P L D 1976 Supreme Court 435 (PLP)

MUHAMMAD AKRAM, J.‑This is an appeal, by special leave, from the order dated 30th March, 1973, passed by a learned Judge of the Lahore High Court at Lahore concerning the allotment of tenancy rights in 25 acres of State owned agricultural land situated in Chak No. 35/12‑L, Tehsil and District Sahiwal for remount‑breeding in accordance with the Statement of Conditions issued by the Government of the Punjab under subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act V of 1912, vide the Development Department Revenue Notification No. 2965‑C, dated 22nd July, 1941, as amended by the Development Department Notifica tion No. 2838-C, dated 1st July, 1942. The land in dispute was at first allotted to Ghulam Ghaus father of respondent No. 1 as a tenant on remount breeding conditions of the tenancy. He was murdered on the 1st November, 1953, at the instigation of his son, Samiullah through hired assassins. He, afterwards, confessed his guilt, became an approver and was allowed pardon in the criminal case for the murder of his father. On his death, the tenancy fell vacant and the question of fresh allotment of the tenancy came up for consideration before the authorities. At first on 14‑3‑1955, the District Remount Officer recommended the name of Samiullah as eligible for the grant. But on 25‑4‑1955, the Collector turned down the recommendation as in his opinion he was involved in the murder of his own father and was, therefore, not a desirable person for the allotment. Afterwards on 14‑3‑1955, the District Remount Officer recommended that the tenancy may be allotted to Mst. Inayat Begum, widow of the deceased on compassionate grounds, as,‑ she had two daughters of marriageable age and a son to support them and also because she was looking after the branded mare and fulfilling all other conditions. On the 8th June, 1955, the Collector accepted the recommendations of the Remount Officer and as a special case allotted the tenancy in the name of Mst. Inayat Begum for four years, as, she was the only person looking after the family of the deceased consisting of two daughters of marriageable age and a son. At the same time, he observed that this should not be quoted as a precedent in future in the allotment of tenancies of this nature. The tenancy thus allotted in her name was allowed to continue until she died on the 20th February, 1969. On her death, the tenancy fell vacant and the question of a fresh allotment once again came up for consideration and was hotly contested between a number of candidates who applied for it. On the 16th July, 1969, the District Remount Officer, Sahiwal recom mended the name of Samiullah only, as the son of the deceased, eligible for the allotment. But on the 29th September, 1959, the Colony Assistant, Sahiwal sent back the file to the District Remount Officer, Sahiwal with the observation that a number of other candidates had also applied for the grant and he should resubmit his recommendations after examining the cases of all the deserving candidates. But once again on the 18th October, 1969, the District Remount Officer, without complying with the direction, recom mended the name of Samiullah only as eligible for the allotment in accordance with the Punjab Government Resettlement and Colonies Department Memos. No. 4245‑C dated 31st October, 1950 and No. 868‑C dated 19th February, 1952 to the effect that in the event of a tenancy falling ‑vacant on the death of a lessee with a good horse/mule breeding record, it should continue to be allotted to the heirs of the deceased in preference to the ‑other applicants. But on the 30th March, 1970, the Collector observed that Samiullah, in view of the stigma against him for the murder of his father, was an undesir able person for the allotment. He, therefore, called for fresh recommendations far the allotment from the District Remount Officer. On this, Samiullah went up in appeal against the order which was partly accepted by Mr. Qasim Rizvi, Commissioner, Multan Division, Multan on the 1st June, 1970. He directed that the case of Samiullah may also be considered on the merits along with the other candidates for the allotment. It seems that Samiullah was not fully satisfied with the order and filed a revision against it. But on the 29th July, 1970, the learned Member, Board of Revenue, in rejecting his revision in limine, upheld the order of the Commissioner sad at the same time clarified that he (Samiullah) should be heard and his case along with the cases of other candidates may be considered for disposal on the merits in accordance with the orders and instructions applicable to them. In these circumstances, the District Remount Officer, Sahiwal, after the usual enquiries, submitted his fresh recommendations on the 23rd April 1970. He recommended the names of the following three candidates in order of merits for the allotment of the horse‑breeding tenancy :- (1) Subedar Mohammad Asghar (appellant herein); (2) Sub.‑Major Mohammad Yaqub; (3) Hav. Mohammed Hussain. At the same time he further observed in his report that he has also examined the cases of 15 other candidates including Mst. Safia Begum respondent No. 1, who had applied for the allotment. But, none of them was considered suitable as they did not possess the required knowledge of animal breeding. When this recommendation came up before the Collector, Sahiwal on 6‑4‑1971, the contest between the candidates was confined to the above mentioned three names forwarded by the District Remount Officer, Samiullah, and Mst. Safia Begum only. Before the Collector the counsel for Mst. Safia Begum laid stress that she was the daughter of Mst. Inayat Begum deceased. She was unmarried and eighteen years in age. She was living with her mother and used to assist her in the management of the animal. He further argued that on the demise of the last tenant, her lease stood determined and that in accordance with the Government Memorandum of 19th February, 1952, the allotment should be made in her name as an heir of the deceased in preference to the other applicants. In support of this contention, the learned counsel also relied on the reported case of the Board of Revenue in P L D 1959 West Pakistan (Rev.)

