P L D 1978 Lahore 1146 (PLP)

Dates of hearing : 27th and 28th November 1977. Petitioner No. I is an oustee from Islamabad. He was allotted State land under the permanent scheme prepared for the Islamabad oustees. The allotment was made in August 1974 and on payment of the full price of the land, a sale deed was duly executed and registered in favour of petitioner No. 1 in September 1974. Subsequently, he sold the land to petitioners Nos. 2 to

6. A part of the land sold to petitioner No. I has been in possession of one Siraj Din for a number of years. He tried to secure proprietary rights but failed. His application was rejected in the year 1964 as the land was found to be within the prohibited belt being in the proximity of a Town Committee on account of which it could not be permanently transferred. However, the said Siraj Din continued to occupy the land and cultivate it on a yearly tender basis. When the land was transferred to petitioner No. 1, it fell outside the prohibited belt as the width of the belt had been, in the meantime, reduced. When the said Siraj Din learnt of the transfer of the land in his possession to petitioner No. 1, he agitated the matter before the Additional Commissioner concerned. The learned Additional Commissioner cancelled the allotment and transfer purportedly in pursuance of certain "latest" Government instructions. The petitioners thereupon preferred a revision petition to the Board of Revenue. But the learned Member, Board of Revenue, who heard the petition, dismissed it, mainly on the ground that physical possession of the land in question. never having been delivered to petitioner No. 1, he was not a tenant under the Colonization of Government Lands Act in view of section 10 (4) thereof and as such not entitled to the land. In the opinion of the learned Member, Siraj Din mentioned above had been wronged as despite his possession and despite the shrinking of the prohibited belt the land in dispute was not allotted to him ,; and the order of the Additional Commissioner has set the wrong right. But it is to be noted that meanwhile the Town Committee has been upgraded to the status of the Municipal Committee and the prohibited belt has again engulfed the land in question with the result that even if the petitioners are ousted therefrom, it cannot be transferred to any other party.

2. However, be that as it may, the question for consideration in this case is whether after allotment of land to petitioner No. I and the subsequent transfer of proprietary rights to him through a duly registered sale deed, the transaction could be set at naught simply on the ground that physical possession had not been delivered to petitioner No.

1. The record clearly indicates that constructive possession was duly given to him under the written orders of the Collector, subsection (4) of section 10 to which reference has been made by the learned Member, Board of Revenue, reads as follows :- "(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 a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken the grant shall be held subject to the conditions declared applicable thereto." In the first place this subsection talks only of possession. It does not distinguish between physical possession and constructive possession. The obvious purport of this provision is to keep the trespassers at bay. But if constructive possession is given to an allottee by the authorities themselves, his status as a tenant under the Act cannot be doubted.

3. Further, when such a tenant has paid the full price of the land and a sale deed has been executed and registered in his favour, there is no authority left in the Government or its functionaries to retrace the steps an reclaim the land. In my opinion, therefore, the impugned orders of the Additional Commissioner and the Board of Revenue are both without lawful authority and of no legal effect.

4. The writ petition is accordingly allowed with no order as to costs. S. A. H. Petition accepted.