P L D 1968 Lahore 321 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑

This petition under Article 98 of the Constitution calls in question the legality of an order passed by the Member, Board of Revenue, dated the 15th of March 1967, whereby he set aside the appellate order of the Additional Commissioner Multan, dated the 9th of July 1963, affirming the Collector's grant of horse breeding tenancy of one square in Chak No. 172/9Lmade in favour of the petitioner on 24th November 1962.

2. The facts giving rise to the case briefly are that a lot of one square of land comprising portions of squares Nos. 19, 20 and 21 of Chak No. 172/9L, Tehsil and District Sahiwal was allotted to various persons one after the other on horse breeding conditions and was resumed from time to time pre sumably on account of the breach of conditions. It was finally allotted to one Muhammad Yusuf, but again fell vacant on the latter having obtained some other area in exchange. Out of the candidates in the run, the District Remount Officer recommended respondent Subedar Major Karam Din at No. 1, and one Namdar Khan at No. 2, and the petitioner at No.

3. The Colony Assistant preferred Namdar Khan to the petitioner and the respondent vide his report Annexure `B', but the Collector vide his order dated the 24th of November 1962 (Annexure `C') made the allotment in favour of the petitioner. Subedar Major Karam Din respondent No. 4 and the other applicant Namdar Khan then filed appeals, which were dismissed by the Additional Commissioner on 9th of July 1963, vide Annexure 'E'. They both then preferred revisions before the Member, Board of Revenue, who accepted the revision filed by the respondent cancelling the allotment made in favour of the petitioner and upheld by the Additional Com missioner in appeal. Hence this Writ Petition.

3. Learned counsel has raised the following contentions before us: (1) That no appeal or revision was competent against an order of the Collector making grant of a horse breeding tenancy, as there was no such provision contained in the relevant terms and conditions of the grant, which in the event of a difference and dispute between the Government and the tenant envisage only a reference to the Financial Commissioner, now Member, Board of Revenue, for resolv ing such a dispute, whose opinion was to be final and conclusive ; (2) that in any case, the impugned order was open to question on the ground that it ignored the petitioner's right to the payment of compensation for the improvements brought about by him as envisaged by section 25 of the Colonization of of Government Lands Act ; and (3) that even otherwise, respondent No. 4 did not fulfill the condition of personal residence on the estate as contained in paragraph 21 of the Statement of Conditions, and as such was rightly excluded by the Collector whose order has thus been erroneously set aside by the learned Member, Board of Revenue, in favour of a person who was not qualified to hold the grant.

4. Having given our careful consideration to the aforesaid contentions raised by the learned counsel we are of the view that they are completely devoid of force, and have got to be overruled. The first contention is obviously misconceived, inasmuch as a horse breeding grant like any other grant of State land is governed by the Colonization of Government Lands Act of 1912 (hereinafter referred to as the Act) a The statements of conditions for the grant of tenancies are issued under section 10(2) of the Act. A reference to the relevant statement of conditions as contained in Notification No. 2033/C dated the 20th of June 1934, applicable to lower Bari Doab Canal/Lower Jhelum Canal Colony makes this position further clear of which the first paragraph reads as follows:‑ "

1. This statement is issued subject to the provisions of the Colonization of Government Lands (Punjab Act, V of 1912) (hereinafter referred to as "the said Act") and in accordance with section 10(2) thereof". It would be advantageous to reproduce the entire section 10 of the Act, which reads as follows:

"

10. Issue of statements of conditions of the Punjab Tenancies.‑(1) The Provincial Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of the Financial Commissioner, allot land to any person to be held subject to such statement of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." The provision contained in section 10(3) clearly indicates that the Collector has the discretion to allot land to any person in accordance with the statements of conditions but this discretion is subject to the control of the Financial Commissioner, now Member, Board of Revenue. Again, from the provision contained in section 7 of the Act making applicable the relevant provisions of the Punjab Land Revenue Act and Chapter VII of the Punjab Tenancy Act and the rules made thereunder to all proceedings under the Colo nization of Government Lands Act right of an aggrieved person to file an appeal, revision or review can be clearly spelt out. Section 7 reads as follows :‑-- "

