- WAJIHUDDIN AHMED, J.' -- Lands in various villages of District Jhelum were acquired in the year 1941 for construction of what came to he known as Kala Base. The affectees were settled in Chak Nos.
527/EB and 531/EB in Tehsil Vehari of District Multan where they were allotted State lands on temporary cultivation basis. These affectees were making representations to the Government for grant of proprietary rights in the State lands held by them as temporary lessees. The matter was finally taken up by the Punjab Cabinet which, on 5.5.1975, recorded the following decision:- "All persons who are genuine evictees and are sitting tenants May he given land at market price subject to.a ceiling of-12-1/2 acres. The total cost to he recovered in the ten equal installments."
2. Controversy immediately arose upon the issuance of a memorandum dated 16.5.1975 by the Deputy Secretary in the Colonies Department, addressed to the local authorities. Relevant portion thereof is reproduced hereunder:- "The question of granting proprietary righti to the evictees of Kala Base belonging to village Dheri Kolan, Chhur Mughal and Dhok Chak Jamal, Jhelum District, in the land previously held by them on year to year lease in Chak Nos. 527/EB and 531/EB Vehari Tehsil, Multan District was considered in the Cabinet Meeting held on 5.5.1975. It has been decided that all persons who are genuine evictees and are sitting tenants may: he given land at market price subject to a ceiling of 12-1/2 acres'and on the following further conditions:- The leases of existing tenants and other than the tenants (Kala Base evictees) should he cancelled after observing due formalities under the law"
3. ?Ersons, apparently placed in physical occupation by the affectees , preferred Writ Petitions hearing Nos. 336 of 1975 and 1410 of 1975. According to them, the above memorandum, and particularly the concluding part thereof, was illegally inserted by the Deputy Secretary himself and did not conform to the decision of the Council of Ministers. These petitions were taken up by Dr. Nasim Hassan Shah, J., (then in the Lahore High Court). The learned Judge noted that an element of confusion had arisen pursuant to the issuance of the memorandum in question to resolve which the matter was remitted to the Government on 18.3.1976 with the direction that it "should elucidate its decision and explain its intention as to whether the term "sitting tenants" in its decision taken on 5.5.1975 is intended to refer to the Kala Base evictees who were allotted land, or whether it refers to the Kala Base evictees who were allotted the land and who were also actually cultivating it themselves. It should further clarify whether the intention of the decision, :of 5.5.1975 is to obtain the ejectment of the existing tenants or merely to confer proprietary rights on the genuine Kala Base evictees leaving it to them to eject the persons tilling their lands in case they do not abide by the terms and conditions of tenancy".
4. Pursuant to the referred judgment of the High Court, the - Government on 27.7.1976 per memorandum of even date clarified position as follows:- "(i) Orders dated 26.6.1975 refers to the grant or proprietary rights to be conferred upon genuine Kala Base Evictees whose lands were permanently acquired by the Army and were allotted State Land on temporary leases since 1941.
(ii) It refers to the Kala Base Evictees for the purpose of conferment of proprietary rights without distinction of being self-cultivators or through sub-tenants over the land leased out to them in 1941.
Thus, the terms "sitting tenants' occurring in the decisions dated 5.5.1975, refers to the genuine "Kala Base Evictees of the three- villages (1) Dheir Kolan (2) Chu Mughal and (3) Dhok Chak Jamal irrespective of the fact whether they are self-cultivators or cultivating the land through sub- tenants.
(iii) The Government have no intention to eject sub-tenants of the Kala Base Evictees. After acquisition of proprietary rights, the proprietors may eject the existing tenants in case they do not abide by the terms and conditions of the tenancy.
(iv) The orders contained in para 2 of the memo. Dated 16.6.1975 was incorporated to establish the rights of Kala Base Evictees after acquisition of proprietary rights by them."
5. The referred memorandum was itself challenged by those in actual occupation, through Writ Petition No. 2015 of 1976, contending that the impugned memorandum was issued by the. Secretary (Colonies), Board of Revenue, and went contrary to the directive in the judgment dated 18.3.176.
During the proceedings in such petitions, the Government of the Punjab produced the relevant file, perusal of which revealed that the Minister (Colonies) had approved the then proposed Memorandum. Writ Petition No. 2015 of 1976 was dismissed on 18.2.1977, observing that the High Court in the earlier proceedings had only required the Provincial Government to clarify the position, that there was no need for any Cabinet decision and that as maintained by the Government the words "sitting tenants" used in the Cabinet decision would refer only to "such evictees as have been in possession of it (land) with the permission of the Collector" and those persons who had been cultivating the land either as sub-tenants or otherwise could not be treated as 'sitting tenants'. This decision dated 18.2.1977 was upheld in Intra Court Appeal No 27/77 as also in this Court where Civil Petition No. 94-R of 1977 was brought by the cultivators, this Court having sealed the fate of the litigation per 'order dated. 9.3.1981. In doing so their lordships referred to Article 129 (2) of the Constitution as also Rule 6 (a) of the Rules of Business and upheld the view that the Provincial Government could act through its Minister who was responsible for policy matters and the conduct of business of his Department.
