[CGL ACT, 1912

]

COLONY MANUAL
AN EXHAUSTIVE COMMENTARY ON

THE COLONIZATION OF GOVERNMENT LANDS (PUNJAB) ACT, 1912.
WITH IMPORTANT

COLONY SCHEMES
(Policies upto 2010)

ALSO CONTAINS

DISPOSAL OF LAND BY DEVELOPMENT AUTHORITIES (REGULATION) ACT, 1998 CHOLISTAN DEVELOPMENT AUTHORITY ACT, 1976
AND SCHEMES FRAMED THEREUNDER

By: SAMEER IJAZ
ADVOCATE HIGH COURT

SHARJEEL EJAZ
ADVOCATE HIGH COURT

Kausar Law Book Publisher
Justice Jameel Hussain Rizvi Road, High Court, Lahore. [Phones: 37225187, 03004199794, 03127321140]

1

[CGL ACT, 1912]

Dedicated to my teachers/ mentors:

Sir Baqir Hussain Rizvi (City Public School, Sialkot) Mian Ehsan-ul-Haq (former MBR/ CSC) Mr. Abdur Rashid Khan (former Provincial Ombudsman Punjab)

Mian Khalid Habib Elahi
(Advocate Supreme Court)

2

[CGL ACT, 1912]

PREFACE

The Colonization of Government Lands has proved to be one of the major factors in the development of agriculture in the Province of Punjab and is a major source of revenue. It plays a vital role in the economy of the Province. It has not only helped in poverty alleviation and economic development but has also provided a system for converting the barren and sandy lands to cultivable. The Colonies Department, Government of the Punjab mainly administers the management and disposal of state land. The Board of Revenue, Punjab being its attached department has been assigned responsibility of issuing statements and conditions under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, which are commonly denoted as ‘Colony Schemes’. These schemes are implemented through the local revenue agencies i.e. the Executive District Officers (Revenue), District Officers (Revenue) etc. The Colony Schemes were, for the first time, compiled through a Colony Manual published in 1940 and lastly a compendium of Colony Schemes was printed by the Colonies Department in 1983. Since then the government policy has underwent a lot of changes and several new schemes have been introduced and amendments made in the old schemes. However, no further publication has been made in this regard at government level during the last quarter century. The result is that the schemes are found in scattered form and the officials of Colonies Department particularly at District and Tehsil level misuse the situation to get undue advantage and the Courts/ Revenue Officers become handicapped in taking decisions in accordance with the operative government scheme/ policy. This book has been attempted with a view to compile all the major Colony Schemes in one book so as to help the old litigants in particular and public at large in general. It is expected that this book will also help the courts/ revenue officers to arrive at correct decisions in accordance with the relevant law/ policy.

3

[CGL ACT, 1912]

Every effort has been made to get the material from the original notifications but where the original policy notifications could not be traced, help has been derived from the books available on the subject in the local market and libraries and due care and caution has been taken in selecting the material. I hope that this book will be of great help to the litigant public as well as to the members of the Bench and Bar. I would like to thank all my associates who have assisted me in compiling this book especially Sharjeel Ejaz and Rana Maqbool Hussain Advocates High Court. I also had special cooperation from my staff Muhammad Yaqoob Malik, M. Arif Mahmood and Kashif in compiling the book. I owe my special thanks to my companion Meira Khan who has assisted me in achieving this task with great dedication and without his assistance it would not be possible to present this book in this form. I also express my thanks to Mr. Nadeem Zafar Chaudhary, proprietor and Malik Yasir Manager of Nadeem Law Book made publishing of this book possible within a very short period. I will appreciate if suggestions for improvement are made by the readers of this book. SAMEER IJAZ
Advocate High Court 11-Rabbani Road, Old Anarkali, Lahore.

4

[CGL ACT, 1912]

COLONY MANUAL
CONTENTS

Sr.
1. 2. 3. 4. 5. 6. 7. 8. Introduction Acts Colonization of Government Lands (Punjab) Act 1912 Disposal of Land by Development Authorities (Regulation) Act, 1998 Cholistan Development Authority Act, 1976 Schemes General Colony Conditions Bara Reclamation Scheme Charagah Policy Cholistan Development Authority

Page
1-4 5-130 131-135 136-148 149-157 158-203 204-209 210-213 214-227 228-231 232-277 278-285 286-297 298-355 356-374 375-410 411-422

• Territories • Lease Schemes • Shahi Muzarian Scheme
9. 10. 11. 12. 13. Cooperative Farming Scheme Criminal Tribes Scheme Dhundi and Bruceabad Estate Ejected Tenants Scheme Grant of State Land for Non-Agricultural Purposes

• Educational Institutions • Nursery, Poultry & Fish Farming • Petrol Pumps & Service Stations

5

[CGL ACT, 1912]

Sr # 14. 15. 16. 17.

Contents

Page # 423-434 435-505 506-566 567-627 628-651 652-667 668-684 685-754 755-765 766-778 779-796 797-802 803-819 820-833 834-841 842-848 849-879 880-884 885-908 909-911 912-918 919-930 931-935

Gallantry Awards Scheme Grow More Food Scheme Horse Breeding Scheme Housing Schemes

• Ihata/ Village Site • Jinnah Abadis Scheme • Katchi Abadi Scheme
18. 19. 20. Illicit Cultivation Lambardari Grant & Pedigree Livestock Breeding Land to Landless Tenants

• Prime Minister’s Scheme • Chief Minister’s Scheme
21. 22. 23. 24. Livestock Breeding Scheme Mule Breeding Scheme Occupancy Tenants Resettlement/ Oustees Schemes

• Atomic Energy Complex Displaced Persons • Chashma Barrage Oustees • Gujranwala & Okara Cantt: Oustees • Islamabad Oustees • Jammu & Kashmir Refugees • Mangla Dam Oustees • Sadiqabad Cantt: Oustees • Tarbela Dam Oustees
25. 26. River Action Scheme Small House-cum-Garden Scheme

6

[CGL ACT, 1912]

Sr. 27.

Contents Temporary Cultivation Lease Scheme

Page 936-1010 1011-1044 1045-1070 1071-1080 1081-1144 1145-1149 1150-1154 1155-1158 1159-1191 1192-1224 1225-1227 1228-1242 1243-1244 1245-1251 1252-1255 1256-1263 1264-1265 1266-1269 1270-1280 1281-1297 1298-1308

• Lease of State Land • Extension Outside Prohibited Zone • Extension Within Prohibited Zone & Charagah • Alternate Allotment • Proprietary Rights
28. Thal Development Authority

• Auction Scheme • Fix Price Scheme • Garden and Nursery Scheme • Peasant Grants Scheme • Tube Well Sinking Scheme
29. Transfer/ Sale of State Land

• Awkward Plots • Condonation Fee-Conversion Charges • District Councils • District Price/ Rent Assessment Committee • Nazul Land • Other Departments • Private Paths • Railways Land • Sale by Auction • Sale by Private Treaty • Surrendered Land Under MLR-89-91

7

[CGL ACT, 1912]

30. 31.

Tube Well Sinking Scheme Well Sinking Scheme

1309-1362 1363-1400

INTRODUCTION The agrarian system, which the first Muslim conquerors found in operation in the sub-continent being, in its essential features, in harmony with the fiscal system of Islam, was adopted, with slight modification, by giving some Arabic or Persian names to the institutions then in existence.

The Arabs, under a young general, Muhammad bin Qasim, conquered Sind and established their rule in the south west of Indo-Pak sub-continent. They did not impose the foreign system on their Indian subjects, and took over portions of the indigenous agrarian system, which they found in operation, and adapted it. Under the indigenous system which was based on the Hindu Sacred law of Manu, it was the duty of the peasants to pay a share of their produce to the king, who determined within certain limits, or conceivably beyond them, the amount of the share and also the methods of assessment and collection. As for the methods of assessment, there were existing the methods of sharing, appraisement, and measurement, side by side, and later in period another method under which the peasants came to terms with the assessing officer to pay a fixed sum of money annually for his holding also came in practice. The various classes authorized by the king to collect his share and to retain a portion for themselves, were described as Chiefs, Representatives, Assignees, Grantees and Farmers. The system of granting a defined area of land, in return of services, was common before the advent of Muslims, who themselves had developed it under the Abbasids and the

