P L D 1960 W (PLP)

Revision Side No. 70 of 1958‑59 decided on 19th January 1960, District Lyallpur. Colonization of Government Lands (Punjab) Act (V of 1912), S. 30, Sched. II, C1‑Punjab Colony Manual, para. 581 Conditions of transfer of proprietary rights, Condition No. 2 (3)‑Mandatory character of provisions‑Collector entitled to create public pathways. This is a revision petition against the order of the Additional Commissioner, Multan dated 18‑9‑1958 by which he upheld the order of Collector, Lyallpur rejecting the application of the petitioner for a passage to his square No. 39 through killa numbers 21 to 25 of square No. 36 belonging to the respondent. On the original application of the petitioner the Colony assistant reported that it was a fact that before these killas of square No. 36 were auctioned in favour of the respondent, the petitioner used this land as his passage to his square No. 39, that his difficulties had arisen because this land had been auctioned and the auction purchaser, viz. the respondent, was objecting to his using this land for his pathway to his square No.

39. The Colony Assistant further recommended that this passage should be excluded from the auctioned area and a permanent passage created for the petitioner. The Collector, however felt that as the land had been auctioned, he could not create a passage against the respondent's consent. In appeal the Commissioner agreed with the Collector and advise the petitioner to apply for acquisi tion of this land under the Land Acquisition Act. The case has been argued on both sides at considerable length. I am afraid the Collector did not appreciate the mandatory character of the provisions of para 581 of the Punjab Colony Manual which require that every colonist must have a free right of way to and from his individual allotment or again the mandatory exception made in Schedule II with reference to section 30 of the Colonization of Government Lands Act for reservation of the right of public way, channels, etc., it also seems to have escaped his notice that the terms and conditions of the auction held for this land also reserved to him the right to create village roads or pathways to connect individual holdings of colonists with the village Abadi. There was thus not only no difficulty in creating the required passage but it was incumbent on him to do so unless there were strong reasons to the contrary. The Additional Commissioner in appeal also did not apply his mind to this aspect of the case and contended himself with suggesting that the land required by the petitioner for his passage could be acquired under the Land Acquisition Act. This advice is not feasible because the respondent as an auction purchaser has not yet completed the payment of all the installments of the purchase money and proprietary rights have not yet accrued to him in the land. The land cannot, therefore, be acquired under the Land Acquisition Act. In these circumstances it was all the more desirable to make use of the mandatory provisions of the Colonization of Government Lands Act and the Punjab Colony Manual and create a passage for the petitioner under condition 2 (3) of the terms and conditions of the auction. However, the main ground on which the learned counsel for the respondent now argued the case is that another alternative route is available to the petitioner to reach his square No.

39. He says that there is already a public road from square No. 77, skirting square Nos. 31, 32, 21 and 20 and joining up the drainage line, from where the petitioner can pass through square Nos. 20 and 35 to reach his land in squares No. 36 and

39. It is true that he has some land immediately below the drainage channel in square No. 36 but the intervening squares 20 and 35 do' not belong to him and they are proprietary squares. There is no public passage through them. Further more this would be a very much longer and more difficult route, combining two sides of a triangle, than the route which was recommended by the Colony Assistant. The latter route is not only shorter but more direct and involves no practical or administrative difficulties. The alternative route urged before me on behalf of the respondent was not suggested in any lower Court or by any Revenue Officer and is not a feasible propos In the result, I would set aside the order of the lower Courts and accept the revision petition and direct that the pathway recommended by the Colony Assistant in his report dated 28‑6‑1956, passing through killas Nos. 21 to 25 of square No. 36 be marked off for petitioner's approach to his square No.

39. A. H. Petition accepted.