39. In conclusion, the learned counsel submitted that the record of the deceased tenant being satisfactory, the tenancy should be allotted to Mst. Safia Begum respondent. The Collector, after taking all these matters into consideration, held that she was the most deserving and rightful claimant for the allotment of the tenancy in her name as the daughter of the deceased horse‑breeder, Mst. Inayat Begum. Subedar Mohammad Asghar Khan, Sub.‑Major Mohammad Yaqoob. Hav. Mohammed Hussain and Samiullah filed separate appeals against Mst. Safia Begum from the order of the Collector. The four appeals were disposed of together by a consolidated order passed by the Commissioner, Multan Division, Multan on 18‑6‑1971. He observed that the Collector has overlooked the fact that the original order for the allotment of the tenancy to Mst. Inayat Begum was passed for a limited period of four years only as a special case to enable her to look after and maintain her children but that she somehow continued to have the lease extended in her favour till her death in 1969. In these circumstances, in the opinion of the Commissioner, her's was not a regular grant in favour of the heirs of the original tenant but only an arrangement made on compassionate ground which terminated with her death. As such, he distinguished this case from the reported case in P L D 1959 W P (Rev.) 39 on which the Collector had relied. He, therefore, accepted the recommendation made by the District Remount Officer in favour of Subedar Mohammad Asghar for the allotment, accepted his appeal against Mst. Safia Begum and dismissed all the other appeals before him. This gave rise to an appeal by Mst. Safia Begum and two revisions separately filed by Samiullah and Hav. Mohammed Hussain against Sub. Mohammad Asghar from the order passed by the Commissioner is his favour. But the learned Member (Colonies), Board of Revenue, Punjab dismissed them by a single order passed on 26‑10‑1971. He rejected the claim of Hav. Mohammed Hussain because the District Remount Officer bas in his recommendation clearly stated that his knowledge and experience regarding breeding and animal management was poor as compared to Sub. Mohammad Asghar. In dealing with the claim of Samiullah, he observed that he was involved in the murder of his own father and had thus incurred a disability against the allotment, of the tenancy to him. In that connection, it was argued on his behalf that this was not a case of allotment in the vacancy caused by the death of his father but of allotment in the vacancy caused by the death of his own mother, Mst. Inayat Begum. But the learned Member (Colonies), Board of Revenue repelled the contention and refused to make any distinction in this behalf and observed that this amounted to hair splitting only. In his opinion, Mst. Inayat Begum was not a grantee in her own right but had succeeded to the grant on compassionate grounds as a special case only. In conclusion he held that the case of Samiullah was exceptional and the circumstances were such that he could not be allowed the benefit of Government order contained in Memo. No. 868 dated 19‑2‑1952, which laid down that preference should be given to the heirs of the deceased breeder with good record. Similarly, in disposing of the appeal of Mst. Safia Begum, the learned Member (Colonies), Board of Revenue observed that her main claim was based on the instructions of the Government, relied upon by the Collector to the effect that preference should be given to the heirs of the deceased tenant with good record. But in his opinion there were the following two weighty reasons for making a departure and in not allowing the tenancy to her : ‑ (i) The District Remount Officer in his memo. of 23‑4‑1970 did not consider her suitable, although her claim was before him for consideration. (ii) She is a young girl of marriageable age and it could not be expected that she will be able to fulfil the spirit of the Government's intentions behind grants for horse‑breeding. In conclusion he again observed that the orders of the Board of Revenue and the Government contained in aforesaid memos about the succession of heirs to horse‑breeding grants could not be Ipso facto made applicable and that in this case there were circumstances which justify an exception being made from the general policy laid down by the Board/Government in regard to succession. On these considerations, the learned Member (Colonies), Board of Revenue refused to interfere and rejected the appeal and the two revisions before him. In these circumstances, Mst. Safia Begum respondent No. 1 and her brother Samiullah filed two separate writ petitions in the Lahore High Court under Article 98 of the late Constitution of Islamic Republic of Pakistan. But afterwards on the 8th March, 1973, the petition filed by Samiullah was dismissed as withdrawn. But the petition filed by Mst. Safia Begum was eventually accepted by a learned Judge of the High Court on the 30th March, 1975. He set aside the orders passed by the Commissioner and the learned Member, Board of Revenue and restored that of the Collector dated 6th April, 1971, granting the tenancy in dispute in favour of Mst. Safia