P L D 1968 Lahore 1155 (PLP)

QADEERUDDIN AHMAD, A. C. J.‑

This judgment will also dispose of Writ Petitions Nos. 1059 to 1062, 1303, 1441 to 1443, of 1964, 1973 of 1965, 363, 714 of 1966, 1746, 1780, 1840 of 1967 and 58 and 298 of 1968, because common questions arise in them.

2. In order to understand the full significance of the disputes, it is necessary to refer to the history of the steps that were taken in aid of a Grow‑More‑Food campaign. This campaign was started by the Government of West Pakistan in November 1956 by formulating a Scheme and working it out to induce the people to grow more food. The inducement included the provision of opportunities for doing so by leasing out all available State land from Rabi, 1956‑

57. The initiative was taken by the Board of Revenue (Colonies), West Pakistan, who issued a letter and a telegram for this purpose. The gist of the Scheme can be said to be as follows:‑ (1) Land should be leased out in compact blocks, not exceeding a certain area. (2) Only food grain crops should be grown on such land. (3) All State waste lands except those the clearance and breaking of which might accelerate erosion and deplantation should be leased. (4) The leases should be cancelled if the lessees failed to cultivate the land. (5) The leases should be given for a prescribed number of years. (6) The leases should be terminated without compensation, except for standing crops, if the land is required for other public purposes. (7) No rent in cash or kind should be charged for a certain initial period.

3. For purposes of putting the above Scheme into practice, the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act), was utilized because a notification had already been issued under it on the 22nd of September 1944, containing the terms and conditions applicable to temporary cultivation leases. That notification was issued in exercise of the powers conferred by section 10 of the Act. It became the basis for working out the new Scheme, but modifications were made from time to time as the Scheme was implemented.

4. The period of the leases which were granted in 1956 was three years but possession of the lands was delivered to the lessees in 1957. Some of the terms which were laid down in 1956 were changed in 1957 but the period of leases was not altered. In 1958 it was increased from three years to five years. In 1959 instruc tions were issued that "every lease granted under the Grow More Food Scheme would run its full tenure of five years, whether granted with effect from Rabi, 1956 or from any sub sequent harvest".

5. While the lessees were working on the lands which were given to them, the Government was considering the question of granting proprietary rights to them apparently with a view to encourage the lessees to exert themselves to their full capacity for making the Scheme a success. There is no doubt that several aspects of the Scheme were not clear in the beginning and had been left out to be clarified according to the changing needs of the situations. On the 8th of August 1962, further instructions were issued by the Secretary (Colonies), Board of Revenue, West Pakistan, in the form of a memorandum. Some of the conditions are as follows:‑ "

1. All bona fide `Grow‑More‑Food' lessees of 121 acres who are self‑cultivators or small holders (self‑cultivators), owning up to 121 acres of their own, whether cultivating through tube‑wells, open wells, canal water or otherwise whose term has expired in Rabi, 1962 or will expire in subsequent years would be given the concession of sale by private treaty. 2.

3. The concession of sale by private treaty does not apply to leases which have terminated in Rabi, 1961 or earlier, whether the same lands are now cultivated by the same persons or others on temporary cultivation basis. Such lands will be included in the Schedule of auctions.

4. The concession of sale by private treaty does not apply to leased areas lying within 5 miles of the outer limits of a Mandi town or a municipality or within 1 mile of a Railway Station. Such lands will be sold in open auction and should be included in the Schedule.

