P L D 1973 Lahore 528 (PLP)

The facts as given in the writ petition are not quite clear but according to the address at the Bar it transpires that the land in dispute which measures 202 kanals and which is situated in Village Zakhira Gashkori Tehsil Okara District Sahiwal was given to the petitioner as a Horse Breeding Grant somewhere in 1929. The grant was originally for ten years, but was renewed for another ten years up to 1949 whereafter the period for which renewals could take place was fixed as three years at a time. The petitioner was granted three further renewals of three years each and the last renewal expired on 19‑6‑1958. As usual applica tion for its renewal was made this time the Collector rejected in and refused to renew the grant by means of his order, dated 26‑6‑1958 on the ground that the petitioner had not put up a permanent residence in the village hereinbefore mentioned. This order, according to the petitioner, was ex parte and was passed without hearing him in that respect.

2. The petitioner filed an appeal was taken up by the Addl. Commissioner (Revenue) who by means of his order, dated 13‑10‑1958, held that the appeal was not maintainable. Being of the opinion that the matter should be resolved in this case by arbitration (and also because the petitioner on that very date filed an application to this effect, copy Annex. J), he passed on the file to the Commissioner under Condition No. 27‑A of the Statement of Conditions as published in the Gazette dated 1‑7‑1942 (though, it had been contended before me by all concerned that the actual reference should have been to the conditions of 1949 and not 1942). Earlier on 15‑8‑58, he had directed that till the decision of the case, the area should not be allotted to anybody. The matter remained in the cold‑storage and no steps were taken by the Commissioner to proceed with the same. In the meantime, it appears that the Collector, considering the petitioner to be a squatter, started proceedings for his eviction under section 32 of the Colonization of Government Lands (Punjab) Act, 1912, and issued a notice of ejectment. The date of that notice initially was not available with the learned counsel for the parties, but it was later on stated that it was 21‑5‑1963. The petitioner filed an appeal which was again taken up by the learned Addl Commissioner (Rev.) who rejected it on 17‑3‑1964 reiterating that be bad no jurisdiction in this matter. The petitioner filed a revision in the Board of Revenue which dismissed it, on 30‑4‑1964. The learned M. B. R. held that the order of the Collector was "final" and consequently the Addl. Commissioner bad rightly rejected the appeal. The Board of Revenue, however, issued a direction that the petitioner may be view reasonable time by the Collector for the purpose of removing the cultivated crops.

3. When the matter‑was in this confused state of affairs, the petitioner in order to take benefit of the remedy suggested by the Addl. Commissioner, filed an application on 11‑5‑64 before the Commissioner, for (disposal of) arbitration as men tioned hereinbefore, which was dismissed by the Commissioner on 16‑6‑1964, (Annex "H"). The order of the learned Commis sioner is inconsistent because though in the end he hold, "con sequently, I reject the arbitration petition", in the earlier portion he observed on merits that the Collector rightly refused to renew the tenancy due to non‑residence of the petitioner In the Village concerned. It appears that he rejected the "arbitration application" by giving effect to the arguments of the P.P., that he had no jurisdiction to arbitrate in the matter, because arbitration could be done between a tenant and that too during the continuance of a tenancy. After the expiry of the period of grant, according to the P.P., the petitioner no longer remained a tenant and nor the tenancy subsisted in any manner at that time. It will be noticed that if the Commissioner impliedly accepted lack of jurisdiction on his part, it is not understandable as to how be assumed jurisdiction far observing on merits that the order of the Collector was justified and dismissal of appeal by the Additional Commissioner was in order.

4. From what has been written above, it will transpire that the operative order, which stands in the field, and about which the Addl. Commissioner, the Commissioner and the Board of Revenue all held that it was "final" and was not liable to appeal, arbitration or revision, is that of the Collector, dated 26‑6‑1958 (Annex "A"). After hearing the learned counsel for the parties at great length, I have come to the conclusion that the aforesaid order of the Collector is arbitrary In nature and without lawful authority for the following reasons :‑ (a) It is a common ground that even though the petitioner had applied for renewal in time, the aforesaid order was passed by the Collector without hearing him, at his back, and without affording him an opportunity to defend himself or justify his case or show cause in that respect. This plea was specifically raised in para. 2 of the writ petition in the following words :‑ "