Begum on the death of her mother, Mst. Inayat Begum, the last horse‑breeder. The Court, in relying on condition No. 25 of the Statement of Conditions (vide Development Department of the Punjab Government Notification No. 2965‑C dated 2P‑7‑1941) issued under section 10(2) of the Colonisation of Govern ment Lands (Punjab) Act V of 1912, held that the tenancy in question was not a heritable tenancy and from this concluded. that when after the death of Ghulam Ghaus the tenancy was granted to his widow, Mst. Inayat Begum, she became a tenant of the land in her own right, despite the fact that the initial grant in her favour was made as a special case on compassionate grounds only. In the opinion of the High Court, in the case of such a tenancy falling vacant on the death of a lessee with a good horse/mule breeding record, it should be allotted to the heirs of the deceased in preference to the other candidates. In this connection the High Court strongly relied on the directions contained in the Memo. N,). 4245‑C, dated 31st October, 1950 from the Deputy Secretary to Government of the Punjab, Resettlement and Colonies Department addressed to the Deputy Commissioners, Montgo mery, Lyallpur, Multan, Sheikhupura, Jhang and Shahpur ; and Memo. No. 868‑C dated 19th February, 1952 from the Additional Secretary to Government Punjab, Resettlement and Colonies Department to the Deputy Commissioners, Montgomery and Multan to the effect that in future in the event of a tenancy falling vacant on the death of a lessee with a good horse/ mule breeding record, it should be allotted to the heirs of the deceased in preference to others. According to the High Court the directive contained in these two memos could be "construed" as the Statement of Conditions under subsection (2) of section 10 of the Act on the analogy just as adminis trative instructions in service matters were, in the Province of West Pakistan and another v. Din Muhammad and others (PLD1964SC21), Pakistan v. Sheikh Abdul Hamid (PLD1961SC105), Government of West Pakistan v. Dr. A. A. Aziz (P L D 1966 S C 88) and H7bibur Rahman v. West Pakistan Public Service Commission (P L D 1973 S C 144) construed as rules. Applying these Instructions Statement of Conditions embodied in the two memo the High Court held that in the instant case the deceased tenant was Mst. Inayat Begum and not her husband and the allotment to the vacancy on her death must go to her heir in preference to the outsiders. In the opinion of the High Court the learned Member, Board of Revenue was not justified in concluding that these orders of the Board of Revenue/Government with regard to succession of Horse Breeding Grant could not be ipso facto made applicable in this case and holding that there were circumstances warranting the making of a departure from the general policy laid down by the Board/ Government in regard to succession. Likewise, the Commissioner erred in observing that the allotment in favour of Mst. Inayat Begum was made as a special case on purely compassionate grounds and that her's was not a regular grant made in favour of an heir and with her death the special arrangement under which she got the land, came to an end and as such the decision of Board reported in P L D 1959 W P (Rev.) 39 that normally such allotments in case of satisfactory record, should go to the deceased allottee, was not attracted to the facts of the instant case. The High Court further observed that the recommendation made by the District Remount Officer on 23‑4‑1970 (ignoring Mst. Safia Begum) was a relevant consideration only and that he did not have a final say in the matter of the allotment. The High Court also observed that the learned Member, Board of Revenue acted illegally in ignoring Mst. Safia Begum on the ground of her being a young girl of marriageable age. This in itself was not a disqualification and the females were not debarred from the allotment as held in P L D 1971 S C

580. The Court also observed that there were a number of other instances in the District in support of the grant of the tenancies to the females on the death of the last tenant. The appellant filed this petition for special leave to appeal from the order passed by the High Court. It was argued at the hearing of the petition that the Commissioner as well as the Member, Board of Revenue were competent to pass the impugned orders and, therefore, the High Court in the exercise of its constitutional jurisdiction should not have interfered with those orders. The question as to suitability of a person for the grant of the land is a question of fact and it was within the competence of the officers concerned to determine his suitability. This Court, therefore, granted leave to the appellant to examine this question raised before it. We have heard the learned counsel for the parties and according to the Statement of Conditions issued under subsection (2) of section 10 of the Colonization of Government Land (Punjab) Act 1912, published vide the Development Department Revenue Notification No. 2965‑C dated 22nd July, 1941 (As amended by Notification No. 2838‑C dated Ist of July 1942), the tenancy is granted for a fixed period only and is