1997 PLP 1146 (CLC)

This memorandum/decision of the Government of the Punjab has been challenged in these writ petitions on various grounds.

7. Learned counsel for the petitioners contended that the petitioners/Lambardars were granted the State land under the Pedigree Livestock Breeding Scheme in the year, 1960, which was replaced in the year 1971 and that under both these schemes the petitioners were entitled to the grant of proprietary rights as they fulfilled all the conditions laid down therein. It was also submitted that the petitioners have been discriminated inasmuch as some of the Lambaradars placed in similar situations were granted proprietary rights in the grants white the petitioners were refused the proprietary rights in the State land held by them under the same scheme. It was also argued that rule of 'locus poenitentiae' apply. in the, case of the petitioners, therefore, the Government having decided to give proprietary rights to the petitioners could not revoke the same and deprive the petitioners of their rights. 8 The Memorandum dated 21‑7‑1987 impugned in these writ petitions is as follows:‑‑ "MEMORANDUM. The Government of the Punjab, in the Colonies Department, has observed that Pedigree Lievestock Breeding Grants are not yielding anywhere near the expected results and the lessees/Lambardars have to resort to unfair means to keep the concerned Government functionaries happy so as to maintain their leases. After considering the representations made by the Lambardars and the various suggestions made by them, the Government, in supersession of all the previous instructions,. has decided to convert all the Pedigree Liverstock Breeding Grants into ordinary leases on the following specific conditions:‑‑ (a) the leases will be for five years at a time, automatically renewable for successive period of 5 years provided the lease is held by the incumbent Lambardar; (b) the lease would be at a yearly rent of Rs.5 per P.I.U. value, payable in cash at the end of each financial year i.e. 30th June, failing which it will be liable to resumption like any other lease. First instalment of lease money is payable on 30‑6‑1987; (c) the lambardars will now not be required to maintain any bull or any sheep etc. or be subject to any inspection by the Veterinary Department. 2 You are, therefore, requested to implement the above‑decision forthwith. (Sd.)Deputy Secretary to Government of the Punjab,Colonies Department."

9. In the parwarise comments in reply to paragraph 6 of the writ petition the Secretary (Colonies) submitted as follows:‑‑"Since the Pedigree Livestock Breeding Scheme of 1960 was replaced by a new scheme of 1971 vide Punjab Government Notification No.1838‑71/1721‑CV, dated 12‑5‑1971, all lots/tenancies held by Lambardars under the Scheme 1960 were converted at the option of the grantees into leases under the conditions of Scheme 1971, and in all such cases fresh allotment orders were issued by the Collector, and fresh agreements were executed, therefore, this all was done just to allow them to continue to hold their leases/lots under the new Scheme of 1971. In August, 1974, the Scheme of 1971 was cancelled vide Punjab Government through Notification No.6558‑74/3642‑CV, dated 24‑8‑1974 (copy enclosed) and thereafter they continued to hold the lands as ' Superdars' as explained above."

10. Ch. Khurshid Ahmed, Advocate, learned counsel for the petitioners also submitted that the State land which was granted to the petitioners was developed by them at their own expenses in the hope of getting proprietary rights, therefore, they have the right to claim proprietary rights over the same. He also referred to the Memorandum dated 13‑7‑1976, issued by the Secretary to the Government of the Punjab .(Colonies) Department to all the Deputy Commissioners which, inter alia, stated that: "In view of the representation of Lambardars for the conferment of Proprietary Rights in Lambardari Grants, the Government of the Punjab is pleased to decide that properistary rights may be conferred on all Lambardars who had been and still were in possession of the areas originally allotted to them" In the light of this Memorandum it was also submitted that the petitioners. were entitled to get the proprietary rights in their Lambardari Grants in accordance with the same. In this respect he has also relied upon the following passage of the judgment of this Court in "Muhammad Ashraf v. Board of Revenue" (PLD 1988 Lahore 1155): "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 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, 1994, were expressly issued under subsection (2) of section 10 of the Act."

11. With regard.to the above memorandum dated 13‑7‑1976, it is stated in the parawise comments submitted by the Secretary, Department of Colonies that:‑‑ "It is not correct, because the Cabinet decision contained in Circular Memo. No.3910‑76/2686‑CV, dated 13‑7‑1976 was/is not applicable in the case of writ petitioners who belong to category (b)

12. It is not the case of any of the petitioners that before 21‑7‑1986 the order to grant proprietary rights was passed in their favour or any step was taken by the Government in part performance of the sale in their favour. The Memorandum dated 13‑7‑1976 is not shown to have been implemented so far as the petitioners are concerned. Had it been implemented, the Government could neither resile from its stand nor could proprietary rights, once granted, be taken back or denied by the Government on the rule of locus poenitentiae.

13. Malik Saeed Hassan, Advocate, learned counsel for some of the petitioners also argued that in the year 1975 the Cabinet of the Government of the Punjab decided to confer proprietary rights upon the Lambardars in respect of their Lambardari grants. In this respect he has placed on record photo copy of the D.O. Letter dated 5‑7‑1975 of the then Chief Minister of the Punjab to the then Prime Minister of ‑ Pakistan seeking approval of the scheme which was accordingly done by the Prime Minister and subsequently the aforesaid Memorandum of 13‑7‑1976 was issued. However, the following assertion made in the parwarise comments nullifies the effect of this argument: "The petitoners/lambardars' request/prayer for granting them proprietary rights in their lands was considered in the Provincial Cabinet Meeting held on 30‑6‑1975, but the Cabinet decided that only the old grantee/hereditary Lambardars of category (a) viz:‑ Hereditary Lambardari grants held by the Lambardars before 15‑3‑1948 who could not get proprietary rights earlier should be given proprietary "rights and four months' period was given vide Punjab Government Colonies Department Circular Memo. No.3910‑76/2686‑CV, dated 13‑7‑1976 (Copy enclosed). These instructions of Government are not, at all applicable in the case of the petitioner Lambardars."

14. Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, which gives the Provincial Government and the Board of Revenue power to issue Statement of Conditions to grant State land to tenants is as follows:‑‑ (1) Board of Revenue subject to the general approval of the 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 the 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 Board of Revenue, allot land to any person, to be held subject to such statement or statements 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.

15. It is thus clear that under section 10, the Government is competent to issue Statements of Conditions on which the Government may grant State land to: A its tenants and the Board of Revenue subject to the approval of the Government, grants State land to any person on such conditions as it thinks fit or under any scheme prepared for the purpose. Under this provision of law Pedigree Livestock Breeding Scheme of 1960 was framed which was subsen‑iently replaced by a new scheme in 1971, vide Notification d8ted 12‑5‑1971 and finally abolished in the year, 1974, vide Notification No.6558‑74/3642‑CV, dated 24‑8‑1974, as stated in the parawise comments. Reply to para. 5 of the writ petition given by the Secretary (Colonies) is relevant in this behalf as reproduced above.

16. The Government or the Board of Revenue had the power and authority to change, modify or cancel such statements of conditions issued and the Scheme made for the purpose of allotting State land or granting proprietary rights over B the same to the tenants. This power of the Government/Board of Revenue is also recognized by section 20 of the (Punjab) General Clauses Act, 1956, which is as follows:‑‑ , "

20. Power to make to include cower to add to amend, vary or rescind orders rules or bye‑laws.‑‑Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye‑laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind, any notifications, orders, rules, scheme, form, bye‑laws so issued."

17. Mr. Naseem Kashmiri, the learned Additional Advocate‑General submitted that the Memorandum No.4658‑85/2371‑CV, dated 21‑7‑1986, was issued by the Government of the Punjab Colonies Department whereby in supersession of the previous instructions/schemes the Pedigree Livestock Breeding Grants were converted into the ordinary leases. This memorandum, inter alia, states that "After considering the representations made by the Lambardars and the various suggestions made by them, the Government, in supersession of all the previous instructions, had decided to convert all the Pedigree Livestock Breeding Grants into ordinary leases on the following specific conditions". Such a memorandum could be issued by the Government under section 10 of the Colonization of Government Lands Act read with section 20 of the (Punjab) General Clauses Act, 1956, as uptil then no decisive steps conferring proprietary rights to the petitioners were taken by the Governrlent. In this respect reference may be made to the following passage of the judgment of the Hon'ble Supreme Court of Pakistan in "Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himyatullah Farukhi "(PLD 1969 SC 407):‑‑ "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e.., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual such an order cannot be withdrawn or rescinded to the detriment of those rights. "

18. There is no material on record to show that any order was passed o r action taken by the Government in Pursuance of the .Memorandum dated 13‑7‑1976 conferring proprietary rights upon the petitioners. On the co ntr ary the C respondents have pleaded that this Memorandum did not apply to the petitioners nor was anything done by the Government to create proprietary rights in favour of the petitioners.

19. The learned counsel for the petitioners have also argued that the petitioners have been discriminatede as some Lambardars in the Province placed in similar situation have been granted proprietary rights in the grants under their possession whereas this right has been denied to the petitioners. Thus, it is argued that the action of the respondents is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, which guarantees the equal treatment and equal protection of law to all the citizens. In this connection the petitioners have placed certain documents on record showing that pir Zulfiqar Ali Chishti son of Pir Ghulam Rasool, Malik Muhammad son of Ghularn Haider and Ali Muhammad son of Imam Din, Lambardars were granted proprietary rights in the grants held by them. From these documents it is, however, clear that all these Lambardars were allotted land under the old Lambardari Grant Scheme whereas the present petitioners were allotted lands under the Pedigree Livestock Breeding Scheme. It has not been shown to me that any Lambardar to whom the State land was allotted under the Pedigree Livestock Breeding Scheme was granted proprietary rights under the Memorandum, dated 13r7‑1976 while the petitioners were refused to be granted Proprietary rights and were thus discriminated.

20. As observed above, in the parawise comments the Government has categorically stated that the Memorandum dated 13‑7‑1976 was not applicable to the petitioners. This is also evident from the Memorandum dated 30‑1-1980 (Annexure G/3 to the writ petition) issued by the Board of Revenue with reference to the Memorandum dated 13 7‑1976 which is as follows:‑‑ "It is to be clarified that the decision/instructions contained in Government of the Punjab, Colonies Department's memorandum under reference will apply only to those Lambardars who are hereditary and have been promised proprietary rights in terms of the Government of the Punjab, Resettlement and Colonies Department's Memorandum No.3489‑C, dated 7th August, 1951, and are also still in possession of the land allotted to them under the old Lambardari Scheme existing since before 15‑3‑1948. Any other category of Lambardars will not be entitled to benefit under these instructions." In the light of the foregoing discussion, these writ petitions fail and are accordingly dismissed without any order as to costs. However, the Board of Revenue, Punjab/Government of the Punjab may consider the cases of the petitioners who are in cultivating possession of the, State land for ` over a quarter of century and may grant them proprietary rights on payment of the market price or on conditions deemed fit in the circumstances of the case. A.A./M‑298/L ‑, Petition dismissed.