2. That in the year 1958, the petitioner applied for the renewal of his tenancy to the Collector Montgomery, (respondent No. 1), who vide his order dated 26‑6‑1958 (copy enclosed as Annexure "A") refused to renew the same on the ground that the petitioner was not having his permanent residence in the Zakhira Gashkori Village, where the tenancy was situated. These orders were passed without any notice or opportunity of being heard having been given to the petitioner." In the corresponding para. 2 of the written‑statement on behalf of respondents No. 1 to 3, this para. was admitted though it was sought to be explained that the petitioner had violated Condition No. 18 of the "Conditions of the Tenancy"‑(which required a tenant to have a permanent residence In the village)‑and his conduct during the immediately preceding tenure of tenancy not being satisfactory, on this count, within the meanings of Condi tion No. 4 of the "Conditions of Tenancy", therefore, refusal to renew on the part of the Collector for the aforesaid reason was quite justified and while proceeding to evict the tenant he was not required to issue any notice under section 24 of the Colonization of Government Lands (Punjab) Act V of 1912 (hereinafter called the Act). I will attend to the relevant concept and import of Conditions Nos. 18 and 4 separately but at moment it will be sufficient to hold that since the renewal being refused on account of certain alleged default on the part of the petitioner, during his immediately preceding period of tenancy, he, on the A principle of natural justice was entitled to be heard before he was to be condemned in that respect. As the principle of natural justice was not followed, therefore, the order of the Collector passed in the secrecy of his Chambers condemning the petitioner unheard speaks of arbitrariness and is void. For the general e proposition that principles of natural. justice are to be read in every enactment and that in case of any administrative act, effecting the right of a person in property, or his status or otherwise bringing penal consequences, opportunity to show cause must be given, see Saiyyid Abut Ala Maudoodi and others v. The Government of West Pakistan (P L D 1954 S C 673), Commissioner of Income- tax East Pakistan v. Fazlur Rahman (P L D 1964 S C 410) and The University of Dacca through its Vice‑Chancellor and another v. Zakir Ahmad (P L D 1965 SC 90). For the proposition that orders passed without hearing the persons concerned are void, see Mansab Ali v. Amir and three others (P L D 1971 SC 124), Mohammad Swaleh v. United Grain and Fodder Agencies (P L D 1964 S C 97), Home Secretary to the Govern ment of West Pakistan, Lahore and others v. Jan Muhammad and another (P L D 1963 S C 333) and Government of West Pakistan and 2 others v. Muhammad Akhtar Mir (P L D 1971 S C 55). In this connection a passage from the case of Mansab All v. Amir and 3 others is worth‑reproduction. This was case where it was held that hearing of an accused before referring his case to a Tribunal (Jirga) was essential and any reference made without observing this rule of natural justice was void, as also any superstructure based thereon. At page 127 of the Report, it was held :‑ It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or Authority, is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. Respectfully following the above principles, I have no hesitation in holding that the order of the Collector, which suffered from violation of the law, hereinbefore quoted, was void and same was the position of the orders of the subsequent appellate or revisional authorities which purported to, endorse the said order. (b) The factual position of the case is that the land in dispute technically is situated in the revenue estate of Zakhira Gashkorl. The petitioner has his residence in the adjoining Chak, namely, 48/3‑R. The land in dispute is about two miles from the Abadi of Zakhira Gashkori, but at a distance of two furlongs from the Abadi of Chak No. 48/3‑R. The petitioner, it was alleged in the grounds of appeal (Annex. "E"), (before the Addl. Commis sioner against the order of the Collector, dated 26‑6‑58), had fully developed the land (most of which was self‑cultivated) and the Remount Department had not complained against him ever. A representative of the Remount Department was present in Court and he supported this plea of the petitioner. The land in question was irrigated from the Moga eminating from Chak No. 48/3‑R from Minor No. 3‑R which takes off from Distributory 39/R of Lower Bari Doab Canal. From irrigation point of view, the other land of Zakhira Gashkori was watered from Gogera Distributory. In the grounds of appeal, it was further alleged that the petitioner had constructed an Ihata in Zakhtra Gashkori. All these facts were relevant and important, to which, as the order of the learned Collector shows, he never adverted white deciding the case in the secrecy of his Chambers. It was pleaded in Para. 8(g) of the writ petition that the tenancies of six persons mentioned therein were similarly situated in Zakhira Gashkori, but two of them were residing in the same Chak No. 48/3‑R, where the petitioner was residing while the others were residing at Montgomery (now Sahiwal)/Lahore and Okara. All these tenants also applied in 1958 for renewal and the Collector renewed their tenancies but refused it in the case of petitioner. The particulars of these persons are as follows :‑ S. No. Name. Place of residence Estate where

