2002 PLP 2414 (YLR)

‑‑‑‑S. 19‑‑‑‑Purpose of S.19, Colonization of Government Lands (Punjab) Act, 1912‑‑ Liability of purchaser/transferee of tenancy rights to abide by all terms and conditions of tenancy exhaustively stated. (g) Administration of justice‑‑‑ ‑‑‑‑Duty of revenue hierarchy to provide speedy relief to citizens, when they approach various forums for redressal of their grievances instead of letting the disputes linger on from one forum to the other. Sarfraz Ali Khan for Appellants. This appeal has been filed against the order dated 29‑9‑2001 passed by the Executive District Officer (Revenue. Bhakkar, whereby he dismissed the request of the appellants for grant of permission for transfer/alienation of tenancy rights.

2. Briefly the facts of the case, as borne out from the petition, are that Lot No. 1.66 measuring 1200 Kanals situated in Chak No.18, Rakh Haiderabad, Tehsil Mankera. District Bhakkar was allotted to Fateh Muhammad petitioner No. 1, Hadayat Ali, predecessor‑in‑interest of appellants Nos.2 to 7, Ilam Din predecessor‑in‑interest of appellants Nos.8 to 14, Barkat Ali, predecessor‑in‑interest of appellants Nos.l5 to 21 and Abdul Karim, predecessor‑in -interest of appellants Nos.22 to 25 jointly in equal share under Tubewell Sinking Scheme, 1952. After grant of proprietary rights vide D.C./District Collector's order dated 7‑8‑1995 and payment of all Government dues" except the last instalment, the appellants applied to the Commissioner, Sargodha Division Sargodha for permission to alienate their rights to the extent of their share (1145 Kanals and 15 Marlas) under section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He called for a report from the D.C./District Collector. After recording statements through the Colony Assistant, the D.C./District Collector forwarded the case to the Commissioner on 10‑8‑2001. Consequent upon the implementation of the devaluation plan under the Local Government Ordinance, 2001, the case was taken up by the Executive District Officer (Revenue), Bhakkar who vide impugned order, dated 29‑9‑2001 dismissed the request of the appellants on the ground that the ‑case has been initiated to evade the Government Revenues leviable on the Conveyance deed/Mutation of Transfer of property Rights/Registration fee etc. Hence this appeal.

3. In the course of the hearing of the revision petition, the application moved on 5‑12‑2001 by the appellants for grant of interim relief came up for hearing today. During hearing of the stay application, the learned counsel for the appellants contended that a hasty non‑speaking impugned order has teen passed on the application for permission o transfer the tenancy rights under section 19 f the Colonization of Government Lands Punjab) Act, 1912 in the absence of the parties. He further contended that under section 19 of the Act, only the tenancy rights of the allottees or their legal heirs were sought to be transferred alongwith all other liabilities. In support of his contentions, the learned counsel relied upon PLD 1969 W.P. (Rev.) 1, wherein it has been held that "the only consideration on which the Collector may now refuse sanction under section 19 of the Colonization of Government Lands Act appears to be. that the persons to whom land ,lad been granted should be required to fulfil he conditions of their tenancies". In another case the Honourable High Court has observed that instructions on the subject did rot appear to have been issued. He argued hat the impugned order may be set aside on account of having been passed ex parte and being unlawful.

4. I have considered the arguments advanced by the learned counsel for the appellants. The impugned order and other documents placed on record have also been perused. In view of elaborate instructions on the subject of transfer of tenancy rights under action 19 not appearing to have been issued by the Government under the Colonization of government (Punjab) Land Act, 1912, it appears necessary to examine the subject in some detail in light of the existing provisions of law.

5. There does not appear to exist any provision in the Colonization of Government Land (Punjab) Act, 1912 to exclude the case of the petitioners from the, purview of consideration of the prayer or transfer of tenancy rights under section 19 of the Act. Rejection of the plea for transfer of tenancy rights on the ground of loss to the Government would render the provisions of section 19 of the Colonization of Government (Punjab) Lands Act, 1912 ineffective. Besides, it does not appear from a perusal of the order of the Executive District Officer (Revenue) if notices were issued to the parties to afford them an opportunity of hearing before disposing of the case in hand.

