2005 PLP 1612 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks leave to appeal from judgment, dated 2-5-2005, passed by a learned Single Judge of the Lahore High Court, Multan Bench, in Writ Petition No.790 of 1992.

2. In the year 1959, the petitioner was leased out, by the Collector, Colony land being Lot No.1 measuring 1200 Kanals situated in Chak No.66/10-R, Tehsil and District Khanewal, under the Tubewell Sinking Scheme for a period of 20 years extendable for another 10 years. The lease was prematurely cancelled by the Collector vide order, dated 2-12-1969. A civil suit for declaration was instituted against the Province of Punjab through Collector, Khanewal on 26-4-1989 before the Senior Civil Judge, Khanewal in which an injunctive order was obtained. Subsequently, the petitioner moved an application dated 9-4-1991 before the Civil Court for dismissal of the suit on the ground that one Abdul Ghafoor had filed a fictitious civil suit in his name. The civil suit was dismissed as withdrawn. The petitioner also made numerous applications to the Authorities including the Minister of Colonies, Punjab, for restoration of his allotment but without any success. The District Collector, Khanewal, by order, dated 19-11-1991, allotted an area of 600 Kanals, out of the land in dispute, in favour of respondents Nos.4 to

9. Therefore, the petitioner filed Writ Petition No.790 of 1992 which was dismissed by the impugned judgment dated 2-5-2005, passed by a learned Single Judge of the Lahore High Court, Multan Bench. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner vehemently argued that the petitioner had installed a tubewell within two years of the allotment of land and that he had also brought the land in dispute under cultivation after the year 1990. It was next contended that the order of cancellation of lease of land in dispute was in blatant violation of the provisions of section 24 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act), inasmuch as the breach, if any, was capable of rectification and that no opportunity or notice for rectification of the breach was given. The mandatory requirements of law having not been fulfilled by the District Collector, the cancellation was void and without any lawful authority. In support of his submissions, the learned counsel placed reliance on the case of Anjuman-e-Ahmadiya, Sargodha v. Deputy Commissioner, Sargodha PLD 1966 SC 639; Sardar Muhammad Aslam Sial and others v. The Government of Pakistan and 3 others 1985 SCMR 9; Fateh Muhammad v. Mushtaq Ahmed and 9 others 1981 SCMR 1061; The Anjuman Araian Muzaran Ltd. v. Board of Revenue, Lahore and 8 others PLD 1978 Lah. 489 and Mian Ghulam Muhammad v. The Collector, Montgomery and 2 others PLD 1973 Lah.

528. The learned counsel lastly contended that the petitioner had made huge investment of Rs.60 lacs at the site for development and cultivation of the land.

4. On the other hand, the learned Additional Advocate-General, Punjab, submitted that the report dated 22-4-1990 of the Collector left no room for doubt that the petitioner had never challenged order, dated 2-12-1969 of the cancellation of lease before any competent forum and that the land in dispute remained as Banjar Qadeem and was not cultivated by the petitioner until expiry of the lease period. Out of the land in dispute, an area of 600 Kanals had already been leased out to the respondents Nos.4 to 9 by the District Collector, Khanewal, by order, dated 9-11-1991. The learned Law Officer relied on the case of Imam Bakhsh v. The Collector and others 1982 SCMR 149.

5. We have heard the learned counsel for the petitioner and the Additional Advocate-General, Punjab at length and have also perused the available record with their assistance. We find that the petitioner had appeared before the District Collector when order dated 2-12-1969 for resumption of land in dispute was passed. The petitioner had failed to avail the statutory remedies of appeal before the Commissioner and the Board of Revenue against the order of resumption of land. He remained in deep slumber for about twenty years of the passage of order of cancellation of lease. The Deputy Commissioner/District Collector, Khanewal, had clearly stated in memo., dated 22-4-1990 that the petitioner had neither cultivated the land in question nor had resided in the Chak and that the land in question remained Banjar Qadeem. The learned counsel could not demonstrate from the Revenue Record that he had brought the land in dispute under cultivation during the entire lease period of 20 years. The order dated 2-12-1969 of the cancellation of lease of the petitioner was passed after notice to and in the presence of the petitioner. The Jamabandi for the year 1990-91 also shows that the land in dispute had not been brought under cultivation. Needless to observe that the petitioner also took benefit of an injunctive order obtained from the Civil Court for maintaining his possession over the land in dispute. Therefore, the learned High Court was justified in disbelieving the statement of the petitioner that someone else had filed a civil suit in his name. The judicial precedents referred to by the learned counsel for the petitioner are distinguishable from the 'facts and circumstances of the present case. The case of Sardar Muhammad Aslam Sial (supra) as well as Mian Ghulam Muhammad (supra) involved the question of renewal of lease and not cancellation thereof. Similarly, in the case of Anjuman-e-Ahmadiya (supra), it was held that resumption of tenancy could be made under section 24 of the Act after giving notice and an opportunity of hearing to the tenant. In Fateh Muhammad (supra), it was laid down that in the absence of notice, the cancellation of lease was held to be null and void. In the present case, since the petitioner failed to cultivate the land in dispute having been in possession for more than 20 years, therefore, the resumption order of the Collector, after notice to and hearing the petitioner, was justified. There was a substantial compliance of provisions of section 24 of the Act. In the case of Imam Bakhsh (supra), it was held that where a lessee had not B cultivated the land for a long period and had failed to. fulfil the requisite conditions and the breach had become un rectifiable, the resumption of land by the Collector, needed no interference in the circumstances. In the cases of Bashir Ahmed v. Member, Board of Revenue and others 1983 CLC 3117 and Asghar Ali v. Member, Board of Revenue (Colonies) and others 1983 CLC 3307, the Lahore High Court had taken the view that the provisions of section 24 of the Act were attracted only during the continuation of lease and not after its expiry. Therefore, the question of rectification of breach of terms and conditions of lease would not arise. Needless to observe that this Court can take into consideration subsequent events for the purpose of grant or refusal of relief. See the cases of Mst. Amiha Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmed Khan Sherpao PLD 1992 SC

723. The Government land can be resumed pending the payment of compensation in view of section 25 of the Act as held by this Court in case of Habib Ahmed and another v. Member, Board of Revenue (Colonies), West Pakistan, Lahore and 2 others 1970 SCMR 235.

6. The Revenue Authorities as well as the High Court had come to a definite conclusion that the petitioner had not been able to fulfil his obligation and failed to cultivate the land in question for more than 30 years. Ordinarily, we are not expected to substitute our findings of fact for those recorded by the Revenue Authorities as held in the case of Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC

435. In our opinion, the impugned judgment of the High Court does not suffer from any legal infirmity so as to warrant interference by this Court. This is not a fit case for grant of leave to appeal.

7. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.

8. The above are the reasons in support of our short order dated 21-7-2005 whereby we had dismissed this petition and had refused leave to appeal to the petitioner. M.B.A./M-291/S Petition dismissed.