renewable from time to time. It is also laid down that the tenancy terminates and lapses on the expiry o the lease and the demise of the tenant. In view of these "express stipulations the tenancy in dispute was not heritable and on the death of Mst. Inayat A Begum her tenancy had lapsed and stood terminated. The initial allotment in favour of Mst. Inayat Begum deceased was made as a special case on compassionate grounds only. But that is no reason for holding that she was not a lessee of the land in her own right. She continued to hold the land as a full‑fledged lessee subject to all the terms and conditions of the grant held by her. In Mst. Zardar Begum v. Sultan Mahmood and five others (P L D 1971 S C 580), the tenancy had devolved on Mst. Zardar Begum and Mst. Khurshid Begum under peculiar circumstances, nevertheless, the Court held that thereby they became grantees of the land in their own right. We have, therefore, no hesitation in agreeing with the High Court that Mst: Inayat Begum deceased was allotted the land in her own right. The High Court in quashing the orders passed by the Commissioner and the learned Member, Board of Revenue and in restoring order of the Collector, strongly relied on the directions contained in the two memos. No. 4245‑C, dated 31st October, 1950 (Copy Annex. P. 1) from‑ the Deputy Secretary to the Government, Punjab, Resettlement and Colonies Department to the Deputy Commissioners, Montgomery, Lyallpur, Multan, Sheikhupura, Jhang and Shahpur; and No. 868‑C, dated 13th February 1951 (Copy Annex. P. 2) from the Additional Secretary to the Government, Punjab, Resettlement & Colonies Department addressed to the Deputy Commissioners, Montgomery and Multan. But before dealing with them, it shall be helpful to advert to an earlier memo. No. 3157‑C, dated 27th October, 1949 from the Deputy Secretary to the Government West Punjab, Resettlement and Colonies Department addressed to the Deputy Commissioners, Multan, Montgomery, Lyallpur, Sheikhupura and Shahpur. In this, it was laid down that the Government of West Punjab had decided, with the concurrence of the Government of Pakistan, Ministry of Defence (Army Branch) that horse/ mule breeding tenancies falling vacant owing to confiscation or other reasons should, in future, be allotted on the existing conditions to suitable refugees in preference to local horse‑breeders. Actually, Memo. No. 4245‑C, dated 31st October, 1951 (Copy Annex. P. 1) was issued in continuation of this memo. No. 3157‑C dated 27th October, 1949. In the former, it was explained that the intention behind the order contained in memo. No. 3157‑C, dated 27th October, 1949, was to benefit refugees who possessed previous experience in horse/mule breeding ; but that did not mean that the heir of a deceased lessee with a good breeding record should be debarred from the allotment of the tenancy to him. It was, therefore, clarified that the tenancy falling vacant on the death of a lessee with a good horse/mule breeding record should, in future, continue to be allotted to the heirs of the deceased in preference to a refugee applicant. The second Memo. No. 868‑C, dated 19th February, 1952 (Copy Annex. P. 2) from the Additional Secretary to the Government Punjab, Resettlement and Colonies Department was issued in supersession of the Punjab Government Memo. No. 3157‑C, dated 27th October, 1949 as subsequently amended by Punjab Government Memo. No. 4245‑C dated 31st October, 1950. According to this, the Central Govern ment, Ministry of Defence, had informed the Provincial Government that most of the refugees who were allotted land on horse/mule breeding conditions did not prove satisfactory for breeding purposes and that this had a detri mental effect on foaling results and availability of animals for army requirements. Therefore, the Government of Punjab with the concurrence of the Government of Pakistan, Ministry of Defence (Army Branch) decided that .‑ "The allotment of horse/mule breeding tenancies failing vacant owing to confiscation or other reasons should, in future, be made purely on merit and refugees, ex‑servicemen and local farmers should be equally eligible for such tenancies. However, in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant. (2) The District Remount Officer is the local representative of the Army Remount Department in the Montgomery Breeding area and who holds records of all breeders in the colony, should as usual be consulted and his recommendations given due consideration before the allotment of these tenancies are made." As already stated above, the High Court construed the two Memos. No. 4245‑C, dated 31st October, 1951 and No. 868‑C, dated 19th February, 1951 (Copies Annexs. P. 1 and P. 2) as the "Statements of Conditions" of the tenancy issued under subsection (2) of section 10 of the Act. In arriving at this conclusion, the Court relied on the analogy just as administrative instructions in administrative matters were construed as rules by this Court in the Province of West Pakistan and another v. Din Muhammad and others, Pakistan v. Sh. Abdul Hamid, Government of West Pakistan v. Dr. A. A. Aziz and Habibur Rehman v. West Pakistan Public Service