' Facts giving rise to the present writ petition are to the effect that Thal Development Authority had introduced a scheme namely "Sheep and Poultry Breedings Scheme" under which a special tenancy had been created for the production of sheep and poultry in the new colony areas. The purpose of the scheme was giving an incentive inviting the farmers and the tenants persons for their rehabilitation and settlement in the territory of Thal Development Authority. In the year, 1953, the scheme floated and a resolution No.15 dated 7-6-1955 was passed by the authority, whereby it had been resolved that 42 lots be reserved for purpose of grant to the applicants under the scheme. The petitioner applied for the grant of tenancy but it was his misfortunate that his name did not reflect in the list of the allottees approved by the authority.
2. Nabi Bukhsh was one of those persons who were allotted the lot. The said allottee was disinterested in the tenancy and that is why he didnot take any step to obtain the possession of the tenancy granted to him. He had not applied for specific lot. However, his name did appeared in the list of the allottees.
3. The petitioner was also one of the applicants for the lot and resident of Chak No.94/TDA. District Layyah. He occupied the lot, which was ear-marked for that purpose under the impression that his application shall be accepted. On this misconception of the facts, the Revenue and Colony staff continued considering the petitioner as a tenant under the "Sheep and Poultry Breeding Scheme".
The petitioner had been depositing the yearly rent with the Department. The petitioner's possession could not be disturbed by the Thal Development Authority or by the allottee Nabi Bukhsh, who for the first time in the year 1962 filed an application for the delivery of possession of the lot which was under the possession of the petitioner, who had developed the same by installing "Tube Well" and he spent a hard labour and colossal amount to bring the suit land under cultivation.
4. The request of Nabi Bukhsh allottee for the delivery of possession after such a long time was declined by the Authority in the year 1962. The said Nabi Bukhsh again repeated an application praying the delivery of possession of the lot situated in Chak No.-94/T.D.A. Tehsil Layyah, which was under the cultivation of the petitioner. The matter came up before the learned Member Board of Revenue, who vide his order dated 12-9-1977 passed the following order:- "After thorough examination of the case the following decisions have been taken:--
(1) The request of Mr. Nabi Bakhsh son of Nathu for the delivery of possession and subsequent grant of proprietary rights after 25 years merits no consideration.
(2) Since Mr. Muhammad Hussain is in continuous possession of the lot for the last 24 years he cannot be ejected under the law at this stage. However, "Tawan" and rent for the period the lot remained under his unauthorized possession may be recovered according to rules, if not already.
(3) The official with whose connivance Mr. Muhammad Hussain managed to get forced entry made in the record should be proceeded against under the law and results intimated within a month.
(4) The petitioners may be informed accordingly.
5. The said Nabi Bukhsh filed another application before the Member Board of Revenue, Punjab, Lahore repeating the same prayerfor possession and also for issuance of proprietary rights in his favour. The Member Board of Revenue after hearing the parties, decided the application of Nabi Bukhsh vide his order dated 14-10-1980, whereby he observed that respondent/present petitioner had obtained possession of the lot in dispute by forgery and fraud. Similarly the subsequent order of the Board of Revenue dated 12-9-1977 regularizing his possession over the lot was also obtained in the same manner and the learned Member Board of Revenue rescinded the previous order of the Board dated 12-9-1987 directing that the petitioner be ejected from the lot in dispute in accordance with section 66 of the Thal Development Authority Act, 1949.
6. I have heard the arguments of the learned counsel for the petitioner as well as learned A.A.-G.
And perused the record.
7. There is an order/letter dated 12-9-1977 issued by the Board of Revenue, Punjab which is reproduced as under:-- From The Deputy Secretary (Colonies), Board of Revenue, Punjab.
To, ' The E.A.C.O. Leiah.
' Subject: Allotment of Sheep Breeding lot in Chak No.94/T.D.A.
' Reference: Your Urdu Robkar No.SC/PG/1168 dated 17th July, 1977 on the above subject: ' MR. A.K. KHALID MEMBER (COLONIES) BOARD OF REVENUE PUNJAB.
