1980 PLP 1042 (CLC)

All the leases will be governed by the statement of conditions contained in the former Punjab Government Notification No. 2664 S, dated the 22nd September, 1944, as subsequently amend ed, with the additional condition that, at the expiry of a lease, no extension of the original period shall be given. According to the Department, the efforts of the Deputy Commissioner to lease out the land for a period of one year by tender or even for a period of five years failed with the result that the leases had to be auction ed for a period of ten years. For auction for a period of five years ishthar-e-neelam was prepared and the same proclamation was utilised when the auction for ten years period had to be resorted to. Contrary to the instructions of the Government that such leases could be sanctioned by the Commissioner, para. 6 of this ishthar provided that the Collector was not bound to accept the highest bid and had the right, inter alia, to reject to and it was stated in para. 8 that on the acceptance of the last bid the lessee will have to deposit the rent for one crop in advance which would be adjusted at the end and the Collector will issue an allotment order which will be signed by the lessee. In this way, all the acts whether of allotment or of delivery of possession were to be performed by the Collector. A reference was made to the statement of conditions con tained in Notification No. 2664-C, dated 22nd September 1944 as amended upto date, but this notification also authorised the Collector to make allotment and deliver possession. These leases of the land were auctioned for the period starting Kharif 1966 and ending Rabi 1976. The lists of auction results were forwarded by the Deputy Commissioner, Bahawalpur to the Commissioner, Bahawaipur, in September/October 1966 after a long delay. On 21st January 1967, the Secretary Colonies wrote memorandum No. 8506/66-178-CUI to all the above-mentioned Commissioners intimat ing to them that disposal of State land to achieve maximum success in 'Grow More Food' Campaign was under active consideration of Govern ment and it was likely that State land being given out for longer periods may be considered for some other schemes. 1n view of this, it was directed that leases for five or ten years being given out according to instructions in the above-mentioned letter of 6th May 1965 may be post poned pending issue of instructions regarding leases for longer period, but the leases on annual tender may anyhow continue to be auctioned on scheduled terms. On 24th January 1967 a telegram was sent by the Secretary Colonies to the Deputy Commissioner, Bahawalnagar also drawing his attention to the above memorandum of 21st January 1967 and asking him that no lease for five or ten years be granted till further orders and to withhold possession in cases in which orders of leases had already been passed and convert such leases into leases for one year through auction. On receipt of this memorandum and telegram, the office put up a note before the Collector in which it was also admitted that in case of ten years lease possession had already been given to the lessees for one year only in anticipation of the Commissioner's approval and suggested that the Divisional Commissioner may be requested to postpone the confirmation of ten years auction lease and to return the cases for converting them into one year's lease. The Deputy Commissioner, Bahawalnagar, therefore, wrote memorandum No. CB/25 dated 3rd February 1967 requesting for postponement of confirmation and return of the cases. By Memorandum No. 8506/66-620-C(G) 1, dated 16th March 1967, the Secretary Colonies further clarified the instructions of the memorandum dated 21st January 1967 and the telegram dated 24th January 1967 that these instructions were applicable only to such leases for five or ten years in which Collector's order of allotment had not been passed and possession had not been delivered on 21st January 1967. The Deputy Commissioner's office came into motion on receipt of this clari fication and it was suggested that after verification from the Tehsildar concerned the cases in which the lessees had obtained the possession by the target date under a valid permit will have to be revived. Regarding the leases of ten years it was stated that these were within the powers of the Commissioner but in the present instructions, i,e. the instructions dated 16th March 1967 the order of the Collector has been mentioned and a clarification will, therefore, have to be obtained from the Board of Revenue. The reference in this nothing was obviously to that portion of the letter dated 16th March 1967 where it was said that even in case of leases of ten years the earlier instructions of 21st January 1967 were applicable to cases in which Collector's order of allotment had not been passed. Memorandum No. CB/1/61, dated 7th April 1967 was, therefore, written by the Deputy Commissioner to the Secretary Colonies Depart ment for clarification and this letter reads as follows :- "Sub : Utilization of commanded and uncomrnanded State land. "Kindly refer to your endorsement No. 8506/66-621-COI, dated 11th March, 1967 on the subject noted