ZIA MAHMOOD MIRZA, J.---This appeal by leave of the Court filed by the Member (Colonies), Board of Revenue, Punjab, Lahore and Deputy Commissioner/Collector, Vehari, is directed against the judgment of the Lahore High Court, dated 25-11-1991 whereby Constitutional petition preferred by Ghulam Ahmed respondent was allowed, the memo dated 15-11-1983 issued by the Secretary (Colonies), Board of Revenue, Punjab, declining the respondent's request for sale of excess area to him was declared to be without lawful authority and the petitioners herein were directed "to grant proprietary rights regarding excess area to the petitioner on the same terms and conditions on which the proprietary rights are to be granted to him for the main lot".
2. Facts emerging from the submissions made by the learned counsel for both the parties are that the State land measuring 27 acres, 4 Kanals and 6 Marlas comprised in Lot No-3 was allotted to the respondent under the Well Sinking Scheme on 17-3-1969. The claim of the respondent, however, is that he was delivered possession of 43 acres, and 5 Marlas of land on 11-4-1969. It may be stated that the prescribed limit of the tenancy under the Well Sinking Scheme is 25 acres or thereabout. It appears that the respondent applied for purchase of proprietary rights of the entire area in his possession. His request was turned down by the authorities vide memo dated 15th November, 1983 stating that "According to the policy instructions contained in Colonies Department Circular Memorandum No.1285-70/251/-CLV, dated 22-1-1971, if the excess area does not exceed 10 % of the prescribed limit, then it can be sold to the allottee at average market price of the preceding 12 months plus double the rent from the date of allotment. Since the area in the instant case is more than 10 % it cannot be sold to the allottee". Deputy Commissioner, Vehari, was accordingly asked to resume the excess area from the respondent giving him choice to retain 25 acres. It was further directed that the rent for the excess area from 11-4-1969 should also be recovered from him.
3. Aggrieved of the aforementioned decision of the Board of Revenue, respondent challenged it in the High Court in its Constitutional Jurisdiction. His writ petition, as stated above, was accepted and the impugned memo of the Board of Revenue was declared to be without lawful authority and the authorities were directed to grant proprietary rights of the excess area to the respondent on the same terms and conditions on which the proprietary rights were to be granted to him in respect of the land allotted to him. This was vide the impugned judgment.
4. We have heard the learned Additional Advocate-General for the appellants as also the learned counsel appearing for Ghulam Muhammad respondent. The tenancy under the Well Sinking Scheme comprises 25 acres or thereabout. It is borne out from the record that the respondent was allotted 27 acres, 4 Kanals and 7 Marlas of land under the said scheme though he entered into or was given possession of 43 acres and 5 Marlas of land of which he has been in continuous possession since 11-4-1969. According to para. 15 of the Well Sinking Scheme, 1959, any tenant who has duly complied with all the terms and conditions of the grant to the satisfaction of the Collector is entitled to get the proprietary rights of his tenancy on payment of "the price of the land equivalent to 30 times of the annual rent per acre thereof payable on the date of the exercise of the option". As regards the area allotted to a tenant in excess of the prescribed unit, Government took a policy decision vide its afore referred memo. Dated 22nd January, 1971 that "the lessees who opt to retain such excess area, shall pay double the rent from the date of allotment. They shall be entitled to purchase proprietary rights on average market price of the preceding 12 months--- provided such area does not exceed 10 % of the prescribed limit". The prescribed unit of allotment according to the Memo. Is 25 acres but under the Scheme, it could be a little more or less. It is an admitted position that the area allotted to the respondent was 27 acres, 4 Kanals and 6 Marlas which constitutes his tenancy under the Scheme. As per the provisions of the Scheme, the respondent would be entitled to the grant of proprietary rights of the area of his tenancy on his satisfying the relevant authorities that he has fulfilled all the terms and conditions of the grant. As regard the excess area in his possession which comes to about 15-1/2 acres, it was not and could not be allotted to him under the Scheme and it also far exceeds 10% of the prescribed limit of the tenancy. That being so, the request of the respondent to purchase the whole of the area in his possession was rightly rejected by the Board of Revenue in view of the instructions contained in the aforementioned Memo dated 22-1-1971. Needless to observe that he could claim the grant of proprietary rights only in respect of the area allotted to him and no more. In this view of the matter, the impugned judgment of the High Court directing the Government to grant the proprietary rights even of the excess area to the respondent on the same terms and conditions on which the proprietary rights are to be granted in respect of the area allotted to him cannot be sustained.
Confronted with this position, learned counsel sought to rely upon memo. No.4881-88/3011-CLIII, Government of the Punjab, Colonies Department, Lahore, dated 30-5-1989 relating to the sale of excess area held by the grantees under various schemes including the Well Sinking Scheme of 1959. In this memo., the grantees holding excess area in any quantity were required to exercise their option for the purchase of excess area up to 31-12-1989. According to the learned counsel, under this memo. The respondent is entitled to purchase the entire excess Ares but he has quite frankly conceded that the respondent has not so far approached the concerned authorities with the request to purchase the excess area under the said memo. He may do so now if so advised.
6. Before concluding, we would like to place it on record that on our query, learned Additional Advocate-General stated on instructions that the respondent had not committed any breach of the terms and conditions of his tenancy. That being so, the respondent is undoubtedly entitled to the grant of proprietary rights of his tenancy viz. 27 acres, 4 Kanals and 6 Marlas of land on the terms laid down in para. 15 of the Scheme.
7. In view of the position afore stated, the impugned judgment of the High Court is set aside to the extent that it directed the grant of proprietary rights to the respondent of the excess area on the same terms and conditions on which the proprietary rights are to be granted to him for the main lot. It is, however, clarified that in view of the statement made by the learned Additional Advocate - -General on instructions, the respondent is entitled to the grant of proprietary rights of his tenancy viz. 27 acres, 4 Kanals and 6 Marlas and as regards the area in excess of his tenancy, he may approach the relevant authorities on the basis of memo dated 30-5-1989. Needless to observe that if he makes any such application, the same shall be disposed of by the competent Authority according to law. Appeal is thus allowed in the aforesaid terms but with no order as to costs.