1994 PLP 1836 (CLC)

(1) First Regrant Period 40-44% 5 years 45-50% 10 years

7. It was also provided that subsequent allotment of land to such grantees on the expiry of the period of the first regrant would be determined on the basis of the following purchases results: (2) 2nd Regrant Period (a) 50% and above 5 years (b) 45-49% 3 years (3) 3rd and subsequent Regrants (a) 60% and above 5 years (b) 55-59% 3 years.

8. It also envisaged that only those cases which did not fall in the abovementioned categories would be recommended for resumption. All the grantees were informed about this decision and they were instructed to improve their purchasing results, according to the said criteria up to 40% otherwise the leases would not be regranted.

9. The authorities also issued a policy decision (S.O.P) on 25-4-1991 providing elaborate procedure and the criteria for determination of eligibility for grant and regrant of leases according to the aforementioned policy decisions. According to this (S.O.P) a retired personnel was made eligible only till after 10 years of their retirement whereas serving personnel were made eligible within last two years of their service for grant of leases. As regards discharged/dismissed/retired compulsorily personnel from service on disciplinary grounds and those who did not complete colour service of their own choice and persons owing 50 acres agricultural land or residential land or farm land or persons allotted any agricultural or farm land by Government/G.H.Q, it was provided that they would not be eligible for grant of leases. It may prominently emphasized that allotment of studs would be strictly on merits for which a criteria/formula was laid down which is as follows:-- (a) Svc - 1point for each completed year of svc up to auth svc limits. (b) Points for decorations: (1) HI(M), SI(M), TI(M) 2 Points (2) Iintiazi Sanad and Commendation 1 Point card. (c) Knowledge and experience of - 1 Point more than 1 year's svc in any AT/MTN Regt and polo players having played in PPA tournaments. (d) Graduate in Animal Husbandry - 1 Point. Agriculture/Veterinary Science.

10. This S.O.P. also made provisions regarding maximum limits of service for determining quota against each rank which is as follows:- (c) Knowledge and experience of - 1 Point. more than 1 year's svc in any AT/MTN Regt and polo players having played in PPA tournaments. I (d) Graduate in Animal Husbandry - 1 Point. Agriculture/Veterinary Science.

10. This S.O.P. also made provisions regarding maximum limits of service yA for determining quota against each rank which is as follows:-- a. JCOs/OR b. Officers. Sep/L/NK --I5 years Copt/Maj. ' --23 years. NKs. --18 " Lt.-Cols. --25 years Hav, --21 " Col --26 N/Sub. --24 " Brig --28 " Sub. --28 " Maj Gen --30 " Sub Major. --32 " Lt.-Gen --32 " Gen --34 "

11. It also provided scale of allotment of stud land fixed w.e.f. end of Rabi 1990-91 which was as follows:- (a) Maj-Gen. and above/equivalent of Navy and Air Force. - 4 sqrs. (b) Brigs/equivalent - 3 (c) Lts to Cols/equivalent - 2 (d) Hony. Commissioned Officers JCOS/OR/equivalent - 1 " A mention was expressly made that the above scale of allotment would be equally applicable in respect of the grantees whose lease period had since expired and in the cases of future regrants as well.

12. Though as held above, the petitioners could not continue retaining the land under the old lease, but they had a right to get their cases examined on the basis of the criteria laid down by this policy decision for regrant of the land. The case of each lessee should have been determined in the light of the said policy decision and the criteria after joining them in the said process. In most of the cases the land was not regranted on the ground that according to the said criteria the authorities found that they were not entitled to regrant as their performance was not up to the mark and did not satisfy the said criteria. Before taking this decision neither any notice in most of the cases was sent to them nor they were given opportunity of hearing and satisfy the authorities that their performance was in accordance with the criteria laid down by the authorities. The determination of the merits ot their cases without providing them opportunity of hearing thus is violative of not only the law but also principles of natural justice as no person could be deprived of his rights or condemned without providing them opportunity of hearing. In all the cases the grantees/lessees would be summoned. They shall be heard and thereafter a decision shall be taken as to whether they are qualified for regrant of the lease and if so to what extent and if no the reasons' would be given. The said decision shall be given in writing with reasons and communicated to the lessees. They are still in possession of land. In case any one of them was found to be not entitled to regrant or if found entitled to regrant for less area their possession shall not be disturbed qua the land to be resumed as excess or as a whole till 31-5-1994 in order to enable them to harvest the standing crops. The lessees shall also be given option to surrender the excess land according to their choice and only that portion of the land shall be resumed.

