rabi, 1970, Kharif, 1974 to Rabi, 1976, Kharif, 1977 to Rabi, 1978, Kharif, 1979 to Rabi, 1986 and self- cultivation being one of the basic condition of acquisition of proprietary rights could not be given to the petitioner and he entered into agreement to sell in violation of provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
3. Learned counsel for the petitioner submitted that the learned Courts below have totally. Ignored the provisions of section 24 of the Colonization of Government Lands (Punjab) Act. 1912 which is reproduced as below: "When the Collector is satisfied that a tenant in possession of land has committed a breach of conditions of his tenancy, he may after giving the tenant an opportunity to appear and state his objection; (a)Impose on the tenant a penalty not exceeding five thousand rupees, or Provided that if the breach is capable of rectification the Collector shall not impose any.Penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice, and' the tenant has failed. To comply with such notice. "
Further submitted that under the provisions of section 24 the breach is rectifiable if the notice of the same is given to the tenant the petitioner has not served with such type of notice nor he was called by the Collector to be heard for the said breach and this alone cannot be made a ground for non- conferment of proprietary rights upon the petitioner when he has made all dues clear. Further submitted that the crucial period for the conferment of the proprietary rights was the cultivation in the year Kharif, 1958 to Rabi 1961 the lease period three years and this was the only criteria where cultivation was to be determined, therefore, the Courts below could not hold the petitioner ineligible for the proprietary rights. .
4. In respect of agreement to sell learned counsel for the petitioner has brought the attention of this Court to the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 which is re-produced as follows:- "Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government tenants (Punjab) Act 1893, or this Act, shall, without the consent in writing of the Commissioner, or of such officers as he may by written order empower in this behalf be transferred or charged by any sale exchange, gift, will, mortgage or other private contract, other than a sub- lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession he shall be ejected under the orders of the Collector.
Provided that the right of subletting conferred by this section shall not release any tenant from a ,condition requiring him to reside *in the estate in which his tenancy is situated. "
He has further submitted that it is undoubtedly held by the chains of authorities of superior Courts that agreement to sell does not create any right of title in the property it is mere a charge on the property. Moreover,, agreement to sell entered into between the petitioner with his brother-in-law Taj Muhammad was executed through registered-deed and the condition precedent of this agreement to sell was that it was to be determined and completed/executed on the acquisition of proprietary rights.
5. Learned counsel for the petitioners Nos.2 and 3 submitted that they did not accept this document to be a genuine document rather it is a fake document while learned counsel for petitioner No. l submitted that this document is not hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and it is for the parties to establish the genuineness of the document before the competent forum but it cannot be considered to be hit by section - 19 of the Colonization of Government .Lands (Punjab) Act, 1912. He has relied on "Hakim A.I and another v.
Atta Muhammad and others" (1981 SCM R 993) wherein Honourable Supreme Court has held that agreement to sell does not create any right of title of property, therefore, is beyond the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 as no right is transferred and, therefore, it is not hit by section 19 of the said Act.
6. Learned State counsel submitted that in the case of non-cultivation for the aforesaid period the petitioner was heard by the Collector in the impugned order dated 9-8-1987. He was found not cultivating the lot under lease and this being the primary condition of conferment of proprietary rights was found not to be fulfilled by the petitioner. Further submitted that the agreement to sell was a private contract. And it was hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
7. I have heard the learned counsel for the parties and perused the record. Copy of the register record of rights for the year, 1983-84 of Chak No.499/EB Tehsil Burewala, District, Vehari shows the name of cultivator Cooperative Farming Scheme C/o Kamal son of Rehmat case Gujjar tenant Pattadar. Even in the copy of register record of rights placed on record by petitioner No. l for the year 1979-80 in column of cultivator it is written Cooperative Farming Scheme Kamal son of Rehmat tenant farming scheme Abdul Jabbar son of Mehmood Rajput'Bhatti Pattadar. It is established that the cultivation was not discontinued by the deceased petitioner namely Kamal as is apparent from the revenue papers. Even after his death his widow has applied for restoration of the lot being in possession of petitioners Nos.2 and 3. '
8.So far as the non-cultivation of the lot is concerned the representative on behalf of the Deputy Commissioner has failed to produce before this Court any notice issued to the original allottee Pattadar for resumption of land in favour of the State for violation of self-cultivation. Even learned ,counsel for the . Respondent has not shown me any independent order by virtue of which the original allottee was given hearing by the District Collectdr for violation of self--cultivation.