Commission. On this basis, the High Court proceeded to hold that according to these instruc tions or statements of conditions :‑ (a) in cases where tenancy falls vacant, due to the death of a tenant, it is to be allotted to the heirs of the deceased in preference to any other applicant ; and (b) provided that the deceased tenant had a good/horse/mule breeding record. But in this connection, if we may say so with respect, the High Court seems to have overlooked a further stipulation, of no less importance, expressly laid down in Memo. No. 868‑C. dated 19th February, 1952 (Copy Annex. P. 2) in the allotment of these tenancies to the effect that the District Remount Officer, as the local representative of the Army Remount Depart ment in the Montgomery Breeding area, should as usual be consulted and his recommendation given due consideration before the allotment of the tenancies are made. The "Statements of Conditions" of the tenancies in the Punjab are issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. Subsection (2) of the section lays down that the Provincial Government may issue a statement or statements of conditions on which it is willing to grant land in a colony to tenants. In this 'connection subsection (3) further provides that where such statements of conditions have been issued, the Collector may, subject to the control of the Board of Revenue, allot land to any person, to be held subject to such statements of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. section 11 of the Act lays down that the grant of tenancy in accordance with the "statement of conditions" issued under the Act, shall be deemed to be transfer of land within the meaning of the Crown Grants Act, 1895, and shall be governed by the provisions of the said C Act. Indeed, the Provincial Government issues these statements of conditions by virtue of the authority thus delegated to it under the Act and there can be no dispute that these statements of conditions, issued in accordance with the statute, constitute statutory instructions having the force of law. Halsbury in the Laws of England (3rd Edition, Vol. 36 ; para. 723) in dealing with the subject of subordinate legislation observed that subordinate legislation is legislation made by a person or body other than the sovereign in Parliament by virtue of powers conferred either by statute or by legislation which is itself made under statutory powers. It is frequently referred to as delegated legislation in the former case and sub‑delegated legislation in the latter. Much of it is made by executive authorities, the granting of powers to whom was long ago accepted by Parliament as inevitable in cases of national emergency, where speedier remedies are called for than it is itself able to provide and, since Parliament has neither the time nor, in all cases, sufficiently expert knowledge itself to formulate all the matters of detail with which modern legislation must be concerned, has now come to be regarded as a day to day inevitability. According to Halsbury (para. 724), the names given to instruments of a legislative character made in the exercise of delegated powers are various. Chief amongst them are proclamations, orders in Council, orders of Council, orders, regulations, rules, schemes, directions, by‑laws and warrants. According to Craies on Statute Law (6th Edition, page 298), dele gated legislation could be classified under two main heads : (a) Statutory instruments, (b) By‑laws or regulations made‑fi) by authorities concerned with local government ; (ii) by public corporations or societies clothed with statutory or common law powers. In' England, in 1892, the Statute Law Committee commented on the practice of Departments on issuing rules, orders etc. without general publicity; while no objection was raised to such delegation of statutory powers, it was felt that the publicity was essential. In consequence, the Rules Publication Act, 1893 was enacted containing provisions to ensure publicity for such delegated legislations. In 1929, Donoghmore Committee accepted that delegation of legislation was inevitable in modern conditions, but urged that more control and system should be introduced into its use. In 1946, a new Act called the Statutory Instruments Act came into force. It repealed the former legislation and introduced a revised provision for registration, printing, publication and Parliamentary control of the statutory instruments. But there are no similar enactments in force in our country for such a control on the statutory instruments and the delegated legislation. This has added to the confusion in distinguishing statutory instruments from purely executive actions. Generally speaking, a statutory instrument means a document which is legislative (as opposed to executive) made by a rule‑making'. authority in exercise of a statutory power. Precisely it is the exercise of the delegated legislative power by the rule‑making authority which distinguished a statutory rule from purely executive and administrative instructions. Although the genesis of statutory rules remains the same, some of its visible characteristics were noticed in the reported case of Pakistan v. Sh. Abdul Hamid. In