1994 PLP 2449 (CLC)

(d) The decision of the grant of stud land shall be determined from the performance of the grantee with special reference to their percentage of purchasing results.

5. The percentage result according to this decision was to be determined as follows: (1.) 1st Regrant Period 40‑44 % 5 years 45‑50 % 10 years

6. It was also provided that subsequent allotment of land to such grantees on expiry of their previous lease period of regrant was to be determined on the undermentioned purchases results: (2) 2nd Regrant Period (a) 50 % and above 5 years (b) 45‑49 % 3 years (3) 3rd and subsequent Regrants (a) 60 % and above 5 years (b) 55‑59% 3 years

7. It was also provided that such grantees which did not fall in the abovementioned categories their cases would be recommended for resumption. All the grantees were informed that their leases were expiring during Rabi 1989/90 and they were instructed to improve their purchasing result up to 40% otherwise the leases would not be renewed.

8. As regards determination of eligibility for grant of leases in pursuance of the above policy decision S.O.P. was issued on 25‑4‑1991 which provided that retired personnel would be eligible till after 10 years of their retirement whereas serving personnel were made eligible for grant of leases within last two years of service. It was provided that those persons, who were discharged/dismissed/retired compulsorily from service on disciplinary grounds and those who did not complete colour service of their own choice and persons owning 50 acres agricultural land, or residential land or farm land or persons allotted any agricultural or farm land by Government/GHQ, would not be eligible for grant of leases. It was emphasized that allotment of studs will be strictly on merits which was to be worked out on the basis of criteria/formula which is reproduced below:‑‑ (a) SVC point

1. Point for each completed year of SVC upto auth SVC limits. (b) Points for decorations:‑‑ (1) HI(M), SI(M), TI(M) 2 Points (2) Imtiazi Sanad and Commendation card (c) Knowledge and experience of more 1 " than 1 year's save in any At/Mtn Regt and polo players having played in PPA tournaments. d. Graduate in Animal Husbandry 1 " Agriculture/Veterinary Science.

9. It also provided the maximum limit of service for determining quota against each rank which is as follows:‑‑ a.JCOs/OR (b) Offrs. Sep/L/NK 15Yrs Capt/Maj 23 Yrs Nks. 18" Lt. Cols. 25 Hav 21 Cols 26 N/Sub 24 Brig 28 Sub 28" Maj‑Gen. 30 Sub‑Major 32 Lt‑Gen. 32 Gen 34"

10. The scale of allotment of stud land fixed with effect from end of Rab. 1990/91 was as follows:‑‑ (a) Maj‑Gen. and above/equivalent 4 Sqrs of Navy and Air Force (b) Brigs/equivalent 3" (c) Us. to Cols. /equivalent 2" (d) Hony Commissioned Offrs 1 " JCOs/OR/equivalent

11. It was reiterated that the above scale of land would be equally applicable in respect of the grantees whose lease period has since expired and in the cases of future regrants as well.

12. After the expiry of the original lease in 1990 in all the cases on the basis of the above instructions and the conditions the eligibility of each of the grantee was determined and while regranting the lease, area from each grantee was reduced according to the scale fixed and the performance of the grantees determined on the basis of criteria provided therein.

13. The grantees feeling aggrieved have filed these writ petitions and .C.As.

14. The main burden of argument presented by the learned counsel for the petitioners/appellants in support of these petitions and appeals was (a) that it is a case of resumption of the land under lease originally granted which could not be made unless there was violation of terms and conditions of the original grant. Reliance has been placed in support ,of this argument on a case reported as Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3 others (1985 SCMR 9), (b) that according to Condition No. 51 of the statement of conditions under which the original grant was given they were entitled to get the original lease renewed, therefore, the petitioners/appellants were entitled to get the grant of entire land in form of renewal, (c) that the petitioners/appellants have been discriminated as in some of the cases mentioned under ground A of para.6 of this writ petition, the grantees were given regrant for the entire land which was subject‑matter of the original lease, (d) that the respondents were not vested with the power to change the terms and conditions of the grant inasmuch as to omit the condition of renewal of lease in the statement of conditions issued in 1983, and (e) that in those cases where the original grantee died during the currency of the lease period for which the grant was given, his heir could not be declined the renewal of the grant for whole of the land‑ subject‑matter of the original grant.

