The questions requiring determination in these six Writ Petitions (Non. 51 and 94/1961, 210/1962 and 967, 968 and 969/1965) are common ; therefore, they are being disposed of together.
2. Briefly stated, the facts as contained in the petitions and the written statements, in particular the detailed one filed by the Board of Revenue through Mr. Rustam S. Sidhwa, Advocate (for Advocate- General) in Writ Petition No. 210,162, are as follows ; "When the Statement of Terms and Conditions relative to the Tube. Well Scheme was published in the Government Gazette in 1954, the tenants of the Potitione9 Society were not disturbed but were allowed to work the land till their cases were finalised by the Collector as required under close 3 of the Statement of Terms and Conditions."
It is not clear from the record as to what happened with regard to the scrutiny for the purpose of finalisation of the cases by the Collector from 1954 to end of 1956, when the letter dated 21-11-1'956, referred to earlier, was sent by the Deputy Commissioner to the Deputy Secretary, Board of Revenue. In this letter, it was mentioned that some of the tenants/members of the Societies were not eligible under clause 3 of the Statement of Conditions, but it was suggested that it would not be "advisable to cancel the allotment j:' this Society because of the fact that they have actually taken aceat pains to develop the area and all of then are refugees. It Is, therefore, proposed to direct the Society concerned to join at least 11 more landless tenants of the prescribed category as members of their society, failing which the allotment of the society will be liable to cancellation". I asked thelearned counsel appearing for the Board of Revenue to show further progress on the suggestion by the Deputy Commissioner but the correspondence including the response by the Board of Revenue is Floc available except that it is averred in the same written statement (on W. P. No. 210/62) that ; "It was not until the Collector finalised the allotment cases of the tenants of the petitioner Society under clause 3 of the Statement of Conditions, which was not until 1959/60. That tenancy rights can be said to have been legally granted to the members of the Society.",,--- The above averment to the effect that the final decision was taken in 1960 is further supported by the admission made by the Board of Revenue in the written statements filed on Writ Petitions Nos.
967, 968 and 0 69/65 wherein it is stated ; "The allotments were made strictly in 7conformity with the statement of conditions and Government instructions. The allotments (fresh allotments) have already been approved by the Board of Revenue vide their Memo. No. 10048-60/7060-C (G), dated 2-11-1960. These members ware never accepted as tenants under the Colonization of Government Lands Act V of 1912. They being ineligible could notbe selected under the Scheme. They have therefore no right or title to claim allotment; It appears that in some of these cases, fresh (substitute allotments were purported to have been made under the Fame Statement of Conditions in or about 1960 to individuals who, according to the Board of Revenue, were found eligible under clause 3 of the Statement The petitioners have seriously contested the credentials of the fresh allottees particularly with regard to the fact whether they were the members of the Cooperative Societies or were entitled to become such members. In other cases, no allotment was made under the Statement of Conditions in question- Proposals were made to dispose of the land under other Schemes. The details of the proposals and/4r their finalisation, if any. Have not been placed before me.
3. These writ petitions have been filed by six Societies claiming rights on land attached to their respective tube-wells, challenging the orders of ejectment of there members from the land claimed to have been alloted to them (the Societies) and seeking restoration thereof, The contentions raised are ;
(i) that in 1953, induction (allotmentof to a members of the petitioners Societies on the land was in anticipation of the terms and conditions which were to be formally issued subsequently but were then under preparation in pursuance of a Government decision/scheme to allot the land to Cooperative Societies for long periods of time. Therefore, allotment relying on Province of West Pakistan v. Muhammad Akhrar Qureshi and others PLD 1962 SC 428, it is contended that the original allotment and/or induction shall be deemed to have been made/effected under the statement of conditions. That being so, subsequent ejectmentthe members without notice to and proper proceeding against the Societies and each member concerned were if y% 3al and without lawful authority ; because this action is in contravention of section 24 of the Colonization of Government Lands Act and the principle of natural justice (audi alteram partem). In this connection was also pointed out that the Government had accepted the ejected members as eligible for about six years tot which period rents had been duly paid. 3 bas in these circumstances, neither the Societies nor the members concerned could be considered as either unauthorised occupants or trespassers ;
(ii) that if on the question of eligibility under clause 3 or on account of any breach of the Statement of Conditions it was considered necessary to direct ejectment of any member of the Society, it was essential, under proviso to section 24 of the Colonization of Government Lands Act, to give notice affording opportunity for rectification
(iii) that the Society and the ejected members were entitled to compensation under the Colonization of Government Lands Act as well ms under the terms of the Statement of Conditions.