6. About the same time the Government decided to confer proprietary rights on the lessees who held lands under the Grow‑More‑Food Scheme, subject to the condition that the lands of such lessees were not selected for purposes of rehabilitating those persons who had been uprooted by reason of the projects of WAPDA. This decision created a new expectancy and a new hope among the lessees of Grow‑More‑Food Scheme. Side by side with this, changes were being made in the conditions of the Grow‑More‑Food Scheme. In this connection, the Advocate General has laid emphasis on the letter of the 8thof October 1962, issued by the Colonies Department of Government of West Pakistan, and drew our attention to the following portion of it:‑-- "The Government of West Pakistan has considered the various representations received from time to time from the Ex‑Grow‑More‑Food lessees and is pleased to re‑emphasise once again that the Ex‑Grow‑More‑Food lessees who were given lands in 1936 in food leases which expired in 1961 should not be given proprietary rights and, therefore all those lands whose leases expired in 1961 should be included in the auction schedule." The purpose of the Advocate‑General in referring to the above contents of the letter was to draw a distinction between the expression "in 1961" used in the above quotation and the expression "in Rabi, 1961" used in the above‑quoted condition No. 3 of the memorandum dated the 8th of August 1962. We shall consider this aspect later. At present, we wish to refer to the last set of instructions also which were issued by the Board of Revenue, West Pakistan, dated the 22nd of October 1962. This is the memorandum on which the petitioners have relied. The portions on which emphasis has been laid on their behalf are as follows: "The Government of West Pakistan have decided to dispose of all State lands in the old Colony districts by auction. Some of the State lands had been given on leases in connection with the "Grow‑More‑Food" Campaign. In such cases it has been decided that the State land should be sold by private treaty to bona fide" Grow‑More‑Food Lessees of 12 acres, the maximum upper limit being 13 acres, who are self‑cultivators or small holders (self‑cultivators owning up‑to 122 acres of their own) whether cultivating the land through tube‑wells, open wells canal water or otherwise whose term has expired in Rabi, 1962 or will expire in subsequent years. Whether a lessee is entitled to the concession of sale by private treaty or not under the above scheme shall be decided by the Collector.

4. The lessee entitled to the concession of sale by private treaty shall make the advance payment of 25 % in lump sum by the end of June or December next following the determination of his eligibility as such by the Collector. Failing this payment, his right to sale by private treaty shall be lost. The agreement for sale shall be executed after the advance payment has been made and the grant shall be deemed to commence from the date of execution of the said Agreement and the falling due of subsequent installments shall be calculated from that date." In the first paragraph of the above quotation it is provided that proprietary rights were to be transferred by private treaties to those who satisfied the conditions. But in this connection some of the words which occur in the above paragraphs should be noted. They are "the lessee is entitled", "the concession of sale", "right to sale", "in Rabi, 1962" and "the grant". They have been utilized by counsel for the parties during their addresses in support of their respective points of law.

7. In pursuance of the provisions for transferring proprietary rights by private treaties, grants were made to some of the lessees by the Department. It appears that those grants were made by calculating the period of the leases from 1957 when possession was delivered to the lessees. This was apparently not according to the views held by the Board of Revenue, who issued a clarifica tion on the 21st of November 1963, as follows:‑ "It has been noticed that some confusion prevails in the minds of the local officers with regard to the reckoning of the period of five years for the purpose of granting proprietary rights to the lessees under the Grow‑More‑Food Scheme. The Board of Revenue, West Pakistan, have therefore, observed that the period of the lease of all such lessees will be reckoned from the date of allotment and not from the date of possession. You are, therefore, requested to keep these instructions in view strictly while scrutinising their allotments for allowing proprietary rights as requested in this office endorsement No. 1802/63‑CG‑III, dated the 9th September 1963." The effect of the above clarification was that a number of those lessees who were or could be granted proprietary rights were held ineligible to get them. These constitutional petitions have been filed in order to obviate this adverse effect.

8. These are only some of the petitions which were fixed for hearing before us. We invited counsel, who were appearing in all of them, to address us on legal aspects so that they could be determined, as far as possible, satisfactorily to all, leaving, out of consideration the disputes, that some of the learned counsels were inclined to raise, with respect to facts. Messrs Sh. Abdur Rashid, Azim‑ud‑Din Khan, Parvaiz Akhtar, Sharif Baqir, Sh. Abdur Rahman, Saeedul Hasan and the Advocate‑General nave accordingly addressed us.

