2004 PLP 368 (MLD)

Contrarily, learned counsel for respondent No.1 supported the impugned judgment and decree by placing reliance on the cases of "Muhammad Khan and others v. Province of Punjab" (CP 400‑L of 2000), Abdul Rab v. Wali Muhammad and others" (1980 SCMR 139), "Jawana v. Mst. Sahbi" (PLD 1954 Lahore 253) and "Muhammad Amin v. Raheem Bakhs" (1998 MLD 413) to urge that Civil Courts in case of perversity, absence of jurisdiction and mala fide of the departmental authorities were not divested of their general jurisdiction under section 36 ibid. He also contended that respondent No. 1 was entitled to the grant of proprietary rights on the basis of original lease which was legally granted to him.

7. I have considered the submissions of the learned counsel for the parties and have also examined the record.

8. Through the orders sought to be decreed as invalid, Authorities upto the Board of Revenue, in purported exercise of powers under the Colonization of Government Lands (Punjab) Act, 1912 declared grant of lease to respondent No. 1 in 1971 as illegal and thus directed resumption of land and allotment of suit‑land to the petitioner and held respondent No. 1 to be ineligible for grant of proprietary rights of the land originally leased to him. The grounds forming basis of these orders were the same as listed in para 3 above, which also form the ratio of the judgment and decree dated 20‑11‑1993 of the learned Civil The learned Additional District Judge, through his impugned judgment did not find these grounds adequate to attract ineligibility either under the 1971 Notification or the Notification of 1979 Following legal questions on the scope and applicability of Notifications of 1971 and 1979 thus arise for decision of this Court: (a) Whether under Notification No. 1622‑71/205/CLI dated 24th April, 1971, respondent No.1 for being a teacher/Government servant or an employee of the Board was not eligible for grant of lease and also for owning land exceeding 4 Acres; and (b) Whether under Notification No.3215‑79‑C‑II dated 3‑9‑1979, respondent No. 1 was ineligible to the purchase of proprietary rights for the reasons of being a teacher and thus a non‑cultivator and also for holding land exceeding 4 Acres.

9. At the stage of the present revision petition, the following facts have ceased to be the disputed and the litigated question that:‑‑ (i) Respondent No. 1 at the time of grant of lease in 1971 was employed as a teacher; (ii) He was owner of 45 Kanals of land in Kasur District. (iii) The land owned by respondent No. 1 was transferred by him to his wife in December, 1976 by way of Hiba through a registered gift‑deed; and (iv) He, became landless by the cut off date prescribed in 1979 Notification.

10. For resolution of above questions, it is pertinent to reproduce the applicable conditions of the above‑referred Notifications of 1971 and 1979. Condition 3 of 19.71 Notification provides that: (3) "No person shall be eligible for the grant of lease under conditions unless before or at the time of grant of such lease: (a) he actually cultivates or has been cultivating any land during a period to be specified by the Board of Revenue and is recorded as such in Khasra Girdawari maintained by Revenue Patwari, or in case of dispute; regarding correctness of its entries, he is held to be actual cultivator in the manner hereinafter provided; and (b) he has no land of his own any where or owns cultivable land not exceeding four Acres anywhere in Pakistan.

11. Conditions 3 and 4 of 1979 Notification relating to the eligibility or ineligibility of a lessee to obtain proprietary rights provides that: (3) "Eligibility....Any lessee holding State land on temporary cultivation lease who is landless or owner of less than a subsistence holding and has been in continuous cultivating possession of the leased land since before Kharif 1977 may be eligible for the purchase of, proprietary rights in such land: (i) in the case of lessee who is landless up to a subsistence holding; and (ii) in the case of a lessee who is owner of less than a subsistence holding, upto that area by which he falls short of a subsistence holding. (4) Ineligibility ...(a) Any lessee who is owner of a subsistence holding or does not cultivate the land himself shall not be eligible for the purchase of proprietary rights in the leased land and shall surrender it peaceably to the Collector immediately on the expiry/termination on his lease. (b) .........................................................................................

12. Under the above reproduced conditions, a person was ineligible to the grant of lease under conditions 3 (b) of 1971 Notification if he owned cultivable land not exceeding 4 acres anywhere in Pakistan.

