P L D 1981 F S C 139 (PLP)

JUSTICE KARIMULLAH DURRANI, MEMBER.

Section 32 of the Colonization of Government Lands (Punjab) Act, 1912, has been assailed in S. P. No. 22/1 of 1980, while the whole of the said Act and the following Notifications issued thereunder by the Boards of Revenue of the West Pakistan and Punjab, in their Departments of the Colonies have been challenged in the second Petition :- Notification No. 6815-67/99-CL-I, dated 7-2-1968. 3368-67/98-CLI, dated 7-2-1968. 3215-79/3973-CII, dated 3-9-1979. 3215-79/3999-CII, dated 5-9-1979. 675-80/677-CLI, dated 11-2-1980. These are assailed on the ground that the petitioners, having brought under cultivation the fallow State lands allotted to them under the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Act), could not be dispossessed therefrom on the expiry of lease period in view of the clear injunctions of the Holy Prophet Mohammad (Peace be upon him) to the effect that whosoever brings barren land under cultivation becomes its owner and, therefore, such cultivator should not be deprived of these lands. 2. The petitioners in the first petition have contended that they alongwith the other cultivators in Village Mazari, had been in possession of the banjar and uncultivated land of the State. They brought the said State lands under cultivation and built dwellings thereon. The Provincial Government (Punjab) has now proceeded to resume the said land under section of 32 the Act. They claim ownership of the land in question by virtue of the above-quoted Injunctions of Islam and have, therefore, challenged the power of re-entry in the land, conferred on the said Government under section 32 ibid. This petition was presented through Mr. Muhammad Ismail Qureshi, Senior Advocate of the Supreme Court of Pakistan, Lahore. Neither any of the petitioners nor the learned counsel has cared to appear before us in spite of due service of notice. 3. Muhammad Saeed Shad, petitioner in S. P. No. 24/1 of 1980 has taken up cudgel on behalf of all the lessees under the Act of the Government Lands in the whole of Punjab by assailing the scheme of allotment of these lands by auction of periodical leases and the right of Government to re-enter the same on the expiry of the period of leases on the ground that this scheme was against the Injunctions of Islam in that any person or class of persons who brings under cultivation a piece of barren land becomes owner thereof. This petitioner has expressed his inability to appear before thin Court personally or through a counsel and has requested the consideration of his petition by the Court in absentia. Consequently, we have taken into consider ation the points raised in these petitions without the aid of the petitioners or a counsel. 4. The petitioners in these petitions are labouring under misconception of the Injunctions of Islam. They have relied on a number of traditions of the Holy Prophet (peace be upon him), dealing with (ﺖﺍﻮﻤﺽﺮﺍ). These traditions appear in almost every compilation in (ﻪﺘﺴ ﺡﺎﺤﺼ) and ate to the affect that whosoever brings to life dead land it is for him. One out of these Ahadith is: 5. The condition precedent to render a particular parcel of land as (ﺖﺍﻮﻤﺽﺮﺍ) is that it should not be vesting in the ownership of any other person. Rendered into English it would read :- Who brings to life land of another and of the owner has no knowledge. The practice of (ﺏﺎﻂﺧﻠﺍﻥﺍﺭﻤﻋ) and (ﺯﻳﺯﻌﻠﺍﺩﺒﻋﻥﺑﺮﻤﻋ) was that if any one had brought under plough the land of another considering it to be ownerless and abandoned then the other person came forward and proved his ownership on that particular land. The owner was given option either to receive the price of the land from the cultivator or to take the land in his possession after paying compensation for his labour to the cultivator. The saying of the Holy Prophet (Peace be upon him) in this matter is "whoever bring to life the uncultivated land he becomes owner thereof but the sweat of the zalam (ﻡﻠﺎﻇ) does not acquire any right therein" there the word zalam (ﻡﻠﺎﻇ) has been used for a person who occupies land belonging to another. 6. Qazi Abu Yousaf in his (ﺝﺍﺮﺧﻠﺍﺏﺎﺗﮐ) states : if a person has taken possession of an area of (dead) land which was in the ownership of someone else then that area will have to go back into the possession of the owner and the occupant would have no right whatsoever therein translated from (ﻞﺼﺎﺤﻣﻢﺎﻆﻧﺎﮐﻡﻼﺳﺍ) Urdu translation of (ﺝﺍﺮﺧﻠﺍﺏﺎﺗﮐ) by Dr. Mohammad Nijat Ullah Siddiqui, published by (ﻰﭽﺍﺮﮐ −ﻩﺍﺭ ﻍﺍﺮﭼﻪﺑﺘﮑﻣ) Problem No. 404 at page 318). The same translator, Dr. Mohammad Nijat Ullah Siddiqui in his book. (ﺖﻴﮑﻠﻣ ﻪﻳﺭﻆﻧﺎﮐﻡﻼﺳﺍ) Part I states as under :

In English: Imam Ahmed said as per narration of Al-Maroozi in respect of fallow land which is not owned by any person that if land becomes in the ownership of the person (by cultivation) it becomes fay i.e of the Muslims which is left behind on the demise of an heirless owner.

7. Moulana Abul Ala Maududi in his Pamphlet after (ﻥﻳﻤﺯﺕﻴﮑﻣ ﻪﻟﺌﺴﻤ) quoting Ahadith on come to the following conclusion.

8. The above proposition finds support from the following passages from (ﯽﻧﻐﻠﺍ) of (ﻪﺘﻣﺍﺪﻘﻥﺑﻻ) published at Riaz S. A.) Vol. V` pp. 562-63). Translated into English it would read as follows :- Mawat land, inter alia, is of two kinds. First is that which is not in the ownership of any person and it does not contain sign of any construc tion thereon. Such land become property of the cultivator who brings it under the plough. The Ahadith narrated by us relate to this proposition. The second is .: and that which means: To us, these are the lands which are owned by known owners, so these will not come in the ownership of another person who put them to life like the lands which a person owns by purchase or through a gift. Admittedly, the lands which are subject-matter of these two petitions are owned by the State. Those would, therefore, not fall within the definition of ﺖﺍﻭﻣﺽﺭﺍ.

9. An Islamic State is capable of owning land and is entitled to manage the same directly or to allot it to a citizen or a class of citizens for cultivation either on payment of ﺝﺍﺮﺧ or ﺭﺸﻋ (ﻞﺍﻭﻣﻻﺍﺏﺎﺘﮐ or ﻢﻼﺴ ﻥﺒ ﻢﺴﺎﻗﻠﺍﺩﺑﻋﻭﺒﺍﻢﺎﻤﺍ Even a free grant of land by the State to an individual is liable to be resume in the event of violation of terms of grant or on the neglect of the guarantee to bring it under cultivation.

10. From the above discussion, it is clear that none of the traditions of the Holy Prophet (Peace be upon Him) relied upon by the petitioners is relevant to the matter in hand as the land in question can by no stretch of imagination be called ﺕﺍﻭﻣﺾﺭﺍ .

11. The State which is owner of these lands is, therefore, fully competent to grant its lease to the citizens for the purpose of cultivation for a specified or unspecified period. Similarly, it would be entitled to resume or re-enter the demised land on the termination of the period of lease or in the event of the violation of any term thereof on the part of the lessees. Moreover, the impugned Act, as is apparent from its title and preamble, governs land vesting in the State. Both the petitions are, therefore, found without substance and are, consequently, dismissed. The petitioners may be informed of this order. S.A.H. Petition dismissed.