2002 PLP 2426 (YLR)

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑ ‑‑‑‑S. 10‑‑‑Horse breeding grant‑‑ Recommendation of District Remount Officer‑‑‑Validity‑‑‑Deputy Commissioner/ District Collector was not bound to accept such recommendation and could come to a contrary conclusion after duly considering such recommendations. PLD 1961 Rev. 29; PLD 1959 Rev. 150; PLD 1959 Rev. 159; PLD 1959 Rev. 142; PLD 1972 Rev. 58; PLD 1976 SC 435; PLD 1989 Rev. 3 and 1990 SCMR 1139 ref. Ch. Rehmat Ali for Petitioner. Syed Muhammad Anis Sadiq and Ch. Hassan Ali Khan for Respondent. This petition has been filed against the order dated 3‑11‑1999 passed by the Commissioner, Multan Division, Multan, whereby he rejected the petitioner's appeal.

2. Briefly, the facts of this case are that Sultan Mahmood was an allottee under Horse Breeding. Scheme. On his death, on 10‑9‑1998, the, tenancy of land in question was reopened. The District Remount Officer, alter hearing the legal heirs, recommended the petitioner as suitable for being given the horse breeding tenancy. The D.C./District Collector, vide order dated 25‑5‑1999, allotted the Horse Breeding Tenancy in favour of respondent. The petitioner failed in appeal before the Commissioner, Multan Division, Multan vide impugned order, dated 3‑I1‑1999. Hence this revision petition.

3. After tiling written arguments by the parties on 8‑7‑2000 before the learned Member (Judicial‑V), the arguments of Ch. Rehmat Ali, Advocate, counsel for the petitioner, Mr. Muhammad Attique Khan, Advocate, on behalf of petitioner and Syed Muhammad Anis Sadiq, Advocate and Ch. Hassan Ali Khan, Advocate, counsel for the respondents were heard on 21‑3‑2001. Additional written arguments were again tiled by Mr. Muhammad Attique Khan, Advocate, on behalf of petitioner on 20‑4‑2001. The learned counsel for the respondent also filed written arguments on 30‑5‑2001 in reply to the additional arguments.

4. It is contended by the learned counsel for the petitioner that the District Remount Officer, on 11‑11‑1998, after hearing all the legal heirs, recommended the petitioner as suitable for the grant of tenancy in dispute but, the D.C./District Collector, without appreciating this report, allotted the tenancy in favour of respondent on 25‑5‑1999. In support of this contention, he placed reliance on PLD 1961 (Rev.) p.29, PLD 1959 (Rev.) p.150, PLD 1959 (Rev.) 159 and PLD 1959 (Rev.) p.142. According to him. the District Remount Officer is a technical advisor of the District Collector and, therefore, his recommendation was required to be given due weight as has been held in PLD 1972 (Rev.) p.58. He further contended that in appeal the petitioner submitted application for adjournment due to death of maternal‑uncle of his counsel, but the learned Commissioner vide impugned order, rejected the petitioner's appeal without giving an opportunity of hearing to the petitioner's counsel and without mentioning the request for adjournment in the order. He relied upon PLD 1975 Lah. 2385 in support of his contention. He argued that the Courts below had not considered the points raised and had also failed to appreciate the documents attached with the grounds of appeal which was against the mandatory provisions of Order 41, rule 31 of C.P.C. To support this contention, reliance has been placed on 1991 CLC 1499 and 1991 CLC p.1660. He stated that the petitioner remained associated with his father during his lifetime in maintaining the bound animal and has gained adequate experience and knowledge in maintaining the bound animal. He contended that neither any criminal case was registered against the petitioner on the allegation of injuring his father relying on photocopy of the medico‑legal report issued by the doctor nor was any trial held before any Magistrate. It has been clearly laid down in 1997 PCr.LJ 79 at p.80 "C" that accused must be presumed to be innocent till his conviction was recorded by a Court of law. It was thus argued that the observation of the learned Collector was, therefore, absolutely unfounded and erroneous. He argued that the respondent was a regular student as per certificates annexed and as per certificate issued by the Principal of the College to the respondent was member of the College Hockey Team in 1993‑94 on account of which he could not have helped his father in the maintenance of the bound animal. According to the learned counsel, all these facts had been ignored by both the Courts below while passing the orders in favour of the respondent. The learned counsel for the petitioner further contended that the Sultan Mahmood, the original allottee, was a patient of cancer and was unable to travel to Sahiwal. He submitted‑ an application on 13‑8‑1998 to obtain an order for appointment of Sarbrah. The appointment of the Sarbrah was thus doubtful. He also pointed out that the petitioner was cultivating the land in question since 1981 and looked after the bound animal as a result of good relationship with his father who had gifted four Acres of land to his name.