9. The contentions which were raised on behalf of the petitioners can be summarized as follows:‑ (1) The Rabi crop is sown in November and is reaped in April. The period, therefore, covers parts of two calendar years and reference to the crop is made by mentioning the year in which it is reaped. Thus, Rabi of 1962 means the crop sown in the months of November or December 1961, and harvested and removed in April or May 1962. (2) The five‑year period of the leases should be computed from the year in which possession of land was delivered; i. e., 1957, and not from the year when allotments were made and leases were granted, i. e., 1956. According to them, the letter of the Board of Revenue dated the 21st of November 1963, which contains instructions to the contrary is ultra vires of the Board of Revenue. (3) The lessees are entitled to the transfer of proprietary rights provided they fulfil the terms and conditions which were laid down for this purpose. In other words, the Board of Revenue was bound to transfer those rights according to the Scheme and could not refuse to do so as if the transfer was to be made ex gratia.

10. The above contentions were disputed on behalf of the respondents but, in addition to disputing them, the Advocate General argued that the petitions were not maintainable, firstly because the petitioners had no locus standi to make the petitions as they had no vested right to claim the transfer of ownership and, secondly, because an adequate remedy by way of suits was available to them.

11. We take up the last‑mentioned contention of the Advocate‑General because its object is to question the jurisdiction of this Court. The second part of his contention that is the petitioners had an adequate remedy by way of suits is more important from this point of view. In this connection, we should note that some of these petitions were filed in 1964 but no counter affidavits have been submitted on behalf of the respondents and no preliminary objection was taken to their maintainability until the addresses on behalf of the petitioners were concluded. The delay in raising the objection has resulted in the pendency of these ‑petitions for several years. The consequence of this delay is that if the objections were now to be upheld, all the time that has been spent till today will have to be written off as wasted, and fresh proceedings will have to be commenced by the petitioners over again. This consideration itself, to our minds, is enough to defeat the objection, but the Advocate‑General insisted on it by urging that the jurisdiction of this Court was in question therefore the considerations of delay were immaterial. He cited Mahboob Ali Malik v. The Province of West Pakistan and another (P L D 1963 Lah.575) to explain the scope of Article 98 of the Constitution and we have found in that authority the following observation at page 579 which is against the respondents :‑ "If, therefore, relief of the requisite kind and to the requisite extent is available under another remedy, and the adequacy of the other remedy is to be determined with reference to a comparison of the speed with which the relief would be available under that remedy or under Article 98, the comparison must be based on a consideration of an intrinsic advantage of speed, if any, that this Court may have in respect of the kind of determination that is to be made in a particular category of cases. If for example the decision depends on a point of law alone, which in any case will have to be decided by this Court finally, will it not be speedier, if this Court did straightaway what it anyhow would be called upon to do later?" The answer to the above question for purposes of these petitions must be in the affirmative because, as mentioned above, we are considering legal aspects only. In addition to this authority there is a direct answer to the objection of the Advocate‑General in Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another (P L D 1966 S C 639). That was a case in which certain problems relating to the same statute which is now under considera tion were before the Supreme Court and an objection was raised as to the adequacy of an alternative remedy by way of a suit. That objection was disposed of by their Lordships as follows:‑- "In our view, when the relief sought for is by its nature which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub‑Article (2) of Article 98, then the intention of the Constitution appear to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the law, then, a suit and not the extraordinary remedy under Article 98 should be the appro priate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. Applying these tests to the present case we cannot help observing that what the appellant really wanted was the per formance of a public duty, namely, that the authorities seeking to cancel its grant should proceed in accordance with law, namely, the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made. The main question in issue between the parties in this case was as to whether a valid grant of the land in dispute had been made to the appellant." The main dispute in that case was about the correctness of the description of the land which was granted and their Lordships found that it was a fit question for being determined under Article 98 of the Constitution rather than by a suit. We accord ingly overrule the second part of the preliminary objection of the respondents.

