ORDER SHAHZAD HASSAN PERVEZ, MEMBER (JUDICIAL-I)- Abdul Qayyum Khan son of Muhammad Khan submitted an application to District Collector, Khanewal on 20.1.1986 praying therein that horse beading tenancy allotted to Ahmad Khan, his brother, after the demise of their father who was original grantee, vide order dated 3rd August, 1972 of District Collector, Multan was liable to be cancelled owing to non- fulfilment of conditions of grant. Made in favour of Ahmad Khan.
According to him, as narrated in the application. District Collector, Multan had allotted the said tenancy to Ahmad Khan. After an agreement was made between the brothers that half of the produce of the tenancy would be continued to be given to the applicant during the currency of the lease. Since Ahmad Khan has discontinued payment of half of the produce to the applicant, the grantee had forfeited his right to retain the lease. It was further prayed that after cancellation, of the grant of Ahmad Khan, the tenancy may be .Allotted to him. District Collector, Khanewal heard Ahmad Khan and vide his order dated 27th of December, 1988 cancelled*the lease from his name.
The operative part of this order is reproduced as under: - An examination of both . The letters bearing same No. 15/69/Camp dated 1.10.1985, received from District Remount Officer, Sahiwal, shows that the entries regarding renewal period of the tenancy from 10.12.1982 to 9.12.1985 and 10.12.1985 to 30.6.1988, respectively, were fictitious and cuttings were made with mala fide intentions.
In the circumstances explained above, I, resume the tenancy in chak No. 30/1Q-R from the name of Ahmad Khan, in favour of the state and further direct that the original record of District Remount Officer, may be called for independent inquiry along with some senior officer well-versed with the tacts of the case to fix responsibility for making fictitious record for renewal of lease. Orders be issued accordingly.
2. There' was, however, no mention of the joints made in the application .Of Abdul Qayyum Khan nor any finding thereon was given in the order of District Collector. Ahmad Khan and Abdul Qayyum Khan sons of Muhammad Khan filed two separate appeals which were disposed of by single order dated 13th July, 1989 of Commissioner, Multan Division. Abdul Qayyum's appeal was dismissed. Ahmad Khan's appeal was accepted with the following observation:-- "As far as appeal of Ahmad Khan appellant is concerned it is accepted because the order. Of resumption of tenancy from him was rather premature before the result of inquiry referred to in the impugned order. The impugned order is, therefore, set aside and the Horse Breeding Tenancy is restored in favorite of Ahmad Khan appellant No. 1. The District Collector Khanewal will he at liberty to take up the resumption of the said tenancy if the independent inquiry held under the impugned order establishes the involvement of appeal No. 1. In the cuttings/over-writings appearing in two letters No. 15/69/Ca"mp, dated 1.10.1985. Issued by the- District Remount Officer Sahiwal."
3. Abdul Qayyum son of Muhammad Khan was tiled this revision petition against order dated 27th December, 1988 of District Collector, Khanewal and order dated 13th of June, 1989 of Commissioner, Multan Division.
4. It is stated by learned counsel for the petitioner that Muhammad Khan, predecessor-in-interest (if the petitioner as well as the respondent was the original allottee of the tenancy under Horse Breeding Scheme in Chak No. 30/10R. He died on 10th December, 1969. On 23rd May, 1972. District Collector, Multan regarded statements of the heirs of Muhammad Khan which included Abdul Qayyum, the present petitioner, Ahmad Khan, Mehr Khatoon. Ghulam Aisha and Ghulam Sakina.
Ahmad Khan made a statement before District Collector that the tenancy may be transferred in his name on the condition that he would pay half of the produce to Abdul Qayyum. Pursuant to this statement and contingent upon the condition recited thereunder, the tenancy was allotted in the home of Ahmad Khan by District Collector vide order da ted 3rd August, 1972. On 20th of January, 1986, Abdul Qayyum submitted an application to District Collector that the land was granted to Ahmad Khan conditionally and since the said condition has not been complied with by him, the tenancy may. Therefore, be resumed from Ahmad Kha| and allotted to him on the same condition.
Ahmad Khan had also applied for extension of the lease. Both these applications were taken up together by District Collector who, vide his order dated 27th December, 1988, cancelled the lease from the name of Ahmad Khan. The appeal filed against this order by Abdul Qayyum was dismissed by Commissioner.