' Memorandum: ' After thorough examination of the case in the Board of Revenue, Punjab the following decisions have been taken:--
(1) The request of Mr. Nabi Bakhsh son of Nathu for the delivery of possession and subsequent grant of proprietary rights after 25 years merits no consideration and rejected.
(2) Since Mr. Muhammad Hussain is in continuous possession of the lot for the last 24 years he cannot be ejected under the law at this stage. However, "Tawan" and rent for the period the lot remained under his un-authorised possession may be recovered according to rules, if not already.
(3) The officials with whose connivance Mr. Muhammad Hussain managed to get forged entry made in the record should be proceeded against under the law and results intimated within a month.
(4) The petitioners may be informed accordingly.
2. As regards the grant of proprietary rights under the Government Policy is concerned, it has already been decided to confer proprietary rights against payment of present market price plus 10% surcharge on account of sale by private treaty vide memo. No.2463-76/2839/TH-IV, dated 22- 7-1976.
(Sd)
' Deputy Secretary (Colonies) Board of Revenue, Punjab.
8. From the bare perusal of above said order of the Board of Revenue, it is manifestly clear that un- authorized possession of the petiticiner had been admitted and he was not ejected and "Tawan" was imposed upon him and it was also decided by the Board that the proprietary rights be conferred against payment of present market price plus 10% surcharge on account of sale by private treaty. The delegatee of the Chairman from the date of possession of the petitioner over the lot in dispute had been accepting the lease money on yearly basis and the petitioner committed no fault in depositing the same. Presently no dues or price is outstanding against the petitioner. The member Board of Revenue while passing the impugned order has not pointed out any breach of any of the statement of conditions issued under section 30(3)(a) of the That Development Act.
9. The "Sheep and Poultry Breeding Scheme" had been enforced in the year 1952 and the Thal Development Authority invited the farmers and the tenants for their settlement in the vicinity of the Authority for the purpose of rearing up sheep and poultry. The petitioner had applied for allotment of one lot reserved in the said scheme but due to one reason or the other, his request was not acceded to. However, he occupied the land in dispute and uptil now, that is under his possession and the petitioner is cultivating the same.
10. The respondent No.1 in his impugned order had admitted that ejectment of the, petitioner was stayed vide order dated 29-8-1977 and with regard to the conferment of the proprietary rights, it was decided that the issues would be considered separately in the light of the Policy decision. In pursuance of the letter dated 12-9-1977, the petitioner deposited "Tawan" and also the market price of the lot at the rat of Rs.40 NU plus 10% surcharge on account of sale by private treaty. It is also admitted by the respondent himself that the petitioner has deposited the sale price of the land and it is a settled principle of law that after deposit of the sale, the land comes out of the ambit of Revenue/Colony functionaries as laid down in the cases of Faiz Ali deceased, represented by I. Noor Jan and others v. Mst. Rafia Jan and 2 others (PLD 1956 Lahore 94), Ibrahim v. Mst. Rajji and others (PLD 1956 Lahore 609), Ali Muhammad v. Mst. Rabia Bibi and 3 others (PLD 1971 B.J. 38), Sh.
Muhammad Sharif v. Inspector-General of Prisons, Punjab, Lahore and 3 others (PLD 1978 Lahore 15) and Bashir Ahmad and others v. Member Board of Revenue and others (PLD 1978 Lahore 1146). After deposit of the sale-price of the lot, the petitioner had become full owner and the land under his possession is not liable to resumption.
11. Statement of conditions under section 30(3)(a) of the Thal Development Act has been issued by the That Development Authority, wherein Clause 25 envisages as under:-- "If any person who after the commencement of the Thal Development Act, 1949, has been put in possession of land in colony as a tenant, shall have given false information intending or having reason to believe that any Office of the Government Thal Development Authority may be thereby deceived regarding his disqualification to become a tenant, he shall be deemed to have commuted a breach of the conditions of his tenancy: ' Provided that this section shall not apply to persons who have been in possession of a tenancy for more than three years or to any person who has acquired a right of ownership."
12. The alleged un-authorized occupation of the petitioner was already in the knowledge of Member Board of Revenue but despite that no dispossession order was passed by. The Board of Revenue rather it was directed that "Tawan" be imposed upon the occupants. It means that ununauthorized possession of the petitioner was regularized by the Board of Revenue.
