P L D 1973 Lahore 726 (PLP)

(i) transfer the tenancy to another estate where a suitable candidate holds land either as proprietor or tenant otherwise than under these conditions; or (ii) appoint to the vacant tenancy a candidate holding land in another estate in the colony either as proprietor or tenant otherwise than under these conditions. In this case a resident sarbrah approved by the Collector shall be appointed in respect of the remount‑breeding tenancy, but such appointment will not relieve the remount‑breeding tenant of responsibility for the fulfilment of any of the conditions of his tenancy except that of personal residence in the estate wherein the remount‑breeding tenancy is situated." A perusal of the above will show that the tenancy in disputed was not a "heritable tenancy" as such, and if after the death of a tenant, it was granted, for example, even to one of his female heirs, the said selected heir would become a tenant in her own right. See Fazil v. Sadiq ((1947‑59) 1 R R 252), Chaughatta and another v. Shahamad ((1960‑66) 2 R R 211), Mst. Zardar Begum v. Sultan Mahmood and 5 others (P L D 1971 S C 580) overruling Lt: Col. Muhammad Siddiq Khan and others v. Major Muhammad Karim Khan (P L D 1954 Lah. 167), where the Supreme Court further held that sex was no bar for grant of land as such in the face of this legal position it is obvious that when after the death of Ghulam Ghauns the tenancy was granted to her widow Mst. Inayso Begum she became a tenant in her own right and the fact that the land was granted to her as a special case is neither here nor there, because, such like concepts will not: detract her from the aforesaid status. Pb.

8. Mst. Inayat Begum thus being the last tenant or to use another terminology just for the sake of convenience, she being a propositus, the condition, rule or law under which a grantee after her death was to be selected, (just as she was so selected after the death of her own father), is contained fn two letters (Annex. P. 1), dated 31‑10‑1950 and Annex. P. 2 dated 19‑2‑1952. These letters read as follows : (ANNEX. "1") "Copy of Memorandum No. 4245‑C dated the 31st October 1950 from the Deputy Secretary to Government Punjab. Resettlement and Colonies Department to the Deputy Commissioner, Montgomery (2) Layallpur (3) Multan, (4) Sheikhupura, (5) Jhang, (6) Shahpur. Subject:‑

Allotment of horse/mule breeding tenancies to refugees. Reference: Continuation Punjab Government Memo. No. 3157‑C, dated the 27th October 1949. The Intention of the orders contained in the memorandum under reference was to benefit suitable refugees who possessed) previous experience in horse/mule breeding. Their cases are to be considered on confiscation of tenancy for bad horse- mule breeding record in preference to Local Breeders. This does not imply that the heir of a deceased lessee with a good breeding record should be debarred from the re‑allotment of the tenancy to him. You are, therefore, requested to note that tenancy falling vacant on the death of a lessee with a good horse/mule breeding record, will, in future continue to be allotted to the heirs of the deceased, in preference to a refugee applicant. (Sd.) Deputy Secretary, Resettlement & Colonies" "(ANNEX. P. 2) Copy of Memorandum No. 868‑C, dated 19‑2‑1952, from, the Additional Secretary to Government of Punjab, Resettlement and Colonies Department to the Deputy Commissioner (1) Montgomery, (2) Multan. Subject:‑--Allotment of Horse/Mule Breeding tenancies in the Montgomery Breeding area. Reference.‑--In supersession of Punjab Government Memo. No. 3157/C, dated the 27th October 1949, as subsequently amended by Punjab Government Memo. No. 4245‑C, dated the 31st October 1950. It has been intimated by the Central Government Ministry of Defence that most of the refugees who were allotted land on horse/mule breeding conditions have .not proved satisfactory for breeding purposes, and that this has a detrimental effect on foaling results and availability of animals for Army requirements. The Government of Punjab have, therefore, decided with the concurrence of the Government of Pakistan. Ministry of Defence (Army Branch) that the allotment of horse/mule breeding tenancies falling vacant owing to confisca tion or other reasons should, in future, be made purely on merit and refugees, ex‑servicemen/and local farmers should be equally eligible for such tenancies. However, in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant.

2. The District Remount Officer is the local representative of the Army Remount Department in the Montgomery Breeding area and who holds records of all breeders in the Colony, should as usual be consulted and his recommendations given due consideration before the allotment of these tenancies are made. (Sd.) For Additional Secretary, Punjab, Resettlement and Colonies Department." These two letters, in my opinion, can well be construed as "statement of conditions" under subsection (2) of section 1 of the Act on the analogy just as administrative instruction in service matters were In The Province of West Pakistan and another v. Din Muhammad and others (P L D 1964 S C 21), Pakistan v. Sheikh Abdul Hamid (P L D 1961 S C 105), Government of West Pakistan v. Dr. A. A. Aziz (P L D 1966 S C 88) and Habibur Rehman v. West Pakistan Public Service Commis sion (4), construed as rules. According to these instructions or statement of conditions‑ (a) in cases where tenancy falls vacant, due to the death of a tenant, it is to be allotted to the heirs of the deceased in preference to any other applicant; and (b) provided that the deceased tenant had a good horse/ mule‑breeding record..