5. On the other hand, the learned counsel for the respondent argued that the District Collector is not bound by the recommendation of District Remount Officer as per Letter No.868‑C, dated 19‑2‑1952 although due consideration had to be given to such a recommendation. He further argued that the petitioner attacked and injured his father. A medico‑legal examination report was obtained by him, but no case was registered against the petitioner due to involvement of the respectables. He contended that the allottee, vide order, dated 20‑8‑1998, got the respondent appointed as a Care Taker of the bound animal which rebutted the version of the petitioner of not having remained associated with the tenancy to the lifetime of his father. Notice issued by the District Remount Officer to Rashid Sultan respondent regarding production of bound animal before him on 15‑2‑1999 was sufficient proof regarding his association with the tenancy in dispute. The respondent was issued cover certificates showing the association with the horse breeding tenancy that the mare was produced on 13‑8‑1998 and 23‑8‑1998 by him. To rebut the contention that the petitioner was not given an opportunity of hearing, the learned counsel stated that the petitioner was patiently heard by the learned Commissioner as mentioned in the impugned order but a mention of the hearing of counsel for both the parties had been inadvertently written in the impugned order. In this connection, the learned counsel has placed reliance on rule 140 of the Pak. Legal Practitioners and Bar Councils Rules, 1976 and Order III, rule 1 of the C.P.C. and a number of other authorities in this regard. According to the learned counsel for the respondent, Chak No.82/6‑R is in the suburb of Sahiwal City and there is no doubt the respondent was a student of law, but he used to attend the night classes and completed his education on 30‑3‑1998, six months before death of his father. He stated that the respondent was appointed a Care Taker on 20‑8‑1998 on the request of allottee and was. therefore, issued notice to produce the bound animal for inspection on 13‑2‑1999. He contended that the petitioner injured his father and that is why he did not have good relations with his father resulting in his not being associated with the tenancy in question. Rebutting the point that the District Remount Officers' recommendation is required to be given due weight, it has been held in PLD 1976 SC 435 that the recommendation of the District Remount Officer is entitled to be given due weight although it may not be the last word on the point. He also relied on Revenue Ruling Vol. I page 479 that ever,, statement of the Remount Department did not have to be accepted blindly by the Collector, Regarding Horse Breeding Tenancy not being inheritable and Collector not being bound to accept the recommendation of District Pemount Officer, he placed reliance on PLD 1989 Rev. 3 and 1990 SCMR 1139. support of association with the bound animal the respondent produced affidavits of Ch. Sharif son of Fazal Din, Ch. Muhammad Saleem son of Ch. Abdul Aziz, Ch. Abdul Waheed son of Ch. Abdul Aziz, Ch. Abdur Rashid son of Ch. Shah Muhammad, Abdul Subhan son of Haji Muhammad Yousaf. The respondent had filed a civil suit to restrain the petitioner from snatching. away the land and bound ,animal. The stay order on the petitioner's application issued on 3‑5‑2001 restraining the respondent from felling the trees also confirms the physical possession over the land and the animal by the respondent till May, 2001. According to the learned counsel for the respondent, there was no misreading of evidence and no injustice had been done to the petitioner that called for interference in the presence of concurrent findings of Courts below. He has placed reliance on 2001 CLC 781 and a number of other authorities in support of this contention.

6. Arguments advanced by the learned counsel for the parties have been considered. I have also gone through the written arguments filed by both the parties and examined the record available on the file as well as that produced by the representative of the District Collector, Sahiwal. The contention that the petitioner attacked on his father and he sustained injuries but no criminal case was registered against the petitioner due to interference by the respectable finds support from the fact that the petitioner was never associated by his father with the bound animals in his lifetime thereafter. The respondent was appointed as Sarbrah on the request of allottee. The bound animal was with the respondent as the notice was issued by the District Remount Officer to him for production of mare. The contention of the petitioner that he was not given an opportunity to present his counsel and was not heard by the learned Commissioner has no force because the learned Commissioner has recorded in his order that the petitioner was present in person and he had been heard. The presence in person of the petitioner has been recorded in the first page of the impugned order. In rebuttal of the contention raised by the petitioner that he remained associated with the tenancy in the lifetime of his father, the respondent has produced sufficient proof by filing affidavits of the respectables of the locality. All of them have categorically mentioned in their affidavits that Rashad Sultan remained associated with his father and he was not maintaining the bound animal due to strained relations with his father. These persons have further mentioned that the petitioner had attacked his father and caused him injuries, but after obtaining medico‑legal report, no criminal case was registered due to interference of the notables of the area. The contention that the respondent was a regular student and thus he had no experience in maintaining the tenancy is not substantiated as it is not contested that the Chak in which both the parties reside is located close to Sahiwal city and the respondent got his education in night classes of Law College, Sahiwal. It is evident that the District Remount Officer recommended the petitioner's suitability for the tenancy but his recommendation is not the last word. The Deputy Commissioner/District Collector is D not bound to accept the recommendation of the District Remount Officer and came to the conclusion to the contrary after duly considering his recommendation. The learned counsel for the respondent has relied upon a sufficient number of authorities of the superior Courts in support of this finding. The petitioner Muhammad Shafique has not adduced sufficient evidence in support of the fact that he remained associated with his father in the maintenance of the bound animal throughout. The argument that the allottee could not appear before a Magistrate to record a statement in the respondent's favour cannot be accepted merely on the ground that he was a cancer patient. The contention of the petitioner having injured his father who obtained a medical examination report but did not get a case registered may not have carried any weight, but when seen in light of the statement before a Magistrate and absence of association of the petitioner with the maintenance of the bound animal throughout during the lifetime of the original allottee, it cannot be lightly brushed aside when it was open to the petitioner to produce affidavit from the respectables in rebuttal of the supporters of the respondent's claim. The proceedings before a Revenue Court are of Summary nature anti this is not the only ground that has been pressed against the petitioner in the denial of his right to the tenancy it, question.

7. In view of the above discussion and circumstances of the case, the petitioner had failed to ‑6stantiate his claim as against the respondent. Both the Courts below have passed concurrent orders in favour of the respondent. The respondent remained associated with his father in lifetime and has sufficient experience in the maintenance of Horse Breeding Tenancy. The Deputy Commissioner/ District Collector had correctly allotted the tenancy in favour of the respondent. No injustice has been done to the petitioner that calls for interference with the orders passed by the Courts below. The petition is accordingly dismissed being devoid of force. No order as to costs. S.A.K./54/Rev. Order accordingly.