above. According to the instructions contained in Memorandum No. 8977/ 64-1298C(G) I, dated 6-5-65 addressed to the Commissioner and a copy endorsed to the Deputy Commissioner sanction to the leases of tell years rests with the Commissioner-Bahawalpur. But the instructions contemplated in endorsement under reference mention the authority of Collector even for such leases. It is therefore requested that clarification regarding authority may please be given go that matter proceeds." A reminder was also later on sent on 22nd June 1967. By Memorandum No. 1764/67-3117-CLI darted 19th September 1967, the Deputy Secretary Colonies, Board of Revenue, wrote to the Deputy Com missioner that under section 10 (3) of the Colonization of Govern, went Lands (Punjab) Act (1912) formal allotment orders shall be issued by the Collector and under section 10 (4) the tenancy shall commence only when formal orders under section 10 (3) are issued and possession of the land is obtained with the permission of the Collector and in view of this legal provision no amendment was called for. This reply was plainly susceptible of an interpretation that under section 10, the power of allot ment vested in the Collector and the instructions of 21st January, 1967 could not be applied to a case where order of allotment has already been issued by the Collector and possession also given by him although the lease may be for a period of ten years, but the Collector passed an order on 19th January, 1968 that the lessees should be bound down that they should not harvest any crop after Rabi 1968. Later on, Notification No.3369/67-198-CLI, dated 7th February, 1968 was published in the Gazette of West Pakistan, Extraordinary issue published on 12th February, 1968 by which the letter dated 6th May, 1965 was superseded and it was directed that the future leases of all available state agriculutral land to which the Colonization of Government Lands (Punjab) Act, (1912) was applicable shall be subject to the fresh terms and conditions embodied in this notification. Paras. 1 and 2 of this Notification are material and are reproduced below :- "

1. Definition.-All available State agricultural land shall be leased out subject to- (i) the General Colony conditions published with Punjab Government Notification No. 5782-C, dated 29th June, 1938, as amended up-to-date contained in the Punjab Colony Manual, Volume II of 1942 ; (ii) the Temporary Cultivation conditions published with Punjab Government Notification No. 2664 C, dated 22nd September, 1944 as amended from time to time, and (iii) the conditions hereinafter appearing provided that in case of repugnancy, the present conditions shall prevail. Any tenancy granted on these conditions shall be scheduled tenancy under section 4 of the Colonization of Government Lands (Punjab) Act, 1912.

2. Period of Tenancy (cultivated).-The State land already under cultivation including that leased out under Temporary Cultiva tion conditions on yearly tender shall, henceforth, be leased out for a period of 5 years Provided that such State land situated within 10 miles of the outer limits of a first class municipality, 5 miles of the outer limits of other Municipalities/Town Committee/Cantonment Board, one mile from a railway station and that earmarked as Charagh, shall be leased out for a period of 3 years Provided further that the existing leases shall however, be valid for their present terms and thereafter leases shall be given under the present conditions." Some of the lessees filed civil suits challenging these orders of the authorities and claiming a declaration that they were entitled to remaining possession as lessees upto 1976. These suits were decreed in their favour and ultimately the regular second appeal filed by the Government were dismissed by the High Court. It is admitted by the learned counsel for the respondent in these cases that no further letters patent appeal or applications for special leave to appeal to the Supreme Court were filed. In these petitions the case of the petitioners, as stated above, is that they had become tenants under section 10, subsection (4) of the Act and their tenancy could not be resumed except for breach of conditions. before 1976. It has also been urged that the Board of Revenue has clarified by its memorandum dated the 16th March, 1967 that those lessees who had received the allotments from the Collector and had also been delivered possession, although their leases may be for ten years, will not be affected by the instructions dated 21st January, 1967. 