5. It is contended by learned counsel for the petitioner that lower Courts have not fully read the application made by the petitioner and have simply stated in the impugned orders that the petitioner made the request that the land in question may be resumed in favour of the State. In fact, the request made by the petitioner was that th^'respondent No. 1 may be directed to abide by the commitment made by him at the time of allotment of the tenancy. In case, he was not willing to comply with the conditional order of allotment, the tenancy may be allotted to the petitioner who would then abide by the commitment made between the parties at the time of allotment/transfer of the tenancy to the respondent. In the written arguments submitted by learned counsel for the petitioner, the following points have been made:-
(i) The tenancy under the Horse Breeding Scheme in Lower Bari Doab Canal Colony is "nori- scheduled" and hence heritable under the. Provisions of Colonization of Government Lands (Punjab) Act, 1912. In support of this averment, attention has been drawn to Schedule I referred- to in Section 4 of the Colonization of Government Lands (Punjab) Act, 1912 where Horse Breeding Tenancies in Lower Jhelum Colony have been included and no mention. Of Horse Breeding Tenancies in Lower Bari Doab Canal Colony has been made in the said schedule. Additionally, two policy letters No. 4245-C. Dated 31st October, 1950 and No. 868-C dated 19th February. 1952 have been referred to substantiate his argument that the tenancy was inheritable. According to the instructions contained in these letters, in case where tenancy falls vacant, due to the death of a tenant, it is to be allotted to the heirs of the deceased in preference to any other applicant provided that the deceased tenant had a good horse/mule breeding record. It was further averred that it has been held in PLD 1973 Lahore 726 that the aforesaid two policy letters are to be considered as statement of conditions under Section 10(2) of the Colonization of Government Lands Act. 1912.
(ii) The respondent himself made a statement before District Collector that he had entered into an agreement with his-younger brother i.e. The present petitioner, to share half of the produce. The condition so imposed and accepted was legal and valid and according to law on the subject. The respondent cannot He allowed to resale from it. In support of this contention, PLD 1993 SC 418, AIR 1932 Lahore 281. AIR 1955 Mardars 486 and AIR 1929 B1 have been cited.
6. The statement by Ahmad Khan respondent before District Collector .For obtaining the allotment of the tenancy, it is stated by the learned counsel for the petitioner is as under:- (jjljj *./S^L- i/j> u* \''t>-a -i/*w^>uDROL7>U'k_^>^/w^1 y"-23/5/721/^ {{ URDU TEXT }}
7. The above commitment was honoured by the respondent till the year 1985 whereafter he backed out from his obligation and took possession of the whole tenancy, It is submitted that the respondent himself had accepted the condition of sharing half of the produce with the petitioner and his failure to abide by that commitment tantamount to breach of condition warranting either direction to rectify that or resumption of the tenancy, It was stated that an .Order based on consent of the parties precludes the parties thereto from questioning it. It was argued that reliance placed on PLD 1976 SC 435 and NLR 1979 Revenue ,113 by the respondent is of no help to him. In NLR 1979 Revenue 113, it has been held that agreement qua the parties will be binding and not qua their successors. In the case in had. The agreement is qua the parties.
8. The learned counsel for the respondent contended that the tenancy under Horse Breeding Scheme in Lower Bari Doab Canal Colony is not heritable. Such tenancies on demise of tenant would revert to the Government. Reliance was placed on NLR 1979 Revenue 113 and PLD 1976 SC 435.
It was submitted that allotment in favour of the respondent was rightly restored by Commissioner vide his order dated 13th June, 1989. It was submitted that the tenancy was allotted to respondent No. 1 without any condition" by District Collector the recommendation of District Remount Officer, vide his order dated 3rd August, 1972 and his order was never assailed by way of an appeal or revision. Hence the order has attained finality, It was stated that no undertaking that half of the land of the lease or produce thereof would be' given to the petitioner by the respondent was made.
Even for the sake of argument, if such an undertaking was .Given by the respondent, the tenancy cannot be resumed due to. Violation of this undertaking as held n, RSA No. 286/1975 (unreported judgment of the High Court). This judgment was upheld by the August Supreme Court. It was submitted that the application/complain submitted by the petitioner before the, District Collector was patently time- barred and without any basis or locus standi. The said application should have been rejected on the point of limitation alone, It was argued that District Collector resumed the tenancy on frivolous grounds i.e. Cuttings and overwriting done in the record maintained by the office of District Remount Officer, The indictment on this score, if any, ought to have been pinned on the office of District Remount Officer rather than the respondent. It was stated that District Collector vide his order dated 27th of December, 1988 without ascertaining the responsibility for overwriting/euttings in as enquiry, proceeded to cancel the allotment, thereby, without any proof, held the respondent accountable for the said tampering.