12. The first part of the contention of the Advocate General and the third contention of counsel for the peti tioners can be disposed of together. The Advocate‑General argued that the petitioners had no vested right in the land or in getting the land; therefore, they had no locus standi to question the orders by which their applications for transfer of proprietary rights were dismissed. He found support for this view in two judgments of a Division Bench of this Court, one of which is an un reported decision in Writ Petition No. 684 of 1960 and the other in a reported case in Raja and others v. Member Board of Revenue and another (P L D 1967 Lah. 329). In the first case, their Lordships have examined the contention, which was raised on behalf of the petitioners in similar matters as these presents, that the lessees had a vested right to negotiate with the Government for the purpose of the transfer of the land which had been leased to them under the scheme. This contention was overruled, firstly, because right to negotiate only could not help the petitioners to get redress under Articles 98 of the Constitution; secondly, because the memoranda issued by the Board of Revenue were "entirely in the nature of departmental instructions addressed to the revenue officers and cannot be read even as press‑notes for public information." The conclusion which was drawn from this analysis was that It is inconceivable that the petitioners can claim any legal or vested right, on the basis of the memorandum of August 1962, as enforceable by means of a writ. The concession, as observed already, offered by the Government was entirely ex gratia and if for any reason, even though such reason may be mistaken, the Government or its functionaries choose not to negotiate for the sale of the land to the petitioners, the Government cannot be compelled for the specific performance of the instruction contained in the memoranda." The same point of view has been explained in the second judg ment as follows:‑-- "Furthermore, the memorandum of the 8th of October 1960, which is the foundation of the petitioner's claim, cannot be read as conferring upon grantees of land under the Ejected Tenants Scheme an absolute right to claim the transfer of the proprietary rights in the land even if they fulfilled the conditions laid down in the memorandum. It merely makes them eligible for the grant and it rests entirely with the Provincial Government whether or not to accept their option for the grant of proprietary rights in the land. In other words, option exerciseable by the eligible tenants is open to acceptance or rejection by the Government and it would be erroneous to read the memorandum so as to make the option exercise by an eligible tenant as absolute and binding leaving no choice to the Government." On the above considerations the Division Bench declined to give relief to the petitioners under Article 98 of the Con stitution.

13. There is a contrary view also which has been expressed by another Division Bench of this Court in an unreported judg ment in Petition No. 117 of 1964. That was a similar case and the memoranda issued by the Board of Revenue with reference to the Colonization of Government Lands (Punjab) Act, 1912, were in question. Their Lordships came to the conclusion that‑ "the petitioner was entitled to acquire proprietary rights in the land in dispute according to the terms of the Board of Revenue's letter dated the 8th of August 1962." In this judgment there is no discussion of legal right, vetted right, absolute right, eligibility to negotiate, an ex gratis grant or concession, but the learned Judges have proceeded on the assumption that the instructions iss4ed by the Board of Revenue had the force of law and that the petitioner who felt aggrieved by their violation could get redress under Article 98 of the Constitution on the ground that the refusals to grant proprietary rights was without lawful authority and of no legal effect.

14. With utmost respect we wish to draw a distinction between the concept of English High prerogative writs and the considerations which are applicable to petitions made under Article 98 of the Constitution on the other hand. Unlike the English law, the latter are governed mostly by express provisions. For instance‑the Article lays down in sub‑clause (a) of clause (2) that a High Court can make an order "on the application of and aggrieved party", declaring that any act done or proceeding take was done or taken without lawful authority and was of no legal effect. In this provision the existence of a vested legal or absolute right finds no place. The point for consideration under it is whether the applicant is an aggrieved party or not. It is obvious that he can be an aggrieved party if under law he is entitled to a certain benefit or treatment which is refused to him.