1. Mian Abdul Qadir . Chak No. 48/3‑R tenancy situated. Zakhira Gashkori

2. Mian Abdul Wahab Chak No. 48/3‑R do

3. Mian Abdul Jabbar Lahore do

4. Mian Maula Bakhsh Okara do

5. Mian Fatah Muhammad Village Burj Jewey do Khan

6. Malik Altaf Hussain Montgomery do (now Sahiwal) This plea has been denied in the corresponding Para. of the written‑statement and in that view of the matter, I do not want to adjudicate upon this disputed question of fact, but the fact remains, that the pleadings of the petitioner demonstrably showed that he bad apparently cogent reasons to advance in support of the renewal of his tenancy and had the Collector given him an opportunity in that behalf, he could have led evidence in support of his case and justified his stand. Failure of the Collector to give an opportunity to the petitioner and depriving him from establishing the facts and circumstances mentioned in this paragraph has seriously prejudiced the petitioner and since the violation of the rules of natural justice is so glaring as to have caused harm and prejudice to the petitioner's case, it is a fit case in which the order and proceedings of the Collector should be declared to be without lawful authority. (c) Condition No. 18 of the statement of conditions on which reliance had been placed by the Collector reads as follows :‑ "

18. Permanent residence of tenant.‑The tenant shall settle permanently !n the estate in which the said lands are situated within six months of the date on which the Collector directs that he be put in possession of a specified area of land." This is to be read with Condition No. 4 which reads as follows "

4. Period of remount‑breeding tenancies.‑

The tenancy granted under these conditions shall be for a period of four years and at the expiry of this period it will determine unless renewed by the Collector. Before the expiry of the tenancy or the renewed period of the tenancy the tenant may apply to the Collector for its renewal and if, during the term of such tenancy the tenant has not been entirely satisfactory the Collector may refuse to renew it, and his decision shall be final. If, however, the Collector is of the opinion that the tenant holding a tenancy on these conditions or a renewed tenancy on the conditions published with‑(a) Punjab Government Notification No. 964‑3, dated the 24th June 1915, as amended by Punjab Government Notification No. 5080 dated the 21st February 1919; or (b', Punjab Government Notification No. 2965‑C, dated the 22nd July 1941, as amended by Punjab Government Notification No. 3611‑C dated the 6th September 1941. has satisfactorily fulfilled the said conditions during his tenancy, he may renew the tenancy for the period of three years at a time." Speaking strictly, the aforesaid Condition No. 18 refers to the stage of the initial grant because it is actually at the time of the initial grant that the Collector directs that the tenant should be put in possession of the s9ecified area of land though even then it is not a sine qua non of the allotment in his favour. See Karam Din v. Member, Board of Revenue, West Pakistan, Lahore and C others (P L D 1968 Lab. 321). After the period of tenancy has expired, then the posi tion of the tenant is not that of a trespasser but he is just a tenant holding over (as is commonly understood under the law of this country) or a tenant by sufferance (as the said concept is under stood under the English Law). Leaving aside for the moment P the points of distinction between the two, if the tenancy of such a tenant (holding over) is renewed, then he just continues in possession and is not put in possession again. With this clarifica tion, if we proceed to examine the present case, it is further to be pointed out that the condition hereinbefore mentioned was not such which was not rectifiable. In Ahmad Khan v. The Government of West Pakistan (P L D 1960 Lab. 995), it was held that non‑residence was capable of rectification. The actual passage in the judgment at page 1000 reads as follows:‑ A question may arise as to whether the absence of the tenant is a violation which is capable of rectification. The answer to this question, particularly, when we consider the attitude of the Colonization Authority should be in the affirmative. If a person be absent he can rectify the breach by taking up permanent residence in the village. To the same effect is Khushi Muhammad v. The State and an: other (P L D 1961 W P (Rev.) 111). This shows that if a tenant does not put up a permanent residence in the village, then he can be directed to do so. This view is deducible from the provisions of section 24 of the Act, which reads as follows:‑ "

24. Power of imposing penalties.‑When the Collector is satisfied that a tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objections‑ (a) impose on the tenant a penalty not exceeding one hundred rupees, or (b) order the resumption of the tenancy: Provided that if the breach is capable of rectification the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice." "this section Is to be read with section 12 of the Act, which 9s to the following effect :‑ "