8

[CGL ACT, 1912]

dynasties which arose as a result of weakening of the Caliphate. The agrarian system in operation in Hindu India was substantially identical with the Islamic system of Kharaj-iMuqasama and Kharaj-i-Muwazzaf. There was a continuity of tradition in the matter of land-revenue; the conquerors not only refrained from disturbing the old institutions but found those in accord with their own ideas. The system of Sharing (Kharaj-iMuqasama) in its cruder form, as was then in existence, required a large staff, and the earlier conquerors, on account of small number of available Muslims, employed Hindu staff to work the system; not only were they available, but they also possessed the necessary experience and technical skill. This paved the way to a fusion of the two systems so nearly identical, and adoption of indigenous methods and customs mingled with Arabic and Persian terminologies in land-revenue administration. The Mughuls during the first episode of their empire made no material change in the existing fiscal arrangements. With new areas coming under the control of expanding Empire and productivity in old areas varying constantly, a new set of yearly rates called the ”Qanungo rates” were introduced. Realizing, however, the inconvenience caused by the “Qanungo rates” a more workable system called “Ain-i-Dah Sala” or “Ten-year assessment” was evolved, by taking the medium produce for ten years, adding up the figures, dividing the total by ten and thus calculating the average annual yield of a homogeneous area (assessment circle). The mode of payment to the officers was by grant of land (jagirs) or assignments, called Mansabdari system, which became a feature of the agrarian system of the Mughul Empire and continued until the seventeenth century. In Punjab, on the weakening of the Mughul Empire, anarchy for a long time prevailed. To this succeeded the grinding rule of the Sikhs, when the tendency was rather to abandon rights in the land, symbols more of misery than the 9

[CGL ACT, 1912]

benefit, than to contend for their possession and enjoyment. The Sikhs who established their rule in 1799 in the Punjab and trans-Indus districts, under Maharaja Ranjit Singh, started with simple Kankut-batai system, claiming one-third to one-half of the crop, but towards the close of the reign the practice of levying cash was introduced in certain parts of the kingdom. The land system inherited by the British had already developed and worked successfully under the Muslim rulers. By the process of settlement, the Government determined the rates and accounts of land-revenue payable to it by the persons in whom it recognized a permanent right to occupy and till the land. When the first Punjab Land Revenue Act of 1871 was passed and the Government formally laid down rules of Assessment (1873) the one-half principle was more prominently brought forward. With the enactment of Act III of 1928 the statutory maximum limit for future assessments was fixed as one-fourth of the estimated value of the net-assets of any assessment circle. In Punjab the task of determining the rights in soil and framing of record was most laborious. The tenure of land was sometimes very complex, and the proprietary right was not enjoyed as a whole by a single individual or by a village community in common, but was split up among two ore more individuals possessing titles, none of which could properly be regarded as full ownership. These classes were recognized as “superior proprietors”, “inferior proprietors”, and “hereditary tenants”. The rights and liabilities of all these classes were entered in the record-of-rights of the estate. Their practical effect was that the entries of the records of rights, as they stood when the settlement operation came to an end, were conclusive as to the rights of all persons and had the presumption of truth under the law.

10

[CGL ACT, 1912]

Prior to British rule there was hardly any concept of codification of laws in the modern sense. The British who started their rule from the occupation of Bengal enacted a number of Regulations in 1793, the provinces of Sind and Punjab were annexed respectively in 1843 and 1849 became non-Regulation provinces, and collectors in these areas were known as Deputy Commissioners. In the Punjab and trans-Indus districts the revenue code of the united provinces, published as “Thomason’s’ Directors for Settlement Officers and Collectors” served as a guide in agrarian matters till the passing of the first Punjab Land Revenue Act 1871. This Act was later replaced by Land Revenue Act, 1887, which together with its allied Act, the Punjab Tenancy Act of the same year, regulated the revenue matters and the relationship between the landlords and the tenants in the Provinces of Punjab, NWFP and Blauchistan. To bring the vast tracks of government lands under cultivation in the Punjab, a network for irrigation of lands was set up by constructing various canals in the Province. In order to regulate the Colonization of lands, certain schemes were promulgated from time to time, as below: (1) The Sidhnai Colonization Scheme, 1886-1888. (2) The Sohag-Para Colonization Scheme, 1886-1888. (3) The Lower Chenab Colonization Scheme, 18921896; later extension, 1926 (4) The Chunian Colonization Schemes, 1897-98 & 1904-1905; (5) The Lower Jhelum Colonization Scheme, 19021906; (6) The Jhang Colonization Scheme, 1904-1906; (7) The Lower Bari Doab Colonization Scheme, 19121922; 11

[CGL ACT, 1912]

The Upper Chenab Colonization Scheme, 19151919; (9) The Upper Jhelum Colonization Scheme, 19161921; (10) The Nili Bar Colonization Scheme, 1924. After the expansion of the British rule in large territories, the Government Tenants (Punjab) Act, 1893 was enacted to regulate the grants. It extended to the territories administered by the British. This Act was subsequently replaced by the Colonization of Government Lands (Punjab) Act, 1912, which has remained in force even after independence with necessary amendments/ adaptations and is still intact. The Colonies Department is mainly concerned with the management and disposal of state land in the Province. This function is carried out within the legal frame-work provided in the Colonization of Government Lands (Punjab) Act, 1912. The Board of Revenue is responsible for issuing schemes covering all aspects of utilization of state land under section 10 of the said act with the sanction of the Government. The schemes are implemented through the local revenue agencies. The management includes the following functions: (a) Leasing of state land on Temporary Cultivation Scheme; (b) Leasing of state land for specific purposes i.e. Stud Farms, Horse Breeding Scheme, Service Grants etc; (c) Sale of state agricultural/ urban land on market rates; (d) Transfer of state land to other Government Department; (e) Allotment of state land for the re-settlement of persons displaced in Nation Building Schemes i.e. Terbela Dam, Mangla Dam, Chashma Barrage etc. 12

(8)

[CGL ACT, 1912]

Conferring of proprietary rights upon colonizers under specific terms and conditions; (g) Allotment of state land under the Rural Housing Schemes; (h) Audit of Colony accounts in the Punjab; (i) Completion of residue work of the defunct Thal Development Authority. Section 10(2) of the Act empowers the Board of Revenue subject to general approval of the Provincial Government to issue schemes/ statements of conditions to grant land in a Colony to tenants. Some major schemes, most of which are still applicable are included in this book.

(f)

THE COLONIZATION OF GOVT. LANDS (PUNJAB) ACT, 1912
CONTENTS

Sec. 1. 2. 3. Title and local extent Repeal Definitions

Page # 7 7 7

CHAPTER I PRELIMINARY
4. 5. 6. 7. 8. 9. Application of the Act Power to withdraw colony from the operation of the Act Applicability of tenancy laws Applicability of the West Pakistan Land Revenue Act, 1967 [Repealed] [Repealed] 10 12 12 12 13 13

CHAPTER II 13

[CGL ACT, 1912]

PROVISIONS RELATING TO TENANTS
10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 19-A 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. Issue of statements of conditions of tenancies Legal effect of statement of conditions Temporary absence Entries in record of rights or in annual record to be equivalent to entries in register issued under Act III of 1893 Position of tenants holding hitherto under Act III of 1893 Purchaser to be tenant pending payment in full of purchase money False information by a tenant Exchange Rights of tenant not to be attached or sold Transfers of rights to be void Succession to the tenancy Succession to tenants acquiring otherwise than by succession Succession to tenants acquiring by succession Acquisition of ownership not to affect nomination of heir Revocation of nomination Power of imposing penalties for breaches of conditions Power of re-entry and provisions as to compensation in certain cases Provisions for re-entry on and compensation for buildings on sites allotted for residential purposes Saving of certain tenancies and conditions Sums due to Government to be recoverable as arrears of land revenue Power to abrogate conditions 13 43 44 45 45 45 49 50 53 54 67 73 79 80 80 80 95 96 96 97 98

CHAPTER III
PROVISIONS RELATING TO PROPRIETORS 30. 30-A Acquisition of proprietary right Right of alienation in respect of and rule of succession to certain proprietary rights acquired by a female 99 110

CHAPTER IV
SUPPLEMENTARY PROVISIONS

14

[CGL ACT, 1912]

31. 32. 33. 34. 35. 36. 37. 38.

Mares, camels or their progeny maintained under prescribed conditions not to be attached or sold Power of re-entry in case of squatters and trespassers Penalties Additional powers of Collector in regard to offences Power to levy a cess for administration of common village expenses Jurisdiction of Civil Court barred as regards matter arising under the Act Public servants indemnified for acts done under this Act Legalization of orders passed previous to the Act SCHEDULE I (List of expected tenancies referred to in section 4) SCHEDULE II (Referred to in section 30)

113 113 118 119 121 121 128 128 129 129

15

[CGL ACT, 1912]

[Sections 1, 2, 3]

THE COLONIZATION OF GOVERNMENT LANDS (PUNJAB) ACT 1912.
(PUNJAB ACT V OF 1912)
AS AMENDED UPTO DATE.

An Act to make better provisions for the Colonization and Administration of Government Lands in the Punjab. Whereas it is expedient to make better provision for the colonization and administration of Government lands in the Punjab; COMMENTS
According to preamble, the exercise was undertaken to make better provisions for the colonization and administration of Government lands and for that purpose schemes were prepared and people were prepared and people were encouraged to purchase government lands on installment basis. In that context terms and conditions were laid down which had to be fulfilled. Under section 10 of the said Act, government issues statement of conditions that 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 permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. [1991 SCMR 2415].

