2017 PLP 186 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this writ petition petitioners have challenged the Notification No. 190-2012/163/CS.II dated 20.1.2012 issued by the Government of the Punjab (Colonies Department) whereby land measuing 300 kanals owned by the Government of Punjab has been allotted to the Judiciary for construction of Judicial Complex of Kot Addu where construction work after allotment has been started. The case of the petitioners is that in the land allotted for construction of the Judicial Complex, land measuring 80 Kanals allotted to the petitioners under 15 years' cultivation scheme, has also been included for which petitioners have their claim of conferment of proprietary rights, therefore the instant writ petition has been filed with the following prayer:- It is therefore, prayed that his petition may kindly be accepted/allowed and impugned Notification No. 190-2012/163/CS.ii Govt. of the Punjab Colonies Department, Lahore dated 20th January, 2012 to the extent of included land of the petitioners measuring 80 Kanal situated in Chak No.154/ML, Kot Addu be declared illegal, against law and facts, having no authority in the eyes of law and land of the petitioners be excluded from the Notification. It is further prayed alternatively petitioners land may be acquired at market price which is at moment Rs.25,00,000/- per acre and after payment of compensation as provided under Land Acquisition Act, 1894. It is further prayed that respondents be directed to restrain from dispossessing the petitioners in any manner till the final decision of this writ petition. Any other relief which may flow from the circumstances of the case may also be awarded to the petitioners including cost of the petition."

2. Brief facts of the case are that vide Notification No.1622-71/1205 CL-1 dated 24.4.1971 issued under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912, the Provincial Government gave land on lease for cultivation purpose. Under the above Notification petitioners' father was allotted lot No. 71 measuring 80 Kanals bearing rectangle Nos./khasra Nos. 105/4-5, 106/6-7, 113/8-10 and 114/1-3 situated in Chak No. 154/ML Tehsil Kot Addu District Muzaffargarh under 15 years' lease scheme who developed the land after investing huge amount and labour. It is also asserted that near about 96 persons were allotted land under the said scheme in the village and at that relevant time Kot Addu was a town committee and its prohibited Emit was two miles away, as such land leased out to the petitioners' father was out of the prohibited zone. On 3.9.1979 vide Notification No.3215-79/3937-CII Provincial Government decided to grant proprietary rights to the temporary cultivators; petitioner filed an application for grant of proprietary rights of land under cultivation; the Assistant Collector after obtaining reports from the revenue staff vide order dated 26.6.1980 declared the petitioner eligible for grant of proprietary rights. All the allottees were directed to clear arrears, petitioner deposited all the installments and fulfilled the terms and conditions but the respondents did not execute the conveyance deed in favour of the petitioners. Petitioners filed W.P. No. 5112 of 2011 which was disposed of vide order dated 29.4.2011 with the direction to the respondents to execute the conveyance deed and the application of the peitioners within one month strictly in accordance with law. Now as allotted land of the petitioners has been transferred for construction of Judicial Complex Kot Addu vide impugned notification, therefore, petitioners have been forced to file instant petition.

3. Respondents filed report and parawise comments. Brief facts noted in the parawise comments are very important, which are reproduced:- "The brief facts of the case are that Government of the Punjab vide notification No. 1622-71/1205-CLI dated 24.04.1971 proclaimed a policy for leased out the State land. Muhammad Sadiq, petitioner was leased out the land under 15 years' lease scheme. As per policy the lessees were bound to return the possession of leased out land as and when required by the Government of Punjab. The petitioner was leased out land comprising upon Lot. No. 71 bearing Khasra No. 105/4-5, 106/6-7, 113/8-10, 114/1-3 measuring 80-Kanals situated in Chak No 154/ML under 15 years' lease scheme. The then Assistant Commissioner/Collector Sub-Division Kot Addu declared the petitioner eligible for proprietary rights of said land vide order dated 26.06.1980. The petitioner deposited the price of land. In the meanwhile, it was noticed that the land in question was situated in the prohibited zone. The Secretary to Government of the Punjab, Colonies Department Lahore vide letter No. 3094- 92/317-CL-I dated 26.01.1994 sent direction that, the temporary lessees whose tenancies were out side prohibited zone at the time of original allotment and came within prohibited zone on account of extension of municipal limits were required to exercise option before the District Collector, concerned for allotment of alternative land out side the prohibited zone by 31.10.1993 but many persons could not avail this opportunity due to illiteracy/lack of knowledge. Accordingly the Government of the Punjab in the Colonies Department decided to further extend this date for filing such options upto 31.12.1994. The petitioner did not give his option and remained in possession of lot No. 71 and never got extended the lease nor he paid any amount to the Government. Now Secretary to Government of the Punjab, Colonies Department Lahore vide letter No. 190-2012/169-CS-II dated 20.01.2012 ordered that the Government of the Punjab in Colonies Department was pleased to accord sanction to handover the possession, free of cost of State land measuring 300-Kanals situated in Chak No.154/ML Tehsil Kot Addu in favour of judiciary for construction of Judicial Complex subject to the vacation in resumption the land from the illegal encroachers and one year lessees in larger public interest. The above order of the Secretary to Government of the Punjab has since been implemented in the revenue record. The petitioner in compliance with the instructions of Colonies Department, did not give option for getting alternate land outside the prohibited zone, nor he paid any amount to the Government, retained his illegal possession over the State land. The possession of land has since been transferred in favour of Judiciary for the construction of Judicial Complex in the larger public interest. He filed the instant writ petition." Reply of Para No. 8 of writ petitior is important, therefore, same is reproduced for ready reference:- "It is correct to the extent that the Town Committee Kot Addu was declared as Municipal Committee in 1975 later on was changed as Municipal Committee 1st in 1988 and its area was extended. In this regard, it is submitted that at the time of extension of operative area of Municipal Committee Kot Addu, the petitioner was temporary lessee of land in question. The petitioner along with others whose allotted land came under the prohibited zone at the time of extension of Municipal Committee limit were directed by the Colonies Department to give option for getting alternate land outside the prohibited zone but he did not do the same, remained in illegal possession of land in question and not paid any amount to the Government."