No such compensation having been awarded, the ejectment or resumption of the land was illegal 1 and
(iv) that the Statement of Conditions in these cases was issued in pursuance of Grow More Food Scheme and because the Government has already decided to grant proprietary rights to the allotted under this scheme, therefore the petitioners having acquired valuable rights cannot tie ejected and, on the other hand, they are entitled to the grant of proprietary rights:, .;
4. Contentions Nos. (i) and (iv) can be considered together. The fact: mostly admitted show that the peti4oners-societies were farmed with a view to implement the scheme which was expected to be operative in 1954. Persona who then joined the Cooperative Societies and became beneficiaries qua the allotment of lands under six monthly (one-crop) arrangement, were not selected. On any other bash than those which veers to be the subject matter of the then prop ,sect scheme. This is also obvious from the far. That no outsiders were initially given the land for one-mop temporary cultivation. The selection, then, of the societies o: members thereof cannot at all be dissociated and unlinked from the qualifications/eligibility of the would-be lessees under the scheme which had already been decided upon but the statements of conditions of which were under preparation. In the behalf, it is significant to note that even the possession was handed over to an Assistant Registrar or Cooperative Department on behalf of the petitioners-societies and their members. All this would show that the initial selection for allotment on temporary one-crop basis was intended to be continued under the statement of conditions of the then new scheme a unless, of course, or: subsequent scrutiny induction of Dome on was found to be void ab initio. One such example could be that of a case of fraud. It is in line with the above assessment and interpretation of the then situation that one the expiry of the first or second six monthly lease, the altottees tenants/societies ever or made to surrender the landwasindicated inthe letter of a 3-1 `-9 953. In an ordinary case of temporary crop-wise or yearly lease, the surrender would have been automatic failing which authorities wouldhave eaten coercive measures. Nothing on that line was done in these cases. The societies and :Theremembers (tenants) continuedto be in possession for several years , it appearsfrom the letter of 1036 already referred to, they were permitted to invest in the landto develop ii at considerable cost. Will, therefore, the impugned orders were passed whereby certain members of the petitions -Societies were beta held 6o be ineligible, they as well as the societies would be deemed to have continued in possession of the lands in dispute as allottees under the statement of conditions which were formally issued in October 1954 but were in the making under a scheme already decided upon in or before November 1953. The ruling of the Supreme Court in the case of Muhamrnad Akhtar Qureshi (PLD1962SC428), cited by the learned counsel for the petitioners, (even though dealing with a service matter) in so far as the question of implementation of an expected policy and/or scheme of the Government is concerned, supports the petitioners' case. It has further to be held that by no stretch of imagination, the societies or the affected members could be considered as either unauthorised occupants or trespassers. If the impugned action has been taken on that basis, it is not only illegal but also without lawful authority.
5. From the above finding, a necessary corollary follows ; namely, that the petitioner-societies and their affected members having remained it possession of the lands in dispute for more . Than half a decade under the terms and conditions issued under section 10 of the Colonization of Government Lands Act as explained above, with normal expectancy of holding the lease for a total of at least fifteen years, could not be ejected ; except through due process of law witch apart from other procedures, included a right to adequate opportunity of hearing, right to produce evidence to sub: rartiate their claims/qualifications and above all, specific speaking orders by the authority competent to pass with regard to ejectment resumption under the Act. The right of hearing, in the peculiar circumstance of the case, had accrued both to the societies as well as to the member, because the allotment was of a composite character enuring for the benefit of both. The details of the proceedings are not known. However, one thing is certain the individual inquiries were not mad- in each case of each tenant and society nor separate orders were passed thereon by and local comp-tent authority. The matter was illegally treated as one o)general administrative inquiry and the Board of Revenuer by the impugner, orders which were subsequently implemented by the field authorities, directed the cancellation of the allotment (as above assumed) resumption of the land and ejectment of the persons in possession. If due process of lava would have been observed, the affected parties after the initial orders would have had right of taking the matter to the appellant-A revisions] authorities. Ht4d it happened in accordance in law, the results might have been totally different. In this connection, the arguments of the learned counsel for the petitioners on the question of right of hearing get sufficient support from the purview ref section 24 of the Act which provides that "after giving the tenant an opportunity to appear and state his objections", the Collector may "order the resumption of the tenancy" The second right of hearing granted in the proviso to section 24 relates to the opportunity of rectification. Every if the tenancy were to be treated as scheduled one under proviso to section 4 in this cease the right of hearing before resumption off tenancy had riot been taken away. This provision effects only the right of hearing qua opportunity of rectification. The right of hearing Is assumed even in she statementof conditions. Yard. 22 (2) thereof provides for such a hearing in matter in matter of compensation. That being so, it cannot at all ha imagined that in matter of resumption there would be no right of hearing. Therefore, the manner in which the acting was taken was not onlyunlawful but the same was also without lawful authority and is liable to be set aside ; and I order accordingly.