It is hereby enacted as follows: 1. Title and local extent (1) This Act may be called the Colonization of Government Lands (Punjab) Act, 1912. 1 (2) It extends to the whole of the Province of 2[the Punjab], except the Tribal Areas. 2. Repeal. The Government Tenants (Punjab) Act, 1893 is hereby repealed. 3. Definitions. In this Act, unless there is something repugnant in the subject or context: 1 2

Substituted by CGL (West Pakistan Amendment) Ordinance XXXVI of 1969 Substituted by Punjab Ordinance I of 1974

16

[CGL ACT, 1912]

[Section 3]

“Collector” means the Collector of the District as described in the 3[West Pakistan Land Revenue Act, 1967] and includes (1) any officer appointed by the 4[Board of Revenue] to perform all or any of the functions and exercise all or any of the powers of the Collector under this Act, and (2) any Colonization Officer or Assistant Colonization Officer appointed as such before the commencement of this Act, whether or not such officer was by Notification appointed to perform all or any of the functions of a 5[District Officer (Revenue)] under the Act hereby repealed. COMMENTS
Collector was competent and empowered to appoint a village watchman or Chowkidar but he was not empowered to appoint any other servant of the village---Appointment of Imam was the right/ prerogative of the people of area/ village where the mosque was situated for which Imam was to be appointed--Collector, while appointing Imam of village, had exceeded his jurisdiction under S. 3 of Colonization of Government Lands (Punjab) Act, 1912, who was only competent to allot land to Imam Masjid but he had no authority/ power to appoint the Imam [2004 CLC 834].

“[Executive District Officer (Revenue)]” includes any officer appointed by the 7[Board of Revenue] to perform all or any of the functions and exercise all or any of the powers of a 6 [Executive District Officer (Revenue)] under this act. “Colony” means any area to which this Act shall be applied by order of the 8[Provincial Government] and, unless the 8 [Provincial Government] otherwise directs any area to which the Government Tenants (Punjab) Act, 1893 has been applied. “Prescribed” means sanctioned by the Board of Revenue under this Act or under the Act hereby repealed.
3 4 5 6 7 8

6

Now the Punjab Land Revenue Act, 1967 Substituted for the words “Financial Commissioner”, by West Pakistan Act XVI of 1957 Substituted for the words “Deputy Commissioner” by the CGL (Pb. Amendment) Ord. No.XXXII of 2001. Substituted for the words “Commissioner” by the CGL (Punjab Amendment) Ord. No.XXXII of 2001. Substituted for the words “Financial Commissioner”, by West Pakistan Act XVI of 1957 Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964

17

[CGL ACT, 1912]
9

[Section 3]

“Improvements” means, with reference to a tenancy, any work, which is suitable to the tenancy, and consistent with the conditions on which it is held, by which the value of the tenancy has been and continues to be increased and which, if not executed on the tenancy, is either executed directly for its benefits, or is, after execution, made directly beneficial to it; Explanation I: It includes among other things: (a) the construction of wells and other works for the storage or supply of water for agricultural purposes; (b) the construction of works for drainage and for protection against floods; (c) the planting of trees, the reclaiming, enclosing, leveling and terracing of land for agricultural purposes and other works of a like nature; (d) the erection of buildings required for the more convenient or profitable cultivation of a tenancy; and (e) the renewal or construction of any of the foregoing works, or such alterations therein or additions thereto, as are not of the nature of mere repairs and as durably increase their value. But it does not include such clearances, embankment levelings, enclosures, temporary wells and water-channels as are made by tenants in the ordinary course of cultivation and without any special expenditure, or any other benefit accruing to land from the ordinary operations of husbandry; Explanation II: A work which benefits several tenancies may be deemed to be, with respect to each of them, an improvement. Explanation III: A work executed by a tenant is not an improvement if it substantially diminishes the value of any other part of his landlord’s property.
9

Substituted by CGL (West Pakistan Amendment) Ordinance XXXVI of 1969

18

[CGL ACT, 1912]

[Sections 3, 4]

“Tenant” means any person holding land in a colony as a tenant of 10[Government] and includes the predecessors and successors-in-interest of a tenant. “Original Tenant” means any male, to whom a tenancy is first allotted by the Collector, and includes the male transferee of such a tenant and any male nominated by the Collector in accordance with the provisions of Section 21 to succeed a female, to whom a tenancy was first allotted. CHAPTER-I PRELIMINARY 4. Application of the Act. This Act shall, unless the 11 [Provincial Government] otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act, 1893, have been applied and to any other land to which the Provincial Government may by notification in the Official Gazette apply it and which at the time of the notification was the 12 Property of 13[Provincial Government]. Provided that 14[unless the 13[Provincial Government] by general or special order otherwise directs] nothing in sections 20, 21, 22 and 23, or in the proviso to section 14, of this Act shall 15[xxx], apply to tenancies specified in Schedule-I of this Act, or to any class of tenancies created hereafter which the 11 [Provincial Government] may declare to be Scheduled tenancies. COMMENTS
Suit land forming part of Grand Trunk Road was alienated by Communication and Works Department in favour of petitioner/ National Highways Authority unconditionally and free of cost---After conferment of right of way to the
10 11 12 13 14 15

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964 Substituted for the words “Local Government” by A.O., 1937 Substituted for the words “Property of Government” by A.O., 1937 Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964 Inserted by Act XXXVIII of 1929 The words “without the previous sanction of the Governor General in Council” omitted by Act XXXVIII of 1929

19

[CGL ACT, 1912]

[Section 4]

Highway Authority mutations in respect of suit land were reviewed by Secretary, Board of Revenue and mutations earlier attested in favour of Highway Authority were cancelled without notice to the petitioner---Lease of part of suit land by Highway Authority was also assailed---Validity---Legal title of land in dispute vested with the Secretary (Colonies), Government of Punjab by virtue of S. 4 of the Colonization of Government Lands (Punjab) Act, 1912---Such land could be granted to any person by the Board of Revenue subject to approval of the Government, within the contemplation of S. 10 of the Colonization of Government Lands (Punjab) Act, 1912---Rules of Business and West Pakistan Highways Ordinance, 1959 provided that administration of Highway Authority vested with Communication and Works Department and Secretary C & W had administrative control of such land but its legal title vested in Colony Department of Provincial Government---Review of mutation had to be conducted in an open assembly after notice to the parties and after hearing them but such exercise had not been undertaken in the present case---Constitutional petitions were allowed, orders canceling mutations being violative of principles of natural justice were set aside and case was remanded to be decided after hearing the parties [2007 CLC 1794, PLJ 2008 Lahore 73]. Act applies to Cholistan areas governed by Shahi Muzara Scheme floated for erstwhile Bahawalpur state vide Notification No.66/LD, dated 04.11.1950 and adopted by West Pakistan Board of Revenue through notification dated 12.10.1966. Board of Revenue and other hierarchy provided under West Pakistan Land Revenue Act, 1967, would also have jurisdiction with regard to Cholistan area governed by Shahi Muzara Scheme [NLR 1999 Revenue 1] Notification according to which no right of pre-emption would exist in respect of area to which Colonization of Government Lands (Punjab) Act, 1912 was applicable, was rescinded subsequently but after sale in question was made —Courts below had concurrently found that vendee/ appellant having failed to establish that Colonization of Government Lands (Punjab) Act, 1912 was applicable to land in dispute, Notification which otherwise was rescinded was not applicable to land in question. [1994 CLC 1162] Colony character of land could not be changed simply because in an interregnum it assumed character of an evacuee land and departure of owner to India during holocaust after independence. Its administration would revert to colony authorities as soon as land is completely settled under Settlement Law. [NLR 1981 SCJ 586] Notification under section S.4 must issue in Government Gazette and must be confined at State land. Mere, letter directing that certain proprietary lands may also be given into the control of Colonization Officer does not make such lands subject to the provisions of Act so as to exempt them from preemption. [1968 SCMR 320] Allotment of state land under Notification No.837-C of 01.03.1933 (as amended subsequently)---Scheduled tenancy within meaning of S. 4---

20

[CGL ACT, 1912]

[Sections 5, 6 & 7]

Cancellation of allotment rectification of breach of conditions---Application of S. 24 excluded by virtue of S. 27. [PLD 1965 W.P. (Rev.) 16]

5. Power to withdraw colony from the operation of the Act. The Provincial Government may, at any time by notification in the Official Gazette, withdraw a colony or any part of a colony from the operation of all or any of the provisions of this Act.
16