4. Learned counsel for the petitioners argues that when the land in dispute was allotted to petitioner No. 1 it was not falling within the prohibited zone, therefore, when the respondents refused to transfer the proprietary rights in favour of petitioner No. 1, they were forced to file Writ Petition No. 5112 of 2011 with the prayer that respondent No. 3 in the said writ petition i.e. District Officer (Revenue)/District Collector, Muzaffargarh be directed to execute deed of conveyance/sale deed in their favour in accordance with the notification dated 3.9.1979. Said writ petition was disposed of vide order passed by this Court on 29.4.2011 sending the said writ petition to respondent No. 3 with a direction to treat it as representation and decide the same. Argues that through notification No. 190-2012/169-CS.II, Government of the Punjab, Colonies Department, dated 20th January, 2012 it has been ordered that 300 kanal land situated in Chak No. 154/ML, Noor Shah Road, Tehsil Kot Addu, District Muzaffargarh be transferred in favour of Judiciary for construction of Judicial Complex subject to the vacation and resumption the land from the illegal encroachers and one year lessees in larger public interest. Argues that the land allotted to petitioner No. 1 was under 15 year cultivation scheme, therefore, same could not have been transferred for construction of Judicial Complex. Prays for acceptance of the writ petition.

5. On the other hand, learned AAG argues that comprehensive parawise comments and report have been filed. After passing of the impugned notification the mutation has been attested in favour of the judiciary. Further that the land situates in prohibited zone in accordance with Notification No. 3034-72/2874-CL dated 31st August, 1972, therefore, the conferment of proprietary rights in favour of the petitioners was not possible, they can claim alternate land if proved that they have fulfilled the conditions and further that mutation was also sanctioned in favour of the judiciary and further that writ petition is defective one as mutation of transfer of land has not been challenged in this writ petition and further that the transferes of land have not been arrayed as respondent in the writ petition. Further argues that on various dates of hearing, it was agreed by the petitioners that they are willing to get the alternate land and for alternate land the respondents are ready to move for grant of proprietary rights of the alternate land in favour of the petitioners before the Authority with positive recommendations.

6. We have heard learned counsel for the parties at length and gone through the record with their able assistance.

7. Case of the petitioners that Lot No. 71 was allotted to Sadiq, their predecessor under 15 years temporary cultivation scheme prepared by Government of Punjab, notified through Notification No. 2715-71-1810-CL-I dated 18.6.1971 vide order No. Thal/CB/772. The allotment order is reproduced for ready reference:- "In pursuance of the Board of Revenue's Notification No. 1622-71/1205-CLI dated 24.4.1971 and No. 2715-71-1810-CL-I dated 18.6.1971 and the instructions issued thereunder Sadiq son of Siraj Din caste Arain resident of 523/TDA is hereby allotted state land comprising rectangle Nos. 105/4-5, 106/6-7, 113/8-10, 114/1-3 (80 Kanals) Chak No. 154/ML Tehsil Kotaddu, District Muzaffargarh, or the following terms and conditions: 1) The lease period will commence after Rabi, 1972. 2) The lease money as prescribed by the Board of Revenue shall be paid in advance before the Ist of August, every year. 3) The period of lease will be fifteen years. 4) The land shall not be utilized for any other purpose than agricultural and the trees etc. standing on the land or planted hereafter shall not be falled by the tenant without the prior permission of the Collector. 5) The tenancy will be subject to the orders of the Board of Revenue issued from time to time. 6) The tenancy shall be liable to resumption on the breach of the conditions of the scheme without payment of any compensation except for the standing crops. Sd/- Assistant Commissioner and Collector, Kotaddu No. Thal/CB/772 Dated: Copies forwarded to the:-

