1994 PLP 975 (SCMR)

SHAPIUR RAHMAN, J: ‑‑The petitioner/Government of the Punjab seeks leave to appeal against the judgment of the Lahore High Court dated 22‑2‑1992 interfering in the matter of determination of entitlement to conferment of proprietary rights under the Colonization of Government Lands Act, 1912.

2. The respondent/tenant had been allotted land on temporary cultivation scheme which had to be resumed and thereafter he was settled on alternate land. When the question of conferment of proprietary rights to such tenants arose, the respondent was held not entitled to it on the ground that his allotted land fell within the prohibited zone and secondly it was excluded from allotment on the basis of being a part of `KHUSK BIAS' river. On both these points the instructions of the Board of Revenue existed. As regards the prohibited zone, the instructions were that the distance should be measured as required when the allotment was made and not as when the proprietary rights are conferred. On this test, the allotment of the respondent was beyond three miles limits then applicable to him when he got the allotment but within five miles i.e., with the limits when he was to be given proprietary rights. The Collector applied the latter. On the second question the Collector was required to exclude in consultation with the WAPDA authorities an area of 500 feet while running along the `KHUSK BIAS' course. This consultation the Deputy Commissioner had not had with the WAPDA authorities.

3. These defects in determining and deciding the jurisdictional facts would certainly have attracted the jurisdiction of the High Court and required interference. However, the High Court could not have itself recorded a substitutive finding or declared the respondent entitled but the matter should have been remanded to the designated authority. With this object in view, we wanted to ascertain from the learned counsel for the petitioner as to what was the correct existing position. The learned counsel for the petitioner has informed us that on the second question the following instructions had been I issued by the Board of Revenue on 8‑6‑1988:‑‑ "Matter regarding allotments/conferment of proprietary rights in respect of State Land falling in Sukh Bias River `beod' in violation of provisions of clause 7(2) of the General Colony Conditions issued in 1938 has been considered and it has been observed that the said River is no longer in flow and its bed is now available State land. The dislocation of existing lessees/grantees at this State is therefore unnecessary. The Board of Revenue is, therefore, collecting the data from the field and will take up the issue for regularization on case to case basis."

4. As regards the first question, the instructions of the Board of Revenue are already in existence. On setting aside of the order of the Collector disentitling the respondent, the petitioner is entitled to be considered in accordance with law. Therefore, the jurisdictional question does not require further examination in this case.

5. In the circumstances, leave to appeal is refused. AA./P‑226/S