12. Temporary absence.

‑Any condition included in any statement of conditions which imposes an obligation of residence shall not be deemed to have been infringed by reason only of the temporary absence of a tenant who pas established a permanent residence in the estate in which his holding is situated." In Bahadri and another v. Emperor (P L D 1950 Pb. (Rev.) 873) it was held by Maynard Financial Commissioner, that when a colony is firmly established, the absence or presence of a particular grantee becomes a matter of little or no public importance. If he has not acquired pro prietary grants, he retains no doubt his technical liability to fulfil the condition of personal residence, but the fact that a grantee teas a has table house in his Chak must be accepted as conclusive evidence that he is fulfilling the condition of residence. It was further held that throughout the whole of the Lower Chanab Colony the fact that a grantee had a habitable house in his Chak must be accepted as conclusive evidence that he was fulfilling the condi tion of residence. The present is a case of Lower Bari Doab Colony but principle applicable will be the same. The actual passage in the judgment of Maynard Financial Commissioner 3s worth reproduction and reads as follows : ‑‑ For the first 12 or 15 years of a new Colony's existence, the settlement is in some measure precarious and there is special justification for insisting meticulously on the condition of residence. Later on, when the Colony is firmly established, the absence or presence of a particular grantee becomes a matter of little or no public importance. If he has not acquired proprietary rights, he retains, no doubt, his technical liability to fulfil the condition of personal residence; but it becomes very undesirable to enforce this by confiscation and the proper course is to accept the existence of a habitable house as suffi cient evidence of residence, and to make no further inquisition into the habits of grantee. One great objection to the continu ance of inquiries of this kind is the very undesirable power which they place in the hands of subordinate officials. Then in Mansabdar Khan v. The Crown (P L D 1950 Pb. (Rev.) 171.(1)) it was held that where a tenant having a residential house in the Chak absented himself from the Chak, his grant was not liable to confiscation and fine of Rs. 100 was sufficient to meet the ends of justice. The case of Bahadri and another v. Crown was followed, in Taj‑ud‑Din v. The Crown (P L D 1950 Pb. (Rev.) 1209) and Chuhar Khan v. The Crown (P L D 1950 Pb. (Rev.) 1252), where the same principle was reiterated. All this will show that in the Instant case the mistake, if any, was rectifiable and if during the subsistence of the immediately preceding tenure of tenancy it was not made as a ground of resumption of the tenancy, it is seriously questionable whether it could be made as a basis for refusal to renew, especially, when if it bad been taken up earlier, the tenant might have rectified it. The failure of the Collector to take note of this aspect of the legal position, tantamounts to not applying the correct law and not deciding the case in accordance with the relevant law on the subject. Refusal to renew clause, in my opinion, is not to be used as a trap against a tenant, in cases where basis of refusal is such a mistake which was rectifiable and was not allowed or directed to be rectified. The test to find out as to whether "the tenant has not been entirely satisfactory, or whether "he has satisfactorily fulfilled the said conditions during his tenancy" within the meaning of these phrases as used in Condition No. 4 Old is to see as to whether for any alleged factor of delinquency, the tenancy could have been resumed or not straightway. If the resumption could not have straightway been ordered and If before embarking upon resumption, steps could be taken to get the mistake rectified, then it is not a case falling within the "refusal to renew" clause. What could not have been done directly by the Collector during the tenure of the tenancy, in my opinion, could not be done by him indirectly at the stage of the renewal of the tenancy. Again failure of the authorities concerned to take notice of this alleged mistake and defect (if any) of the tenant, for the prior 29 years clearly pointed towards the waiver and condonation of this condi tion and its alleged enforcement at this late stage in his individual case did not appear to be justified. None of the authorities concerned took note of this legal and factual position. (d) In relevant statement of conditions, the phrases used have been underlined* In the preceding sub‑paragraph herein. They state that jurisdiction to refuse renewal exists only when "tenant has not been entirely satisfactory," but if "he has satisfactorily fulfilled the said condition during his tenancy," then the renewal is to be granted. These sentences, in my opinion, do not permit taking note of breach of, for example, one condition but ignoring the other overall performance of the tenant. The alleged breach, even if it exists in any single case is to be put in juxtaposition with the overall performance of the tenant and his all round efficiency is to be seen. Every slight breach will not tell upon the otherwise very brilliant career of a tenant. The authorities concerned, in the instant case, do not appear to have fully appreciated the scope of the sentences herein before quoted which show that they were under misconception about the very extent of their jurisdiction and power in this regard. The whole case seems to have not been properly grasped which led to the passing of arbitrary orders impugned herein. If notice was being taken of the conduct of the petitioner with regard to the condition under consideration, due notice should have also been taken of the conduct of the authorities concerned which did not consider this as a default on the part of the petitioner for the last twenty‑nine years.