1. Deputy Commissioner; Muzaffargarh, for information.

2. Executive Engineer, Irrigation, Leiah Division, Leiah.

3. Colony Naib Tahsildar, Kotaddu/Pattal Munda, for information and necessary action. Sd/- Assistant Commissioner and Collector, Kotaddu" There is no date of allotment in this order but Clause (1) shows that lease period will commence after Rabi-1972. There is no order transferring the possession to the allottee Sadiq in accordance with section 10 of the Colonization of Government Lands (Punjab) Act (V of 1912) by the Collector. It is on the record that the allotted land to the petitioner Sadiq came in the prohibited zone through Notification No.3034-72/2874-CL dated 31st August, 1972 being within 3 miles from the outer limit of the Municipal Committee, Kot Addu District Muzaffargarh. The fact that the property came in the prohibited zone vide notification No. 3034-72/2874-CL dated 31st August, 1972 within the prohibited limits, the case of the petitioner is that as at the time of allotment the property was not in the prohibitory limit, therefore, its subsequent inclusion in the prohibited zone cannot extinguish his right of conferment of proprietary rights. We are unable to agree with the argument of learned counsel for the petitioners because at the time of initial allotment it was for 15 years temporary cultivation scheme, subsequently under the scheme prepared by the Government for conferment of proprietary rights to the persons who have fulfilled the conditions of their allotment, were declared entitled to conferment of proprietary rights in the scheme prepared long after the initial allotment to the allottees. In this case when lease period was to start after Rabi-1972 and it is "Sine qua non" that delivery of possession under the written orders of the Collector is necessary in accordance with subsection (4) of section 10 of the Colonization of Government Lands (Punjab) Act (V of 1912). In this case there is nothing on the record that the allottee took possession under the written orders of the Collector. When soon after the allotment of land to the petitioner the land came under the prohibited zone, therefore, the petitioner was entitled to retain it as a tenant and proprietary rights, we doubt, could have been granted to the petitioner. Even after the matter was sent by this Court to the respondent vide order passed on 29.4.2011 in W.P. No.5112 of 2011 respondents never declared the petitioner entitled to conferment of proprietary rights of the suit land.

8. Now the second limb of the matter comes that admittedly the suit land as well as other total measuring 300 Kanals has been transferred for construction of Judicial Complex at Kot Addu vide notification dated 20.01.2012. Subsequent to that notification a mutation No.737 has been attested on 5.3.2012 in favour of the transferee. In the petition only the order dated 20.1.2012 whereby land has been transferred for construction of Judicial Complex has been challenged neither the transferee has been made party nor the mutation of transfer has been challenged when the case of the petitioner is that the mutation of transfer does not match with the order of transfer i.e. 20.1.2012. It is the case of the petitioner that all the installments have been paid by him when respondents were not issuing the sale deed in favour of the petitioner, therefore, petitioner was forced to file writ petition No. 5112 of 2011, which was disposed of vide order dated 29.4.2011 asking the respondents to treat it as application of the petitioner for execution of conveyance deed.

9. During the pendency of this writ petition the petitioners were offered by the respondents and even a proposal was made for alternate land which was noted in interim order dated 26.3.2015 passed by this Court but today when the arguments started learned counsel for the petitioners was asked whether petitioners are ready for alternate land, learned counsel stated that petitioners press for the prayer made in this writ petition and they are not ready to get the alternate land. As there is alternate land available adjacent to the land in dispute owned by the Government of Punjab measuring 300 Kanals, the disputed land measuring 80 Kanals, is the part of the same, the plan was prepared by the concerned Department of the Govermment of the Punjab and construction started on the land allocated for the Judicial Complex except the land in dispute. It is admitted that if the land in dispute is excluded from the land allotted for construction of the judicial complex the Judicial Complex cannot be constructed but petitioners can be given alternate land which is adjacent to the Judicial Complex.

10. In this view of the matter, when date of taking of possession of the land by the petitioners/allottee is not on the record and even order of allotment is un-dated though in the order of allotment it is mentioned that tenancy will commence after Rabi-1972, in these circumstances, when land has been alotted for construction of Judicial Complex, the transferee has not been made party and the mutation of transfer has not been challenged when case of the petitioners that it does not match with the transfer order are fatal defects in the writ petition, therefore, the prayer made by the petitioners in the writ petition is not tenable under the law.

11. For what has been discussed above, this writ petition stands dismissed, though, petitioners may move for alternate land on the basis of merits they have pressed before this Court. ZC/M-230/L Petition dismissed.