9.A grant under the Cooperative Farming Scheme does not create any right for the allottee or the lease holder it.Is always given under certain statement of conditions envisaged in the scheme under which the allottee is allotted all leased out certvn lands and such an allotment is a grant which is always liable for resumption for violation of the statement of conditions under which that lot is given to the allottee. It is also envisaged in the scheme for conferment of A proprietary rights to establish cultivation for a period for which the entitlement for confirment of proprietary rights can be established. On 1-10-1969 the learned Commissioner, Multan held that the petitioner has proved his cultivation for the crucial period from Kharif 1958 to Rabi 1961 and he was declared eligible for the grant conferment of proprietary rights. After that it could not be made a reason or a basis for disentitlement of the petitioner for conferrment of proprietary rights. This material aspect is overlooked by the subordinate revenue Courts.
9-A. So far as the second ground that agreement to sell is entered into between the allottee and another Taj Muhammad is concerned, I have minutely gone through the agreement to sell. It is no doubt a registered document but a minute scrutiny of the same shows that possession was not handed over to Taj Muhammad. Transaction of money passed between the parties was Rs.2,50,000 and the rest of Rs.50,000 was to be paid by the second party after the conferrment of proprietary rights. The reversion of money transaction is disclosed from the copy of agreement to sell on record but handing over of possession is neither mentioned in the said agreement nor it is proved by the Revenue Record. So far as the genuineness of the document is concerned a proper forum is existing to prove or disprove the same but it is immaterial for the purpose of decision of the instant writ petition. Agreement to sell does not l create any right or title on the property. At the most it is in respect of charge 8 over the property. Section 19 of the Colonization of Government Lands (Punjab)
Act, 1912 is very clear which bars the transfer of rights through sale exchange, gift, will mortgage or other private contract. In "Sher Muhammad Khan and others v. Ram Din and others" (1994 SCM R 470) section 53-A of the Transfer of Property Act (IV of 1882) agreement to sell is held a factum of delivery of possession and in case of land situated in colony area it was held that the transferor had agreed to sell the corpus of land in question and not his tenancy rights. "Ghulam Rasul and others v. Muhammad Anwar and others" (1969 SCM R 254) was also discussed by the Hon'ble Supreme Court and it was held that an agreement to sell the corpus of the land after getting proprietary rights is a valid agreement and is enforceable after actually proprietary rights have been obtained and the intending purchaser had been refused the same, but where the agreement is to sell the tenancy rights without making permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 such an agreement being void is not enforceable and thus on its strength decree for specific perofrmance cannot be granted. Since in the case the agreement was told sell thecorpus of the land after obtaining proprietary rights, there was no necessity of getting permission under section 19 of the above said Act. Similar is I C the view in "Hakim A.I, and another v. Atta Muhammad and others" (1981 ' SCMR 993) and "Riaz Hussain Shah v.
Member, Board of Revenue (Colony), West Pakistan and 2 others (PLD 1987 SC 292).
10. Non-compliance of the statement of condition of allotment does give a right to the Revenue Authorities to resume the land or cancel the same but no such notice was given to the allottee he was declared by the revenue authorities to have fulfilled all the conditions he was allowed to deposit all the dues. Once an allottee deposits dues with the permission of revenue authorities then the same authorities are estopped to refuse the conferrment of the proprietary rights. It is only section 30 of the Colonization of Government Lands (Punjab) Act. 1912 where only the Board of Revenue is empowered to cancel the sale-deed when it comes to know that -a fraud or misrepresentation has been practised or he was not eligible to have such rights. On these two scores the refusal for conferment of proprietary. Rights was not proper. The property is in their possession since 1954 and it is after his death the legal heirs can claim their rights of tenancy according to the inheritance and under the provisions o section 19-A of the Colonization of Government Lands (Punajb) Act,1912 therefore, I allow the insant writ petition and set aside the ordrs dated -8-1987, 7-9-1987 and 27-1-1988 passed by the Revenue Authorities. No order as to cost.