15. We cannot do better for explaining our point of view than reproduce a paragraph from a judgment of a Division Bench of this Court in The Montgomery Flour and General Mills Ltd., Montgomery v. Tote Director, Food Purchases, West Pakistan and others (P L D 1957 Lah. 914), Kaikaus, J. has explained in it that the powers conferred on a public officer to pass orders that may benefit or harm a citizen give a right to the citizen to question their exercise because it is the right of every citizen to get these things done which affect his interest in accordance with law. He has explained that a citizen becomes affected by an act or omission if lie loses some benefit or advantage which he would have gained if the order had been made in accordance with the law. This emphasis on the observance of later excludes the idea of an officer doing a favour to a citizen when he makes an order in accordance with law and justice. The right of the citizen "in this context is the right to get a benefit or to protect himself against a loss by Insisting that the law should be noted upon. This right is wider in its connotation than the ordinary conception of the word because it includes liberties also. His Lordship's own words are as follows:‑-- "There is an objection to the maintainability of this petition which we have to notice. In the reply filed by the respondents, it has been contended that the petition is not maintainable because the petitioner has no `legal right' to the quota of sugar, the word `right' being used in the strict sense of the word in which sense it only means a proprietary or personal right and its correlative is a duty. This objection, which is based probably on the requirements of English law for a writ of mandamus, is altogether without force. The powers of Pakistan Courts while acting under Article 170 of the Constitution of Pakistan are not circumscribed by any requirements of English law as to any particular form of writ. It is true that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that in a matter in which he is concerned an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. if the officer concerned passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition for a writ or direction under Article

170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be `affected' even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a `right' in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely etc., are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call `liberties'. In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ petition. One of them, the right to acquire property, is involved in the present case, and one way of looking at the matter is that the right of the petitioner to acquire sugar has been infringed and, therefore, he is entitled to maintain this petition." The above‑mentioned judgment was referred to, with approval, by the Supreme Court in Ikram Bus Service v. Board of Revenue and others (P L D 1963 S C 564) and it was observed that:‑-- "Even an administrative body such as an R. T. A. is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law."

16. The last‑mentioned two judgments were delivered under the late Constitution and the Laws (Continuance in Force) Order, 1958. The law has subsequently developed distinctly in favour of that point of view. Article 2 of the present Constitution recognizes that it is the right of every citizen that he should "be treated in accordance with law and only in accordance with law". This right is described in the Article to be "the inalienable right of every citizen". Reading this provision with the provisions of Article 98 of the Constitution, we are led to the conclusion that a party who stands to gain a benefit or advantage by the observance of law can consider itself to be an aggrieved party if the law is not observed and thus it stands to be deprived of that benefit or advantage. In this view of the matter, we are not able to see the problem from an angle which. may give to the observance of law the look of an ex gratia act.

17. It will not be out of place if we advert to the meaning of the expression "ex gratia" because it has been used in this connection by a Revenue Officer as well as by the Advocate General in his address. The expression literally means "out of, or as a matter of, grace". The word "grace" here means "favour". The Advocate‑General said that transfer of proprietary rights to the lessees was a favour because the lessees were to get these rights without paying consideration for them. According to him they had no enforceable claim. There was a provision, he said, to transfer the rights to them, but it was un enforceable in law like an agreement to make a gift. This point of view, to our minds, has an entirely wrong angle.

18. The scheme and all transfers to be made under it are for the benefit of the State. All the wealth, assets and resources of the country vest in the State for the benefit of the citizens, because we are a Republic (See L R (1866‑7) 2 Chancery Appeals 582 at p. 587). They are not the property of any individual. It follows, therefore, that nobody has a right to squander away the national wealth, nor to gain private advantage by making gifts out of it, irrespective of whether the advantage is substantial or sentimental. The State can give presents as well as make gifts, but they must be given or made for the advantage of the citizens the state or the State itself which is the paramount organisation of the citizens; otherwise such acts would amount to misappropriation of the property of the State. The State has policies, objectives, rights, interests, obligations and duties but no mere sentiments, with the result that there can be no sentimental transfers which do not serve the State in the advancement of any of one or more of its purposes. We cannot, therefore, accept the argument of the Advocate‑General that the transfer of rights in the leased lands was like a gift made by an individual without any purpose of the State. If we are right in holding this view then, in this case, the transfer of rights was to be made in furtherance of the scheme of the State to encourage the inhabitants of the country to grow more food and thus to advance a policy of the State. The fulfillment of the conditions of the Scheme, therefore, made it incumbent on the State that the law be thus honoured. Was the Scheme and its conditions a law ?