15. None of the arguments has force. The original grant was for a period of ten years on the expiry of which it stood terminated, thereafter it was a case of fresh grant. This being so the respondents were vested with power to make the grant for whole of the land or a part thereof. Similarly as it is evident from Condition No. 49 of the original statements of conditions on which the petitioners/appellants are basing their claim that on the death of the original grantee, the lease automatically stood determined. Under Condition No. 50 in case of death of the grantee before the expiry of the lease period the land was to revert to the Government and could be granted to any one of his heirs if he was considered to be fully capable of carrying out the conditions of the grant or to some other tenant. The right given to the heir of the deceased grantee was only that this case was to be considered on priority basis for grant of lease to him for the unexpired period of lease. This may prominently be emphasized that the Government was not under any obligation to grant the lease to the successor of the deceased tenant. In the same manner it was stated in Condition 51(2) that Government reserved absolute right regarding future renewal and may not renew the lease without assigning any reason for which no prior notice was required to be given. Condition No.52, conferred absolute direction/power on the Government that while renewing the lease it could change the conditions of grant including the size of the stud and the type of number of animals to be maintained. These conditions were accepted by the grantees when they were granted the original lease, therefore, they cannot now turn around to say that the size of the stud could not reduce or that it amounted to resumption of the grant which could only be done if there was violation of any terms and conditions of B the grant. Conditions Nos.49 to 52, if read as a whole make it clear that whether it is a case of renewal of lease on the expiry of the original full term of the grant or grant of lease to a successor on the death of the original grantee, the same was a new and fresh grant and no right was vested in the grantee or the person in whose favour the same was renewed that the Government could not be settled fresh terms and conditions or reduce the size of the stud. The rule laid down in the case Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3 others (supra) on which reliance has been placed is not applicable of the facts and circumstances of these cases. If in the statement of conditions issued subsequently in 1983 the provisions as to the renewal of lease had been omitted on which the fresh grants were made the same did not detract from the legality C and validity of any vested rights of the grantees. Under section 10 of the Colonization of Government Lands Act, 1912 the Board of Revenue is fully empowered to issue statements of conditions on which grants were to be made, and it could not be maintained that once one set of statements of conditions had been issued it was debarred from issuing further statement of condition in addition thereto or in substitution thereof, for fresh grant.

16. The case of discriminatory treatment has also not been made out inasmuch as in the cases mentioned in this writ petition in paragraph 6, admittedly the fresh grants were frade before 15‑4‑1991, i.e. the date with effect from which fresh instructions laying down the criteria for fresh leases were issued. Therefore, it could not be argued that leases granted to them without reduction of the size of the studs were in derogation of the said criteria. Learned counsel for petitioners, however, submitted that discretion vested in the authorities in the matter should have been exercised judiciously and not arbitrarily or whimsically. There can possibly be no cavil with the argument that a public functionary vested with power in respect of determination of rights of a citizen qua the State resources is required to exercise the same fairly, properly on sound judicial principles, and relevant considerations having logical nexus with the object of flaw and not arbitrarily and whimsically. In this case we have noticed that the authorities did not leave it to the uncontrolled discretion of the officers to determine the merits of the each lessee for fresh grant whereas on the other hand a criterion and guideline was provided according to which the power regarding fresh grant of leases was to be controlled and exercised leaving no discretion to depart from them. In view of the said guidelines and the criteria there was no possibility of exercising the power arbitrarily or whimsically Learned counsel for the petitioners/appellants have not been able to point out when questioned, any case in which the lease was granted to any person after the issuance of the said guidelines in violation thereof or derogation there from. The learned Deputy Attorney‑General submitted that the idea behind delaying down the said criteria was to give benefit of State land to as many persons as possible instead of allowing one person to hold huge parcel of land. For the foregoing reasons we hold that no case of arbitrary exercise of power has been made out, part from the fact that the petitioners had no vested right to claim grant of fresh lease under any law, as such no right of petitioners was infringed.

17. Learned counsel for the petitioners/appellants attempted to argue that they vested huge amount of money on the development of land, therefore, they should have been allowed to retain whole of it. We are afraid the argument is wholly fallacious. The grant was made for ten years. The main purpose was to develop the State land and secure horse‑breeding. If they had spent any amount for development of land, they had also reaped the fruits of the same for ten years and were fully aware that no vested right under the statements of conditions under which the grant was made was available to get the renewal of the lease for whole of the land.

