P L D 1966 (W (PLP)

MUHAMMAD GUL, J.‑This order will dispose of W. P. Nos. 1543, 1544, 1752, 1790, 1847, 1866 and 1904 of 1965 the points of law and facts bearing on all the petitions being the same.

2. The petitioners in each case were allotted certain land under what is described as the "Ejected Tenants Scheme" intro duced in 1952 vide Provincial Government's letter No. 652‑TH, dated the 17th July 1952, under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. The Scheme was amended from time to time and has since been abolished in 1960 vide Memorandum No. COL‑S/24/57 (41167), dated the 8th October 1960. Under this Memorandum, the Government decided to grant proprietary rights to allottees of land under the "Ejected Tenants Scheme" on certain conditions. Condition No. (viii) provided that the allottees of land situate within a radius of 10 miles of the outer limits of first class Municipalities and 5 miles of other Municipalities or Town Committees (here inafter called the `prohibited limits') shall not be eligible for the grant of proprietary rights. As to the land falling within the aforesaid limits, the Government decided to resume the land to be offered on tenders for temporary cultivation from year to year.

3. It appears that the lands allotted to the petitioners fall within the said prohibited limits and, therefore, they are being dispossessed from the lands which have since been offered on tender basis for temporary cultivation. The petitioners have accordingly filed these writ petitions under Article 98 of the Constitution in which they characterise the action of the Govern ment as "arbitrary, discriminatory and inequitable" and "without authority in the law". It was also pleaded that the impugned action of the Government offends against Fundamental Rights Nos. 13, 14 and 15 in the Constitution, in that the Government has by the impugned action. threatened to deprive the petitioners of their rights in the lands held by them without the authority of law and that it also tended to discriminate between the petitioners and those to whom lands were allotted beyond the prohibited limits who are eligible for grant of proprietary rights in the land.

4. We have heard learned counsel for the petitioners at considerable length but the argument overlooked certain basic facts in the case.

5. It is not denied that the whole foundation of the peti tioners' claim is the then Punjab Government's letter of the 17th July 1952, which introduced the "Ejected Tenants Scheme", as "a measure of relief to the displaced local and refugee tenants and small land owners . . . for temporary cultivation . . . . ." on the terms and conditions set out therein. Among the conditions prescribed were that the land shall be allotted to persons who are self cultivators and who do not own or otherwise hold under an allotment or under any Rehabilitation or Settle ment Scheme in excess of two acres. The letter also prescribed an order of priority, first priority being given to those persons who lost their tenancies by the introduction of agrarian reforms in the Province in 1952. The allotment under the Scheme was further made subject to the "Statement of conditions" governing temporary cultivations leases contained in the Punjab Government's Notification No. 2664‑C, dated the 22nd September 1944, as amended by Punjab Government's Notification No. 3662‑C, dated the 6th December 1944.

6. The Statement of conditions in the above Notifications in so far as they are material for the purpose of this case provided that grant of land made there under shall be considered "as a Scheduled Tenancy" under section 4 of the 1912 Act and that the tenancy shall be granted for the period mentioned in the allotment order issued by the Collector. Paragraph 15 of these conditions further provided that the tenant shall surrender the whole or any part of the land allotted to him within 30 days of the notice issued to him if it was required for certain purposes. Finally that the allottee is bound to surrender the land peaceably to the Government on the expiry or sooner determination of the lease as required by paragraph 18.

7. The above conditions read with conditions laid down in the Punjab Government's letter of the 17th July 1952, emphasise the temporary nature of the grant made to the petitioner and others inducted on the Government lands under the "Ejected Tenants Scheme". Indeed, learned counsel for the petitioners could not point to any provision in the conditions intended to grant tenancy rights to the petitioners on the permanent basis or for any specified period. In the absence of any such stipulation as to the period of lease, it has to be treated as a tenancy‑at‑will or at any rate a tenancy from year to year.

8. There is yet another aspect of the case. Vide section 11 of the 1912 Act, all grants or allotments under the Act are made subject to the provisions of the Government Grants Act, 1895. Section 3 of this Act reads as follows: "All provisions, restrictions, conditions and limitations contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwith standing." That being so, the grant in favour of the petitioners being purely of a temporary character will retain that character under the express provisions of section 3 of the Government Grants Act notwithstanding anything in any other law to the contrary. Therefore, it is erroneous to contend that the petitioners had acquired any vested right in the land granted to them or they cannot be ejected there-from unless they are given alternative land.

9. There is no force in the contention either that section 24 of 1912 Act is applicable to the petitioners' case and therefore the Government cannot resume the land except in the event of the breach of the terms of the lease except under breach of the conditions of the grant. As observed already, vide the Punjab Government's Notifications of September and December 1944, the grant in favour of the petitioners was in the nature of "Scheduled Tenancy" as contemplated by the proviso to section 4 of the 1912 Act. Section 27 (c) of the Act expressly excepts the `Scheduled Tenancies' under proviso to section 4 from the application of sections 24, 25 and 26 of the Act: Therefore, no reliance can be placed on section 24 of the Act by the petitioners either td retain possession of the land or to acquire proprietary right therein. Nor can section 27 otherwise be read to impinge on the right of the Government to utilize the land situate within the prohibited limits in a manner different from that to what it was being put hitherto.

10. The Punjab Government's letter of 1952, by which the "Ejected Tenants Scheme" was brought into operation did not contain any express or implied covenant that the petitioners will be given rights of permanency or proprietary rights in the land or that otherwise the Government divested themselves of their proprietary rights in the land in favour of the petitioners. Therefore, it is wrong to say that the petitioners have been divested of any right vesting in them other than of temporary occupation of land. For‑ the same reasons, it is wrong to suggest that there was breach of any Fundamental Right of property vesting in the petitioners. The grant made in their favour only entitles them to temporary possession of the land and beyond that no right inhered in them.

11. Similarly, there has been no infringement of the equality clause of the Constitution merely because that the Government has decided to confer proprietary rights on the grantees of lands situated outside the prohibited limits. Equality before the law does not mean absolute equality between men which is a physical impossibility, but the denial of any special privilege by reason of birth, creed or the like in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of land administered by the ordinary law courts. In the instant case, the land belongs to the Government. While it proposes to transfer proprietary rights on the grantees, for obvious economic reasons it wants to retain its domain over the land which are within the radius of 5 miles or as the case may be, 10 miles from the outer limits of municipalities. On no dis coverable principle case this right be denied to the Government. The matter essentially concerns the right of the Government to manage its lands, which is incidental to and inherent in the ownership of the lands.

12. The petitioners also contended that they have made improvements on the land at considerable expense and unless the Government were to reimburse them with the expense they had incurred, they are not liable to ejectment. The question whether the petitioners have incurred any expenses and if so what is the amount of the expense are entirely questions of fact which cannot be enquired in these proceedings. In the event of any such claim, there is nothing to prevent the petitioners from enforcing it in a prooerly constituted proceedings in a Court of competent jurisdiction. In any case, the High Court in exercise of its writ jurisdiction is not the proper forum either to determine or to enforce any such claim.

13. For the aforesaid reasons, it is entirely a misnomer to characterise the Provincial Government's refusal to grant proprietary rights to the petitioners in the land in dispute and to offer it on yearly tenders for cultivation as arbitrary, discrimi natory or without lawful authority. The writ petitions are accordingly dismissed in limine. K. B. A. Petition dismissed.