6. The first prerequisite for invoking the jurisdiction of the competent forum by a tenant for transfer of tenancy is the existence of a right or a vested interest under the Colonization of Government (Punjab) Lands Act, 1912 that he can hold on to or a right that is enforceable under the law. In the first instance, a request for transfer of tenancy rights is relatable to tenancies held over colony land by a tenant who has been granted land under a notified scheme under sections 10(1) or 10(2) of the Colonization of H Government (Punjab) Lands Act, 1912. It would be seen that tenants holding state land under different schemes would not all fall in the ambit of the section 19 of the Act to seek transfer of tenancy rights automatically unless the Government of the Punjab in the Colonies Department has issued a statement of conditions entitling the tenants to be eligible for conferment of proprietary ‑rights. It is only then that in the event of a tenant fulfilling the terms and conditions of eligibility for conferment of proprietary rights that he can be held to a right or vested interest in the tenancy in terms of the opening part of section 19 of the Act. A tenant holding land under a Temporary Lease Scheme where there is no provision for conferment of proprietary rights, a tenant holding land under a scheduled tenancy or a lease holder of State land for a poultry farm, 8 fish farm, nursery etc. clearly fall outside the ambit 'of section 19 of the Colonization of Government (Punjab) Lands Act, 1912 as no vested interest or right can be said to have created in such tenants/lease holders warranting transfer of the tenancy rights onward to another person. Then, there are tenancies where proprietary rights are available to tenants over tenancies located outside the prohibited limits but cannot be exercised by tenants holding land under the same scheme in the prohibited limits: The tenancies withirf the prohibited limits cannot be transferred under section 19 of the Act except in cases of old Schemes contemplating provision of proprietary rights where the Municipal limits existing at that time were not an obstacle in the way of the conferment of proprietary rights on the original tenants then. Similarly, the cases of those cultivating State land leased out for specific purposes to a department of the Federal or Provincial Government or a Company for purposes such as Dairy Farms, Livestock and Dairy Development Board, Agricultural Department for research and seed multiplication, afforestation, cotton/sugarcane growing etc are. also not covered as tenants of State land. The cases of tenants under different effectees/oustees schemes, however, would be covered under the law for the purpose after allotments have been made and possession has been given under section 10(4) of the Colonization of Government Lands (Punjab) Act, 1912 to them as their eligibility for conferment of proprietary rights to the indicated extent stands determined prior to that. Similarly, the cases of tenants under the Schemes where there is an inbuilt concept of conferment of proprietary rights to the extent provided in the Scheme would also be covered subject to continuance of the tenancies as per terms and conditions governing them. But such a right is enforceable in temporary lease schemes or in scheme providing alternate land only after a statement of conditions covering the case of a tenant eligible for conferment of proprietary rights have been issued and the tenant has been declared eligible for conferment of proprietary rights thereunder. The cases of the tenants under the other temporary lease schemes unless the concept of proprietary rights is legally provided would not ordinarily fall in this category.

7. All Government grants are required to take effect according to their tenor in the statement of conditions governing them. A right that is not available to the original tenant can be transferred under this section of law. It is difficult to press into service a right of tenant other than that enforceable under the law in accordance with the statement of conditions providing for the same. Such a right or a vested interest. in terms of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is created in a tenant on the examination of his eligibility for conferment of proprietary rights in his favour although actual conferment of proprietary rights may take place at a much later stage depending upon the provisions incorporated in the statement of conditions of the Scheme.

8. The law that governs the relationship between the State and the tenants over State land was the Government Tenants (Punjab) Act, 1893 and on its repeal, the Colonization of Government (Punjab) Lands Act, 1912. The legal provision corresponding to sections 18 and 19 of the Colonization of Government (Punjab) Lands Act, 1912 was contained in section 8 of the Repealed Act.

9. The Crown Grants Act XV of 1895 was promulgated by the Governor General of India in Council to explain the applicability of the Transfer of Property Act, 1882 in relation to grants from the Crown and to remove certain doubts as to the powers of the Crown in relation to such grants. The provisions of Transfer of Property Act, 1882 were not applicable to Crown Grants or transfer of land of any interest therein under section 2 of this Act. Section 19 of the Colonization of Government (Punjab) Lands Act, 1912 is a more elaborate provision in relation to transfer of tenancy rights declaring the same to be void without the previous consent in writing of the Commissioner now Executive District Officer (Revenue) or by such officers as he may by written order empower in this behalf. It is, therefore, important that this power be exercised by the officer concerned or his delegatee strictly in accordance with the spirit of law in view of its exclusivity of the exclusion of the others with the main object of providing relief to the tenants by a simplified procedure not involving payment of any charges on the rights of transfer of tenancy rights sought by tenants rather than adding to them agonies by refusal of such petitions.

