1984 PLP 468 (MLD)

Allah Wassaya Malik for Petitioner. Khalil Ahmad Ramdey, Addl A.-G. for Respondents. Date of hearing: 27th May, 1984. Facts relevant to the disposal of the present writ petition are that Ghulam Nabi son of Muhammad Ali (Petitioner) had encroached upon State land measuring 2J acres. Sub-Divisional Magistrate Toba Tek Singh exercising powers of Collector under Colonization of Government Lands (Punjab) Act, 1912 ordered resumption of the land and imposed Tawan at the rate of 40 times land revenue for illicit cultivation of the State land by said Ghulam Nabi. Order of resumption and imposition of penalty was assailed in appeal before learned Additional Commissioner Revenue Sargodha. Appeal, however, did not succeed and was dismissed vide order dated 20-7-1965. Revision before Member (Colonies), Board of Revenue also failed. However, Tawan was reduced from 40 times land revenue to 30 times land revenue, vide order dated 19-10-1967.

2. Dissatisfied, the petitioner has invoked constitutional jurisdiction of this Court to declare the order passed by Collector resuming land and ordering levy of Tawan, which was subsequently affirmed in appeal and revision to be without lawful authority.

3. I have heard learned counsel for the parties and perused the available record. This petition was admitted to examine the levy of penalty only. Learned counsel for the petitioner has contended that assuming that the petitioner had encroached upon State land and carried out illicit cultivation, penalty at the rate of 30 times land revenue could not have been imposed upon him. He has referred to the provisions of sections 33 and 34 of the Colonization of Government Lands (Punjab) Act, 1912, has also placed reliance upon paragraph 480 of the Colony Manual dealing with question of illicit cultivation and imposition of penalty. Learned counsel has contended that in case of illicit cultivation by an encroacher of the State land, maximum penalty at the rate of 8 times land revenue can be imposed and the Revenue Officers who have dealt with the question of penalty have absolutely ignored the provisions of said paragraph 480 of the Colony Manual which alone covered the field.

4. Section 33 of the Colonization of Government Lands (Punjab) Act deals with penalties. Under section 33 (a) (d) if a person clears or breaks up for cultivation or cultivates any piece of land which is owned by or is in possession of Government and is not included in any tenancy or otherwise encroaches on any such land, renders himself liable to conviction and punishment to a fine not exceeding Rs.200. Under section 34 of the same Act, the Collector in lieu of or in addition to the above-said punishment is entitled to .confiscate the crops growing on any land cultivated in contravention of the Act or if the crops have been cut, recover such sum as he may assess as the value thereof from the offender. Paragraph 480 of the Colony Manual however, provides that "where however, the cultivation is deliberate, penal rent should be based on the land revenue payable in the Chak or in the nearest proprietary land, it should not be less than 4 times the land revenue per acre and need not be more than 8 times. Whenever, the cultivation is believed to be deliberate, penal rent charged should be higher than the rent received from temporary cultivation of land in the neighbourhood or of the same quality". Relying on para. 480 of the said Manual, learned counsel for the petitioner has contended that the Revenue Officers dealing with the question of illicit cultivation ignored its provisions altogether and proceeded to levy a penalty of 30 times land revenue absolutely in disregard to the above-stated paragraph of the Colony Manual. Mr. Khalil Ramdey, learned Additional Advocate-General in view of this contention of learned counsel for the petitioner, has expressed his no objection to the remand of the case to the Collector for its decision afresh in accordance with sections 33 and 34 of Coloni zation of Government Lands Act and paragraph 480 (illicit cultivation of Colony Manual). Writ petition, therefore, is accepted, order dated 1-10-1964 passed by the Collector, order dated 20-7-1965 passed by learned Additional Commissioner and that of the learned Member Board of Revenue dated 19-10-1967, levying the penalty at the rate of 30 times the land revenue are set aside and are declared to have been passed without lawful authority. Consequently, the case is remanded to learned Collector Toba Tek Singh to re-determine the question of imposition of penalty for illicit cultivation keeping in view the provisions of law and paragraph 480 of the Colony Manual. In view of the peculiar circumstances of the case, parties are left to bear their own costs. Copy of the order be immediately sent to Collector Toba Tek Singh to take appropriate proceedings. M.A.K. Case remanded.