distinguishing the statutory rules from office instructions, the Court observed :‑ "A rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e.g., publication in a Government Gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be‑the status and validity of a statutory rule. Nonetheless, the hall‑mark of a statutory rule is its legislative character, and is made by a rule‑making authority in the exercise of its delegated legislative powers. The High Court has relied on the analogy that administrative instructions in service matters were construed as rules in the Province of West Pakistan and others v. Din Mohammad and others, Pakistan v. Sh. Abdul Hamid, Government of West Pakistan v. Dr. A. A. Aziz and Habibur Rahman v. West Pakistan Public Service Commission. In this connection, before us, the learned counsel for the respondent supplemented his arguments by further relying on Mohammad Hussain Munir v. Sikandar and others (PLD1974SC139) and Sh. Masood Ahmad v. Pakistan (PLD1976SC195) to the same effect. These cases were decided on the basis of the relevant office instructions under consideration in each case and having regard to their nature and character they were held to have the binding force of the rules. Those cases were disposed of on their own facts and the office instructions under consideration before the Court. In each of these cases, it was by way of administrative convenience that the competent rule‑making authority had issued the instruction in question in service matters internal to the department and its employees. They do not bear any analogy in matters involving property rights of the citizens. As already discussed above, in the year 1949 (vide Memo. No. 3157‑C, dated 27th October, 1949 from the Deputy Secretary to the Government of West Punjab, Resettlement and Colonies Department, addressed to the Deputy Commissioners, Montgomery, Multan, Lyallpur, Sheikhupura and Shahpur) instructions were issued for the allotment of horse breeding tenancies falling vacant to suitable refugees in preference to local horse‑breeders. But, afterwards, in the very next year, vide Memo. No. 4245‑C, dated 31st October, 1950 from the Deputy Secretary to the Government of Punjab, Resettlement and Colonies Department addressed to the Deputy Commissioners, Montgo mery, Lyallpur, Multan, Sheikhupura, Jhang and Shahpur, a clarification was issued in continuation of the previous Memo. No. 3157‑C, dated 27th October, 1949. Both these instructions were superseded about two years later by Memo. No. 868‑C, dated 19th February, 1952 from the Additional secretary to Government of the Punjab, Resettlement and Colonies Depart ment to the Deputy Commissioners, Montgomery and Multan to the effect that in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record, it should continue to be allotted to the heirs of the deceased in preference to any other applicant. The sequence in which these memos. were issued from time to time by way of clarification and supersession in themselves go to suggest that they were no more than purely administrative instructions sent out to cater for the exigencies of the changing situation and the policies of the Government. They were expressly addressed to the Deputy Commissioners of some of the specified Districts and were no meant for general or universal application. Under section 10(3) of the Act discretion is vested in the Collector who is also the Deputy Commissioner to allot land in his District subject to the statements of conditions issued by the Provincial Government. It appears to us that the Government in issuing the two memos No. 4245‑d, dated 31st October. 1950 and No. 868‑C, dated 19th February, 1952 (Copies Annexs. P. 1 & P. 2) addressed to the respectiv Deputy Commissioners had merely laid down certain guidelines and issued F these directions to regulate the exercise of the discretion in the allotment o the horse breeding tenancies Having due regard to the very nature and purport of the directions contained in the two memos. it cannot be said that they were issued as forming part of and having the force of the statements of conditions within the contemplation of section 10(2) of the Act. In our opinion, therefore, the High Court was not justified in construing the two memos in question as part of the statement of conditions for the allotment of this tenancy. Even otherwise, on a true interpretation of the two memos in question, they only mean that other things being equal, on the death of a lessee with good horse/mule breeding record in those specified Districts, the tenancy should be allotted to the heirs of the deceased in preference to the outsiders. In other words, subject to suitability, the claim of an heir to the allotment must be preferred. He is to be allowed this preference in the allotment of the tenancy only in case he is found to be otherwise suitable for it. This grant of the tenancy, as its very name implies, was made for remount breeding. Indeed, this was the sole purpose behind the grant of the tenancy by the Government. Under its Statements of Conditions, before entering into possession of the land allotted to him, the tenant is required to produce a mare which is