13. Bare reading of above conditions 3 shows that any "person" was eligible to the grant of lease if he was not suffering from ineligibilities expressly prescribed therein. The word "person" as used in 1971 Notification does not seem to have been used in a restrictive sense. It brings any person within the permissive and wider scope of the Notification which does not define or prescribe any particular category of persons entitled to apply for lease. There does not seem to be an embargo on persons employed with any sector or organization to obtain lease under the said Notification. The interpretation thus being placed by the petitioner and the departmental authorities to the word "person" is fallacious and discriminatory. Disability being attached to the persons to employment will exclude from the benefit of the Notification such citizens who are otherwise entitled to the grant of lease such restriction, elimination, depravity and limitation cannot be read in 1971 Notification when it does not so intend or mandate. It is also inapt and extraneous to argue that persons in employment cannot be considered to be in personal cultivation even if they are so entered in the Revenue Record and can exercise personal control and cultivation over the leased land.

14. Respondent No. 1 was also disqualified to the grant of lease by the departmental authorities and the learned trial Court for being owner of 45 Kanals of land in the District Kasur in 1971. In my opinion, this disqualification has arisen from improper reading and misinterpretation of Condition 3(b) of 1971 Notification. This condition prescribes that a person owning "cultivable land" exceeding 4 acres was ineligible from allotment of lease. It was neither alleged nor proved though evidence either by the departmental authorities or by the petitioner that 45 acres of land owned by respondent No.1 was "cultivable land". After grant of lease to respondent No.1 as back as in 1971 on full inquiry, the respondent‑Authorities to hold him ineligible to acquire the original lease of land and to resume the leased land, were under a heavy duty to prove that a fraud or misrepresentation had been committed by respondent No. 1 in obtaining the lease. Neither fraud nor misrepresentation was seriously urged, particularized or proved to entitle authorities to invoke the resumption conditions. I, therefore, have no hesitation in holding that respondent No. 1 was not disentitled to the grant of lease by the Colonization Authorities under the 1971 Notification wherefore lease was' neither invalid nor unlawful. The order of resumption of the leased land and allotment of suit‑land to the petitioner was patently without jurisdiction.

15. Adverting to conditions 3 and 4 of 1979 Notification, a lessee holding State land was eligible to the purchase of proprietary rights unless: (i) he was owner of more than subsistence holding; and (ii) he was not in personal cultivating possession of leased land before Kharif 1977.

16. It is an admitted case of the parties that respondent No.1 upon transfer of his 45 Kanals of ownership to his wife by way of Hiba in 1976 became landless. It was not alleged against him that he was owner of any land beyond the above‑referred 45 Kanals prior to 1976 or that he was owner of more than subsistence holding. Respondent‑Authorities had no legal basis for the proposition that land owned by his wife was to be considered as ownership of respondent No.

1. I am afraid, this vague, general and unsubstantiated allegation cannot change the law that unless otherwise proved, the registered owner of the land for all intents and purposes is the real owner of such land. None of the conditions of ostensible ownership or Bainami ownership were either urged, alleged or proved by the respondent‑Authorities against respondent No.1 whose wife was not even impleaded as a party in this litigation. As held above mere employment of respondent No. 1 as a teacher cannot be held to be an impediment in his self and personal cultivation of the suit‑land when he was duly and properly entered in the relevant Revenue Record and the Khasra Girdawari as a self‑cultivator.

18. The learned Civil Judge also misinterpreted the provisions of section 36 of Colonization of Government Lands (Punjab) Act, 1912 as well as the law pronounced by the Hon'ble Courts in the cases above- referred. A Civil Court under the said section was held to be divested of jurisdiction if the powers were exercised by the departmental authorities in accordance with the provisions of the Act of 1912. In the present case, the departmental authorities, as observed above, acted without jurisdiction and exercised powers not vesting in them under the Act and the Notification in passing the impugned orders. The said orders were thus patently perverse, illegal, unlawful, arbitrary and without competence. Under these circumstances, the learned Civil Courts were vested with the jurisdiction to entertain and try the suit as filed by respondent No. 1.

19. In view thereof, the impugned judgment; and decree dated 21‑7‑1996 was validly and properly passed by the learned Additional District Judge, Faisalabad. This civil revision is dismissed with no order as to costs. M.H./N‑368/L Revision dismissed.