' The petitioner through the instant writ petition has assailed the order, dated 31-10-2002 and order, dated 26-2-1996 passed by respondents Nos.2 and 3 respectively.
2. The facts giving rise to the present writ petition are to the effect that a lease of 2369 Kanals, 5 Marlas of agricultural land in Mauza Peer Behlol, Tehsil and District Jhang under 10 Years Temporary Cultivating Scheme in the year 1968 had been sanctioned in favour of Mian Dost Muhammad, father of the present petitioner. This land was a Banjar Qadeem (Barren) and with huge sand dunes, deep salty revines without any source of irrigation. The lessee spent a hard labour and colossal amount to bring the land under cultivation. He levelled the land through the bulldozers and also installed tubewells for irrigation.
3. Dost Muhammad lessee of the land died in 1980 and his widow Mst. Sahab Bibi continued work of Abadkari of the land. The period of lease of the lessee ended in 1983.
4. On 3-12-1984 the District Collector, Jhang had allowed Mst. Sahab Bibi to purchase proprietary rights of the land subject to deposit of market value of the land @ Rs,100 per unit and she paid the cost in instalments within the stipulated period.
5. After deposit of the full price of the land the District Collector, Jhang vide his order, dated 9-12- 1989 executed the conveyance deed of the said land but the sale-deed was not handed over to Mst. Sahab Bibi.
6. After the expiry of period of lease, ended in 1983, the respondents did not formulate any policy for disposal of the vacant land and as a result thereof, different persons had occupied the land vacated by the petitioner's father and mother but the Revenue Patwari continued making entries in Khasra Girdawari in the name of Dost Muhammad, father of the petitioner, the original lessee of the land. The petitioner and his mother after death of the lessee were entitled to the transfer of land.
7. The sale-deed executed by the District Collector, Jhang in favour of Mst. Sahab Bibi has been cancelled, the mother of petitioner under the Scheme was entitled to the transfer of the land measuring 100 Kanals. The petitioner though was not a lessee of the land but being legal heir of the original lessee was also entitled for the transfer of the land in his favour. On an application the District Collector has recommended the cancellation of the sale-deed executed in favour of Mst.
Sahab Bibi on 26-2-1996. The petitioner aggrieved of the order of District Collector, Jhang filed a revision petition before respondent No,2, Member, Board of Revenue who vide his order, dated 29- 4-2002 dismissed the same. Thereafter, the petitioner filed a review petition before said respondent No,2 which ,too met with the same fate on 31-10-2002. The learned counsel lastly argued that the legal heirs of the deceased Dost Muhammad, original lessee, were entitled for transfer of the land under section 19-A .Of the Colonization of Government Lands Act, 1912.
8. The learned counsel for the petitioner has further contended that the petitioner and his mother being legal heirs of Dost Muhammad, the original lessee, are entitled for transfer of the land in their favour. It is also contended that mother of the petitioner had deposited full price of the land and the conveyance deed was executed in her favour and after payment of full price the Revenue/Colony Functionaries are not empowered to cancel the sale-deed. He further contended that the father of the petitioner was in cultivating possession of the ,land and therefore, petitioner and his mother qualify for issuance of proprietary deed in their favour.
9. The learned Law Officer has vehemently opposed the arguments of the learned counsel for the petitioner and contended that the petitioner and his mother were not entitled for the allotment of the land under Cultivation Scheme and they were also not eligible for grant of proprietary rights.
The petitioner and his mother had acquired the proprietary rights of the land in dispute by concealing the facts from the Revenue Officers and the proprietary deed had been executed in their favour on the basis of fraud and misrepresentation and the Board of Revenue is empowered to cancel and resume the said land.
10. I have heard the arguments of the learned counsel for the petitioner and the learned Assistant Advocate-General and have also perused the record.
11. The conveyance deed for grant of proprietary rights of 100 Kanals of land each in favour of Muhammad Aslam and Mst. Sahab Bibi (his mother) out of the land leased out to the original lessee Dost Muhammad had been executed in their favour and on a complaint that Muhammad Aslam petitioner was owner of 393 Kanals, 5 Marlas of land is not entitled for purchase of leased land against his own rights and he was in illegal occupation of 906 Kanals of State land and he had also obtained proprietary rights of 178 Kanals of land under Dakheel Kari Scheme and it was also detected that at the time of execution of proprietary rights of the land in favour of the legal heirs of Dost Muhammad, the price of land according to Notification, dated 20-4-2000 had not been charged @ Rs,150 per cent. Per unit and the amount deposited by the legal heirs was short by Rs,31,250.
12. The original lessee of the land had died in the year 1980 and after his death the lease agreement was terminated automatically and no order of lease in favour of legal heirs of the lessee Dost Muhammad had been passed in favour of petitioner and his mother.
13. The Government had issued a Notification to grant proprietary rights in the State land under temporary lease to those lessees who were prepared to fulfil the conditions. The Board of Revenue had absolute discretion in the grant of such rights and selection of grantees.
14. Clause (3) of Notification No,1925-83/1253-CLI, dated 20th April, 1983 provided the eligibility for grant of proprietary rights which is reproduced as under:-- "3. Eligibility.-- No person shall be eligible for the grant of proprietary rights under these conditions unless-
(i) he is a lessee holding temporary cultivation lease of State land other than the land mentioned in Condition No,2 or land in Cholistan area;
(ii) he is either landless or owner of land less than subsistence holding; and
(iii) he has been in continuous cultivation possession of the said land since before Kharif, 1980."