[6. Applicability of tenancy laws. Except as provided in section 7, the Punjab Tenancy Act, 1887, or any other law relating to tenancy for the time being in force in any part of 17 [the Punjab], shall not be applicable to tenancies under this Act.] 7. Applicability of West Pakistan Land Revenue Act, 1967, etc. (1) Subject to the provision of this Act, the West Pakistan Land Revenue Act, 1967, Chapter VII of the Punjab Tenancy Act, 1887, or the corresponding provisions of any other law relating to tenancy for the time being in force in the area where proceedings under this act are to be taken and the rules there-under, shall apply to all proceedings under this Act. Provided that nothing in the West Pakistan Land Revenue Act, 1967, the Punjab Tenancy Act, 1887, or any other law relating to tenancy for the time being in force in 17[the Punjab], shall be so construed as to vary or invalidate any condition entered in any statement of conditions issued by the Provincial Government. (2) Nothing in section 6 shall affect the application of the Punjab Tenancy Act, 1887, or any other law relating to tenancy for the time being in force, to any matter or dispute arising between Government Tenants and their sub-tenants to which Government is not a party.
16 17

Substituted by CGL (West Pakistan Amendment) Ordinance XXXVI of 1969 Substituted by Punjab Ordinance I of 1974

21

[CGL ACT, 1912]

[Sections 8-10]

COMMENTS
Review petition under S.8 of West Pakistan Board of Revenue Act, 1957, was only competent if any new and important matter or evidence was brought on record, which, despite exercise of due diligence, was earlier not within the knowledge of party at the time of passing of order or in case of any error or n is take apparent on the face of record--- Mere oral assertions could not be made basis for interference in constitutional jurisdiction [2008 PLD 364]. Allotment of land in Cholistan area—Provision of Colonization of Government Lands (Punjab) Act, 1912 being available to scheme, Board of Revenue and other hierarchy provided under West Pakistan Land Revenue Act, 1967 would have jurisdiction to entertain such cases. [PLJ 1999 SC 854] Failure by writ petitioner to invoke appellate/ revisional remedies provided by Colonization Act, 1912, which results in laches on his part—Disentitles him to invocation and exercise of writ jurisdiction. [NLR 1987 Revenue 180] Sub-tenancy, claim of---Government department, under whom plaintiffs’ claimed to be sub-tenants, itself not tenant---Position of such transferee being not as tenant but agent of Government, plaintiffs, held, could not claim subtenancy under such Government agent---Plaintiffs were not entitled to protection under section 7 (2) of Act V of 1912. [1987 CLC 1232]

8. 9.

18 19

[X X X X X X X X X X X X] [X X X X X X X X X X X X]

10.

CHAPTER-II PROVISIONS RELATING TO TENANTS Issue of statements of conditions of tenancies. 1) The 20[Board of Revenue subject to the general approval of the Government] may grant land in a colony to any person on such conditions as it thinks fit. 2) The 21[Provincial Government] may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants.

1818

Amendment of Section 136 (1) of the Punjab Land Revenue Act: Repealed by the Colonization of Government Lands (Punjab) (West Pakistan Amendment) Ordinance XXXVI of 1969. 19 Application of Chapter IV of Land Revenue Act, 1887, to certain village sites: Repealed by the Colonization of Government Lands (Punjab) West Pakistan Amendment) Ordinance XXXVI of 1969. 20 Substituted for the words “Provincial Government”, by West Pakistan Act XVI of 1957 as amended by W.P. Ord. XXXI of 1961 which were previously substituted for the words “Local Government” by A.O.1937 21 Substituted for the words “Local Government” by A.O., 1937

22

[CGL ACT, 1912]

[Section 10]

3) Where such statements of conditions have been issued, the Collector may, subject to the control of 22 [Board of Revenue], allot land to any person to be held subject to such statement of conditions issued under subsection 2 of this section, as the Collector may by written order declare to be applicable to the case. 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. COMMENTS SYNOPSIS
1. 3. 5. 7. 9. 11. 13. 15. 17. 1. Scope Cancellation of allotment Allotment obtained by Political influence Horse breeding tenancies Allotment of Charagah land Alternate allotment Legal effect of delivery of possession Sale by private treaty Occupancy Tenant SCOPE 2. 4. 6. 8. 10. 12. 14. 16. Grant of land Misuse of state land Municipalities Grant of proprietary rights Allotment within prohibited zone Locus Standi Village mueens Fulfillment of conditions Allotment to Government Servant

Sale of land at market price to its allottee in possession thereof under bogus entitlement certificate on the ground of his affiliation with land and having made same cultivatable by putting labour and expending money---Board of Revenue after 2 ½ years on review petition filed by the Collector cancelled the sale order---Validity---Board of Revenue in its other judgments had found that

22

Substituted for the words “Financial Commissioner”, by West Pakistan Act XVI of 1957

23

[CGL ACT, 1912]

sale by private treaty having attained finality would not require any relaxation of [Section 10] policy [2004 MLD 955] Allotment of land in Cholistan area---Provision of Colonization of Government Lands(Punjab) Act, 1912 being available to the scheme, Board of Revenue and the other hierarchy provided under the West Pakistan Land Revenue Act, 1967 would have jurisdiction---Question in issue was as to who were the allottees of the suit land and who were occupying same unauthorisedly---Such question being a question of fact, which was to be determined on the basis of allotment orders/ title documents were to be produced by the alleged allottees before the competent forum, cases were remanded to the Board of Revenue, Punjab---Supreme Court directed Board of Revenue to ask the occupants to produce their allotment/ title documents, if any, and in case some of the occupants succeed in producing the allotment/ title documents and also show that they had complied with the conditions of the allotment and the breach, if any, was condonable under the law---Such occupants were to be allowed to continue to remain in possession---Occupants who failed to satisfy the Board of Revenue as to their entitlement to be in possession, were to be ejected---Occupants having no title would have no legal right to remain in occupation and would be liable to be ejected---Board of Revenue was further directed to issue public notice before adjudicating upon the question of title so that no body should have a grievance that he was not heard---Cases which were remanded by the Board of Revenue to the Commissioner were recalled to be decided by the Board of Revenue itself---Petitions for leave to appeal were converted into appeals and were disposed of accordingly by Supreme Court. [1998 SCMR 2231] Grant of state land to Lambardar—Conferring of proprietary rights— Essentials—Government was competent to issue statements of conditions on which Government could grant state land to its tenant---Board of Revenue, subject to approval of Government, could grant state land to any person on such conditions which it considered fit or under any scheme prepared for such purpose---Government or Board of Revenue had power and authority to change, modify or cancel such statements of conditions issued and scheme made for purpose of allotting state land or granting proprietary rights over the same to tenants---Such power of Government/ Board of Revenue was also recognized by S. 20, West Pakistan General Clauses Act, 1956. [1997 CLC 1146] Violation of standing instructions/ statement of conditions having status of statutory instructions, would constitute question of law, and as such could be adjudicated upon by Board of Revenue. [1997 CLC 1217] Government or Board of Revenue is empowered to change, modify or cancel statements of conditions relating to any scheme for allotment of state land. This power is also recognized by S. 20, General Clauses Act (1956)--Memorandum modifying or changing statements of conditions of a Colony Scheme can be issued by Government at any time before any decisive step with

24

[CGL ACT, 1912]

regard to conferment of proprietary rights is taken by government [NLR 1997 Revenue 116]. Under section 10 of the Act, government issues statement of [Section 10] conditions that 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 permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto [1991 SCMR 2415] Terms and conditions of grant of Barani land for wahi Chahi cultivation engrafted to grant by Provincial Government in exercise of its power u/s 10(2)— Cannot be varied by Colony Authorities. [NLR 1988 Revenue 100] Provincial Government approved terms and conditions for grant of lease---Not open to subordinate authorities to by-pass such statement of conditions and specify their own conditions---Held: Action of Commissioner in reducing maximum limit of one hundred acres to 25-acres is ultra vires and of no legal effect [PLJ 1988 Revenue 4] Statement of conditions issued under S. 10---Acquire force of law--Administrative instruction---Can be construed as rules [PLD 1975 Lahore 445] Form of notice issued by Financial Commissioner or Development Secretary to Financial Commissioner---Not to be regarded as having been issued by Punjab Government. [PLD 1952 Lahore 200] 2. GRANT OF LAND Legal title of the land subject matter of these petitions vests with the Secretary (Colonies), Government of Punjab, by virtue of Section 4 of the Colonization of Government Lands (Punjab) Act, 1912. Such land can be granted to any person, by the Board of Revenue, subject to approval of the Government, within the contemplation of Section 10 of Act, 1912. According to Rules of Business, Administration of West Pakistan Highways Ordinance, 1959, vests with Communication and Works Department and Secretary C & W has administered control of such land but its legal title vest in Colony Department of Provincial Government [PLJ 2008 Lahore 73]. Prescribed procedure for the grant of same was not followed---Where any such departure was made from statutory provisions which infringed/ denied right of public, especially of those who had equal right to proposed transaction or at least felt interested to agitate there against by raising lawful objections, departure thereof, was illegal and un-constitutional [PLJ 2005 Lahore 819]. West Pakistan Land Revenue Act 1967 and Colonization of Government Lands (Punjab) Act, 1912, provide no provisions conferring powers upon Revenue Officers to appoint Imam of Colony Village mosque---Collector, while appointing petitioner as Imam of a colony village had exceeded his jurisdiction; he was only competent to allot land to Imam Masjid and he had no power/ authority to appoint Imam [PLJ 2005 Lahore 639].