1t is also contended that even this latter statement of conditions dated 7th February, 1968 will apply only to available land and not to the land which is already on lease with tenants, The learned counsel for the respondents raised the factual objection that in the present case neither any allotment orders were issued by the Collector nor possession was delivered by him and the petitioners could be said to have obtained the status of tenants within section 10, subsec tion (4) of the Act. It was also submitted that the auction was subject to confirmation by the Commissioner and in the 'absence of this confirmation the lease for a period of ten years did not at all come into existence. learned counsel for the respondents also urged that the order dated 6th May, 1565 by which the Commissioner had been given the power of making allotment was itself a statement of conditions and was therefore. binding on the petitioners also but in any case it would be a delegation of the same character as is a delegation made regarding the power of leases by West Pakistan Delegation of Power Rules under the Financial Rules and the power of Re-appropriation Rules, 1962. When confronted with the provisions of section 10, subsections (3) and (4), by which the Collector is authorised to allot land, the learned counsel submitted that the Collector could issue only a formal order of allotment. The objection of the respondent's counsel that no allotment order was passed by the Collector nor possession was given to the petitioners is without force. The petitioners have taken a plea to their writ petitions that the properties were leased out to them and they had been duly handed over possession. No written statement denying this fact or counter affidavit repudiating this fact was filed by the respondents. In some cases comments have been filed tinder orders of this Court, but even' in those comments the above allegations have not been controverted either specifically or even impliedly. Most of the petitioners have file documents relating to auction where approval has been given by Collector. In a number of these writ petitions copies of the fard taqseem issued to different petitioners have also been placed on record. One of the files relating to auction was also shown to me by the learned counsel for the respondents and in that file also copy of the ford taqseem was attached. On my enquiry, the learned counsel, as well as the Superinten dent from the Commissioner's Office who was assisting him, admitted that fard taqseem is issued after a proper allotment order is passed. In fact, faced with this situation the learned counsel for the respondents did not deny that fard taqseem had been issued to the petitioners, butt submitted that these, fard taqseems were only signed by Patwaris and not by the Collector and as such they could not be deemed to be written orders of allotment. The issue of a fard taqseem raises a presumption that there must have been a proper allotment order and if on the auction file an approval of auction has been given it may also become an allot ment order. As stated above, some of the petitioners for example, petitioners in Writ Petition No. 813 of 1968 have filed the final orders of Mr. Muhammad Mahboob Abbasi, PCS, Collector, showing the approval of the auction in favour of those petitioners, for example, Annexures B/1, B/2, B/3 and B/4. The other documents relating to the auction do not show the designation of the officer conducting the auction, but in the heading it is shown as the final order in the Court of Collector Chishtian. If in pursuance of these orders fard taqseem has also been issued, it could not be said that the fard taqseent also should bear the signature of the Collector. Apart from the fact that on the question of possession there is no denial of the allegations made in the writ petitions either by way of written statement or in the form of counter affidavit, the delivery of possession has been admitted in the office noting of the above file from which the history of the case has been given above. Even in the order dated 19th January, 1968, the learned Collector, Bahawalnagar, has stated that "in Tehsil Chishtian and Fort Abbas in the month of June, 1966, an area of the 6,383 acres 1 kanal 10 marlas was leased out to the lessees for temporary cultivation under 10 years' scheme and the list was sent to the higher authorities for approval, but it was not approved. As the lessees had come into possession of their respective areas, by order dated 3rd August, 1967 they were given time upto Rabi 1968". This also show that there have been proper allotments and possession was also delivered in pursuance of the allotments to the lessees. In view of the admission made in the office noting referred to above and in this order about delivery of possession it can also be presumed that the official acts must have been duly performed and in each case proper allotment orders must also have been issued. The learned counsel could not even show me the file relating to auction or the orders under which possession had- been given. It is possible that reference to the allotment orders may have been made in the files in which the orders of delivery of possession are recorded. However, in view of the fact that the respondents had never challenged this question of fact it is not open to them to raise the objection without even filing a written statement. The validity or strength of the other arguments is dependent mostly' upon the pharaseology of section 10 of the Act, but before re-producing section 10, it may be stated that neither in the ishthar-e-neelam nor in o the statement of conditions referred to therein, there is a condition that the auction would be subject to the approval of the Commissioner. This condition is there only in the letter dated 6th May, 1965 and according to that letter the power of allotment of land upto 25 acres and for a period of 5 years is vested in the Collector while the power of allotment of land upto 50 acres and for period of 10 years is vested only in the Commissioner. This provision comes directly into conflict with statutory) provision in section 10 of the Act which is reproduced below :-- Section 10 ; Issue of statements of conditions of the Punjab Tenancies.