fit for breeding‑remount for the army and which has been approved by an officer of the Government appointed for the purpose. The tenant is bound to regularly breed from the mare, horses and/or mules as the officer appointed to supervise the remount breeding operations shall, from time to time,, direct, utilising only the services of a horse or donkey stallion selected by the said officer. He is not permitted to sell or otherwise transfer the progeny of the mare except to the Government at such price as may be determined by the officer concerned. It is his duty to maintain and manage the mare and its progeny to the satisfaction of the officer appointed to supervise remount breeding operations. This presupposes that only those who are considered suitable to discharge these obligations of the r; mount g breeding operations are eligible for the allotment. This is a condition precedent and the choice is confined to those who are considered suitable and have thus qualified for the allotment. In the instant case, as already discussed above, the District Remount Officer, on the 23rd April, 1970, recommended the name of the appellant for the allotment of the tenancy to him on the ground that he had good experience of animal breeding and animal management. In his considered opinion, respondent No. 1 was found not suitable and did not possess the required knowledge of animal breeding. In spite of this, the Collector, against this recommendation, allotted the tenancy in favour of respondent No. 1 as the most deserving and rightful candidate. It does not appear from his order that he had disagreed on facts with the recommendation made by the District Remount Officer. Presumably, he found in favour of the respondent relying on the Government letter of February, 1952 and the decision of the Board of Revenue reported in P L D 1959 W P (Rev.)

39. But the order was reversed in appeal by the Commissioner, Multan Division, Multan. The order was upheld by the learned Member, Board of Revenue on the 26th October, 1971, who, in particular, rejected the claim of the respondent for the following two reasons for the allotment of the tenancy to her despite the instructions of the Government contained in the two memos. in question :‑ "(i) The District Remount Officer in his memo. of 23rd April, 1970, did not consider her suitable, although her claim was before him for consideration ; (ii) she is a young girl of marriageable age and it could not be expected that she will be able to fulfil the spirit of the Government's intention behind the grant for horse breeding." That is why he chose to depart from the Government instructions contained in the two memos and did not allot the tenancy in favour of respondent No. 1 on the death of her mother, Mst. Inayat Begum. Needless to add here that the recommendation made by the District Remount .Officer was entitled to due weight, although it may not be the last word on the point. Under section 10(3) of the Act, the Collector, subject to the control of the Board of Revenue, was vested with the discretion tpallot the tenancy. In the circumstances, in our opinion, the High Court, in the exercise of the extraordinary jurisdiction vested in it under Article 98 of the late Constitution of Islamic Republic of Pakistan, was not justified in interfering with the discharge of his functions entrusted to him under the law, In this connection, we need only refer to Mohammad Hussain v. Sikandar and others. It is well settled that where a Court or a tribunal has jurisdictions and it determines a question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. It is wholly wrong to consider that the L constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision was wrong. Last, but not the least, we find that the High Court seems to have overlooked another aspect of this case. Clause (2) of the Statements of Conditions of this tenancy expressly lays down that "no person shall be entitled as of right to become a tenant, that is to say, the Provincial Government hereby reserves to itself and retains absolute discretion in selection of tenants for land referred to in this statement". This would show that the question as to the selection of suitable candidate for the allotment of a tenancy was purely internal with the Government and the respondent was not, as of right, entitled to lay her claim to the allotment. In this view of the matter, her petition before the High Court challenging the legality of the impugned orders passed by the competent authorities, was misconceived. In the light of the above discussion, this appeal is bound to succeed and the High (:curt was not justified in interfering with the orders passed by the Commissioner, Multan Division. Multan and the learned Member, Board of Revenue, Punjab, in exercise of the jurisdiction vested in them. We, therefore, accept this appeal, set aside the order under appeal passed by the High Court and restore the orders passed by the Commissioner, Multan Division, Multan and the learned Member, Board of Revenue restoring the allotment of the tenancy in dispute to the appellant. But there is no order as to costs in the circumstances of the case. S. A. H. Appeal allowed.