25

[CGL ACT, 1912]

Both parties claiming allotment of land in question had approached Authorities for grant of land with un-cleaned hands and had practiced[Section 10] fraud upon land grant Authority and misrepresented facts with regard to their eligibility, therefore, none of parties could be allowed to take advantage of their wrong, fraud and misrepresentation. [PLJ 2003 SC 382] Orders passed by Additional Commissioner as well as by the Board of Revenue setting aside the allotment of the land of the petitioner and confirming the allotment of the respondent became final qua the parties. Petitioner who was no longer a lessee of the land could not claim the grant of proprietary rights. [2003 SCMR 976] Contract through auction comes into existence when offer of bidder is accepted [NLR 2003 Civil 253]. Collector sanctioned an internal path through land in respect of which proprietary rights were granted---Collector who under S.10(2) of CGL had necessary jurisdiction to sanction an internal path [2002 CLC 620]. Petitioner was granted land on tenancy for cultivation on animal breeding conditions. Renewal of the lease could not be claimed as a matter of right. Tenant was found disentitled for renewal of lease on account of poor purchasing results/ performance and of flagrant violation of the terms and conditions of lease, he was rightly refused further renewal of lease. [PLD 2002 SC 716] Allotment under Horse Breeding Scheme. Choice of Collector based on recommendation of District Remount Officer would be unexceptionable when such recommendations could not be demonstrated to be either arbitrary, fanciful or capricious. Recommendations of District Remount Officer are entitled to due weight. Orders of Collector. Additional Commissioner and Board based on such recommendations would not be open to interference by High Court in its writ jurisdiction under Art. 199. Dismissal of writ petition by High Court in such case upheld by Supreme Court by dismissing petition for leave to appeal against judgment of High Court. [2000 SCJ 620] Allotment of residential plot to petitioner—Plot was subsequently, commercialized on application of petitioner and he was required to pay specified amount as commercialization fee—Plot in question at relevant time was, admittedly, open and vacant and no construction had been raised thereon— Authority, thus, acted clearly in excess of its jurisdiction in working out market value of plot at specified rate per Marla—Authority should have applied such rate per Marla which had been fixed in schedule for vacant plots. [1998 CLC 511] Collector acted improperly by allotting two ‘Ihatas’ to the same person especially without hearing respondent who was in possession of one of them. [1995 MLD 795] Auction of State land. Unless Government gave final approval, bidder could not claim ownership of land. [1994 SCMR 30]

26

[CGL ACT, 1912]

Once land was made available for allotment, it would supersede all Notifications imposing such prohibition and once allotment had been made, [Section 10] presumption would be that such act was done in good faith and in a lawful manner and in circumstances, principle of locus poenitentiae was also attracted [1994 MLD 801]. Allottee of more than four acres of land under Abadkari Scheme, would not be entitled to allotment under Tender Scheme. Orders of Revenue Officers canceling allotment under Tender Scheme upheld by High Court is not open to exception and interference in writ jurisdiction. [NLR 1992 Revenue 124] Grant of tenancy rights of land to Islamabad Oustees did not amount to sale of land---The Islamabad Oustee had tenancy rights in the land, but not land. He had some rights in the land, with a clog which barred their transfer without permission, but the title and the proprietary rights remained with the government. The transfer of tenancy rights therefore, did not amount to the sale of land. To treat transfer of tenancy rights under the Colonization of Government Lands (Punjab) Act, 1912 as sale of agricultural land for purposes of pre-emption, would be to create a serious departure from the established practice, which has never treated such transfers as pre-emptiable [1992 SCMR 1018]. Allotment of land under 05-years Lease Scheme---The land was included in the schedule for Islamabad Oustees Scheme, application for grant of proprietary rights, was rightly rejected---Further extension of term of lease on ground of general policy of government was also correctly rejected as per policy. [PLD 1987 Rev. 7] Minor’s getting Government land as Hari, held not barred---There was no bar to a minor getting Government land, if his father could get same cultivated by his father, son, wife, brother, or major grandson [1984 MLD 822]. Disposal by auction permissible only when land available after final determination of question of legality of cancelled of allotment [1980 SCMR 728]. Collector canceling allotments of respondents under Grow More Food Scheme and allotting land so resumed to petitioners under defunct 15-years Lease Scheme---Order of Collector being per incuriam, violative of judgment of Supreme Court in instant case and contrary to policy instructions contained in letter dated 26.04.1971, Additional Commissioner rightly interfered in matter in exercise of his appellate jurisdiction and set the wrong right---Power to grant colony lands Rests with Board of Revenue---Scheme (Fifteen years lease) ceasing to operative---Cannot be revived by government U/S 10(2) for benefit of a few individuals---Nor is competent for Collector to act, in blind obedience, to a directive of Government which is not regularly issued by Board in terms of S. 10 (1)---Revenue Minister (in performance of functions of Government)---Cannot cause a directive to be issued to Collector for grant of land, after its resumption, to his favourites under defunct colony scheme (Fifteen years Lease Scheme)--Held, order of Collector making allotments in favour of petitioners under defunct Fifteen years Lease created an estate of a kind unknown to law and was without

27

[Section 10] [CGL ACT, 1912]

lawful authority---Collector cannot make any allotments under defunct scheme by [Section 10] virtue of his power U/S 10(3) when government has not issued any specific orders U/S 10(2) for revival of defunct Fifteen years Lease Scheme. [NLR 1979 Revenue 14] Person can be deemed to be tenant if written order of allotment is passed in his favour and in presence of such order possession is given to him. [PLJ 1978 Lahore 475] 3. CANCELLATION OF ALLOTMENT Cancellation of grant of land---Refund of amount of grant to grantee--Petitioner was granted land under statement of condition No.24 as contained in Notification issued under S.10 of Colonization of Government Lands (Punjab) Act, 1912 and petitioner had paid the grant amount as determined and demanded---Said grant subsequently was cancelled---Collector was competent to determine the sum as contained in condition No.24---Petitioner, in circumstances was entitled to refund of the amount of grant along with other sum as could be determined by the Collector in accordance with condition No.24 [2008 MLD 661]. Grievance of appellant was that while his application for proprietary rights was still pending before Revenue authorities, the land in dispute stood transferred to respondent by Provincial Government---Validity---Disputed land stood transferred in the name of respondent by way of exchange allowed by Provincial Government, therefore, Revenue authorities could not sit over the order of government and decide the fate of land by extending lease of appellant with retrospective effect after a lapse of 17/18 years even if the appellant was lessee of land or happened to be in possession of some portion thereof [2007 SCMR 905]. Grow More Food Scheme---Allotment of land under such scheme and delivery of possession to plaintiff in March, 1957---Policy decision of Government to resume land for auctioning, tenancy of which had expired on or before Rabi, 1962---Resumption of plaintiff’s land under such policy---Suit by plaintiff to declare order of resumption of land to be void---Civil Court decreed suit--Appellate Court dismissed suit for lack of jurisdiction of Civil Court, which judgment was affirmed by High Court---Validity---Suit land was not available and could not be resumed as stipulated period of five years had to be completed after Rabi, 1962, thus, question of termination of lease would not arise---Supreme Court emphasized on implementation of such Government instructions regarding grant of proprietary rights in letter and spirit in present case also---Supreme Court set aside judgment of High Court and Appellate Court and restored that of Civil Court [2007 SCMR 1169]. Cancellation of such sale by Board of Revenue after hearing all parties--Governor referred to Member, Board of Revenue respondent’s application made after one year and seven months of passing of cancellation order---Board of Revenue treated such application as review petition and restored such sale