18. Sahibzada Anwar Hameed, Advocate, learned counsel for petitioners in W.P. No. 287 of 1992 submitted that according to the criteria his merit position was not correctly determined. He submitted that the performance of the said petitioner during the period when he was granted fresh lease for unexpired term of the deceased grantee only should have been taken into consideration and the performance being 90%, as such, no deduction in the area should have been made. Learned Deputy Attorney‑General submitted that even if the performance of the said petitioner during the said unexpired period for which the grant was given to him afresh is taken into consideration including the .10% points in relation to mules which he supplied after purchasing from market it comes to 43.33, therefore; according to the formula size of his stud was reduced from 844 Kanals to 620 Kanals.

19. Learned counsel for the petitioners has not been able to persuade us that the said determination of merits was not correctly worked out.

20. Learned counsel for petitioner in W.P. No.3124/92 complained that the land in original grant comprised Squares Nos.33 and 34 whereas after the death of the original grantee the land was given to the said petitioner in Square No.22 as fresh grant from Kharif 1992 to Rabi 1994. He says that the petitioner had installed a tubewell in Square No.34, therefore, should have been regranted land in the said square. Learned Deputy Attorney‑General on instructions from the officer from the department undertakes the grant of land to the petitioner in Square No.34 instead of Square No.22. The respondent shall grant him land in Square No.34.

21. Learned counsel for petitioner in W.P. No.5997/93 argued that the petitioner has been discriminated inasmuch as he was allowed to retain 'land on regrant to the extent of one square only, though the original grantee was given lease regarding land measuring 600 Kanals 15 Marlas. It has been laid down in the instructions issued on 25‑4‑1991 that honorary Commissioned Officers, J.C.Os/or equivalent would be entitled to land equivalent to one square and not more, therefore, the petitioner has been dealt with according to the criteria issued and no departure can be claimed in this regard.

22. Coming to the case of the petitioner in W.P. No.4130/91 (Nurwar Khan) it was admitted that the original lease of ten years was given to him on 15‑7‑1984 but the possession of land could not be delivered to him because the previous lessee started litigation and retained the possession under stay orders passed by the Courts at different stages and ultimately he was delivered possession in 1.989. Under section 10 of the Colonization of Government Lands Act, 1912 the tenancy starts from the date of delivery of physical possession of the land forming the lease, as‑ such the period of ten years of the original lease granted to him would expire in the year 1994 as he shall be deemed to have been granted the same lease in 1989. The regrant made in his favour for reduced area would start from 1994 and not before, therefore, upto 1994 he shall be entitled to retain possession of whole of the land forming part of the original lease.

23. Learned counsel for petitioners/appellants submitted that some of the petitioners have not been allowed to exercise choice for surrender of the excess land. Learned Deputy Attorney‑General on instructions given to him in the Court by the departmental representatives submitted that in all cases normally the grantee is always given the choice to surrender the excess land according to his wish. In these cases the excess land shall be resumed according to the choice of the petitioners/appellants which they may convey to the authorities.

24. Before closing this judgment we would like to deal with an argument raised by Mr. S.M. Masood, Advocate, learned counsel for appellant in I.C.A. No.551/91 which is to the effect that the Board of Revenue while issuing the statements of conditions and directions for reduction of sizes of the studs acted under the directions of the Ministry of Defence and the decision so made shall not be deemed to have been made by the Board of Revenue, therefore, the same had no sanction of law behind it. In support of this argument he relied upon a case reported as Rab Nawaz Qureshi v. Government of Pakistan and 3 others (PLD 1973 Note 153). Learned counsel by advancing this argument loses sight of the fact that animal breeding conditions and the grant of land made there under was meant for serving and retired personnel of Defence Forces only. In determining the conditions for grant of land the criteria on the basis of which the same was to be granted the Board of Revenue was justified in seeking guidance from the concerned department as to their requirements, to which no exception can be taken because the statements of conditions have been issued by it which have the sanction of law i.e. section 10 of the Colonization of Government Lands Act, 1912. The argument is repelled.

25. Learned counsel for petitioners submitted that their crop is standing on the land and they may be allowed to harvest/remove the same which cannot be done before 31‑5‑1994 before which date they would not be ready for cutting. The petitioners/appellant's possession shall not be disturbed till 31‑5‑1994, to enable them to harvest the standing crop.

26. For the foregoing reasons the impugned act of the respondents for reduction of area of stud of the petitioners/appellants does not suffer from any illegality of jurisdictional defect. Writ petitions/appeals have no merits which are hereby dismissed subject to the observations made and directions given above. There will be no order as to costs. A.A./M‑1780/L Petitions dismissed