9. 1 have given careful consideration to the arguments of the parties. The question whether any tenancy is scheduled or non-scheduled is determinable by the contents of schedule I referred to in Section 4 or statement of conditions pertaining to said tenancy. It is true that Horse Breeding Tenancies in Lower Bari Doab Canal Colony have not been included in Schedule I with reference to Section 4 of Colonization of Government Lands (Punjab) Act, 1912. Recourse therefore for determining the question -has to on had to the recital of statement of conditions governing the animal breeding Schemes. One set of conditions is contained in Notification No. 2033-C. Dated 20th of June. 1924 which was printed in the Colony. Manual Supplement No. IV, revised edition of . 1940.
The question of disposal of the grant on the demise of the grantee is dealt with in Clause 17 of this Notification. Another set of conditions was published on It of July, 1942 (Notification No.. 2838-C).
This set of Conditions superseded the conditions which had been issued with Notification No. 2965- C, dated 22nd of July, 1941. The disposal of the mule/horse breeding grant on the demise of tenant is dealt with in clause 25 of the 1942 statement of conditions. Some other statement of conditions may have been issued between 1942 to 1963 which are not available in the record of the Colonies Department or in the Manual of Colonization Laws. According to the Statement of Conditions and'
Lease Form for grant of tenancies for cultivation on Horse Breeding conditions in the Lower Bari Doab Canal Colony vide Notification No. 5184/63-CG, dated the 6th November, 1963, the said tenancies have clearly been declared to be scheduled tenancies under Section 4 of the Colonization of Government Lands Act, 1912. In these set of conditions, clause 16 is relevant to the issue of disposal of the tenancy, after the demise of the tenant. For facility of reference, it is reproduced:-- "If a tenant dies during the period of tenancy the land shall revert to the Government and shall be granted to any of his heir/heirs, for the unexpired period of the tenancy if such heir/heirs are considered to be fully capable of satisfactory carrying out the conditions of the tenancy in all respects, or to some other tenant subject to such compensation to the estate of the deceased as may be decided by the Government."
10. Vide Notification No. 512-70/704-CL-I, dated 22nd September, 1970, Colonies Department, Board of Revenue, Punjab issued fresh statement of conditions on which the Punjab Government is prepared to grant to certain persons tenancies for cultivation on animal breeding conditions. This set of conditions supersedes all previous notifications issued in this behalf, It is explicitly mentioned in this set of conditions that "tenancies granted on these conditions, shall be deemed to he 'scheduled tenancies' within the meaning of Section 4 of the Said Act". Clause 50 of this set of conditions lays down the mode of disposal of land on death of tenant. For facility of reference, it is reproduced:- "(1) If the tenant dies during the period of tenancy or any extension thereof, the land shall revert to the Government and may be granted to any one of his heirs considered to the fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease or to some other tenant subject to such compensation (to be paid to the estate of the deceased) as may be decided by the Collector.
(2) The Government shall in no case, be under any obligation to grant the lease to the heirs of the deceased tenant."
11. It was be appreciated that besides, addition of sub-clause (2) in clause 50, the mandatory "shall" in Clause 16 of Conditions of 1963 has been replaced by the word "may". In the statement of conditions issued vide Notification No. 4292-83/2537-CLI, dated 9th August, 1983 of the Board of Revenue, the dispose. Of land on death of a tenant is akin to the condition laid down in Cause 50 of the Notification dated 22nd September, 1970.
12. The above narration will, therefore, clearly reflect that tenancies under Horse/Mule Breeding Scheme art scheduled tenancies and as such are not heritable. The Government is under no obligation to grant the lease to the heirs of the deceased tenant. The tenancy, however, "may" be granted to anyone of the heirs of the deceased tenant who is Considered to be Fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease: This discretion has to be exercised in terms of the report of District Remount Officer about suitability of any of the heirs.
13. The order of District Collector, Multan whereby on the death of Muhammad Khan, the tenancy under the Horse Breeding Scheme was allotted to Ahmad Khan son of Muhammad Khan did not mention compact between the heirs. It merely mentioned that other heirs of the deceased had no objection to the proposed allotment. The said decision of Collector was based on the recommendations of District Remount Officer. What preceded this order, either between the parties or before the District Collector is inconsequential and cannot be deemed to be a part of this order.
The contention of learned counsel for the petitioner that violation of the agreement regarding payment of half share of, produce to the petitioner tantamount to breach of condition under which the tenancy was allotted to . Ahmad Khan does not merit consideration as no such condition was recited in the order of District Collector dated 3rd August, 1972.
14. The contents of letters dated 31st October, 1950 and 19th February, 1952 which according to the learned counsel for the petitioner constituted terms and conditions under Section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 as held in 19 73 Lahore 726 are no longer inviolable in view of supersession of all previous conditions by the Notifications of 1963, 1970 and 1983.
15. For what has been stated above, the revision petition is devoid of any legal force and as such is dismissed. Resultantly, the order of Commissioner dated 13th June, 1989 will hold the field.