5. Taking up the orders of the Additional Commissioner, the Commissioner and the Board of Revenue, instead of coming to the rescue of the petitioner, they very conveniently threw away their jurisdiction by holding that the order of the Collector refusing to renew was "final" and was not amendable to appeal or revision etc. The word "final" occurs in Condition No. 4 and probably the aforesaid authorities were misled by the same. It is significant to note that section 7 of the Act makes the provisions of the Punjab Land Revenue Act and the Punjabi Tenancy Act applicable to "all proceedings under this Act."1 The statement of conditions are issued under section 10 of the Act and, therefore, any order passed with regard to those condi tions would be as order under the Act and would be appealable or revisable. The discussion need not be taken any further, because it is clinched by a Division Bench authority of this Court reported in Karam Din v. Member, Board of Revenue and others headnote (a) whereof is worth reproduction. It reads as:‑ The two provisions contained in sections 7 and 10(3) of the Act read together leave no manner of doubt that the order of the Collector would be subject to appeal or revision. Even if the former provision regarding the amenability to appeal or revision or the Collector's order were not there, the latter provision per se vests the Member, Board of Revenue with adequate power of Interference in proper cases, where in the latter's view the discretion vesting in the Collector has not been judiciously exercised. All orders made by the Collector under the Colonization of Government Lands (Punjab) Act, whether they are orders of original grant or relate to resumption and re‑entry on the breach of conditions are amenable to appeal and revision. No finality attaches to such an order made by the Collector. It would thus follow as a necessary corollary from this that the Collector's order relating to the grant of tenancy can only be held to be final if upheld in appeal and revision. I have also seen a pro forma of the "Lease Deed" which is generally entered into by the government and the grantee at the time of the grant. One of the express stipulations of the said lease deed is "that the lease is subject to the provisions of the Act," which also shows that orders passed in connection with the lease, its termination, resumption or renewal are all appealable and revisable as hereinbefore mentioned, the use of the word "final" notwithstanding.

6. The order of the Commissioner (to deal with It separately) suffers from other errors as well. As already pointed out, he held the order of the Collector as final and not appealable. If it was not appealable, then how and in what capacity, did the Commissioner express views on merits, especially, when even with regard to his "arbitration jurisdiction," he held that he did not possess it. Conditions No. 27‑(A) and (B), in which provision for arbitration is contained, read as follows :‑ "

27. Arbitration.‑(a) If any question, difference or objection whatsoever shall at any time hereafter arise between Government and the tenant in any way touching or concerning this tenancy or the construction, meaning, operation or effect thereof or of any clause herein contained or as to the rights, duties or liabilities of either party under or by virtue of this grant or touching the subject‑matter, of this tenancy, or arising out of or in relation thereto, then save in so far as the decision of any such matter has been hereinbefore provided for and has been so decided, the matter in difference shall be referred for the arbitration of the Commissioner, who shall have power to decide any matter so referred including the following questions :‑ (i) Whether any other provision has been made in these presents for the decision of any matter and if such provision has been made, whether it has been finally decided accordingly, and (ii) whether the tenancy should be terminated or has been rightly terminated and what are or will be the rights and obligations of the parties as the result of such termination. (b) The decision of the arbitrator shall be final and binding; and when any matter so referred to arbitration involves a claim for the award, increase or reduction of a sum of money by way of compensation or any other payment or recovery of money, only the amount decided by the arbitrator shall be recoverable in respect of the dispute so referred." In my opinion the learned Commissioner was in error in holding that in the above clause the word "tenant" meant only a person who was actually a tenant at the time of the dispute and did not include an ex‑tenant or a tenant holding over or a tenant who had exercised option of renewal in time but the decision thereon was still pending or was given after the expiry of the term of the tenancy. The word tenant is wide enough to cover cases of the past tenants and so long as the dispute is such which pertains to the statements of conditions, it is well‑within the scope of the clause hereinbefore reproduced.

7. The upshot of the above discussion is that the orders impugned in this case are all without lawful authority and are hereby quashed. Since there was no uarectifiable breach on the part of the petitioner, his tenancy was liable to be renewed and refusal of the Collector to do so was arbitrary and without lawful authority and of no legal consequence against the petitioner. I declare accordingly. In the writ petition, one further prayer is, "and he be directed to grant the petitioner's renewals for such number of terms as may be necessary to cover the intervening period with retrospective effect." Accepting the writ petition in the manner hereinbefore indicated, a consequent direction is issued to the Collector to decide the matter mentioned in the above reproduced prayer accordingly. There shall be no order as to costs. S.Q. Order accordingly.