13. In some of the cases a question has been raised as to in relation to which period the merits as regards performance of the lessee is to be determined. It is made clear that the lessee to whom the original grant was made is still alive and holding the land, the performance during his entire period of lease shall be taken into consideration to determine whether he is entitled to the regrant on the expiry of the original grant, the next grant shall be deemed to be the first regrant. In case where on the death of original lessee the land was given on lease to anyone of his relative/heir as the case may be for the unexpired period, the said lease for unexpired period. qua the said heir/relative shall be deemed to be his original lease grant. His performance shall be determined in relation to the said unexpired period and not in relation to period which was availed of by his predecessor because the grant of lease to an heir for an unexpired term as per terms and conditions originally issued in 1970 was fresh lease in his own right because on the death of original allottee the lease in his favour stood terminated.

14. In Writ Petition No. 4867 of 1992 the petitioner has attempted to make out a case that he was given lease of land in lieu of the land abandoned by him in Sindh which had been allotted to him on ownership basis. This fact has been denied by the authorities and the petitioner has not been able to substantiate his plea, therefore, his case shall be considered in the light of the above criteria alongwith the others as he could not claim to retain the land without satisfying the said criteria.

15. In Writ Petition No. 9042 of 1991 there is a dispute regarding the period of lease. The case of the authorities was that the lease was for a period of 5 years whereas according to the petitioner it was granted for 10 years from 1986 to 1996 in support of which he has relied upon lease-deed itself in which prima facie it appears that period of lease was mentioned as 1986 to 1996. The Collector passed order that the lease was in fact granted for five years according to the order passed on the file, but (Sic) fresh through interpolation the same was shown to be for 10 years in the lease-deed, which was unauthorized entry and also contrary to the orders passed. This is a question of fact which has been determined against the petitioner by the Collector through the impugned order, therefore, if the petitioner wants to question its correctness he should have availed of right of appeal against the said order before the higher authorities and also revision if it was maintainable under the law. The petitioner admitted that he filed suit before the Civil Court for declaration that he was lessee for 10 years which was withdrawn to agitate the D matter in Constitutional petition. Be that age it may, we are not inclined to interfere as the said disputed question of fact require elaborate inquiry and recording of evidence which are not normally done in Constitutional jurisdiction.

16. Learned counsel for the petitioner stated that since the departmental authorities in the Army had taken a stand that lease period was five years, the Collector or the Commissioner in appeal will not take a different view. The argument has no force. The appeal if filed by the petitioner before the Commissioner against the order of Collector determining that his lease period was five years, the same shall be decided by him on the judicial side on merits uninfluenced by the stand taken by the departmental authorities. Writ Petition No. 9042 of 1991. as regards determination of question of period of lease is dismissed as having been filed without availing of remedy of appeal and revision which in our view are adequate and efficacious. Anyhow, the petitioners case for regrant after the expiry of period of 5 years in the meantime shall be decided according to the above criteria.

17. In Writ Petition No. 5930 of 1993, the original lease was granted for some other land from Kharif 1981 to Rabi 1991. The possession of the said land could not be delivered to the petitioners/lessees because the same was not vacant. In lieu of the said land he was given lease of the land afresh now in dispute through allotment on 11-12-1983 for 10 years which was to expire in 1993. After the expiry of this lease period which shall be deemed to be his original lease the case of the said petitioner shall be considered treating it a case for first regrant and the original lease granted for other land from 1981 to 1991 would not be taken into consideration, as the same cannot be treated to be a lease at all because under the law the tenancy starts from the date of delivery of possession of the land under the lease and not from the date of order passed as envisaged by section 10 of the Colonization of Government Lands Act; 1912.

18. In Writ Petition No. 4867 of 1992 the petitioners were granted lease firstly in 1967. After the expiry of the said lease period it was not re-allotted to him and there was a gap of about five years. He was again granted lease of the said land on 29-3-1983 for five years up to 1988 and further granted lease from 1988 to 1994. For the purposes of determining his entitlement for regrant his original grant shall be the lease from 29-3-1983 to 1988 'and not the previous one. On this basis his case shall be considered, in the light of the criteria laid down in the said S.O.P.

