1995 PLP 838 (CLC)

Civil Appeal No. 454 of 1988 ref. Rana Abdul Majid for Petitioner. This petition in extraordinary jurisdiction under Article 199 of the 1973. Constitution was against the decision of Secretary (Colonies), Board of Revenue, Punjab, dated 31‑8‑1994 by which request by the applicant for conferment of proprietary rights was turned down. It arises from the facts given below. Ali Ahmad was allotted 110 Kanals, 16 Marlas of State land in Chak No. 24/R.B., Tehsil and District Sheikhupura under the Pedigree Livestock Breeding Scheme for ten years on 13‑6‑1961. Allottee was also a Lambardar of the Chak. Later, Government restricted continuance of such lots by Lambardars only. Ali Ahmad expired on 13‑3‑1990. His eldest 'son Nazir Ahmad was appointed Lambardar in his place vide an order of the District Collector passed on 22‑5‑1991. Vide letter dated 21‑7‑1986, the Board of Revenue had converted Lambardari grants into leases of five years and in terms of instructions contained in letter dated 24‑8‑1987, the newly apl)ointed Lambardar‑Nazir Ahmad was found entitled to lease of the State land held by his deceased father. On 15‑5‑1994, the District Collector leased out above piece of land to Nazir Ahmad initially for term of five years subject to its further renewals. A formal lease deed, on behalf of Government was executed in his favour' on 25th day of May, 1994. Lease deed is on file of this Court. Original order for allotment of land in favour of deceased All . and the renewals/extensions of the tenancy period were not filed by the petitioner. On the death of Ali Ahmad, one of his sons, namely, Munrr mad petitioner submitted a petition to the Board of Revenue for conferment of proprietary rights in the leased land. Secretary (Colonies) observed that the terms and conditions governing Pedigree Livestock Breeding Scheme did not permit grant of proprietary rights to the allottees of it. Consequently, the petition was held not maintainable and was filed Thereupon, instant petition in extraordinary jurisdiction was instituted by the petitioner. It stated that the allottee‑rights under the Pedigree Livestock Breeding‑Scheme were heritable, and, in terms of section 19‑A of the Colonization of Government Lands (Punjab) Act (V of 1912) shall devolve upon all the Muslim law heirs of the deceased allottee and, therefore, the allotment of land in dispute in favour of Nazii Ahmad respondent No.3 to the exclusion of other heirs, i.e. petitioner and the third brother Muhammad Yaqoob was not sustainable. Reliance was also placed on an unreported decision of the Supreme Court in Civil Appeal No. 454 of 1988 decided on 8‑6‑1991 to contend that section 19‑A of the Act was applicable to the heritability of the allotment of State land under Pedigree Livestock Breeding Scheme and its devolution was governed by Muslim Law in terms of section 19‑A of the Colonization of Government Lands (Punjab) Act (V of 1912). Short question for determination in the case was; whether the allottee?rights under the Pedigree Livestock Breeding Scheme were heritable in accordance with section 19‑A of the above Act. It was evident from the record that State land was allotted to Ali Ahmad initially for a terms of ten years as required by clause 8 of the Livestock Breeding Scheme of 25 Acres, dated 3rd May, 1960. The clause provided that on the expiry of the period of the allotment it shall be determined, unless, renewed for the further periods by the District Collector. The renewal/extension was only for five years at a time. As I have said above, neither the original allotment order, nor, the record of renewals/extentions were placed before the Court. Ali Ahmad allottee had expired. He was survived by three sons, namely, Nazir Ahmad, Munir Ahmad and Muhammad Yaqoob. About his other Muslim Law heirs, record was silent. In terms of the Statement of Conditions, the tenancy granted under the Livestock Breeding Scheme was treated a "scheduled tenancy" under section 4 of the Colonization of Government Lands (Punjab) Act (V of 1912). Clause 25 of the Livestock Breeding Scheme of 25 Acres governed succession to the tenancy under it. It reads:‑‑ "Succession.‑‑In the event of the death of the tenant, the Government absolutely reserves to itself the right to allot the tenancy to any one of the heirs of the deceased for the remaining period of the lease, provided that the deceased lessee has satisfactorily fulfilled the conditions of the lease. The tenancy being indivisible, the other heirs shall have no claim to it:" The rule of succession enunciated under the Statement of Conditions issued under section 10(2) of the Act was a clear departure from the rule of succession given in section 19‑A of the Act. Clause 8 of the Scheme gave the period of allotment and its renewal for further specified period. It provided that at the expiry of the period of allotment, it shall be determined, unless, renewed further by the District Collector on the recommendations