-(1) The Provincial Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collec tor may, subject to the control of the Financial Commissioner, allot land to any person, to be held subject to such statement of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such written order has been passed and he has taken possession of the land with the permis sion of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." Subsection (1) authorises the Provincial Government to grant land in a colony to any person on such conditions as it thinks fit. Under subsection (2), the Provincial Government may issue a statement or statement of conditions on which it is willing to grant land in a colony to tenants but subsections (3) and (4) provide for the authority who can allot land and give possession of the land. This power is vested only in the I Collector although, in the exercise of his functions of allotment and of making any statement of conditions applicable it, is subject to the control of the Board of Revenue. Subsection (3) authorises the Collector to allot land as distinguished from the function of issuing formal orders. This allotment must be a conscious and not a mechanical act as at the time of passing the order of allotment a number of factors, for example, factor of public policy or of financial benefit to the State or of advance ment of agriculture may be considered. The letter of the Government dated 6th May, 1965, on the other hand takes away this power of Collector conferred upon him by section 10 and confers the power o allotment on the Commissioner for land upto 50 acres for a period of 10 years. The power given to the Collector by section 10 (4) cannot -be taken away except by legislative amendment of this section itself and the above letter dated 6th May, 1965 by which this powers has been vested in the Commissioner is, therefore, ultra vires to that extent. 1t was, however, urged that the instructions in the letter dated 6th May 1965 by which the Commissioner has been authorised to allot land and the provisions of subsections (3) and (4) of section 10 can be reconciled. The Commissioner will have the power to pass an order of making the of grant and the Collector, in implementation of it can pass a formal order. But section 10 subsection (3) does not make the Collector an automation. It is the power of allotment that has been conferred upon him and not the power of issuing a formal order of allotment. The argument that the authorization of the Commissioner to grant the lease should be deemed to be a statement of condition under subsection (2) of section 10 is also devoid of any force as no terms and i conditions can be issued by the Government which tray be in conflict with the statutory provisions. Section 11 of the Act provides for legal effect of statement of conditions that the grant of any tenancy in accordance with any statement of conditions or under the Act shall be deemed to be a transfer of land within the meaning of the Crown Grants Act, 1895, but this provision is also "subject to the provisions of this Act." It is thus clear that no statement of conditions will have any force which is not in accordance with the provisions of the Act. The last point urged by the learned counsel was that under subsection (1) the Provincial Government is authorised to grant land on such conditions as it thinks fit and this power should be considered to have been delegated by the Government to the Commissioner regarding lands upto 50 acres when they have to be leased out for 10 years for temporary cultivation. Reference in this connection has also been made to the delegation of powers of leases under the Financial Rules and powers of Re-appropriation Rules, 1962 published at page 263 of the manual of Delegation of Power Rules, 1958-1903) which provide that the Collector is authorised to lease out State agricultural land by tender in colonies or by private treaty unto a particular extent beyond which certain powers have been conferred upon the Commissioner. It has not been shown under what power these Delegation Rules have been made. They can certainly not apply to a case where a particular power has been specifically conferred by statute upon a Collector. Section 10 in its subsection (1) confers plenary power upon the Provincial Government to grant land in a colony, but subsections (2), (3) and (4) are applicable to a case where the Provincial Government is not passing an order of grant in the plentitude of its power under subsection (1), but by issuance of statement of conditions on which it is willing to grant land to tenants and whenever a power of making a grant is exercised under the statement of conditions already issued, that power is exercisable not by any delegate of the Government but by the Collector. In a given