2002 PLP 2577 (YLR)

Syed Mukhtar Abbas for Appellant (in R.O.A. No.202 of 1999). Muhammad Abdul Majeed for Respondent No.

1. Malik Ghulam Siddique Awan for Respondents. The above, mentioned revision petition and appeal have been filed against the order, dated 19‑10‑1999 passed by the Commissioner, Faislabad Division, Faisalabad, whereby he accepted the respondents' appeal and set aside the order of the. District Collector, Jhang, dated 23‑6‑1996. This order will dispose of both the Revision Petition No.2358 of 1999 filed by Haq Nawaz etc. and Appeal No. R.O.A. No.202 of 1999 filed by Hasham, who is also petitioner No.2 in the revision petition as the land in question, facts and law involved are similar.

2. Briefly, the facts of this case are that land comprising Khasras Nos.76/1, to 25, 68/1 to 25 situated in Chak No.5/3‑L, Tehsil Shorkot, District Jhang was allotted to Muhammad Akbar, predecessor‑in‑interest of present respondents under Bara Reclamation Scheme. As per condition No.7(b) of the Bara Reclamation Scheme, the whole area duly reclaimed by the grantee was to be divided at the discretion of the Government into two equal portions, the tenant was entitled to exercise his option and acquire proprietary rights on determination of price by the Collector in respect 'of one of the portions while the other portion had to revert to the State. Accordingly, the proprietary rights of land comprising Square No.76 were given to the allottee and the Square No.68 was surrendered in favour of Government. Thereafter, the land comprising Square No.68 was leased out to Haq Nawaz and Hasham, the present petitioners. The Government of the Punjab in Colonies Department vide Notification No.354‑91/1066‑CLII, dated 17‑5‑1992 allowed the grantees under Bara Reclamation Scheme to purchase Government share also provided they were in possession of Government share (Wanda Sarkar) since 1987. On 26‑10‑1992 the respondents applied for purchase of surrendered land (Wanda Sarkar) comprising Square No.68. Their application was rejected by the District Collector vide order, dated 23‑6‑1996 on the ground that this gland had subsequently been allotted to the petitioners in the present proceedings under a Temporary Cultivation Lease Scheme. The present respondents filed an appeal before the Commissioner. Faisalabad Division, Faisalabad, who, vide impugned order, dated 19‑10‑1999 declared that under Notification, dated 17‑5‑1992 the present respondents had a right to purchase Government share also. He set aside the order of the District Collector and allowed the respondents to purchase proprietary rights of the land in question under Notification, dated 17‑5‑1992 leading to the institution of R.O.R. 2358 of 1999 and R.O.A. No.202 of 1999 by the petitioners and the appellant.

