P L D 1964 (W (PLP)

ANWARUL HAQ, J.‑The petitioner Shahab Din was granted eight Killas of Government land in 1956, under the Ejected Tenants Scheme in Chak No. 103/9‑L, Tehsil and District Montgomery. In 1961, respondent No. 2, Abdur Rehman, applied to the Collector Montgomery for the cancellation of the petitioner's grant on the ground that the petitioner was the owner of 15 acres of proprietary land and was, therefore, ineligible for grant of land under the Ejected Tenants Scheme. The learned Collector rejected the respondent's application on the ground that the land was purchased by the petitioner after the original grant was made to him and therefore it did not affect his eligibility under that Scheme. The respondent's appeal was also dismissed by the Additional Commissioner (Revenue), Multan Division. The respondent, however, did not leave the matter there and went up in revision to the Board of Revenue. The learned Member Board of Revenue has come to the conclusion that the petitioner was not eligible for a grant under the Ejected Tenants Scheme and he, therefore, cancelled his allotment under that Scheme. The petitioner applied for a review of this order but with no success. By means of the present writ petition, the legality and correctness of the order passed by the Member Board of Revenue is sought to be challenged on the following grounds: (a) That the learned Member Board of Revenue has erred in law in holding that the grant under the Ejected Tenants Scheme was on a yearly basis, and that it could be cancelled at the end of the year if the tenant had become disqualified during that period ; (b) that under the Ejected Tenants Scheme of 1960, even persons owning up to 25 acres have been made eligible for acquiring proprietary rights in the land granted to them under the Scheme and, therefore, the petitioner cannot be said to be disqualified for holding the grant ; (c) that no notice under section 24 of the Colonization of Government Lands Act V of 1912, was given to the petitioner before his land was cancelled ; and (d) that in any case the petitioner is protected under section 16 of the Colonization of Government Lands Act, as he has been in possession of the land for more than three years and cannot be ejected.

2. We regret we do not find any substance in any of these contentions. The land was granted to the petitioner under the 1956, Scheme for the resettlement of ejected tenants. In paragraph 2, which deals with conditions of eligibility, it is laid down, inter alia, that a tenant who owns or is an allottee under the Rehabilitation Settlement Scheme of three acres or more of agricultural land is ineligible for a grant under this Scheme. Now, although in the petition it is alleged that the petitioner had acquired 15 acres of proprietary land after obtaining the grant under the 1956 Scheme, yet in the order passed by Mr. A. M. K. Leghari, the learned Member Board of Revenue, on the 29th of March 1963, it is clearly stated that it stands proved from the petitioner's own statement recorded by the Colony Assistant, Montgomery on the 30th of May 1961, that he had acquired 15 acres of land in Chak No. 60/E.B., Tahsil Bhakkar a few years before he obtained the grant under the Ejected Tenants Scheme. The learned Member Board of Revenue has also referred to a fard taqseem which shows that the petitioner had acquired the 15 acres on the 28th of August 1954. It is, therefore, clear that the petitioner was not eligible for the grant of land under Ejected Tenants Scheme. The Scheme clearly contemplates, In paragraph 4 thereof that the lease shall be only for a period of one year with effect from Kharif 1956. Thus even if the petitioner had not been ineligible for a grant under the 1956 Scheme his tenancy would have come to an end after Rabi 1957. A new Scheme was promulgated in 1957, and practically the same conditions were repeated. It is true that the petitioner continued to hold the grant, but in fact it was a fresh grant under the 1957 Scheme. Then came the 1958 Scheme which again pro ceeded on the same terms and conditions and in paragraph 4 (a) of this Scheme it was laid down that the lease shall be only for a period of one year with effect from Kharif 1958, but may be continued from year to year until such time as Government takes a final decision in regard to the permanent disposal of such lands or there is a serious breach of conditions of the lease. In clause (b) of the same paragraph it was further contemplated that the lessee shall have no option to renew the lease, but Government may renew it on annual basis on such terms and conditions as may be deemed necessary. It is clear from the stipulations in the successive Schemes of 1956, 1957 and 1958, that the tenancy was only on a yearly basis arid was to be renewed every year. The learned Member Board of Revenue has, there fore, rightly held accordingly.

