2006 PLP 1748 (CLC)

MAULVI ANWARUL HAQ, J.

As per contents of this writ petition as also of the order of D.O.(R), Lodhran (Annexure "D") and of the respondent No.1 (Annexure "E") State land mentioned in para. No.1 of the writ petition was allotted to the petitioner under Five Years Lease Scheme. He was held eligible for conferment of proprietary rights and a conveyance deed was executed and registered on 5-4-1999 in his favour (Annexure "A"). Information was laid before the D.O. (R), Lodhran that the petitioner has alienated the said land vide Mutations Nos.331, 332, 333, 334 and 391 attested on 19-11-2001. Vide Memorandum dated 31-3-2003 the D.O.(R) reported the matter to the Deputy Secretary (Colonies) Board of Revenue, Punjab for cancellation of the deed under section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912. Vide order, dated 16-12-2003, respondent No.1 cancelled the conveyance deed under section 30(2) of the said Act.

2. Learned counsel for the petitioner contends that both the respondents failed to examine that the alienations were made by the petitioner in favour of his mother and his sons and not for seeking the profits or enrichment. Vehemently contends that no grounds existed within the meaning of section 30(2) of the said Act of 1912, for cancellation of the conveyance deed. The respondents have been duly served for today as per report on the process issued by the Court. The case has been repeatedly called but no one has turned up for them; they are proceeded against ex parte.

3. The impugned order, dated 6-12-2003 alleges that the conveyance deed has been cancelled on the ground that the petitioner did not obtain permission of the Board of Revenue prior to the said alienations. Now I find that in the said conveyance deed towards the end of the pro forma it has been added in type that no grantee shall alienate by sale, mortgage, gift or otherwise the whole or any part of his grant before or during period of five years after the date of execution of deed of conveyance without the previous consent in writing of the Board of Revenue, Punjab.

4. To my mind, the said condition in the said conveyance deed granting proprietary rights to the petitioner in the said land is wholly void being the condition in restraint of alienation. Section 10 of the Transfer of Property Act, 1882 is quite specific on the subject. Section 30(1) of the said Act of 1912 lays down in clear terms that upon grant of proprietary rights the tenant shall seize to be subject to any statement of conditions except the condition set out in Schedule-II to the said Act. No such restraint of alienation is to be read in the said Schedule-II to the said Act.

5. Now the respondents have purported to act under subsection (2) of the said section 30 while passing the impugned order. I find that the power given to the Board of Revenue under the said provision of law is exercisable only upon satisfaction that a person has acquired tenancy rights under the said Act by means of fraud or misrepresentation or that he was not eligible to have such rights for any reason whatsoever. What to speak of findings, there is not even an allegation that the petitioner had acquired initial tenancy right by means of fraud or misrepresentation or that he was ineligible to have such rights. The impugned orders are, therefore, found to be wholly without jurisdiction. The writ petition accordingly is allowed and the impugned order, dated 6-12-2003 of respondent No.1 is declared to be illegal, void, without lawful authority and is set aside. No orders as to costs. H.B.T./A-125/L?????????? ?????????? ??????????????????????????????????????????????????????Petition allowed.