3. I have heard the arguments of learned counsel for both the parties on 7‑2‑2001. It was contended by the Learned counsel for the petitioners that after the division of land allotted to the grantee, the proprietary right of half share of allotted land were conferred to the respondents and in pursuance of the Notification, dated 7‑5‑1963 and the Government share of Bara land could not be given to the original allottee contending that such land could be given on temporary cultivation lease. He further contended that the surrendered land was leased out to the petitioners in equal share on account of being highest bidders and their leases have been extended upto Rabi 2000. After the issuance of Notification, dated 19-3‑1995, the petitioners claimed conferment of proprietary rights on account of being in continuous cultivation possession since before Kharif 1993 and being declared eligible for grant of proprietary rights. He argued that the respondents also applied for purchase of Government share under the Notification, dated 17‑5‑1992 issued by the Government but their request was rejected by the District Collector on 23‑6‑1996. He stated that the respondents have sold out 64 Kanals of land out of the land for which proprietary rights were granted to them through registered sale‑deeds on 7‑8‑1990 which has been incorporated in the Revenue Record. Their contention was that the respondents were not holding their share of the land for which proprietary rights were granted they were disqualified front the purchase of the Government share (Wanda Sarkar) of the land in question. According; to the learned counsel, the land in question was not available as it had been utilized under the temporary lease scheme and could not be allowed to be purchased by the respondents and that the learned Commissioner has erred in passing the sketchy impugned order in 'Urdu' in favour of respondents which could not be termed as a judicial order as against this, learned counsel for the respondents contended that after the promulgation of Notification, dated 17‑5‑1992, the respondents, having preferential rights, applied in time on' 26‑10‑1992 for the purchase of the Government share (Wanda Sarkar) later surrendered by them'. He argued that the status of the petitioners was that of lessees under the Temporary Cultivation Lease Scheme and they did not have any right to claim the land: He, stated that as per memo dated 13‑8‑1964 issued by the Board of Revenue the Government share of land had to be leased out on year to year basis till it was required for permanent disposal. He drew the attention to the point that at the time of promulgation of policy, dated 17‑5‑1992, the petitioners were temporary lessees and there was no concept of grant of proprietary rights to them as there was no scheme in the field under which their case was covered as the Notification for grant of proprietary rights was issued ion 19‑3‑1995. He contended that the Bara Scheme was a permanent Scheme and without exclusion of the area from the Schedule, the land in question could not have been allotted to the petitioners under the Temporary Cultivation Lease Scheme. He referred to para. 2(b)(a) of the Notification, dated 19‑3‑1995.

4. I have given due consideration to the arguments advanced by the learned counsel for the parties and their written arguments placed on the file. A perusal of the record shows that the land falling to the Government share was not excluded from the ambit of the Bara Reclamation Scheme, 1945. According to the letter, dated 13‑8‑1964, the Government share of Bara land could be leased out on year to year basis on tender system Mill it was required' for permanent disposal. The terms of lease envisaged in this policy letter were specific to the disposal of land under Bara Scheme was necessarily cultivated at the time the division of land between the original allottee and the Government took, place. Thus the lessees did not put in any extra effort in bringing it under plough. It was contended in the written arguments that the petitioners had obtained the land in question in open auction for period of two years in 1987. The petitioners have been deriving benefit from the land for the period it remained with them since 1987 on payment of usual rent and not competitive rent after the expiry of initial period of lease of two years. Even otherwise, this case is hit by, Conditions Nos.2(a) and 2(b), reproduced below) of the Notification, dated 19‑3‑1995 for grant of proprietary rights.

2. Exceptions and Reservations.‑‑ Unless it is otherwise specifically provided, following categories of State land shall be deemed to have been expressly excluded from every grant to be made under these conditions:‑‑ (a) Lands already allotted under permanent grants/schemes. (b) Lands already reserved for permanent grants/schemes, including river action scheme or reserved/ allotted under service grants." The claim of the petitioners for grant or proprietary rights, therefore, does not have any force in it and the same is' dismissed. However, the District Collector may consider their case for grant of alternate State land, if they are otherwise eligible.

5. So far as the claim of the respondents is concerned, the policy letter, dated 17‑5‑1992 clearly envisages that the sale of Government share of Bara Scheme by private treaty could be allowed to the allottee if he continued to hold his portion of land after acquiring proprietary rights in cases where the Government share '(Wanda. Sarkar) was still with the original allottees. From the documents produced by the learned counsel for the petitioners, it is evident that the respondents had sold land measuring 64 Kanals out of their share of 200 Kanals through registered sale‑deeds on 7‑8 1990 and the transactions had been implemented in the Revenue Record. Thus' the case of the respondents both on account of having, sold portion of their share of Bara Land as also having failed to continue to hold Government share (Wanda Sarkar), with them is not covered under the policy instructions, dated 17‑5‑1992. The learned Commissioner has not considered the respondents case in light of these policy instructions while passing the impugned order. The respondents are also thus not entitled to the purchase of Government share (Wanda Sarkar) which is ordered to be resumed from the petitioners The impugned order is, therefore, not sustainable and the same is also set aside. S.A.K./47/Rev Revision accepted.