3. No Scheme has been placed on the file regarding the year 1959, but a letter has been placed on the record, dated the 8th of October 1960, issued by the Secretary to the Government, West Pakistan, Revenue and Rehabilitation Department, laying down that the Government of West Pakistan is pleased to accord sanction to the grant of proprietary rights to the allottees of the State land under only the Ejected Tenants Scheme sanctioned by the Government from time to time till 1958, subject to certain conditions., Clause (iii) of condition No. 1 lays down that persons owning more than 25 acres of irrigated and 50 acres of unirri gated lands shall be excluded from being eligible to acquire the proprietary rights under the Scheme. On the basis of this clause it has been contended by Malik Saeed Hasan that the petitioner was eligible riot only to retain the land granted to him but also to acquire proprietary rights therein by virtue of this letter of the October 1960. The learned Member Board of Revenue has observed that this clause cannot be interpreted to mean that persons who owned more than three acres of land and were ineligible to obtain the initial grant under the Ejected Tenants Scheme would also be allowed to continue in their grants and to acquire proprietary rights, for, in his view, these persons being initially ineligible cannot be said to be qualified under the previous Schemes. We are inclined to agree with him. Under the 1956, 1957 and 1958 Schemes land was to be granted to the tenants who did not own more than three acres of land, but the petitioner admittedly owned 15 acres of proprietary land and was, there fore, clearly ineligible for the grant of land under any of the Schemes. The letter of 1960, is not by itself a Scheme for the grant of land to ejected tenants, but proceeds on the basis of the previous Schemes and gives certain rights to tenants who are validly holding land under the previous Schemes. We are clearly of the view that this letter is not intended to perpetuate the holding of land by a person who was initially ineligible under the earlier Schemes. If, however, the petitioner had been eligible under the earlier Schemes of 1956, 1957 and 1958, but after 1958, he had acquired land more than three acres he might perhaps still be entitled to the benefit of the letter of 1960, but right from the start the petitioner was ineligible for grant under the Ejected Tenants Scheme and cannot, therefore, perpetuate his holding under the terms of the letter of the 8th of October 1960.

4. As regards the contention that no notice was given to the petitioner under section 24 of the Colonization of Government Lands Act, it is clear that when the petitioner was summoned by the Collector for the first time on the application made by the respondent No. 2, that was in the nature of a notice under section 24 of the Act and all subsequent proceedings in the Court of Additional Commissioner (Revenue) and before the Member Board of Revenue are a continuation of the proceeding thus initiated.

5. We now take up the last contention, namely, that the petitioner is protected under section 16 of the Colonization of Government Lands Act V of 1912. This section is in the following terms:‑ "If any person who after the commencement of this Act has been put in possession of land in a colony as a tenant shall have given false information intending or having reason to believe that any officer of the Crown may be thereby deceived regarding his qualifications to become a tenant, he shall be deemed to have committed 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."

6. It was contended that at the worst the case against the petitioner is that he gave false information with regard to the extent of his proprietary holding and thereby deceived the Collec tor into giving him a grant under the Ejected Tenants Scheme, but as he has been in possession of the land for more than three years the proviso to section 16 comes into play and the petitioner cannot be ejected. The argument is untenable for the reason that the tenancy in the petitioner's case was a yearly tenancy under the Schemes which were successively promulgated in 1950, 1957 and 1958, and whether the petitioner gave correct or falser information with regard to his proprietary holding the grant came to an end every year unless it was renewed by the autho rities. The Scheme of 1958, which is the latest in the field, also contemplated that the tenancy had to be renewed every year. Thus it cannot be said that the petitioner continued in posses sion of his tenancy for more than three years at any time, as by operation of the conditions of the grant, his tenancy came to an end every year and was renewed thereafter. Thus this is not a case of the petitioner being in possession of a tenancy for more than three years. In other words, it seems to us that the proviso would come into play in the case of a tenancy whose term extends to three years or more not to yearly tenancies which have to be renewed from year to year, and which come to an end if not renewed. Thus, the petitioner was not protected under the proviso to section 16 even though he continued in possession for more than three years under a tenancy which was renewed from year to year.

6. For the reasons given above we consider that there is no merit in the petition which is dismissed in limine. A. H. Petition dismissed in limine.