1970 PLP 235 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioners were allotted some lands under the Tubewell Sinking Scheme, on the 18th April 1953, in Tehsil Samundari, District Lyallpur. On subsequent scrutiny made by the Governor's Inspection Team it was, however, found that the area concerned was in fact commanded by Canal Irrigation and had actually been irrigated and cultivated in 1951. On the recommendation of the Governor's Inspection Team, therefore, the Collector, after hearing the petitioners, ordered the resumption of these lands on the 26th February 1968. The Collector took the view that even though under the instructions of the Government, contained in its letter No. 66‑C dated 8‑1‑1953, an area which was technically commanded, could still be allotted if it had not been irrigated for two or three decades, yet the allotment of the land in dispute could not be maintained, because, the land had actually been cultivated only two years prior to the date of allotment; in 1951. This order was upheld by the Additional Commissioner on appeal and by the Board of Revenue in revision. The petitioners then invoked' the jurisdiction of the High Court under Article 98 of the Constitution of 1962. The main point urged in the High Court was that the land having been included in the relevant Schedule some 15 years ago could not now be taken away as the petitioners had committed no breach of any of the terms and conditions of the grant. The mere fact that it had been irrigated and cultivated in 1951 was not sufficient to hold that the land was cultivable even in 1953 although it was shown in the Schedule as Banjar Jadeed. The High Court refused to interfere, because, the revenue authorities had concurrently found that the land was not only technically commanded by canal water but had in fact been cultivated in 1951 before its allotment. In these circumstances the land was not allotable under the said Scheme. The petitioners now seek special leave to appeal and on their behalf an attempt is made to raise two new points which were not raised at any stage before. Indeed they have not even been raised in the petition now filed in this Court. The first is that since section 25 of the Colonization of Government Lands (Punjab) Act, 1912, provides that resumption can only be subject to payment of compensation, the payment of compensation is a condition precedent to resumption. This is not, however, borne out by the language of section 25 which reads as follows :‑ "Power of re‑entry and provisions as to compensation in certain cases : Where an order resuming the tenancy has been passed under the last preceding section the Collector may forth with re‑enter upon the land and resume possession of it, subject to the payment of compensation to be fixed by the Collector, for uncut and un-gathered crops and for the improve ments, if any, that may have been made by the tenant Provided that if the tenancy be allotted to any other person, the amount of the compensation, if any, paid to the outgoing tenant shall be recoverable by the Collector from the incoming tenant." This clearly contemplates that the compensation can be assessed later. In any event, there is nothing on the record to show that the petitioners ever claimed compensation from the Government for the resumption or that they took this objection before any of the revenue authorities. There is not only no substance in this contention but it cannot also be allowed to be raised for the first time at this late stage. The second contention urged is that no opportunity of rebut ting the entry in the Khasra Girdawari was ever given to the petitioners. This again is a new point involving the taking o e evidence facts which was not raised at any earlier stage and has not been taken even in the petition for special leave to appeal. In the circumstances we cannot allow this point either to be raised at this stage. This petition is without any substance and is, accordingly, dismissed. Leave refused.