7. Applicability of the Punjab Land Revenue Act and Punjab Tenancy Act.‑Subject to the provisions of this Act, the Punjab Land Revenue Act, and Chapter VII of the Punjab Tenancy Act and the rules made thereunder shall, in so far as they are applicable, apply to all proceedings under this Act. But nothing in the Punjab Land Revenue Act or the Punjab Tenancy Act, 1887, shall be so construed as to vary or invalidate any condition entered in any statement of conditions." It is thus obvious that there was no bar to the respon dent filing an appeal or revision against the order of the Collector or Commissioner made under the Act. Section 7 creates an exception only in respect of the statement of con ditions which in a way becomes secrosanct so that no conditions are varied or invalidated by the revenue authority functioning under the Punjab Land Revenue or the Punjab Tenancy Act. The two provisions contained in section 7 and 10(3) of the Act read together leave no manner of doubt that the order of the Collector would be subject to appeal or revision. Even if the former provision regarding the amenability to appeal or revision of the Collector's order were not there, the latter provision per se vests the Member, Board of Revenue, with adequate power of interference in proper cases, where in the latter's view the discretion vesting in the Collector has not been judiciously exercised. It would thus be incorrect to say that the appeal and revision were not competent in the instant case. It may be straightway observed that the authorities relied upon by the learned counsel, namely, the two decisions of the Financial Commissioner which at best could only have a pursuasive value have no bearing on the instant case. The decision of Mr. H. Cavert Financial Com missioner in Mst. Harnamo v. Sohan Singh (P L D 1950 Pb. (Rev.) 29) proceeded on entirely different facts which related to the tenancy on the death of the original grantee under section 20 of the Colonization of Government Lands Act. The second decision by Mr. Craik, Financial Commissioner in Captain Sawan Singh v. Preen Kaur (P L D 1950 Pb. (Rev.) 1245) is equally irrelevant inasmuch as it has no bearing on the instant case which it confined to the choice of a suitable grantee on horse breeding conditions. Once it is conceded as we have already held, that an order passed by the Collector would be amenable to appeal and revision, the contention loses all its force. Thus, although all the grants made under the Act are purported to be made by the Collector, yet it would be wrong to read into the provisions, a finality attaching to the Collector's orders, which are appealable as any other order passed under the Land Revenue Act. The Financial Commissioner took a similar view in Crown v. Muhammad Yaqub (P L D 1950 Pb. (Rev.) 485).

5. Sections 24 and 25 of the Act respectively deal with the Collector's powers of resumption of the tenancy and re‑entry upon the land subject to payment of compensation to be fixed by the Collector for uncut and ungathered crops and for improvements, if any, made by the tenant. It would be useful to reproduce the two provisions: "

24. Power of imposing penalties.‑-When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objections‑ (a) impose on the tenant a penalty not exceeding one hundred rupees, or (b) order of the resumption of the tenancy Provided that if the breach is capable of rectification the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice." "

25. Power of re‑entry and provisions as to compensation in certain cases.‑Where an order resuming the tenancy has been passed under the last preceding section the Collector may forthwith re‑enter upon the land and resume possession of it, subject to the payment of compensation to be fixed by the Collector, for uncut and ungathered crops and for the improvements, if any, that may have been made by the tenant: Provided that if the tenancy be allotted to any other person, the amount of the compensation, if any, paid to the outgoing tenant shall be recoverable by the Collector from the incoming tenant." As discussed earlier all orders made by the Collector under the Colonization of Government Lands Act, whether they are orders of original grant or relate to resumption and re‑entry on the breach of conditions are amenable to appeal and revision. We are clearly of the view that no finality attaches to such an order made by the Collector. It would thus follow as a necessary corollary from this that the Collector's order relating to the grant of tenancy can only be held to be final if upheld in appeal and revision.

