P L D 1967 Lahore 329 (PLP)

MUHAMMAD GUL, J.‑This writ,' petition is directed against the order, dated the 17th of July 1963 (Annexure G) of the learned Member, Board of Revenue, made in the exercise of suo motu revisional jurisdiction under section 16 of the Punjab Land Revenue Act, 1887, read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912, whereby he held the petitioners to be ineligible for the grant of proprietary rights in certain State land alleged to have been granted to them under the Ejected Tenants Scheme.

2. The facts leading to this writ petition are that in the year 1952, the Provincial Government introduced the Ejected Tenants Scheme under section 10 of the 1912 Act as a measure of relief to the displaced local and refugee tenants and small land‑holders by allotting them State land for temporary cultivation. The main feature of the Scheme was that the grantees shall be self‑cultivating tenants who did not hold any land under any allotment made under any Rehabilitation Scheme and of or otherwise own or cultivate land exceeding 5 acres. The venue Scheme was modified from time to time until the Provincial Government vide Memorandum No. Col‑A/2457 (4167), dated the 8th of October 1960 (Annexure `H') decided to grant proprietary rights to the grantees of the State land under the Ejected Tenants Scheme. The main conditions governing the grant of the proprietary rights were there: "(i) Each case will be duly scrutinized to assure that it fulfils the conditions necessary for the transfer of proprietary rights. Proprietary rights will be allowed to the existing lessees in the older colonies but this concession will not be available to the lessees of these schemes if any in further in new project areas. (ii) Only those lessees will be eligible to purchase proprietary rights who cultivate the land themselves cultivating the land through the members of his family will be considered as self cultivation. But cultivation by the hired labour be excluded from the terms of eligibility. (iii) Persons owing more than 25 acres of irrigated or/and 50 acres of un-irrigated land shall be excluded from being eligible to acquire proprietary rights under this scheme. (iv) Option to purchase shall be exercised only after the expiry of three years from the date of commencement of the tenancy and not earlier. . . (vii) The lessee shall be entitled to acquire proprietary rights provided 90 per cent. of the land has been developed to the satisfaction of the Collector and he has fulfilled the other conditions of the lease satisfactorily. (viii) Land within 10 miles of the limits of a first class Municipality and within 5 miles of the limits of other municipal Town Committees, Cantonment Board, Notified Area Committee, be excluded from the operation of this Scheme. (ix) The land under the Scheme is to be sold only to these persons who actually cultivate and not to those who are merely shown as Khud Kasht in the girdawari register. . . (xi) The option of purchase will have to be exercised for the whole lot with a person and not only in respect of only a part of it. . .

3. The petitioners allege that they were granted land sometimes in 1956 under the Ejected Tenants Scheme (and not under the "Grow More Food" Scheme as alleged in paragraph 2 of the writ petition) and by the time the memorandum of the 8th of October 1960 (Annexure H) was issued by the Government they had been in cultivating possession of the land allotted to them under the Ejected Tenants Scheme for more than three years and, therefore, they became entitled to the grant of proprietary rights under the above instructions contained in the memorandum. The Member, Board of Revenue (Respondent No. 1) after having had the matter thoroughly enquired by the Collector and after notice to the four petitioners (and another who has not joined them in the writ petition) came to the following conclusion, namely‑ "These five persons were not in possession of the land during the period of enforcement of the Ejected Tenants Scheme. So they are not tenants under Tenancy Act and have got no right to get possession now and avail of the concession of enquiring the proprietary rights. 1, therefore, in exercise of my, revisional jurisdiction suo motu under section 16 of the Land Revenue Act, Section 7 of Colony Act (V of 1912), read with the Board of Revenue Act, 1957, order that Raja and others have no right to get possession and the proprietary rights under the Ejected Tenants Scheme. Their paper allotments under the Ejected Tenants Scheme have no value and should be considered as cancelled and they should be ejected if they have taken possession after the Scheme stood ended." Earlier in the same order, the leaned Member observed that the petitioners had practically done nothing to develop the land granted to them till the memorandum of the 8th of October 1960 was issued when they suddenly became keen for acquisition of proprietary rights in the land. As a result of the enquiry conducted by the Collector under instructions from the learned Member and after giving them a hearing, he held them ineligible for the grant of proprietary rights. Aggrieved by this order, the petitioners have moved this writ petition under Article 98 of the Constitution to have the aforesaid order by the learned Member to be declared as "without lawful authority and of no legal consequences".