13. The subsequent impugned order passed by the respondent rescinding the order dated 12-9- 1977 passed by Member Board of Revenue would mean the review of the order. The land in dispute is being cultivated in accordance with the provisions. Thal Development Act where the remedy of appeal is provided, but no provision of review is available in the Act.
14. The remedy of appeal has been provided in Thal Development Authority (Colonization)
(Appeals and Revision) Rules, 1973. Rule 4 provided that an appeal shall lie from an original or appellate order:--
(a) to the Collector when the order is made by an officer exercisingthe powers of Assistant Collector of either grade or Secretary, Thal Development of either grade or Secretary, Thal Development Authority or Estate Officer or Land Control Officer of Land Acquisition Officer;
(b) to the Commissioner when the order is made by the Collector or Colonization Officer, Thal Project Colony;
(c) to the Board of Revenue only on a point of law when the order is made by the Administrator or the Commissioner either as a delegatee or otherwise or Chairman, Thal Development Authority;
(i) when an original order is confirmed on appeal by the Collector, the order made by the Commissioner on further appeal if any, to him shall be final.
' Rule 6 further emerges that the Board of Revenue, may at any time, call for the record of any case pending before, or, disposed of by the Administrator, Thal Development, or by any other revenue officer subordinate to it and pass such order as it may deem fit.
15. From the perusal of the above rules, it is manifestly clear that the Board of Revenue is empowered to hear an appeal only on point of law, when the order was passed by the Administrator or the Commissioner as a delegatee or otherwise or Chairman. The Board has rescinded its earlier order which means it has reviewed its order and neither in the Act nor in the rules the requirement is provided. The passing of the impugned order by the Board of Revenue tantamounts to review which is excess exercise of powers by the Authority and such like order which is barred by jurisdiction, without lawful authority is not maintainable, hence liable to be quashed.
16. The powers of Authority in case of squatters and trespasses has been conferred upon Chairman of the Authority. Section 66 of the Thal Development Act empowers that when the Chairman is satisfied that any person has taken or is in possession of land comprised in any scheme, or any other land owned by or vested in the Authority, to which he has no right or title, the Chairman, or any person authorized by him in addition to any other powers he may possess, may forthwith, with the use of such force as may be necessary, re-enter upon the land, and resume possession of it and take possession of all crops, trees and building thereon on behalf of the Authority without payment of any compensation whatsoever. Power under section 66 of the Thal Development Act, 1949 was available with the Chairman of the Thal Development Authority. After dissolution of the Thal Development Authority, Chief Secretary, Punjab was appointed as Administrator of the Thal Development Authority in terms of section 81 of the Act. It means that the Administrator was empowered to delegate any of his power to any authority or Officer subordinate to the Provincial Government or any person empowered under section 66 and in exercise of such powers, Administrator has delegated his power to E.A.C.O. Layyah. The Board of Revenue has not been empowered by the Chairman to exercise any of the powers or function of the Chairman of the Authority or the Administrator.
17. It is admitted position that petitioner Muhammad Hussain is in possession over the lot in dispute since the days of the introduction of "Sheep and Poultry Breeding Scheme" in the area of Thal Development Authority and has not been ejected/dispossessed by any officer of the Authority or any other Revenue Officer. After the expiry of about five decades it would not be appropriate and in the interest of justice to oust the petitioner from the lot and deprive him of his livelihood. It is fundamental responsibility/obligation of the Islamic State to provide bread and butter to every member of his subject and if for the sake of arguments, the petitioner is ejected from the land at this stage, it will revert to the Provincial Government or the Authority and ultimately it would be allotted to some eligible citizen of the country and ends of justice demands that if the land is to be allotted to some other citizen, it should remain with the present occupant, who has already spent most of the time of his life in cultivating and increasing the category of the land.
18. For the foregoing reasons, this writ petition is accepted. Resultantly, the impugned orders dated 14-10-1980 passed by the respondent is set aside. E.A.C.O. Layyah is directed to issue proprietary rights in favour of the petitioner provided he fulfills terms and conditions of the statement of conditions issued by the Thal Development Authority.