1985 PLP 1300 (MLD)

This is a petition under Article 9 of the Provisional Constitution, 1981 whereby Ghulam Sarwar petitioner wants this Court -to declare orders, dated 15-6-1982, 19-10-1983 and 5-1-1984 passed by District Collector, Additional Commissioner, and Member, Board of Revenue, respectively to be without lawful authority and of no legal effect.

2. The facts leading upto this petition, in brief, are that on 18-3-1958 Ghulam Sarwar petitioner was allotted 100 Kanals of land in Chak No. 291/WB on "Grow More Food Scheme" which was subsequently resumed by a general order. In view of instruction, vide Memo. No. 1488/1217-C.L.1I1, dated 26-4-1971, it was directed that those allottees under "Grow More Food Scheme" who had fulfilled the terms and conditions on which lease was granted to them be given proprietary rights and if land is available, they be given alternate land with same rights. The petitioner moved application before the Assistant Commissioner/ Collector for allotment of alternate land. The application was allowed on 13-7-1973 and alternate land in Chak No. 344/WB was allotted to the petitioner and ultimately its proprietary rights were given to him through registered sale-deed, dated 11-2-1975 followed by Mutation No. 248, dated 17-5-1979. It so happened that the District Collector respondent No. 1, vide his order, dated 15-6-1982, for the reasons given therein cancelled the allotment from the name of the petitioner and resumed the land. The appeal filed by the petitioner was rejected by the Additional Commissioner on 19-10-1983. Feeling aggrieved the petitioner filed revision which was dismissed by the Member, Board of Revenue on 5-1-1984. Hence this petition.

3. The main points raised by the learned counsel for the petitioner are: -- (i) that the District Collector resumed land on 15-6-1982 without giving the petitioner opportunity of being heard; (ii) that after the grant of proprietary rights, the District Collector was not competent to cancel/resume it and that under section 30(2) of the Colonization of Government Lands Act, 1912, the Board of Revenue alone was competent to pass such .order; (iii) that the District Collector was not competent to review order, dated 13-7-1973 without prior permission from Commissioner under section 163 of the Punjab Land Revenue Act, 1967; (iv) that the reasons given by the District Collector for the cancellation of allotment are factually incorrect inasmuch as the land was firstly allotted to the petitioner in Chak No. 291/W.B. that the petitioner had cultivated the land, that Khasra-Girdawari was rightly prepared and that the petitioner had fulfilled the terms and conditions of allotment; and, (v) that the orders of Additional Commissioner and Member, Board of Revenue are not speaking orders and that the !ember, Board of Revenue has not considered the matter properly and that he has given no reasons in support of his order.

4. I have considered the arguments with care and have not been able to persuade myself to agree with the learned counsel for the petitioner. I find that when it came to the notice of Government that in pursuance of instructions, vide Memo. No. 1488-71/1217-C. L.III, dated 26-4-1971, alternate allotment of lands were made to so many undeserving persons, the Board of Revenue deputed Team to scrutinize such allotments whereon in the matter of alternate allotment, dated 13-7-1973 to the petitioner, the Terms reported: "He was allotted 90 Kanals 5 Marlas of State land in square Nos. 42, 54, 55 of Chak No. 344/WB of alternate land by Mr. Muhammad Rafique on 13-7-1973 The Khasra Girdawari of Chak No. 291/W.B. was examined and it was found that his name was entered in area in square Nos. 45, 46 in red ink. The area remained 'Banjar Qadim'. He was not eligible for allotment of alternate land as he failed to fulfil the terms and conditions of the original lease. The allotment should be cancelled." On this, the District Collector issued notice to the petitioner under M.L.O.

14. Since notice could not be served on the petitioner and report was that he was not living at his residence, therefore, second notice was issued through publication in Daily "Imroze" dated 19-5-1982 Despite that, the petitioner did not appear before the District Collector. The District Collector having examined the revenue record found :- (i) that there was no file available to show the order of allotment of land to the petitioner in Chak No. 291/W.B; (ii) that the entries of the name of the petitioner in Khasra Girdawari were doubtful and that his name was entered fraudulently with the connivance of Patwari; (iii) that not a single Khasra was brought under cultivation by the petitioner upto Rabi 1963; and (iv) if it is assumed that the land was allotted to the petitioner their he having not fulfilled the conditions, was not eligible to get alternate land. The District Collector concluded:-- "Keeping the above facts in view and having perused the relevant record and instructions issued by the Government/ Board of Revenue on this subject from time to time, I am convinced that the respondent has got his name entered in Khasra Girdawari with the connivance of Patwari fictitiously and, thereafter, obtained alternate land fraudulently. I have no option but to cancel this illegal allotment from the name of respondent and resume the land in favour of State. I further order that the Tehsildar concerned should re-enter upon .the land and take possession forthwith and furnish compliance report. This land should also be included in the Schedule of temporary cultivation and be leased out according to the latest instructions." It may be noted that the order of the District Collector when read as a whole shows that he had conducted /proceedings and resultantly cancelled the allotment in exercise/ purported exercise of his powers under M.L.O.

14. The learned Commissioner dismissed the appeal on the grounds that the order having been passed under M.L.O. 14, the appeal did not lie. The Member, Board of Revenue, after having taken into account the reasons for the cancellation of the allotment given by the District Collector, observed that: "The learned counsel could not adduce any documentary evidence to refute the findings of the lower Court. I do not see anything wrong in the impugned order." From the statement of facts given above. It is very much obvious that the impugned order, dated 15-8-1982 of the District Collector was passed in exercise/ purported exercise of power under M.L.O. No. 14 and as such the appeal before the Revenue Court i.e. Additional Commissioner was not entertainable. The assertions of the petitioner that the land was allotted to him in Chak No. 291/W.B. that he had cultivated the land and fulfilled the conditions of allotment under "Grow More Food Scheme" and that the entries in Khasra Girdawari were genuine being indirect conflict with the findings of the District Collector require deep and thorough enquiry which is neither desirable nor permissible in constitutional jurisdiction. As for the complaint that the District Collector had condemned the petitioner at his back I find that show-cause notice was first sent to the petitioner at his residence then through proclamation in Daily "Imroze" hence the grievance is baseless. Since I am convinced that the land was cancelled/resumed under M.L.O. No. 14, therefore; the submission that the Member, Board of Revenue alone could cancel the land or that the District Collector should have sought permission from the Commissioner do not hold any water. Even otherwise, to my mind, the District Collector in' the circumstances of the case was quite competent to cancel the allotment; and the proprietary rights obtained fraudulently.

5. The orders of the Additional Commissioner and the Member, Board of Revenue cannot be termed as non-speaking orders inasmuch as the learned Additional Commissioner hers clearly stated that the appeal filed by the petitioner before him against the impugned order of the District Collector was not competent. The learned Revenue Board of Revenue has also taken into consideration the reasons given by the District Collector which the learned counsel for the petitioner could riot refute, therefore, the objections as to the illegality of judgments of the Additional Commissioner and Member, Board of Revenue are devoid of force.

6. For what has been stated above, no Exception can be taken to the impugned orders. The petition is, therefore, dismissed in limine. A.A. Petition dismissed.