case when there is no statement of condition issued, and the Provincial Government is acting under its power. it may be open to it to delegate its functions. The power of delegation is, therefore, in the above rules can be deemed to be limited to function of ~ the Provincial Government under subsection (1) of section 10 and is not at all attracted to a case which is governed by subsection (2). In the letter dated 6th May 1965, it has been stated that the leases will by subject to statement of conditions of 1944, and the case was therefore covered by subsection (2). The Provincial Government could not, there fore, authorise any other officer except the Collector to allot land to any person. Even if it is assumed that some check could possibly be put by the Provincial Government on the arbitrary exercise of powers of making grant, by authorising an officer superior to the Collector to sanction the grant, it may at most be deemed to be internal arrangement of the Government but will not affect the right of a person in whose favour, by virtue of section 10, an order of allotment has been passed by the K Collector and to whom possession has also been given by the Collector under subsection (3) and subsection (4). In spite of a citation of the instructions by the Collector a person in whose favour the order of allotment has been passed by the Collector and who has also been given possession becomes a tenant and under section 1 l of the Act this will be a transfer of land within the meaning of the Crown Grants Act, 1895. The following passage from Wali Muhammad v. State (P L D 1971 Lah. 433) may be referred to with advantage regarding the powers of the Collector and their effect :- "

4. These and other leases of Government land are from time to time made under section 10 of the Colonization of Govern ment Lands (Punjab) Act, 1912, by the Collector. This section empowers the Government to issue a statement or statements of the conditions on which it is willing to grant such land. The allotment of the land is to be made by the Collector "Subject to the control of the Financial Commis sioner". The land is to be held under such statement of conditions issued under the section "as the Collector may by a written order declare to be applicable to the case". Once possession has been delivered the land is to be held as a tenant "subject to the conditions declared applicable thereto." The learned counsel then urged that the exercise of power by the Collector is subject to control by the Board of Revenue. The proposition is unexceptionable so far as it goes, but the letter dated 6th May 1965 was not issued by the Board of Revenue in exercise of the powers under subsection (3) of section

10. Moreover, subsection (3) fully authorises the Collector to make allotment but places this power also under control of the Financial Commissioner. The words "subject to the control of the Financial Commissioner" have been the subject-matter of interpreta tion in different cases decided by the High Court. In Ch. Barkat Ali v. The West Punjab Province (P L D 1952 Lab. 200), on failure of a tenderer to deposit the lease money, fresh tenders were invited and the difference of the lease money was recovered from the first tenderer. An objection was raised by the first tenderer that the power of the Collector was subject to the control by the Financial Commissioner and as no order of the Financial Com missioner was passed for acceptance on his tender, he could not be saddled with the liability to pay the difference in the lease money. It was held that the words "subject to the control by Financial Com missioner" will be attracted after this stage when grant is to be actually made to a tenant. The purport of this authority is that the control of the Financial Commissioner comes in after the acceptance of the tender and not before. In Karam Din v. Member Board of Revenue (P L D 1968 Lah. 321) a grant made by the Collector was set aside in appeal and the order was maintained in Revision. An objection was raised before the High Court that after the allotment by the Collector which culminated into a tenancy under subsection (4) of section 10, no appeal lay or revisional power could be exercised to set aside the allotment. It was held that there was no bar to the respondent filing an appeal or Revision against the order of the Collector or Commissioner made under the Act, section 7 of which create an exception in respect of statement of conditions which in a way becomes sacrosanct although no conditions are invalidated by the Revenue authority functioning under Punjab Land Revenue Act or the Punjab Tenancy Act. The two provisions contained in sections 7 and Il) (3) of the Act read together leave no manner of doubt that the order of the Collector would be subject to appeal or revision. .Even if the former provision regarding the amenability to appeal or revision of the Collector's order were not there, the latter provision pre se vests the Board of Revenue, with adequate power of interference in proper cases where in the latter's view the discretion vesting in the Collector has not been judiciously exercised. These two authorities determine the Terminus a quo when the