10. It does not appear that the law makers under the Act intended to defer the transfer of the tenancy rights from the original tenant to another person till the completion of all terms and conditions of the scheme by the original tenant. The main purpose of incorporating this provision appears to have been to ensure continued Colonization of Government Land by substituting the original tenant by a purchaser of tenancy rights as the later would still be bound to abide by the remaining terms and conditions of the scheme before actual conferment of proprietary rights after finding the original tenant as eligible for conferment of proprietary rights being still bound to abide by conditions such as continuing to cultivate the land for the purpose for which it was originally given, make payment of Government dues, take up permanent residence in the estate in which the tenancy is situated, bring the land under plough to the stipulated extent and the like. The purchaser/transfree, however, would not have to go over the exercise of getting his eligibility for conferment of proprietary rights determined all over again on stepping into the shoes of a tenant whose eligibility for such a right already stood determined. The purchaser/transferee of a right of tenancy would be liable to abide by all the terms and conditions of the tenancy ensuing the determination of eligibility for conferment of proprietary rights.

11. The Commissioners used to delegate their powers to the District Collectors under section 19 of the Colonization of Government (Punjab) Lands Act, 1912. However, the Government of the Punjab in the Colonies Department vide Circular Letter No.1663 95/1331‑CII, dated 29‑10‑1995 advised the Commissioners to withdraw all such delegations and directed. that the cases of bona fide nature should be taken up and decided by them on merits and not by the District Collectors.

12. It has been observed that cases of according written consent of transfer of proprietary rights under section 19 of Colonization of Government (Punjab) Lands Act, 1912 have been inordinately delayed in certain cases causing inconvenience to the tenants and the purchasers/transferees of tenancy rights. Delays in disposal of petitions for transfer of tenancy rights are bound to be accompanied by complications even ordinarily. But with the reversion' of the power to sanction transfers under section 19 of the Act to the former Commissioners now Executive Officers (Revenue) from the former Deputy Commissioners/District Collectors, the cases that were pending before the District Collector/ Deputy Commissioner then were transferred to the Commissioners and with the cunning in of the devolution plan, these cases pending with the Commissioners at the Divisional Headquarters went back in the Districts to the Executive District Officers Revenue). Statements of parties to the cases of transfer of tenancies were recorded long ago iii certain cases, but their final fate was still awaited. These cases run into difficulties with problems such as the death of the transferors and transferees and temptations for duplicate transfers by the original tenants due to rise in costs. It is, therefore, important that all petitions for transfer of tenancy rights falling in the above parameters be promptly disposed of by the Executive District Officers (Revenue) in the lager public interest. But prompt disposal, however,, may not be at the cost of denying relief to the citizens envisaged under the law as it leads to protracted litigation. It is the duty of the revenue hierarchy to provide speedy relief to the citizens when they approach various forums for redressal of their grievances instead of letting the disputes linger on from one forum to the other.

13. Transfer of tenancy rights as envisaged under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is different from sale after obtaining full opportunity rights in a tenancy. Therefore, rejection of petition for transfer of rights on the ground that it is intended to defeat realization of Government dues on transfers needs reconsideration in light of the observations in this order. Of course, Government dues on transfers at the time of issuance of a conveyance deed would have to be paid by the purchaser, but requiring the tenants or their legal heirs to first acquire proprietary rights, get the conveyance deer executed and then transfer the tenancy rights through a registered deed would defeat the object for which section 19 was provided in the Act. A tenant may seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary rights without even payment of any cost of land or at any stage thereafter as he comes to acquire a right and a vested interest in the tenancy at time he is declared eligible for conferment of proprietary rights from a particular date.

14. The appeal is accordingly accepted, the impugned order is set aside and the case is remanded to the learned Executive District Officer (Revenue), Bhakkar to pass an order in accordance with law after affording an opportunity to the parties to present their view points and taking into consideration the evidence already brought on the file before a competent forum in furtherance of the original petition for transfer of tenancy rights. S.A.K./50/Rev. Order accordingly.