P L D 1981 Lahore 457 (PLP)

Ashraf respondent No. 4, Basbir Hussain respondent No. 5 and late Akram who is now represented by his successors-in-interest cited as respondents 6 to 10 were allotted land in question under the Abadkari Scheme on 13-2-1955. There were certain objections regarding the allotment. as the said scheme was no longer in force but subsequently the Board of Revenue decided to regularise the allotment in 1969. The allottees were given an option to accept the new conditions before regularisation could be made and on the acceptance of the conditions by the allottees on 4-12-1972 an order of regularisation was passed on 12-1-1973. On 3-9-1969 one Abdul Haleem Khan the father of respondents 4 and 5 acting under a . general power of attorney on behalf of the three allottees entered into an agreement with petitioner No. 3 for sale of the property for a value of Rs. 60,(.00.00. He received Rs. 22,000.00 as part payment and directed Nazir Ahmad who was tenant of the land to deliver the possession to the petitioners. The possession was then delivered to the petitioners and even entries were made in the revenue record to that effect. The petitioners are said to be in possession eversince.

2. On 19-11-1975 the said allottees gave a general power of attorney in favour of one Sadiq who made an application before the Collector in January 1976 to the effect that the allottees had been dispossessed illegally by the petitioners and prayed that the petitioners should be ejected. The Collector asked the E. A. C. O. to hold the enquiry and subsequently as a result of the enquiry and other proceedings before him, the Collector passed an order on 29-10-1977 that the petitioner should be ejected. It was observed by the Collector/D. C. Rahimyar Khan that the entries in the revenue record had been manipulated through the Patwari of the halqa. The petitioners were held to be in unauthorised occupation of the land as the permission under section 19 of the Colonization of Government Lands Act, 1912 had not been obtained by the petitioners. The appeal against the judgment was dismissed by the Additional Commissioner on 26-12-1977 and the Member, Board of Revenue dismissed the revision on 13-4-1978. The present writ petition was then moved and was admitted to regular hearing on 3-5-1978.

3. The learned counsel has argued that the transaction between the allottees and the petitioners is not hit by' section 19 of the Colonization of Government Lands Act, 1912 as the transaction was only an agreement of sale when the said section takes into account only a sale. - He has also argued that the, power of attorney in favour of Sadiq would equally be hit by section 19 as it practically transferred all the rights in favour of Sadiq through the guide of a general power of attorney. The learned counsel has also pointed out that in similar cases the Board of Revenue has granted permission under section 19 on account of the hardship that may result in the absence of the said permission. ?? ?

4. Whether the permission under section 19 should or should not have been granted was a matter entirely for the revenue authorities. It is enough to observe that in the present case the permission under section 19 has not been granted although no guidelines seems to have been laid down before permission under section 19 is granted. It is obvious that the considerations like the four walls of a particular scheme and the possibilities of misuse of a concession under a scheme will be relevant considerations before permission under section 19 is granted . ' As regards the arguments of the learned counsel that the power of Attorney given to Sadiq -is also hit by section

19. I am afraid I am not called upon. to give any opinion regarding that matter . as that matter is not in issue before me at this stage. .

5. The important question in this case is whether the provisions of section 19 are attracted in the present case. The petitioners themselves have stated" that an agreement was made with one Abdul Haleem regarding the) sale of this property and even a part payment was made and in consequence of 'the agreement the possession was delivered to the petitioners. This very much 1 amounts to a sale: It may also be seen that the terms of section 19 are quite wide . ' It forbids transfer any rights or interests vested in a tenant through) sale, exchange, gift, will, mortgage or any other private contract other than a sublease for not more than one year in the case of a tenant who has not acquired occupancy rights and 7 years in case of a tenant who has acquired the rights of occupancy. This leaves me in no doubt at all that the agreement between the petitioners and the allottees was hit by the provisions of section 19 of the Colony Act.

6. The learned counsel has also argued that the Collector was acting only ,under section 32 of the Colony Act, which is meant to deal with the cases only of trespassers and cannot be applied for the benefit of a private party. It is .stated that the petitioners 1 and 2 are tenants of this land and cannot be termed as trespassers. I am afraid under the amended provisions of Land Reforms Act, 1977, petitioners 2 and 3 cannot be treated as tenants. On the other band, the Collector in his order dated 29-10-1977 has very clearly held that the permission of the Commissioner under section. 19 had not been obtained. Section 19 itself gives the powers to Collector to eject a person who has been transferred the rights in violation of section

19. Whether the application initially moved before the Collector was made under section 32 or under any other provisions of law is not important because the Collector was competent to act in the circumstances of the case under any provisions of the law applicable to the facts of a case. The order of the Collector; therefore, did not suffer from want of authority.

7. The learned counsel for the respondents has argued that the authority of Abdul Haleem Khan to act on behalf of the allottees has always been doubted by the respondents. He has stated that the petitioners have failed to produce any power of attorney executed by the allottees in favour of Abdul Haleem and that even the very execution of the arguments is open to question. The learned counsel for the petitioners was pointed out that a civil suit has been filed by the petitioners in respect of the agreement of sale between the allottees and the petitioners. This question will be relevant for the purposes of disposal of the suit in order to determine the rights of the parties if any, that have been conferred on the petitioners in pursuance of this document. It is, therefore, not proper to comment on the authenticity of the document at this stage, nor do I think that it is necessary for the disposal of the present writ petition.

8. In view of the above considerations, it is clear that permission under section 19 was never granted. The petitioners were, therefore, in unauthorised occupation of land. The Collector was competent to order the ejectmen of the petitioners from the land. Whatever claim the petitioners may have against Abdul Haleem Khan under the document said to have been executed -by him , they may enforce it in a proper Court, but this will not affect the state who are the owners of this land, because the state was never a party to ' any such agreement or had granted permission for such a transaction under section 19 of Colonization of Government Lands Act, 1912. The writ -petition has no merit: It is dismissed with costs. Appeal dismissed.