19. In our view the instructions issued by the Board of Revenue in connection with the allotment of, and transfer of proprietary rights in, the land had the force of law and were H not mere departmental instructions issued internally for the information of the Revenue Officers. We think that we are fortified in taking this view by the fact that the original instructions described as the Statement of Conditions Governing Temporary Cultivation Leases which were issued on the 22nd of September 1944, were expressly issued under subsection (2) of section 10 of the Act. That section is as follows "10, Issue of statements of conditions of the Punjab Tenancies. (1) The Provincial Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of the Financial Commissioner, allot land to any person, to be held subject to such statement of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." The instructions of 1944 could not be modified except in exercise of power conferred by the above section. We must conclude, therefore, that the modified instructions which were issued on the 8th of August 1962, and the 22nd of October 1962, were issued under the same section. The opening words of the latter instructions are: "The Government of West Pakistan have decided . . . . ." and these words conform to the requirements of subsection (2) of section 10 of the Act. We have no doubt that the instructions or conditions issued under the section have the force of law. We are supported in this view by a Division Bench judgment of this Court in Husain Bakhsh v. Muhammad Alam (P L D 1960 Lah. 869) in which Kaikaus, J., has observed that "the statement of conditions acquires the force of law" The petitioners, therefore, have a locus standi to apply to this Court under Article 98 of the Constitution if the res pondents do not comply with the instructions contained in the memoranda issued on the 8th of August 1962 and the 22nd of October 1962.

20. Now we take up the second contention of the petitioners. Their counsel have urged that the instructions issued by the Secretary (Colonies), Board of Revenue, West Pakistan, vide his Memorandum dated the 21st of November 1963, the relevant part of which has been reproduced above, were ultra vires of the powers of the Board of Revenue because the Secretary had no power to modify the conditions which were issued by the Provincial Government vide its Memorandum dated the 22nd of October 1962. Counsel have explained that the latter docu ment was issued under section 10 of the Act whereas the Memorandum dated the 21st of November 1963, purports to have been issued by the Secretary (Colonies) of the Board of Revenue himself. We are not able to agree with them because, we cannot bring ourselves to take the view that the Memorandum' of the 21st of November 1963, was not issued by the Secretary (Colonies), Board of Revenue, on behalf of the Government of West Pakistan. It is true that the Memorandum of the 21st of 1 November 1963, does not open with the words "The Government of West Pakistan have decided . . . . .", in the precise manner in which the Memorandum of the 22nd of October 1962, begins ; but this laxity is not material because both the documents were issued by the same Secretariat, relate to the same subject‑matter and purport to serve the requirements of the same Scheme.

