1996 PLP 1510 (SCMR)

3. In support of the above appeal, Mr. Yawar Ali Khan learned Additional' Advocate-General Punjab appearing for the appellants, has vehemently contended that the learned Judge in Chambers was not justified in allowing the aforesaid writ petition as the finding of fact recorded by the hierarchy under the revenue laws that the respondent had not .taken the possession of the suit land in terms of section 10(4) of the Act, particularly keeping in view that the above forums also found that the alleged copies from the revenue record produced by the respondent indicating his possession were not genuine. His further submission was that the respondent in spite of expiry of considerable period failed to bring the suit land under cultivation. On the other hand, Mr. Ch. Muhammad Ashraf Wahla, learned ASC appearing for the respondent, has urged that there was no condition in the Policy of 1971 to the effect that the allotment could have been cancelled on the ground of non-cultivation as the same could have been cancelled on the grounds mentioned in para. 17 of the Policy of 1971. He has further submitted that the findings recorded by the appellants to the effect that the possession of the suit land was not taken by the respondent and that the documents produced by him were not genuine, are not sustainable in law. It was lastly contended by him that, in any case, under para. .(i) of Memo. No.3158-90/1535-CV dated 15-10-1990 issued by the Deputy Secretary to the Government 'of Punjab, Colonies Department, the respondent is entitled to the allotment of 12/1-2 acres of State land and, therefore, the. appellants were not justified in taking the impugned action.

4. We may first deal with the question, whether under the Policy of 1971 the respondent was required to cultivate the land or not? It is true that para. 17 provides that the grantee shall surrender the whole or so much of the land as may be required or demanded by the Collector-- (a) if the land or any portion thereof is required for any public purpose; or . (b) if it should be found that the whole or any part of the land has already been granted or allotted to any other person. But, it does not mean that there was no condition in the Policy of 1977 requiring the grantee to cultivate the land. In this behalf, reference may be made to para. 2 of the same, which reads as follows:-- "

2. General.--(i) This statement of conditions is issued subject to the provisions of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Act) and any tenancy granted on these conditions shall be a scheduled tenancy under section 4 of the said Act. (ii) The temporary cultivation conditions with Punjab Government Notification No.2664-C, dated 22nd September 1944 (as subsequently amended) shall apply to the tenancies created under these conditions in so far as they are not inconsistent with the conditions hereinafter appearing." ' A perusal of the above para. indicates that its sub-para. (ii) expressly provides that the temporary cultivation conditions with Punjab Government Notification No.2664-C dated 22-9-1944 (as subsequently amended) shall apply to the tenancies created under these conditions in so far as they are not inconsistent with the conditions contained hereinafter.

5. In this view of the matter, the above contention of Ch. Muhammad Ashraf Wahla, learned ASC for the respondent, seems to be not correct. However, since the case of the appellants is that the respondent had not taken possession in terms of section 10(4) of the Act, he could not have cultivated the land without possession.

6. Adverting to the above first submission of the learned Additional Advocate-General, it may be observed that-Mr. Wahla has referred to alleged photostat copy of Khasra Girdawari for the year 1973-74 to contend that factually the respondent had taken the possession. The appellants Nos. 2 and 3 recorded a finding of fact to the effect that the above documents are not supported by the record. maintained by the department and, therefore, they are not genuine. There is no document produced by the respondent to show that he had taken the possession of the suit land in terms of section 10(4) of the Act. We cannot, therefore, hold that the above finding of the appellants Nos.2 and 3 is

7. The effect of the above finding that the respondent had failed to take the possession in terms of section 10(4) of the Act is that in law there was no grant' in his favour as is evident from the above provision of the Act, which reads as follows:-- Section

10. Issue of statements of conditions of tenancies.--(1) .. (2) . (3) ............................... (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." In this view of the matter, para. 1 of the above memo dated 15-10-1990 issued by the Deputy Secretary to the Government of Punjab, Colonies Department, is applicable to the respondent as admittedly he is even now performing the functions of a Lambardar. The above para. (i) reads as follows: "(i) Those permanent Lamberdars in Colony Chaks, who had not been given Lambardari Grants so far or who (including their predecessors-in -interest) had not obtained proprietary rights of old Lamberdari Grants, will be given 12/1-2 acres of State land on lease basis as Lamberdari Grant. There will be henceforth, no provision of proprietary rights attached with all existing Lamberdari grant and the abovementioned leases;" We are, therefore, of the view that the respondent is entitled to have his case examined by the competent authority in terms of above-quoted para. (i) 4-for allotment of the suit land as the same has not yet been auctioned and there is no other land available in the above Chak for making fresh allotment to the respondent, according to the learned counsel for the respondent.

8. We are also of the view that the learned Judge in Chambers was not justified in ordering that the suit land shall-be deemed to be allotted in terms of above para. 1 of the memo dated 15-10-1990 as it is for the authority concerned to examine the case first and to pass appropriate order in accordance with law.

9. We would, therefore, allow the above appeal and set aside the judgment under appeal subject to the condition that the authority concerned shall examine the case of the respondent for allotment of the land in terms of above-quoted Para. (i) of above memo dated 15-10-1990 and till the time the above question is decided, status quo in respect of the suit land shall be maintained. The appeal stands disposed of in the above terms, with no order as to costs. A.A./M-309.1/S Case remanded.