28

[CGL ACT, 1912]

without issuing notice to Government or Municipal Committee or petitioner--[Section 10] Validity---Impugned order was hit by principle of audi alteram partem---No reason was disclosed for condonation of delay nor was such application supported by affidavit of respondent---Review petition being barred by time was not maintainable, thus, impugned order was not sustainable in eye of law [2007 CLC 1858]. Land owned by wife of allottee cannot be considered for determining eligibility of allottee. Cancellation of allotment and resumption of land on basis of land owned by wife of allottee would be illegal and perverse [NLR 2004 Revenue 83]. Tubewell Scheme, Cancellation of allotment. Allottees after the resumption of land withdrew the advance money deposited by them with the Authorities and had not paid any installment. No illegality or infirmity in the order passed by the Authorities was found warranting interference by Supreme Court. [2003 SCMR 1309] Cancellation of allotment of plot for failure of allottee to construct house thereon, within time fixed in sale deed---In cases relating to sale of immovable property, time would not be of the essence of contract, and mere failure to raise construction within period fixed in agreement could not result in cancellation of transfer [PLD 1995 Lahore 429] Petitioners being encroachers having shown their high-handedness twice by occupying land which was in lawful cultivating occupation of allottees, cancellation of allotment from names of original allottees and subsequent allotment in the names of petitioners/ encroachers by Assistant Commissioner/ Collector was not justified in circumstances. [1995 MLD 246] Auction of State land---Government has the discretion to accept or reject the bid and order fresh auction of the disputed land [1990 CLC 962] Auction not approved by the Government--State was competent to resume the land from the 'name of the auction-purchasers [1990 CLC 970]. Respondents purchased land from Collector, mutation whereof had been attested. Federal Government claiming land as its own. Dispute turned out basically to be a dispute of title between Federal Government and Provincial Government. Transfer of Property Act, being in force in the area where transaction took place, conveyance deed by which property was sold should have been looked into rather than mutation register and entries thereof, Courts below having not attended to such aspect of case it appeared to be necessary to examine the same for which leave to appeal was granted. [1989 SCMR 850] Under clause (b) of condition 18 of statement of conditions, Deputy Commissioner and not Commissioner is Authority vested with powers to resume land---Held: Commissioner has not acted in exercise of his lawful jurisdiction and impugned order is ultra vires [PLJ 1988 Revenue 4].

29

[CGL ACT, 1912]

Grow More Food Scheme read with Notification dated 26.04.1971— Breach of condition of non-cultivation after termination of lease—Cannot be [Section 10] termed as breach within meaning of provision in Notification dated 26.04.1971 so as to deprive original tenant automatic restoration of his lease ad conferment of proprietary rights—similarly, termination of lease in 1962 for non-payment of lagan would not stand in way of tenant to entitlement to benefit of Notification dated 26.04.1971 [NLR 1986 Revenue 69]. 4. MISUSE OF STATE LAND BY MUNICIPALITIES. Resumption of state land from Municipal Committee and its sale to sitting shopkeepers at market price by private treaty---Shop in applicant’s possession was rented out by Committee to his predecessor-in-interest, who later on handed over same to applicant---Refusal of authority to sell such shop to applicant for not being its original allottee---Validity---Applicant’s possession over shop was on basis of agreement executed between Committee and original allottee---Mere payment of amount of superstructure of shop by Committee to original allottee in view of compromise arrived between them could not change status of applicant and distinguish his case with other sitting shopkeepers---Committee was not owner of state land---Board of Revenue had directed to recover rent already received by Committee from shopkeepers [2007 SCMR 289]. Petitioners, who claimed to be in possession of land as tenants of Government since 1983 and had constructed a shop thereon, moved application for sale of said State land through private treaty, but no action was taken on their application---Petitioners thereafter requested to grant them proprietary rights, but same was declined by the Authority---Validity---No order had been produced by petitioners showing that land in question was ever allotted to them or was given to them on lease by Government, but land in question was transferred, free of cost to Municipal Corporation and petitioners had been paying the rent to Municipal Corporation---Corporation was to sell property as per provisions of R. 19 of Punjab Local Councils (Property) Rules, 1981, if it wished to do so, but it could not be compelled to sell its property to petitioners---High Court, however, directed that if the Corporation intended to dispose of property in question, same would be offered first to the petitioners [2006 CLC 225]. State land located within Municipal limits---District Collector permitting Municipal Committee to utilize such land---Construction of Shopping Plaza on land by Committee and renting out same to tenants---Payment of rent by tenants for about eight years---Tenant’s application to Board of Revenue for transfer of proprietary rights---Board of Revenue in time-barred revision petition finding tenants of shops to have prior right to purchase on payment of market price while directing preparation of case for its sale by private treaty in their favour and submission of summary to Chief Ministry for approval---Board of Revenue had not passed impugned order in usual discharge of its function---Such order was violative of the policy of the Board itself---Till final approval of Chief Minister and then execution of sale-deed, tenants would remain tenants and would be required under law to keep on paying rent of shops to the Municipal Committee---

30

[Section 10] [CGL ACT, 1912]

Impugned order could not modify legal maxim “once a tenant, always a tenant”--Tenants could not be granted prayer for transfer of land under shops, rather [Section 10] request of Municipal Committee for transfer of such land would be deemed pending for its decision according to latest policy of the Government [2006 CLC 1330]. Disputed shops were constructed by Municipal Committee over Government land and were rented out to petitioners through open auction--Board of Revenue directed the authorities to prepare a case for sale by private treaty in favour of petitioners, as they had a prior right to purchase the land in question---High Court set aside the order passed by Board of Revenue--Validity---Before taking over the land in question, Municipal committee took necessary permission from District Collector---For all practical purposes, petitioners were tenants of the Committee and could not set up hostile claim against its right---Dispute, if any, was between Municipal Committee and Board of Revenue---Petitioners had no locus standi to approach Board of Revenue for transfer of disputed land/ shops, as the shops were constructed by Municipal Committee and belonged to it---Judgment passed by High Court was correct and no exception could be taken to it---Leave to appeal was refused [2006 SCMR 1419]. Petitioners predecessor-in-interest was given land in question on lease for three years by Municipal Committee—land in question was state land which was vested in Provincial Government and that Municipal Committee concerned was not competent to sub-lease the same except on The-Bazari basis. [1998 SCMR 518] 5. ALLOTMENT OBTAINED BY POLITICAL INFLUENCE. Lease of State land within urban areas in Sindh Province was to be made by open auction and that too after making appropriate plotting---Plaintiff after issuance of allotment letter sold away such land at a price four times higher than that at which he obtained its lease---No reason had been assigned for leasing out secretly such a huge unspecified area without demarcation at a throw away price in utter violation of law for making unlawful gain---Such illegitimate transaction was incapable of conferring title or right and could not be legitimized by Court on any principle [2007 YLR 525]. Securing land of Municipal Committee at nominal price by exertion of political influence---Recall of sanction order by Board of Revenue---Purchaser’s application to the Governor and its onward reference to Board of Revenue--Review of recall order by Board of Revenue on such application beyond statutory period of 90 days without notice to Municipal Committee and contemporary contender---Validity---Respondent had not moved such application before proper forum---Application referred by the Governor had been illegally treated as review petition by Board of Revenue and without application and affidavit of purchaser to condone delay---Board of Revenue had accepted review petition at belated stage without giving reason for condoning delay---Review petition being barred by time

31

[CGL ACT, 1912]

was not maintainable and order passed thereon was not sustainable in eye of law [2006 SCMR 936]. Lease of “Nazool” land in favour of petitioners was granted under orders [Section 10] of Chief Minister who had no lawful authority to transfer/ lease “Nazool” land under the control Board of Revenue, without observing legal formalities--Competent Authority qua lease of Nazool land is Board of Revenue and that the Chief Minister or Deputy Commissioner [PLJ 2005 Lahore 819]. Minister (Colonies) has no jurisdiction to interfere in colony matters. Memorandum issued with his approval cannot be allowed to prevail against entitlement already determined [NLR 1994 Revenue 190]. 6. GRANT OF PROPRIETARY RIGHTS. Five years Lease Scheme---Proprietary rights, grant of---Tender holder--Locus standi---Appellant was neither party to the proceedings nor was an allottee of land in dispute, therefore, he was not entitled to any hearing before the lower forum---No misreading or non-reading of available material or misconstruction of law was done by Board of Revenue---Judgment of High Court being well-based and un-exceptionable did not warrant any interference by Supreme Court--Appeal was dismissed [2006 SCMR 1093] Petitioner who claimed to be in possession of state land as its lessee for five years, had prayed for grant of proprietary rights in respect of such land--Jamabandi showed that almost the whole land was “Bunjar Qadeem”---Lease of petitioner stood expired, but after expiry of lease, petitioner did not apply for extension of lease period and consequently it was resumed by order of District Collector and said order of resumption had attained finality---Petitioner in circumstances, was not lessee of land in dispute at the time he applied for grant of proprietary rights in respect thereof---Petitioner, in circumstances, was not eligible for grant of proprietary rights in respect of land in dispute [2003 CLC 240]. Allottee of land in dispute under Temporary Cultivating Scheme of 1979 as a landless tenant, applied for proprietary rights under said scheme, but he was refused said rights on ground that he was not a continuous cultivator of land in dispute from Rabi 1977---During pendency of earlier application of allottee, another scheme came in 1983 wherein target date for cultivation was Rabi 1980---Allottee could not apply for grant of proprietary rights under said later scheme of 1983 as his earlier application was pending adjudication--Subsequently he filed application under later scheme after decision of his earlier application, but same was dismissed on ground that it was filed after a delay of long time---Revenue Courts had not taken into consideration fact that it was not the fault of allottee in not filing of application for conferment of proprietary rights in time as he was waiting the decision of his earlier application filed under scheme of 1979---Unless and until that was decided allottee could not apply under the second scheme [2003 CLC 1681].