21. Turning now to the first contention of the petitioners, we may mention that on merits of the case it refers to the most important consideration. Its importance lies in the fact that its determination will entitle the petitioners to get proprietary rights transferred to them or not. As compared to its importance, it strikes us as too simple as well as one which has been rather cursorily dealt with on behalf of the respondents. The con tention is that the expression "Rabi 1962" which occurs in the Memorandum dated the 22nd of October 1962 (reproduced above in paragraph 6) refers to the crop which was sown in 1962 or to the crop which was only reaped in 1962. The question has arisen because a Rabi crop is sown in one year and reaped in another. It was dealt with by a Division Bench of this Court in the unreported judgment given in Petition No. 117 of 1964. The relevant part of that judgment has been reproduced at page 50 of the second part of the Colonization of Government Lands (Punjab) Act, 1912, by Ch. Altaf Hussain. The learned Judges have observed as follows :‑‑ "It is clear from the provisions of the Punjab Tenancy Act, to which we have just referred, and the general practice with which we are all familiar, that the Rabi of 1961 would mean the crop which would be reaped, harvested and removed in the month of April or May 1961 and the Rabi of 1962 would mean the crop sown in the month of November or December 1961 and harvested and removed in April or May 1962. Now, in the present case the petitioner's lease cannot be said to have expired in Rabi 1961, as the period for that crop ended at the latest in May 1961, whereas the petitioner's lease was to continue until the 23rd of December 1961." The result of the continuance of the leases into the month of December 1961, therefore, was that a part of them overlapped with the Rabi season which began in November or December 1961. This season continued up to April or May 1962. Thus the leases, in this case, did not terminate in Rabi 1961 but ran into the period which was covered by the phrase "in Rabi 1962" used in paragraph 1 of the Memorandum of the 22nd of October 1962.

22. In spite of the above‑mentioned judgment and its publicity by virtue of its inclusion in a book which has been used in these proceedings by both sides, we did not hear any well‑considered criticism of it. On the second day of the arguments, Mr. Saeedul Hasan, Advocate, who represented the Advocate‑General, conceded that the expression "Rabi 1962" referred to the crop which was sown in 1961 and reaped in 1962 ; but on the last date then the Advocate‑General appeared himself, he contended that the expression "Rabi 1962" referred to the crop which was sown in 1962. We invited him to substantiate this contention. He replied that the expression was defined in some Revenue Manual, but in spite of our demands for its production was unable to do so. When we pressed him to cite an authority, he took the stand that the expression itself was an error or perhaps a misprint, because in the Memorandum of the 8th of October 1962, the expression used was "in 1961" and not "in Rabi 1961". He contended that in the Memorandum of the 22nd of October, 1962, also, the intention was to similarly refer to 1962 and not to Rabi 1962, We are not in a position to accept this contention for more reasons than one. Firstly, the Memorandum of the 8th of October 1962 is riot reproduced in the above‑mentioned book of Ch. Altaf Husain so that we could know with reasonable certainty as to what expression was used by the authorities in that Memorandum. Secondly, the copy of the Memorandum which has been produced on behalf of the respondents is neither an officially certified copy of the document, nor even a copy attested to be true by the Advocate‑General himself or on his behalf. It is possible that the copy which has been produced is inaccurate; but supposing for the sake of argument that it is correct, we cannot conclude from it that the clear expression which appears in the Memo randum of the 22nd of October 1962, as "in Rabi 1962" should be read by omitting the word "Rabi" Here, we may also draw attention to the Memorandum of the 8th of August 1962, where the expressions "in Rabi 1962" and "in Rabi 1961" have been used.

23. In the above circumstances, we feel ourselves bound to conclude that the five‑year period of the leases partly over lapped with the season of the Rabi crop and were extended by virtue of the Memorandum of the 22nd of October 1962, up to April or May 1962. Thus, the petitioners in these Constitutional petitions, who were allotted land or to whom leases were granted in 1956 and who have observed the relevant conditions, are entitled to have proprietary rights in the lands to be transferred to them.

24. The next question which arises is as to who are thus entitled and who are not. The answer to this question depends on investigation of facts to find out as to who has fulfilled the conditions and who has not. We feel that the investigation of this question of fact should be undertaken by the Revenue Authorities.

25. In consequence, we accept the above‑mentioned petitions to the extent of holding that these petitioners are entitled to have proprietary rights transferred to them in the lands which were leased to them, subject to the finding by the Revenue Authorities that they have fulfilled the relevant conditions. The adverse orders passed against these petitioners, based on considerations and interpretations that have been found in the above discussion to be erroneous, are accordingly held to be without legal authority and of no legal effect, and the above. mentioned cases are remitted to the Board of Revenue for further action in the light of the observations made above. K. B. A.