6. It cannot be denied that daring the Pandetioy of these writ petitions, considerable changes have taken place in the Government policy qua the continuance of or grant of proprietary rights under certain schemes/statements of conditions for leases, particularly long ones, of Government land.
This Court also, in the cases relating to Grow More Food and Ejected tenants Schemes, has held in more than one cases that the rights of the lessees thereunder -whether to complete the lease or to seek grant of proprietary rights-were not illusory and could be enforced by proper proceedings ; see Muhammad ashraf v. Board of Revenue, West Pakistan and another (PLD 1968 Lah, 1155), and All Muhammad and 13 others v. The Province of West Pakistan and another (PLD 1969 Lah. 951). The Government also, it appears. Has recognised this position in their policy letters and directions issued from time to time, particularly within the last two years. Vide Letter No. 2805/62/2363-S (G)
111, dated 8-8-1962, the Board of Revenue directorthat all bona fide Grow More Food lessees would, under certain conditions, be given the concession of sale by private treaty. The expressionas "Grow !Lore Food lessees", it appears, was not restricted to a Grow More Food Schemes fed by canal water. It also applied to lands irrigation through tube-walls sunk under the Grow Moot Food Scheme. In the very first pats. Of the letter, it is clarified that the lessees to be benefited the could be those cultivating "through tube-wells, open sells, canal water or otherwise" By yet another explanatory Letter No. 4826-61/4419-S (G) Ill. Dated 22-10-1962, it was directed by the Government that "some of the state lands had been given on lease in connection with the Grow More Food campaign. In such cases it was decided that the state land should be sold by private treaty to bona fide Grow More Food lessees. It is significant that in this letter as well, the Grow More Food lessees using tube-well irrigation were specifically included in the beneficiaries and the indication was that the leases should be in connection with the campaign of Grow More Food. It is not without significance hereto State that in the statement of conditions relevant in these eases issued on 21- 10-1954, it is specifically mentioned that the tube-wells which would irrigates the land in dispute were installed "by G Government under the Grow More Food Scheme". Apart from this assertion, in the preamble of the statement in para. 2 there-if, the same purpose has been indicated. Above all, in para. 10 of the statement it is specifically provided that "the tenant shall cultivate food and fodder crops only but where rotation of crops is considered necessary. Growing of other crops shall be permissible". In pava. 25 (hi. The expression "food and fodder crops" is defined as crops grown primarily for food of men or cattle but it does not include cotton, sugarcane or hemp'. Not only this, but also those who implemented the scheme Interpreted it as one in Grow More Food campaign. In letter of 21-11-1956 sent by the Deputy Commissioner, Jhang, wherein proposal was made not to cancel the allotments, it was specifically mentioned that in view of the existing food shortage in the country and for the successful implementation of the Grow More Food Compaign" it was necessary that the societies should continue to bold possession of the tube-well lots. Nothing has teen shown to me to point out that theproposals of the Deputy Commissioner were not bard on any legal consideration and were, for that reason, rejected by the Board of Revenue. The leases in question under the statement of conditions of 1954 were treated in aid of the Grow More Food Campaign. In the light of the above discussion, it is not possible toy hold today that the scheme promulgated with this statement of condition Is was not a Grow More Food Scheme.
7. The Government, rile Letter No. 5086-69/1683-C'. L. III, dated 1-6-1970, directed that in suppression of certain previous orders "Government have now decided that allottees under the Ejected Tenants Scheme and Grow More Food Scheme who were not entitled to get proprietary rights because of the proximity (nearness) of the lands to the Municipalities or Mandi Towns t nor were they entitled to get alternate land, will now be treated as under"(in the three categories then enumerated, the under lying decision is clear that proprietary rights in alternate lands were to be granted to the allottees). It is significant that the Government has, after more than a decade of Initiation of those schemes, decided that even ifcertain persons were initially not qualified to the allotments on account of proximity of the land to the towns ; the authorities having alloted the lands to them on account of mistake (none-the-leas) they would get the benefit thereof. In Memo.