32

[CGL ACT, 1912]

Tenant who is no longer lessee under Colony Scheme cannot claim conferment of proprietary rights. When orders canceling his allotment had attained finality. Colony authorities would be justified to include such land 10] [Section in schedule for auction and High Court would be right in refusing, in exercise of its writ jurisdiction, to interfere with auction of land. Supreme Court upholding order of High Court and refusing its leave to appeal. [2003 SCJ 169] Temporary Cultivation Scheme. Grant of proprietary rights. Respondent was in possession of the land right from the year 1978 which he had been cultivating independently since then. Respondent got allotted the land in dispute in his own right in year 1978 and he, being a grown up person at the time, was, not dependent on his father. High Court had rightly issued the writ in favour of the respondent [2003 SCMR 1349] Record showed that at the time of issuance of notification entitling respondent to secure proprietary rights, such land was not included in any permanent scheme. Possession of land had remained with respondent in spite of it was allotment to the petitioner. Respondent had been embroiled in uncalled for litigation for last three decades, in spite of the act that his allotment had been determined as genuine and valid. No legal infirmity having been pointed out in impugned judgment, Supreme Court dismissed petition and refused leave to appeal. [2003 SCMR 1931] Lessee allotted state land under five years Temporary Cultivation Lease Scheme would not be entitled to conferment of proprietary rights when orders of Additional Commissioner and MBR setting aside allotment of lessee became final [NLR 2002 Revenue SC 196] Deceased submitted application within time under Notification dated 3rd of September 1979. He fulfilled the conditions of eligible except the restriction relating to use of land which he over came in the per 1993 as reported by A.C/ Collector and Addl. Commissioner – He would, therefore be granted proprietary rights under Notification dated 3rd of September 1979 and price of the land wile be charged under the amending Notification dated 11th of February, 1980 [K.L.R. 2000 Revenue Case 203]. Temporary lease—Rights of lessee—Scope—Temporary lease could be cancelled at any time by Revenue Authorities because lease had not conferred any right or title on the lessee to claim its proprietary rights---Grow More Food Scheme was a scheme of permanent nature and was distinguishable from lease on temporary cultivation basis—Regardless of date of termination of lease, in view of policy laid down by Board of Revenue, allottees of Grow More Food Scheme were eligible to obtain proprietary rights. [2000 SCMR 1083] Land in dispute had been separately cultivated by petitioner and respondent and that respondent had also deposited some instalments towards price of land dispute, proprietary rights should be granted to petitioner and respondent in equal shares. [1997 CLC 731]

33

[CGL ACT, 1912]

Petitioner was found eligible for conferment of proprietary rights on basis of his proved cultivation for specific period—Petitioner having completed his period of specified cultivation to satisfaction of Authorities, thereafter discontinuation of possession could not be made ground for refusal to confer [Section 10] proprietary rights and resumption of tenancy. [1997 CLC 1735] Tenancy under Well Sinking Scheme—Respondent being in possession of about 43 acres applied for proprietary rights of entire area. Prescribed unit of allotment being 25 acres, same could be little more or less—Area allotted to respondent was admittedly little more than 27 acres, which constituted his tenancy under the scheme—As regards excess area in possession of respondent which was about little more than 15 acres, same was not and could not be allotted to him under the scheme for such area was substantially in excess of 10 per cent of prescribed limit of tenancy. [1997 SCMR 624] Lambardari Grants under Pedigree Livestock Breeding Schemes (1960 and 1971) abolished in 1974. Allottees under Pedigree Livestock Breeding Schemes would not be entitled to proprietary rights under Memorandum dated 13.07.1976 which conferred proprietary rights upon allottees holding land under Scheme regulating Hereditary Lambardari Grants. Conferment of proprietary rights upon allottees under Hereditary Grants Scheme and non-conferment of these rights upon allottees governed by Pedigree Livestock Breeding Schemes would not constitute violation of Art. 25 of Constitution (1973) [NLR 1997 Revenue 116]. Temporary Cultivation Scheme (1979), paras 3, 4, 5 & 8---Appellant holding land under three different schemes including Temporary Cultivation Scheme (1979)---Appellant did not opt to retain one of the grants---Authorities refused to grant proprietary rights to appellant on his failure to opt for one of such grants---Authorities were directed to confer upon appellant proprietary rights in land up to subsistence holding in accordance with Temporary Cultivation Scheme (1979). [PLD 1997 Supreme Court 294] Allotment of Ihata in dispute made by Collector in favour of appellants/ allottees, was cancelled by Additional Commissioner on ground that Ihata in dispute was meant for public welfare--- Ihata in dispute though was meant for public welfare, but was in possession of appellants/ allottees for the last 10/ 15 years and they had constructed house on it---Appellants/ allottees had paid current market price of Ihata in dispute plus 50 % surcharge in terms of letters of Colonies Department---Dislocation of allottees of Ihata at such stage was not proper---Order canceling allotment of Ihata was set aside, in circumstances. [1997 MLD 2595] Petitioner was granted proprietary rights over the land which he was allotted under Grow More Food Scheme, but he was refused proprietary rights over that land which was in his unauthorised occupation---Land in question, being not part and parcel of allotted land, petitioner could not rely upon those

34

[CGL ACT, 1912]

instructions which were applicable to those lands which had been allotted. [1996 SCMR 1953] Government giving option to purchase proprietary rights to those lessees holding state land on temporary cultivation lease since before Kharif 1977 and who were either landless or owner of less than subsistence holding---Petitioner [Section 10] exercised his option in writing for acquisition of rights in land---Collector dismissed petitioner’s application on ground of his ineligibility---Appeal filed by petitioner was dismissed by Commissioner on ground of limitation---Validity--Petitioner’s appeal should have been decided on merits for question of rights of petitioner was involved---Dismissal of appeal on point of limitation did not meet ends of justice---Board of Revenue without going into merits accepted revision and remanded case for decision afresh on merits. [1996 MLD 947] Lease in favour of petitioner was slightly more than subsistence holding--Refusal to grant proprietary rights in respect of entire temporary cultivation scheme was contrary to terms enumerated in paras-3 & 4, Temporary Cultivation Scheme---Petitioner could have been denied relief to the extent of excess area of his leasehold---Leave to appeal was granted to contention raised by petitioner. [1995 SCMR 1058] Collector, on question of “Khushk Bias: was required to exclude in consultation with “WAPDA Authorities an area of 500-feet while running alongwith Khushk Bias” Course which he failed to do–Tenant was thus, entitled to be considered in accordance with law with regard to conferring of proprietary rights to him [1994 SCMR 975]. Respondent was not alleged to have violated terms of tenancy. No order of cancellation of lease or resumption of land was passed against respondent. Respondent was thus entitled to the grant of proprietary rights. [PLD 1992 SC 37] Ejected Tenants Scheme. Eligibility to the grant of proprietary rights. Right to apply for proprietary rights accrued to respondent on the date when memo was issued. Right to apply for proprietary rights having accrued to respondent on specified date he was found to be in self-cultivation on that date. Collector was not justified to decline respondent’s request. [1991 SCMR 182] Deceased Lambardar having been allowed proprietary rights of entire land and deposited some installments of the price acquired vested rights in full lot [1989 CLC 2489]. Lease of land in favour of petitioners predecessor-in-interest under sheep Breeding Scheme. Such lease having expired, his request for grant of proprietary rights was rejected. When decision of conferment of proprietary rights in favour of respondents was made, petitioners, predecessor being neither lessee nor in possession under Sheep Breeding Scheme, was not entitled to conferment of proprietary rights [1989 SCMR 703] Allottee of State land. Grant of proprietary rights denied to such allottee despite the fact that he satisfied conditions for grant of the same. High Court’s