4. The question whether the petitioners satisfied the conditions laid down in the memorandum of the 8th of October 1960, set out above, so as to be eligible for the grant of proprietary rights in the land is entirely a question of fact which cannot be possibly gone into in these proceedings. Learned counsel for the petitioners, however, strongly relied upon copies of the Khasra Girdawaris annexed to the writ petition and argued with some emphasis that the bulk of the land in question had been under the cultivation of the petitioners for the requisite period. We, however, consider that these entries, standing by themselves, do not show that the petitioners or any of them had developed at least 90 per cent of the area allotted to them to the satisfaction of the Collector. It can scarcely be con troverted that the learned Member, while validly seized of the matter in suo motu revisional jurisdiction, reached the con clusion that the petitioners had not satisfied the above condition for the grant of proprietary rights to them. It may be that the conclusion reached by him is open to doubt or question but that will not justify interference in writ jurisdiction. Mian Jamad Shah v. Election Commission (PLD1966SC1) is authority in point. Moreover, vide subsection (3) ibid any‑ allotment of State land in pursuance of a Scheme introduced under section 10 of the 1912 Act is subject to the control of the Financial Commissioner, now the Board of Revenue. Therefore, the learned Member was amply justified to enquire into the eligibility of the petitioners for the grant of proprietary rights in the land.

5. Furthermore, the memorandum of the 8th of October 1960, which is the foundation of the petitioners' claim, cannot be read as conferring upon grantees of land under the Ejected Tenants Scheme an absolute right to claim the transfer of the proprietary rights in the land even if they fulfilled the conditions laid down in the memorandum. It merely makes them eligible for the grant and it rests entirely with the Provincial Government whether or not to accept their option for the grant of proprietary rights in the land. In other words, option exercise-able by the eligible tenants is open to acceptance or rejection by the Government and it would be erroneous to read the memorandum so as to make the option exercised by an eligible tenants as absolute and binding leaving no choice to the Government. In State of Madras and another v. K. M. Rajgopalan (AIR1955SC817) it was held that the option given on the eve of Independence to the Members of the Services of the former Secretary of State for India to continue in the service of any of the two successor Dominions was not final unless it was accepted by the Government of the successor Dominion or as the case may be, of the Province concerned. In that case Rajgopalan, a member of the former I. C. S., opted for service with the Government of Madras after Independence but his option was not accepted by that Govern ment owing to his indifferent record of service. It was held by the learned Judges of the Indian Supreme Court that the option exercised by him in pursuance of the announcement of the Viceroy dated the 30th of April 1947, and circular issued by the then Government of India to the Chief Secretaries in the Provinces on the 18th of June 1947, did not become effective or finial unless it was accepted by the Provincial Government concerned. On that view of the matter, his premature compulsory retirement from service after Independence as a result of the refusal of the Provincial Government to accept his option was held to be not open to any objection.

6. On the above principle, therefore, if in any given case, the Government declines to accept the option of any eligible tenant, then a tenant even if eligible cannot on an known principle enforce his option by means of a writ unless it is accepted by the Government. It is equally erroneous to view the memorandum of the 8th of October 1960, as an agreement for the transfer of proprietary rights in the land by the Government, for there is no mutality in the terms of the memorandum. The instructions contained therein were entirely in the nature of ex gratia concession allowed unilaterally by the Government to the grantees under Ejected Tenants Scheme, as a result of policy decision and it was open to the Government to make any exception without assigning any reason. The very fact that lands situate within 10 miles of a First Class E Municipality and within 5 miles of a Second Class Municipality have been excluded from the grant of proprietary rights is highly significant.

7. For the foregoing reasons, in our opinion, no case is made out for interference in writ jurisdiction. We, therefore, dismiss this writ petition in limine. K. M. A. Petition dismissed.