No. 2262-70/767/C. L. III, dated 31-3-1971, the decision of the Governor was conveyed "that area allotted to the Grow More Food lessees and resumed by the Collector because of their leaving grown non-food grain crops or failing to bring 50 %. Of it under cultivation may be restored to them and proprietary rights given therein provided the lessees are still in physical possession thereof and have brought more than 50%. Of the area under cultivation". Vide Letter No. 1468-71/1217-C. L.
114 doted 26-4-1971, the Government further decided, in consequence of theorders passed by the High Court in Writ Petition No. 658/1969 Muhammad Ashraf's case already cited above), that without reference to the date of allotment and the period of the termination of the lease "all allottees under the Grow More Food Scheme shall be granted proprietary rights providedthat they fulfil the terms and conditions on which leases wore granted, Government has been further decided to decide that allattees mentioned in para. 2 who are to be given proprietary rights shall be restored to the lands from which they have been ousted (all subsequent leases of this area stand cancelled automatically), if the land in question has not been allotted under any permanent scheme. If however, the land in question has been allotted under any permanent scheme such allottees shall be accommodated in some alternative area with the same rights as they would have exercised on the land in question which is not possible now to be released". The above-noted decisions of the Government show that considerable change favourable to the lessees has been brought about in the thinking and policy of the Government qua mistakes in allotments of land under the Grow Mora Foot! And Ejected Tenants Schemes, notwithstanding initial disqualifications of the allottees at the time of their taking over of the possession, and fulfilment of certain conditions under those schemes. Follow-up instructions and Letters were issued vide No. 2296/71- 1464 C. L. Ill, dated 20-5-71, No. 3020/71/1608-C. L. III, dated 2.6-71, No. 1488-7/1650.-C. L. 11, dated 4- 6-71, No. 2296-71 /1684-C. 1..
111. Dated 8-6-71, No. 2693-71/1839- 0. L. III. Dated 24-6-71, No. 11149-71- I/3111-C. L., dated 11-10-71, No. 641-72/654-C. L. III, dated 9-3-72 and No. 4330-72/2290-C. L. I, dated V-6-72. During the course of hearing of there petitions, a news item with heading "Proprietary Rights of State Land to be Granted" appeared in a newspaper that "grant of proprietary rights to allottees of State land under various old schemes, Including long leases, eras under activeconsideration of the Punjab Government" and that "the Government was considering to grant proprietary rights of State land, except land situated within prohibited belts, on reasonable terms to actual cultivators who had solonised land, fulfiling substantialconditions of allotment,"
I sent for Mr. Najafi and asked him to got further Instructions on the assumption that the learned counsel appearing on behalf of the Board `ofRevenue might have inadvertently omitted to finish tome information which might be relevant in these matters. During the preparation of chi,; judgment, Mr. Najaf has appeared and has produced a copy of letter fro. 6319-72/3797-C. L. II, dated 23-11-1972 sent to him by the Board of Revenue. It reads as follows ;- "Government has allowed the Grow More Food lessees and ejected tenants outside the prohibited zone to acquire proprietary rights. Tenants with long leases e.g. Allottees of tube-well lots have also been allowed to acquire proprietary rights subject to certain conditions. Government has issued no further instructions about the grant of proprietary rights to tenants on State land."
8. In the light of the above discussion, circumstances noted therein and the position adopted by the Board of Revenue in other similar petitions (on acceptance of which they were remanded and have become precedent for me), it has become necessary ;o remand these oases for fresh orders in the light of all the relevant Government decisions.
9. During the hearing of the arguments, an apprehension was expressed that in those cases where some tenants/members of the petitioners-societies have physically been ejected and lauds have been allotted to other persons who have taken over the possession, the fresh orders might create compilations for the subsequent allottees. There is sufficient guidance in some of the policy letters referred to above. However, the Government and/or Board of Revenue would look irate this question, of course, keeping In view t.1, a humanitarian aspect of the matter in so far a the subsequent allotteas are concerned.
10. Before closing this order, it is necessary to notice that a preliminary objection having initially been raised that the Cooperative Societies could not file potation on behalf of their members, whom the learned counsel for the petitioners replied that is the peculiar circumstances of the a oases both the societies (as corporate bodies) and their members whose lands have been resumed are, affected and aggrieved parties 1 the same was not pressed any further.
11. In view of decision on contentions Nos. (I) an3 (ir), it is not necessary ,to deal with contentions Nos. (ii)and (iii).
12. The result Is that these petitions are accepted, the impugned", orders/actions are set aside as illegal and without lawful authority anal the oases are remanded to the Collector concerned for fresh decision in accordance with law. There shall be no order as to costs.