19. Coming to the merits of Writ Petition No. 2215 of 1990 it may be mentioned that the petitioners were granted lease for two lots. The subject matter of the land of the first lot is 422 Kanals 19 Marlas the lease of which was granted from 1-6-1980 for 10 years. The subject-matter of second lot is land measuring 157 Kanals, 11 Marlas in the same Chak the lease of which was granted from Kharif 1984 to Rabi 1.994-1995. The land of both these lots was resumed by order dated 4-12-1989 which is indicative from the letter issued by the Deputy Secretary Colonies to Commissioner, Lahore Division. The grievance of the petitioner is that he having given satisfactory explanation about the objections raised by the Department regarding his poor performance, has been condemned unheard as after the receipt of his explanation no opportunity of hearing was given to him and if the said explanation was found to be not satisfactorily he had a right of hearing. The record has been produced by the departmental representative. It shows that on 7-9-1988 a notice was given to the petitioner raising objection that his performance was not satisfactory. He gave reply to this notice on 25-9-1988 and a notice was issued to him for hearing him for 15-11-1988. He was, however, heard on 4-12-1988 and an order was passed which was conveyed to him in writing on 10-12-1988 pointing out to him that he should make improvements as regards his performance in respect of specified items within the fixed period which was a few days. We have noticed that the petitioner, on 26-12-1988 gave a detailed reply in which he highlighted his performance/purchases results. After this, no notice was issued to him for hearing. The argument that if the said explanation was according to the authorities not satisfactory the petitioner should have been given opportunity of hearing, has considerable force, therefore, it is a case where the petitioner has been condemned unheard.

20. Order dated 4-12-1989 for resumption of lease of both these lots is hereby declared to have been passed without lawful authority and of no legal effect and quashed. The lease period of fist lot measuring 442 Kanals, 19 Marlas had already expired. The case of the petitioner qua the said land shall be considered on the touchstone of the criteria laid down in the above-mentioned S.O.P. after hearing him for regrant and an order passed as observed above. Since the period of lease of second-lot i.e. land measuring 157 Kanals 11 Marlas has to expire in Rabi 1994-1995, therefore, the case as regards performance of the petitioner in the light of his reply given by him on 26-12-1988 shall be re-considered, and after hearing him and taking into consideration further evidence which he wants to produce the same shall be decided afresh and fresh order passed in the light of the findings to be recorded by the authorities whether the lease of the said second lot was liable to be terminated on account of poor performance or violation of any of the terms and conditions of the lease. The said writ petition stands accepted and disposed of in the above terms.

21. Adverting to Writ Petition No. 635 of 1994 it may be observed that in the previous Writ Petition No. 1914 of 1989, it was directed that the authorities should pass fresh order regarding regrant/renewal of lease- to the petitioners after hearing then. Instead of summoning them and passing fresh order after considering merits of `their case for regrant of lease on the basis of their performance the authorities passed an order for resumption of land and dispossessed the petitioners and appointed a receiver. The petitioners have got standing crops on the land. The departmental representative when asked as to why the judgment passed in the previous writ petition had not been complied with submitted that the authorities may be pardoned, as the case was not placed properly before them by the field staff and they were not made aware of the passing of the said judgment by this Court. He stated that possession over the land of the petitioners shall be immediately restored and their case on the basis of their performance would be considered for regrant in the light of the S.O.P. and order passed on merits about which the petitioners shall be intimated. The receiver appointed by the authorities shall be re called.

22. This writ petition is accepted. Order dated 4-1-1994 passed by the District Collector, Okara, for resumption of land and taking over of possession as also appointment of receiver is hereby declared to be without lawful authority and of no legal effect and quashed. The possession shall be restored to the petitioners forthwith. Their case shall be considered alognwith others for regrant. Till 31-5-1994 their possession shall not be disturbed after which the possession of the excess land shall be taken over, in case they are found to be entitled to regrant of any portion of the stud on the basis of their performance. If they are found to be not entitled to the regrant at all even then their possession shall not be disturbed before 31-5-1994 so as to enable them to harvest standing crops.

23. It may be again emphasized that in none of the cases possession shall be disturbed before 31-5-1994.

24. For the foregoing reasons, all the writ petitions subject to the observations made above stand disposed of. The parties are left to bear their own costs. AA./F-143/L Order accordingly.