9. Proceeding to examine the orders of the learned Member, Board of Revenue and of the Commissioner, in the light of the above instructions/statement of conditions, I find that the deceased tenant in the instant case would be Mst. Inayat Begum and not her husband. However, the learned Member, Board of Revenue in Paras. 20 and 21 of his judgment wrote as follows:‑‑ "

20. I have given considerable thought to all the arguments advanced on behalf of the contestants and have come to the conclusion that the orders of the Board of Revenue/ Government with regard to succession of Horse‑Breeding Grant cannot ipso facto be made applicable in this case, and that there are circumstances in this case, discussed above, which justify an exception being made to the general police. laid down by the Board/Government in regard to succession, on which reliance has been placed by the learned counsel for Sami Ullah and Safia Begum‑ "

21. In view of these considerations I uphold the order of the Commissioner whereby he allotted the grant in question to Sub. Muhammad Asghar and reject the appeal and revision petitions accordingly. Parties may be informed and orders issued accordingly." These Paras. are to be read with para. 10 of the order of the Commissioner, where he wrote as follows:‑ "

10. I have heard the arguments of counsel for the appellants and the respondent at length and have also gone through the orders of the Collector, dated 6‑4‑1971. He has apparently been influenced by the decision in P L D 1959 West Pakistan (Rev.) 39, that normally such allotment in case of satisfactory record should go to the heirs of the deceased allottee. The learned Collector, however, overlooked the fact that the original order allotting the grant to the mother of Mst. Safia Begum was for a limited period i.e. four years in order to enable the widow to look after her children and marry away her daughters, although even at that time, the deceased had left other landed property also. This was in 1955 but somehow the widow continued to have the lease extended till her death in 1969. In the circumstances this was not a regular grant in favour of the heirs of deceased person but only on compassionate grounds. With her death, the said arrangement has terminated and I feel that Board of Revenue's decision quoted above does not apply in this particular case."

10. The various passages reproduced above show that the authorities concerned did not consider Mst. Inayat Begum as the propositus‑a plea which has even now been raised the written statement of the contesting respondent Subedar Muhammad Asghar. According to me, this view of the learned Member, Board of Revenue, and the learned Commissioner which gives effect to the aforesaid pleas of the respondent was without lawful authority and against the law declared by the Supreme Court in Mst. Zardar Begum v. Sultan Mahmood an others. I have already observed that on what considerations a tenant is granted land, does not detract from the status of the tenant as such, and the mere fact that the authorities concerned held that the land was allotted to Mst. Inayat Begum as a special case, did not stand in her way of being considered as a tenant for all intents and purposes. The authorities concerned fell in error in taking such extraneous aspects into consideration which resulted in a total wrong approach to the case in hand.

11. The next point to be noticed is that the authorities concerned probably considered the view of the District Remount Officer, as contained in its report, dated 23‑4‑1970‑(ignoring Mst. Safia Begum) as binding on them. It is well‑settled that the view of the D. R. O., is only a relevant consideration but has no veto‑value, the real deciding authority in the case SO‑ Bearm always being the Collector, who in the instant case held her Board of quite competent to have the grant (see order of Collector Revenue, Pb. dated 6‑4‑1971). Any implication to the contrary in the orders ‑‑ of the learned Member, Board of Revenue, and the learned Commissioner would be without lawful authority. Similarly, the Chauhan, second reason given by the learned Member, Board of Revenue to ignore Mst. Safia Begum on ground of sex is also without lawful authority Inasmuch as, to be a young girl of marriage‑ D able age by itself is no disqualification. Lot of cases to the contrary are available. (See P L D 1971 S C 580). Even other wise the petitioner has placed on record a long list of forty‑two cases in this very district where females have been grand after the death .of the last tenant. The plea take any tenancy Subedar Muhammad Asghar in ground (f ) of Para. 9 of is written statement that " the record of horse‑breeding of Mst. Inayat Begum was helpful only for the continuation of the renewal of the allotment in her favour and no more", it is obvious is not correct. My finding is that even this plea is against law as contained in the relevant statement of conditions reproduced above. The authorities concerned acted without lawful authority in not giving benefit of the provisions of law to the petitioner.

12. The upshot of the above discussion is that the writ petition is accepted; the order, dated 18‑6‑1971, passed by the learned Commissioner and order, dated 26‑10‑1971, passed by the learned Member, Board of Revenue are hereby quashed and are declared to be without lawful authority and of no legal consequence against the petitioner with the result that the only operative order which remains in the field is that of the Collector dated 6‑4‑1971, whereby he allotted the tenancy in dispute to the petitioner after the death of her mother Mst. Inayat Begum the last horse‑breeder. There will be no order as to costs. S. A. H. Appeal accepted.