6. It is regretable that the issue which stood thus resolved was taken up again by the cultivators who made a further representation to the Minister of Colonies, Government of the Punjab, on 27.3.1982, making a grievance that the decision of the Revenue Minister contained in the Memorandum dated 17.7.1976 "which granted proprietary rights to genuine Kala Base evictees without distinction of being self-cultivators or through sitting tenants over the land in dispute", was contrary to the Cabinet decision. A request was, therefore, made that the case be placed before the Cabinet again for clarification of the term "sitting tenants". Pursuant to such application,.
Secretary (Colonies), Board of Revenue, Punjab, issued a Memorandum dated 10.8.1982, para 2 whereof ran thus:- "The matter has been thoroughly considered. In partial modification of this office memorandum under reference the Board of Revenue is pleased to clarify that according to the decision of the Cabinet, only the following categories of Kala Base evictees who were hording temporary leases in Chak No. 527/EB and 531/EB Tehsil and District Vehari, are entitled for the grant of proprietary rights in respect of the land in their possession:-
(1) He should he a genuine evictee of Kala .Base.
(2) He should be a sitting tenant and cultivating the land himself.The matter regarding the grant of proprietary rights to Kala Base evictees should he decided in the light of the above -clarification."
7. Feeling aggrieved with the memorandum dated 10.8.1982, the Kala Base evictees preferred Writ Petition No. 1183 of 1982. Such came up before Zia Mahmood Mirza, J., (then in the High Court), who upon an elaborate discussion has dismissed the same on 7.12.1992, giving rise to Civil Petition for Leave to Appeal No. 11 l4-L of 1992. Lease was granted, in this Court on 9.3.1994 and the relevant order runs thus:-"Leave to appeal is granted inter alia to consider the question whether the High Court was justified in holding that the policy letter dated 10.8.1982 issued by the Board of Revenue on 17.10.1982 (No. 4123-82/4226-CB) had not been competently issued and further, despite the direction contained therein the leases who have not been actually cultivating the land under their tenancies were entitled to receive proprietary rights."
8. Only the two learned counsel representing the respective appellants in the civil appeals have appeared and argued the matters before us: Their contentions, in brief, are these:-
(i) The expression "sitting tenants" in the Cabinet decision, afore- mentioned, could denote none else but self-cultivators.
(ii) The decision over-turned by the High Court was entirely in consonance with the existing policy to' grant proprietary rights only to those who are in physical possession as stiller of lands.
(iii) The decision of the Government, rescinded by the High Court, could be treated as rectification of a wrong earlier decision. Such was competently made.
(iv) The Cabinet decision could only be clarified by the Cabinet itself and the earlier Memorandum dated 27.7.1976 was of little consequence having had only the concurrence of the Minister.
9. In the first place, the learned Judge in Chambers, whose decision is impugned before us, observes that the representation/application on the basis of which the questioned decision was recorded, had been moved by Khushi Muhammad (appellant) on behalf of all the cultivating tenants of the two Chaks and the scrutiny of the relevant file by the learned Judge revealed that the matter was considered only upto the level of the Members, Board of Revenue, whose decision alone was incorporated in the disputed Memorandum dated 10..8.1982.
10. The impugned Memorandum .Dated 10.8.1982 seems to have suffered from manifold defects. To start with, it was a unilateral retraction of one of the parties to circumvent a conclusive adjudication of the issue upto the level of this Court The controversy, re-agitated thus, involved reopening of a past and closed.Transaction as also contravention of the principle of res judicata.
11. It has been urged that many of the questions, which surfaced, pursuant to the memorandum dated 10.8.1982 and which thereupon came up again before the High- Court, were not raised during the previous litigation and, therefore, could freely he re-agitated. The premise is erroneous both on the factual and legal planes. Thus, it does not seem that any of the crucial questions were not raised in the earlier .Round of litigation. Besides, even if there were some such questions, each one of the same ought to have been raised in the pre.Vious adjudication and in the event any of them was not raised, such, as well, attracted the principle of constructive of res judicata.
12. Above all, a decision of the Cabinet or of a Minister could not be re-called at the level of the Board of Revenue. Besides, overlooking the Concept of collective responsibility, even if the decision of the Minister in the earlier proceedings is not equated to that of the Cabinet, the fact remains that the High Court itself, in the previous round, had asked for a clarification from the Provincial Government and, surely, the Secretary and the Minister represented such Government, a question dealt with squarely upto the level of this Court.
13. While these appeals are liable to he dismissed for the reasons recorded above, there is yet another aspect of the matter, which need's to be dealt with. A sub-tenant, an under-tenant or licensee of a tenant is estopped under Article 115 of the Qanoon-e-Shahadat Order, 1984, and its precursor statute, the Evidence Act, 1872, from questioning or by-passing the title (at the inception) of the tenant under whom he claims. The non-evictee cultivators in possession,. If any, would he hit by this rule. Besides, and quite logically, it is the evictees of Kala Base who, on principle, were being provided alternative lands, that too none other than those which they were already holding temporarily. The concept of "sitting tenants", in the context, obviously, meant such affectees being in possession of the alternative lands, either physically or constructively. The entitlement, dependent on a person being a Kala Base evictee and in possession, actual or constructive, could, under no stretch of reasoning, extend to a nonevictee, claiming under such an evictee or an unauthorised occupant. No such behalf, specific to Kala Base affectees, could he passed on to nonaffectees either under a policy decision of the Government afore-mentioned or any clarification of it.
14. Do the result, these appeals must fail. They are dismissed.