of Director, Animal Husbandry Department. It further provided that before expiry of the tenancy period the tenant could apply to the Collector for its renewal. Clause 25 dealt with rule of succession. It comes in force on demise of the tenant. In the commentary under section 19‑A of the Colonization of Government Lands (Punjab) Act (V of 1912) by Muhammad Hassain Jahania, Advocate, the author of the book, at page 66 under paragraph 7 observed that, "It will not be a correct interpretation of Section 19‑A if we make it applicable to every tenancy granted under Section 10 of this Act, because there are certain tenancies which are. personal tenancies and of temporary nature. In such tenancies, we cannot say that they will devolve on the heirs of deceased allottee. Furthermore, Section 10 of this Act clearly says that all the tenancies allotted under this Act will be held in accordance with the Statement of Conditions issued by the Provincial Government prior to the allotment. Now for instance if in any statement of conditions for a particular tenancy succession clause is provided which is not in accordance with Section 19‑A, then it will not be appropriate to go against this clause of statement of conditions and to transfer the tenancy under section 19‑A. The intention of Legislature while providing Section 19‑A in this Act seems to be that the devolution of tenancies under Section 19‑A would be applicable only to permanent grants or at the most to the tenancies of long terms. To support this view we can quote the example of Ejected Tenants Scheme, 1956. In this Scheme, when the proprietary rights were not yet promised in the Statement of Conditions applicable to this tenancy it was provided that after the death of original allottee the tenancy will be transferred to the eldest male member of his family who will be responsible to provide maintenance to the other family members of the deceased allottee and Section 19‑A of this Act was made applicable later on when proprietary rights were promised." In Sub. Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435) in a case relating to mule breeding grant, their Lordships of the Supreme Court at page 443 observed as. "We have heard the learned counsel for the parties and according to the Statement of Conditions issued under subsection (2) of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, published vide the Development Department Revenue. Notification No. 2965‑C, dated 22nd July, 1941 (As amended by Notification No. 2838‑C, dated 1st of July, 1942), the tenancy is granted for a fixed period only and is renewable from time to time. It is also laid down that the tenancy terminates and lapses on the expiry of the lease and the demise of the tenant. In view of these express stipulations the tenancy in dispute was not heritable and on the death of Mst. Inayat Begum her tenancy had lapsed and stood terminated." In presence of express condition for lapse of the allotment on expiry of its term unless extended formally by the District Collector and the rule of succession provided irk clause 25 of the Scheme authorising the Government to select any of the 13 heirs of the deceased allottee for remaining period of lease, it was idle to look for the heritability of the allotment in favour of all the surviving Muslim Law heirs, both males and females collectively. The statement of conditions expressly provided that tenancy shall be indivisible. Devolution in terms of Section 19‑A of the Act shall frustrate the object and nature of the allotment under the Pedigree Livestock Breeding Scheme. Judgment of the Supreme Court in Civil Appeal No. 454 of 1988 proceeded on distinguishable facts. Even otherwise, speaking with tremendous respects, the judgment did not take note of the succession‑clause 25 of the Livestock Breeding Scheme of 25 Acres which said that in the event of death of a tenant during the currency of the lease, the Government reserved to itself the right to allot the tenancy to any of the heirs of the deceased for, the remaining period of the lease, provided the deceased lessee had satisfactorily fulfilled the conditions of the lease and that the tenancy was indivisible and other heirs had no claim to it. Furthermore, it was not clear from the record, whether the deceased allottee died during the currency of extended tenancy or that its period had run out on his death. Additionally, Ali Ahmed was a Lambardar of the Chak. On his demise, his elder son Nazir Ahmad succeeded him and was appointed a Lambardar in his place. Consequently, the lot of State land was linked with his office. In this way, it was a grant for the office also. Other heirs of deceased allottee had, therefore, no share in it. As a consequence of it, the petitioner must fail for a share in the allotment and conferment of proprietary rights in it. In result, writ petition is dismissed in limine. AA./M‑1939/?????????????????????????????????????????????????????????????? ??????????? Petition dismissed.