2001 PLP 453 (MLD)

(b) The tenant shall not sell or otherwise transfer the mare or any interest therein without the permission in writing of the Superintendent. (c) The tenant shall not without the permission in writing of the Superintendent sell or otherwise transfer the progeny of the mare or any interest therein, except to Government until it has attained the age of 18 months. (d) The tenant shall be bound to sell the progeny at any time before it has' attained the age of 18 months to Government at such price as may be determined by the Superintendent within limits to be fixed by the Director‑General, Army Remount Department, with the concurrence of the Financial Commissioner. If the progeny has attained the age of 18 months and has not been purchased by Government the tenant may dispose of it as he thinks fit. (e) The tenant shall maintain and manage the mare and its progeny in such manner, and at such place, as shall be deemed satisfactory by the Superintendent and shall at any time when required to do so produce the mare and its progeny for the inspection of any officer of Government appointed to inspect brood mares and young stock in the colony at such places, as he may appoint. (f) If any mare maintained by the tenant under the provisions and stipulations herein contained shall die or otherwise cease to be in his possession or be found or become incapable of bearing foals fit to become remounts for the army, the tenant shall within three months from the date of the happening of any such contingency produce another mare fit for breeding, remounts for the army to be approved, branded, maintained, utilized for breeding, managed, produced and in case of need replaced as herein provided in respect of the mare furnished on allotment; and the same rules shall apply throughout the duration of his tenancy to all mares maintained hereunder and their progeny. (g) The tenant shall if so required subscribe to an insurance found for the replacement of mares at such rates and at such times as may be fixed by the Director‑General Army Remount Department with the concurrence of the Financial Commissioner. (h) The tenant shall if so required by the Superintendent permit the progeny to be hoof‑branded. (i) Every colt shall be‑castrated before rescuing the age of 18 months unless the Superintendent gives the tenant written permission to keep it entire.

8. From the bare reading of the above said conditions of the tenancy, it reveals that the land under the Scheme has only been allotted to the tenant for the Horse Breedings Scheme and the tenant was bound down to keep a mare for further production of the animals. The Government issued a letter vide Memo. No.4245‑C dated 31‑10‑1945 wherein the Government of the Punjab had decided with the concurrence of the Government of Pakistan Ministry of Defence (Army Branch), that the allotment of horse/mule breeding tenancies falling vacant owing the confiscation of other reasons should in future be made purely on merits and refugees, ex‑servicemen and local farmers should be equally eligible for such tenancies. However, in the case of a tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant. Another statement of conditions was enforced by the Government on 22‑9‑1977 and condition No.50 of the Scheme had contemplated that if the tenant dies during the period of tenancy or any extension thereof, the land shall revert to the Government and may be granted to any one of his heirs considered to be fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease or to some other tenant subject to such compensations to be paid to the estate of the deceased as may be decided by the Collector. (2) The Government shall in no case be under any obligation to grant the lease to the heirs of the deceased tenant.

9. In Letter No.6853‑81/1014‑CL dated 8‑3‑1982 the Government has further decided and issued a memorandum on the subject of Horse Breeding Tenancy which is re‑produced below:‑‑ "Memorandum: Under the existing policy instructions, the Horse Breeding tenancies are resumed in favour of the State on the death of a tenant. The heirs of the deceased are, however, given preference while allotting the tenancies fallen vacant. It has been observed that whenever such an occasion arises and the Collector declares in writing a tenancy to have fallen vacant, before a decision is taken prolonged litigation taken place amongst the heirs of the deceased.

2. In order to overcome this situation, the Board of Revenue, Punjab have decided that after the death of a tenant when the land stands resumed, the Collector should not declare the tenancy to have fallen vacant. "

10. Another statement of conditions was issued by the Government vide Letter No.4292‑83/2537‑CL‑1, dated 9‑8‑1983 and Condition No.51 of the statement of conditions has provided that if a tenant dies during the period of tenancy the land shall revert to Government and may be granted to any one of his heirs considered to be fully capable of satisfactorily carrying out the conditions of the grant in all respects for the unexpired period of the lease or to some other tenant subject to such compensation to be paid to the estate of the deceased as may be determined by Government on the recommendations of Ministry of Defence of Government of Pakistan.

11. The whole purpose of the policy of the Remount Breeding Scheme, the memorandum and statement of conditions issued by the Government time to time would show Firstly; that the tenancy would be allotted to the person only with the conditions of keeping a mare for further procreation of animals/horses, Secondly; after the death of the original tenant the tenancy would not be declared open and preference would be given to the heirs of the deceased tenant and if any of them considers fit for the tenancy he would be allotted the land and if any fit heir is not available then the tenancy would be declared open and fresh applications would be called.

12. The Supreme Court in case of Subedar Muhammad Asghar's case (PLD 1976 SC 435) has observed as under:‑‑-- "Even otherwise, on a true interpretation of the two memos. in question they only mean that other things being equal, on the death of a lessee with good horse/mule breeding record in those specified Districts, the tenancy should be allotted to the heirs of the deceased in preference to the‑outsiders. In other words subject to suitability, the claim of an heir to the allotment must be preferred. He is to be allowed this preference in the allotment of the tenancy only in case he is found to be otherwise suitable for it."

13. From the minute examination of the different schemes for Remount Horse Breeding imposed by the Government at different times and from the dictum laid down by the Hon'ble Supreme Court, it would be construed that no out‑sider would be allotted tenancy under the Remount Breeding Scheme if the suitable heir of the deceased/tenant is available. The tenancy was allotted to Inayat Ali deceased predecessor‑in‑interest of the present petitioner under the statement of conditions issued on 1‑7‑1942 and the tenancy shall be governed by these conditions and that policy of the Remount Breeding Tenancy was maintained till the issuance of Letter No.6853 81/1014‑CL‑I dated 8‑3‑1982 wherein it was decided that the heirs of the deceased tenant in case of death of the tenant would be given preference while allotting the tenancy falling vacant and the Collector should not declare the tenancy to have fallen vacant. The statement of conditions issued by Letter No.4292‑83/2537‑CL‑I dated 9‑8‑1983 was enforced for future tenancy and these conditions were not retrosepctively applicable. Even in this policy this principle was also maintained that any one of the heirs of the deceased would be considered to be fully capable of satisfactorily carrying out the conditions of grant in all respects for the unexpired period of lease, which would mean that if a fit heir is not available then the tenancy would be allotted to any other person declared fit by the Collector.

14. The learned Law Officer has very candidly conceded this argument of the learned counsel for the petitioners that the statement of conditions issued on 9‑8‑1983 is not applicable to the present case.

15. For the foregoing reasons and following the dictum laid down in case of Subedar Muhammad Asghar's case (supra) (PLD 1976 SC 435), these writ petitions are accepted and the impugned order passed by respondent No. l dated 21‑9‑1999 is declared to have been passed illegally, without lawful authority and of no legal effect. Resultantly, the case is remanded to respondent No.1 Member Board of Revenue for decisip6‑afresh and all the Revision petitions ROR No.2949/95. ROR No.3101/95, ROR No.3152/95 and ROR No.3102/95 shall be deemed pending before respondent No. l Member Board of Revenue Punjab, who will decide the same strictly on merits. H.B.T./M‑437/L Petitions accepted.