1988 PLP 1690 (MLD)

A.R. SHEIKH, J.‑‑This judgment will dispose of eight writ petitions (being Writ Petitions Nos. 610,717,718,719,720,721,722 and 723 of 1958), in which the facts are almost identical and the same question of law is involved.

2. Briefly stated the petitioners in all the petitions were granted various parcels of land, details of which appear in every writ petition, in Rakh Rangpur Janubi, Tehsil Khushab, by the Thal Development Authority (respondent No.1), on well sinking and tube‑well sinking conditions in the Thal Area contained in Notification No.1486‑C, dated the 31st of October, 1952, sometime in 1954. The various petitioners deposited a sum of Rs.1,350 (for a lot of 150 Acres) each with the Habit) Bank Limited, in the account of the Thal Development Authority, at the rate of Rs.9 per Acre. This amount included a sum of Rs.100 for carrying out the trial boring for sinking a tube‑well in each lot. Therefore, it is maintained, the petitioners took practical steps, incurring substantial amounts, to re‑claim the land, such as removal of business and levelling and made it Fit for cultivation. It is alleged that despite due payment of boring test charges for the tube‑well, respondent No.1 failed to carry out test boring in terms of the agreement. Representations in this regard also fell flat on the ears of the authorities concerned. It is further stated that sometime in June. 1955 the petitioners received notices from respondent No.2 that as they had failed to comply with the conditions governing allotment under the tube‑well scheme, they should show cause why action should not be taken against them for breach of conditions of sale. The petitioners are stated to have appeared before respondent No.2 and explained the position in writing. Thereafter, the petitioners even approached the Member, Board of Revenue (Resettlement and Colonies) and the Revenue Minister and then Mr. R.D. Howe, Chairman of the respondent Authority, but with no result. Ultimately, in June 1958 the petitioners were informed that allotments made to them had been resumed by respondent No.2 because of breach of conditions of sale.

3. The orders of resumption of the grants of various lots to the individual petitioners, have been assailed in these writ petitions on the main grounds that the Colonization Officer was not competent to pass the order in question as it could only be passed by the Authority itself and for good cause; that there has been no violation of the conditions of grant by the petitioners; that the failure of the Thal Development Authority itself to fulfil the obligations, which were a condition precedent to the fulfilment of the obligation by the petitioners absolved the petitioners of their obligations under the contract. It has been urged on behalf of the petitioners that under condition No.3 the petitioners had deposited with the Chairman the sum of Rs.100 for trial boring in the land to be allotted to them and they were, therefore, absolved of any obligation on their part, if the Authority failed to carry out the trial boring in the land allotted to ;;ash petitioner because it was only in the case of boring being successful that the land was to be allotted to the person who had paid the deposit, and the deposit of the trial boring was to be taken into account for the payment of the "advance". On the other hand, the respondents have denied that any sum of Rs.100 for trial boring was deposited by the various petitioners in each case. It has been contended that because of this non‑deposit the petitioners should be understood to have accepted the allotment of land taking its sub‑soil water to be good for irrigation purposes and as such allottee in each case himself waived this condition and the Thal Development Authority was not responsible thereafter for making a trial bore. It has been argued that because of this waiver on the part of the various allottees, the non fulfilment of other conditions by the petitioners, such as non‑sinking of a tube -well and non‑residence in the estate permanently within six months from the date of allotment and to bring 2/3rd of the lot under cultivation during the first year, entailed breach of conditions, resulting in orders of resumption passed in each case. We have verified from the records of the Department that various amounts as price of land at the rate of Rs.9 per Acre have been deposited by the various petitioners in their accounts to the credit of tile Thai Development Authority and each such deposit did include a sum of Rs.100 for carrying out the: trial boring for sinking of tube‑well under condition No.3 of tile Terms and Conditions. Therefore, the denial by the Department of payment the sum of Rs.100 in each case under condition No.3 of the Terms and Conditions is merit. However, in order to appreciate the arguments on both the sides, it will be advantageous to reproduce below conditions Nos.3. ‑l and 12 in extenso of the Terms and Conditions of the aforesaid Scheme: ‑‑ "

3. No person shall be allotted land unless he shall have deposited with the Chairman the sum of one hundred rupees for a trial boring in the land to be allotted to him. If the bore is successful the land shall be allotted to the person who has paid the deposit, and the deposit for the trial boring shall be taken into account for the payment of the `advance' under clause (4). If, however, the bore is unsuccessful, the deposit shall be repaid in full to the person who deposited it, but he shall have the option to apply, within sixty days of the communication of the result to him of the first unsuccessful bore for another bore, on his again depositing the sum of one hundred rupees in the same lot of 25 Acres. Not more than two bores shall be tried in one lot of 25 Acres, and if both of them are unsuccessful, the land shall be declared unfit for allotment on well‑sinking conditions.

4. No person shall be allotted land as a tenant under these conditions unless and until he shall have paid to the Thai Development Authority as an `advance' the sum of nine rupees per Acre for the whole area. In calculating this advance the sum of one hundred rupees already paid for carrying out the trial boring shall be taken into account and deducted from the total advanced to be paid by the tenant.

12. The tenant shall take up his residence permanently in the estate in which the said land is situated within six months of the date, on which the Chairman directs that he be put in possession of a specified area of land, and within 1‑1 /2 years of the same date he shall build a residential house to the satisfaction of the Chairman on a site allotted by him, or (with the permission of the Chairman on his own land) provided Chat where the tenancy is held jointly by two or more persons, the Chairman may for sufficient reason excuse' any of such joint holders from personal residence in the estate and provided further that the condition of personal residence of any tenant who holds another grant in any other colony may be waived by the Chairman on the condition that he shall cause some competent representative, who has been approved by the Chairman, to reside permanently in the estate." Reading of these conditions would show that a trial boring for which a sure of Rs.100 was to be deposited with the Chairman of the Authority by the allottee under condition No.3, is a condition precedent for a subsequent sinking of the tube‑well in the lot allotted to a particular allottee. In all these cases we find that no trial boring was ever made by the Authority despite the deposit having been made in time and representation having been made in this regard by the allottees time and again. The Authority, therefore, cannot take cover behind the excuse that because the allottees accepted allotment of land without a test bore they should be considered to have waived the condition of trial boring on behalf of the 1A Department. Once we come to this conclusion, any other alleged breach of conditions cannot be attributed to the conduct of the various petitioners. If there was no trial boring, there could be no sinking of a tube‑well and if there was no sinking of tube‑well there was no question of 1/3rd of the land being brought under cultivation within one year of the date of allotment, nor could the various allottees be expected to reside on the land permanently, wherefrom they could not ordinarily expect any yield or return. The: result is that the Authority itself having failed to discharge its own obligation, the petitioners stood absolved of their obligation under the grant. The resumption made is, therefore, without lawful authority and is of no legal effect.

4. In the result all these writ petitions succeed, and the impugned orders of resumption are quashed. The petitioners will get their costs from the respondents. M.Y.H./94/L Petitions accepted.