6. The next question which falls to be determined is whether an out‑going tenant whose tenancy stands resumed either by the acceptance of an appeal or revision filed by a rival candidate or otherwise owing to breach of conditions, is entitled to any compensation on account of uncut, ungathered crops, and improvements effected by him if any. As regards the latter situation, namely, the resumption of a grant on account of breach of conditions, section 25 of the Act clearly envisages the payment of compensation to the outgoing tenant, but there is no such provisions relating to the former eventuality, namely, the cancellation of the order of allotment owing to the acceptance of an appeal or revision. Since, under section 10(4) of the Act, as soon as the Collector delivers possession of the land in pursuance of an order in writing, the grantee becomes a tenant subject of course to appeal ability and revisibility of the order. He, however, cannot as such be expected to wait till the final outcome of the challenge thrown to the allotment in his favour, before proceeding to reclaim the land if any already under the plough or effecting improve ments thereon, but on the contrary, is under an obligation to fulfill the conditions of grant including the maintenance of a brood mare on pain of resumption of grant, we are of the view that in either case whether he has to quit because of the order of allotment having been set aside on appeal or revision or owing to breach of conditions, he shall be entitled to com pensation as envisaged by section 24 of the Act. Para. 10 of the Statement of Conditions allows the tenant "to sink wells, make water‑course, plant trees and otherwise improve the land." It would also be pertinent in this regard to refer to paragraph 20 of the Statement of Conditions referred to earlier. It reads thus: "

20. In the event of any breach or non‑observance of the conditions, herein container' on the part of the tenant, or in the event of the tenant being declared insolvent or making an arrangement with his creditors, the Government shall have the right to determine the tenancy and resume possession of the land. In such case the tenant shall only be entitled to the value of any buildings erected, wells sunk and trees planted by him, with the sanction in writing of the Government, and in case of dispute as to such value the same shall be settled by the District Remount Officer, and shall in no case exceed the original cost after the deduction of proper depreciation. The right of resumption shall be without prejudice to the right given to the Government by section 28 of the said Act." Although unlike the statutory provisions contained in section 25 of the Act, there is no specific reference in this condition to compensation for improvements or uncut or ungathered crops, we are of the view that on reasonable and equitable interpretation of the two provisions read together, the outgoing tenant would be entitled to compensation for uncut, ungathered crops and improvements, if any, including, the value of buildings erected, wells sunk and trees planted by him, recoverable by the Collector from the incoming tenant. There is a similar provision under section 17(3) of the Land Acquisition Act, making it obligatory for the Collector to offer payment of the standing crops and trees when taking possession of the land before or after the award. In our view the interpretation plead by us is quite in consonance with the well known principles of construction of statute, that it should be "most agreeable to justice and reason." In the event of difference or dispute inter alia the assessment of the amount of compensation, however, the matter could be referred to the Financial Commissioner, now Member, Board of Revenue, whose decision would be conclusive as provided in paragraph 23 of the Statement of Conditions.

7. Although it is strenuously argued before us by the learned counsel for the petitioner that his client bad invested a considerable amount in the improvement of the land in question, the impugned order does not give any indication of such a point having been raised before the learned Member, Board of Revenue, otherwise we have every reason to believe that it should have been properly discussed and disposed of. Also, keeping in view the fact that the tenancy had already exchanged hands several times since 1947 as admitted in the opening paragraph 8 of the Writ Petition, and the land was under cultivation since long, our inference would be that this point was not taken up before the learned Member and it is for this reason that the order is silent in this regard. Even` otherwise, it would be difficult to challenge the legality of the impugned order solely on this ground as in our view the learned Collector, if approached, would still be competent to determine the amount of compensation payable by the respondent to the petitioner on account of uncut, ungathered crops and improvements, if any, and the petitioner is not helplessly left without a remedy. The contention is, therefore, overruled.

8. Coming now to the last contention, relating to the condition of residence, the argument is equally devoid of force and has got to be repelled. This question has been fully discussed by the learned Member, Board of Revenue, and we have no reason to take a different view. The relevant provisions relating to residence is contained in paragraph 21 of the statement of conditions inadvertantly mentioned in the impugned order as No. 18, which may be reproduced with advantage. "

21. The tenant shall either reside personally on the estate in which the land is situated, or appoint a recognized agent, duly approved by the District Remount Officer, and within six months of the date of taking possession of the land, shall build a house on a site allotted by the Collector or with the permission of the Collector, on his own land adjoining." By no stretch of imagination can it be inferred from this provision that the permanent residence of a prospective allottee was art essential pre‑requisite and sine qua non of the allotment in his favour. The provision has clearly left ample room for making an alternative arrangement by appointing a recognized agent to be approved by the District Remount officer instead of personal residence on the estate. The conten tion was thus rightly overruled by the learned Member, Board of Revenue, with which we are in full agreement. In short, we see no reason to find fault with the order passed by the learned Member, Board of Revenue, which is not questionable on any valid ground.

9. In consequence, the petition fails and is hereby dismissed in limine. A.H. Petition dismissed.