15. Clause (4) of these conditions emerges the ineligibility for grant of proprietary rights which' enshrines that no person shall be granted proprietary rights of State land under these conditions if- -
(a) he is owner of land equal to or more than subsistence holding;
(b) he does not himself cultivate .The State land leased out to him; and
(c) he or any member of his family has already obtained a grant of State land under these conditions or under any other scheme issued by Government."
16. A perusal of clauses (3) and (4) of the said conditions make manifestly clear that no person is entitled for the grant of proprietary right of the leased land if he is owner of equal to or more than subsisting holding and also does not himself cultivate the State land leased out to him or has acquired land in any other Scheme.
17. In the instant case, it is admitted position that the original lessee of the land Dost Muhammad father of the petitioner had died in 1980 and his lease had been terminated forthwith and the lease in favour of petitioner and his mother has not been sanctioned by the competent authority, meaning thereby that the petitioner or his mother was not lessee of the land. Further the petitioner is a doctor by profession and his mother being a lady was not in self-cultivating possession of the land leased out to Dost Muhammad, the original allottee.
18.. It would not be out of place to mention here that the petitioner Muhammad Aslam had obtained the land measuring 178 Kanals, 4 Marlas in Dakheel Kari Scheme and he was owner of land more than the subsisting holding i.e, 100 Kanals. He was not eligible for' grant of proprietary rights under the said conditions.
19. When the original lessee Dost Muhammad died in the year 1980, Notification No,1925-83/1253- CLI, dated 20-4-1983 had not been issued by the Government and permission to purchase the proprietary rights in favour of original lessee had not been granted and he died as lessee of the land and not as grantee or tenant of the land. Section 19-A of the Colonization of Government Lands Act "envisages" that "when after the coming into force of the Colonization of Government Lands (Punjab) Amendment Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in section 20 to this Act shall be IG applicable to his case".
20. Section 19-A of the Colonization of Government Lands (Punjab) Act deals with the cases of tenant and no person could be treated as a tenant of the State land unless he has taken possession of the land with the permission of the Collector under section 10(4) thereof. In this context reference can be made to the case of Sharif Haroon v. Province of the Sindh through the Secretary, Government of Sindh and another PLD 2003 Kar.
237. The petitioner or his mother were not delivered possession by the Collector. The stand of the petitioner is that after the death of their father, different people have occupied the land left by the original allottee illegally.
21. There is no cavil with the fact that Dost Muhammad died as a lessee and not as a tenant or as grantee of the land so the provision of K section 19-A (ibid) are not attracted to the present case.
Furthermore, clause (10) of the statement of condition dated 20-4-1983 provides, that in the event of "death of the grantee before the payment of the entire price of State land granted under these conditions, the Collector shall declare immediately the legal heir/heirs of the deceased under the Act. The heir/heirs if declared eligible for the grant of these conditions shall pay the remaining amount of the price under Condition No,9.
22. As discussed above, the lessee died in 1980 and he was not granted right of purchase of proprietary rights and thus his legal heirs were not declared as "eligible", for the grant under these conditions and M in this behalf no order had been passed by any competent authority. Thus clause
(10) of the said conditions is also not applicable to the case of present petitioner.
23. The petitioner claims to be in possession of the land as a lessee and also declares him entitled for the grant of proprietary rights in respect of such land, no record is available on the file of this Court that he was delivered possession by the District Collector or that he or his mother was in self- cultivation possession over the land, which is a necessary pre-requisite for grant of proprietary rights under the said Notification. In this context reference can be made to the case of Hakam Dad v. Province of Punjab 2003 CLC 240.
24. After the death of lessee in the midst of period of lease, no order or transfer or possession having been passed under section 10(4) of the Colonization of Government Lands Act, 1912. The possession of the petitioner for left over period of lease cannot legitimate his possession.
25. The petitioner and his mother Mst. Sahab Bibi have not fulfilled the prerequisite for eligibility of grant of proprietary rights. They are neither the lessees as no order of lease after the death of Dost Muhammad had been passed in their favour nor they are in self-cultivating possession over the lease land. The petitioner Dr. Aslam has also acquired the land under "Dakheel Kari Scheme" and is owner of more than subsisting holding.
26. The above facts have not been disclosed by the petitioner or his mother while executing the proprietary rights by the Collector. It would mean that they have acquired the proprietary rights through fraud or misrepresentation and the conveyance deed issued in favour of petitioner and his mother had rightly been cancelled by the Board of Revenue- in exercise of the powers under section 30(b) of the Colonization of Government Lands Act, 1912, which emerges that "if at any time the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights from any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which, such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such persons a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit.
27. The learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the impugned order passed by respondents Nos.2 and 3.
28. It is also apparent that respondent No,2 while passing the impugned order has directed the Revenue Authorities for levy of "Tawan" on the petitioner. The petitioner or his mother has not occupied the land in dispute forcibly or illegally. Since their predecessor-ininterest i.e, Dost Muhammad the original allottee was in possession as lessee of the land and under the impression that they being legal heirs are entitled for grant of proprietary rights of the same, they continued their possession, after the death of original lessee of the land, the Revenue Functionaries did not take any legal action for resumption of the land from the possession of the petitioner. For the default of the Revenue/Colony Functionaries the petitioner cannot be penalized, therefore, the direction by respondent No,1 for levy of "Tawan" on the petitioner is set aside and with the above modification the impugned Is judgment/orders passed by respondents Nos.2 and 3 are maintained. As a result of the above, this writ petition being devoid of any force is dismissed in limine.