power is to be exercised by the Board of Revenue. According to these decisions this power is attracted after the Collector has exercised his discretion of making an allotment and the interpretation is in consonance with the power of allotment given by the Act to the Collector and Collector only. In this view of the matter even the Board of Revenue could not say that the power of allotment or of grant of lease or of approving or sanctioning the auction can vest in an authority other than the Collector. If any allotment has been made by the Collector contrary to the policies of the Government or in violation of the instructions which have to be considered by him at the time of making allotment, or by fraud played upon him, it may no doubt be open to the Board of Revenue to set aside that allotment. 1t may be open to the Board of Revenue. under its power of control to issue instructions which may be in consonance with the statement of conditions and the provisions of the Act and then those instructions may have the force of law. See Muhammad Ashraf v. Board of Revenue (P L D 1968 Lah, 1155). Power of control does not mean that the statutory power of the Collector may be taken away from him and may be conferred upon any other authority. The learned counsel for the respondents then submitted that the Board of Revenue certainly had jurisdiction to issue the orders dated 21st January 1967 and 24th January 1967 by which the allotment operation was suspended, but it is clear that these instructions did not apply to the M case where an allotment had fructified into tenancy under section 10 and' a transfer of land under section 11 of the Act. This was also clarified by the memorandum dated 16th of March 1967. Even in the statement of conditions subsequently issued on 7th February 1968, it was provided in para 1 that "available State agricultural land shall be leased out". In its para 2 by proviso (ii) it was made clear that the existing leases shall, however, be valid for their present term and thereafter leases shall be under the present conditions. The conclusion to he drawn from the above discussion is that the order of allotment by the Collector, and delivery of possession to the petitioners had made them tenants under section 10 (4) in spite of the violation of the instructions dated 6th May 1965 by which the Commissioner was authorised to make allotments of this land. In this view of the matter, the lands already leased out to the petitioners were no available lands and their leases are valid upto 1976 according to the statement of conditions issued by Notification dated 7th February 1968. Even if it is assumed for the purpose of argument that some approval of the Commissioner was necessary, the land would not be deemed to be available land within the meaning of para. 1 of the above notification. The words "available land" has been the subject-matter of interpretation by the Supreme Court in Raja Ghulam Sarwar Khan v. Cantonment Board, Murree (1969 S C M R IIG) and it was held that even if the property has been set apart for transfer to Cantonment Board, although no actual transfer has been made the Board was still ready and willing to take it, the property cannot Se deemed to be available under Scheme No. VIII of Displaced Persons (Compensation and Rehabilitation) Act, 1958. It may also be noted that the Commissioner has never been given an opportunity of seeing whether the auction bids were satisfactory or not and the instructions issued in that connection had not been carried out by the authorities. The list of auction was sent to the Commissioner, and before he had an opportunity of looking at it was recalled. Even if I had come to a conclusion that it was necessary to get sanction of the Commissioner for the leases in favour of the petitioners, the Writ petitions could be accepted simply on the ground that virtually the matter was not placed before the Commissioner at all although it should have been placed before him within a reasonable time. The orders dated 19th January 1968 by which these leases have been virtually cancelled have been passed without any lawful authority. The Board of Revenue has clarified that their instructions dated 21st January 1967 and telegram dated 24th January 1967 did not apply to a cases where the allotment order had already been passed by the Collector and possession also been given. In further clarification again the attention of the Collector was drawn specifically to the words of section 10 of the Act, but even then he passed this order, knocking out 8 years out of the lease period simply on the ground that the Commissioner's approval had not beef: received and this land had to be given under another scheme. He also did not consider that he himself was responsible for not getting the approval of the Commissioner. For the above reasons, the writ petitions are accepted, the order dated 19th January 1968 passed by the Collector and all other acts and orders of the respondents for including the lands leased out to the petitioners for disposal under new scheme are declared to be without lawful authority and of no legal effect. There will, however, be no order as to costs. S. A. H. Petitions accepted.