35

[CGL ACT, 1912]

view that although allottee was cultivating the land since specified date, yet such land having been reserved for Jammu and Kashmir Refugees, proprietary rights thereof, could not be granted, being unexceptionable. [1989 SCMR 1092] Petitioner’s lease of land expired in 1972 and they remained in unauthorised possession from 1972 to 1983. Petitioner’s possession after expiry [Section 10] of lease was unauthorised thus they could not claim grant of proprietary rights under the notifications on the basis of nature of possession and lease did not subsist in their favour since 1972. When the land was granted to respondent under a permanent scheme, the petitioners had no locus standi to challenge the same. [1989 SCMR 1740] Where proprietary rights claimed on basis of earlier circular memorandum of Board of Revenue were rejected on basis of subsequent circular memorandum which later on was rescinded, findings based on such non-existent circular memorandum, held, would automatically vanish [1986 MLD 1947]. Claim for proprietary rights rejected on basis of entries in Khasra Girdawari by revenue functionaries---Board of Revenue in revisional jurisdiction found Girdawari to have been recorded incorrectly against interest of petitioner and setting aside order based on such incorrect entries allowed proprietary rights to petitioner [1986 CLC 2147 (2)]. Application lasting for nearly three decades as per revenue record for conferment of proprietary rights is only a technical matter--- Occupant can put in application for conferment of proprietary rights after due date [NLR 1982 Revenue 132]. Auction of plots for residential purposes---Petitioner not put in possession of plots due to failure to sign Memorandum of offer---Held: Not entitled to proprietary rights in plots---Nor could petitioner obtain conveyance deeds in view of Condition No.19 (1) of Scheme known as residential accommodation for Government servants in Sargodha Division [PLD 1978 Revenue 78] Evictees from elsewhere should not be ejected but be allowed to purchase proprietary rights of land in possession [PLD 1980 Supreme Court 347]. 7. HORSE BREEDING TENANCIES Horse & Mule Breeding Scheme---Tenancy, grant of—Though in such type of cases choice of Collector was to be given weight but it was equally true that almost all forums in Revenue hierarchy and High Court, after considering choice of Collector in petitioner’s favour, came to similar conclusions, which were not only in accordance with record of case but also in consonance with law on the subject---Leave to appeal was refused [2009 SCMR 562]. Horse Breeding Scheme---Re-allotment of lease to legal heirs---Remount Officer, after considering the case of parties in comparison with each other made recommendations in favour of one son but Collector recommended the other--Commissioner took into consideration the recommendations of Remount Officer

36

[CGL ACT, 1912]

and allotted the land to the son recommended by Remount Officer---Order passed by Commissioner was maintained by Board of Revenue as well as by High Court in Constitutional jurisdiction---Supreme Court declined to interfere in the orders passed by Commissioner and Board of Revenue [2006 SCMR 769]. Grant of land under "Horse Breeding Scheme"---Agreement related to an [Section 10] internal arrangement of the original grantee with his brothers and father in respect of the affairs of the land and being not in conflict with the condition of lease, was not violative of either of the Schemes in question or law---Such deed would neither override the terms of the lease and create any right of the executants of the deed in the lease-hold-rights nor would be binding on the Government for the purpose of grant of proprietary rights in favour of any 'other 'person except of lessee---Agreement executed by the original grantee in respect of the land, subject-matter of grant, being not against the public policy or law, was valid and would be binding on his successors [2005 PLD 775]. Sons of deceased tenant were entitled to be allotted tenancy under the scheme---Order of authority resuming land after death of original tenant and depriving the sons from allotment of tenancy, was declared to be illegal by High Court [MLD 2001 453]. Tenancy under Horse/Mule Breeding Scheme---Nature and grant of--Such tenancies being scheduled tenancies, were not heritable--Government was under no obligation to grant lease to heirs of deceased tenant---Such tenancy could be granted to anyone of the heirs of deceased tenant who was considered to be fully capable of satisfactorily carrying out conditions of grant in all respects for the unexpired period of lease--Discretion had to be exercised in terms of the report of District Remount Officer about suitability of any of the heirs of deceased tenant [2001 CLC 120]. Horse Breeding Tenancy---Choice of the Collector based on recommendations of the District Remount Officer was neither arbitrary, fanciful not capricious---Recommendations of the District Remount Officer were entitled to due weight--- Interference with such recommendations which were accepted by all the for a including High Court, was declined by Supreme Court [2000 SCMR 531]. Horse Breeding tenancy is not heritable tenancy, however, after the death of lessee with a good horse/ mare breeding record, tenancy should be allotted to heirs of deceased in preference to any other applicant. [PLJ 2000 Lahore 177] Animal Breeding Scheme (Kharif 1979 to Rabi 1990) issued through Notification No.512-70/704-L-I, dated 22.09.1970. Lease period stood terminated after expiry of original lease period for which grant was made under the Scheme. After expiry of lease period, land automatically reverted to Government. Grantees under the Scheme would have no right to urge that they could continue retaining the land under the said terms and conditions or to get the expired lease renewed as a matter of right---Colony authorities are vested with power to revise statement of conditions of scheme already issued and issue fresh statement of

37

[CGL ACT, 1912]

conditions. There would be no illegality in revised statement of conditions when no prejudice has been caused to grantees under original scheme---Stud Grants---Policy elaborated. [1999 UC 34] Son of old breeder would not be entitled to allotment of Horses Breeding [Section 10] tenancy in case old breeder surrendered tenancy during his life time, would be entitled to succeed to Horse Breeding tenancy as against contestant whose claim suffers from demerits [NLR 1996 Revenue 17]. Horse Breeding Tenancy—Allotment—Entitlement—Heirs of deceased contestant would have right to be represented in place of their predecessor and contest for the allotment of horse breeding tenancy especially when they had landed property in the same Chak—Suitable allottee had to be chosen by District Collector and on the death of deceased contestant, his right devolved on his heirs—Heirs of deceased would, thus, be entitled to contest allotment of horse breeding tenancy [1996 MLD 395]. Mule- breeding grant—Demise of tenant –Disposal of grant to be made in accordance with clause 25 1942 Statement—Direction contained in letter issued by Government in February 1952 is not inconsistent with discretion contained in clause 25 of 1942 statement—There is, however, a clear direction in a letter issued by Government in February 1952, to the effect that in the case of a tenancy falling vacant on the death of a lessees 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 [PLD 1995 W. P. (Revenue) 39]. Eligibility for re-allotment of tenancy after death of original tenant— Dispute between heirs of original tenant---Matter of allotment of land after the death of original tenant, was with in the exclusive domain of Revenue Authorities and if any factual enquiry was to be made, it could be done by the Revenue Authorities and not by the High Court in exercise of its constitutional jurisdiction [1994 CLC 1946]. Horse Breeding Tenancy---Grant of---conduct of petitioners father--whether can disentitle petitioner to grant of tenancy –Question of –Tenancy was allotted to Gheba (grand father of petitioner) in 1912 and on his death, it was allotted to Balia (father of petitioner) in 1970 Only reason given in impugned order for ignoring petitioner ( in matter of allotment of tenancy after death of his father) is bad record of his father –Held; Record of petitioner’s father is not absolutely first class but no serious action was taken against him and tenancy remained with him—Case remanded [PLJ 1990 Revenue 6]. It is settled law that the Horse Breeding Tenancy is not inheritable and collector is not bound to accept recommendation of District Remount Officer [PLJ 1989 Revenue 12]. Tenancy under Horse Breeding Scheme---Not heritable and terminates on demise of tenant and reverts to Government---Tenancy reallotted to son of deceased having good breeding record under fresh statement of conditions---

38

[CGL ACT, 1912]

Collector bound to transfer possession of land to such allottee in terms of S. 10 (3), (4) [PLD 1979 Revenue 24]. A tenancy under Horse Breeding Scheme is not heritable and terminates on the demise of tenant and reverts to Government the new allotment is made [Section 10] either to the heirs of the deceased allottee if he had a good breeding record or to an outsider after inviting recommendations from the District Remount officer [PLD 1979 Rev 24]. Horse breeding tenancy being declared to be a scheduled tenancy and holding out no promise for purchase of its proprietary rights, held, would retain its status as property of Government and continue to be governed by Act, V of 1912 [PLD 1979 Rev. 37]. DRO as local representative of Army Remount Department-To be consulted in matters of allotment and his recommendations given due consideration---Recommendations of DRO, though not last word, yet, held, entitled to due weight---Other things being equal, memos, mean to allot tenancy to heirs of deceased with good horse breeding record in preference to outsiders —Claim of heir to allotment—To be preferred subject to suitability of heir--Eligibility to allotment hence rests with persons considered suitable to discharge such obligations---Question as to selection of suitable candidate for allotment of tenancy- Purely internal with government—No person entitled to claim allotment ---Remount breeding grant---Tenancy in such grant granted only for a fixed period, renewal from time to time, and terminating on expiry of lease and demise of tenant---Allottee duty bound to maintain and manage mare and its progeny to satisfaction of officer supervising remount breeding operations---Eligibility to allotment, hence rests with persons considered suitable to discharge such obligations---Choice confined to those considered suitable and qualified for allotment---Question as to selection of suitable candidate for allotment of tenancy---Purely internal with government---No person entitled as of right to claim allotment [PLD 1976 Supreme Court 435]. Horse breeding grant—Forfeiture—Cause against forfeiture of tenancy to be shown by delinquent breeder to collector—Plea taken by breeder that report of District Remount Officer not factually correct or otherwise malicious or motivated or based on wrong particulars—Failure or refusal on post of collector to attend to matter and give finding on correctness or otherwise of such pleas— Tantamount to refusal to exercise jurisdiction vested in him by law [PLD 1973 Note 10]. Tenancy not heritable tenancy—Tenancy granted- after tenants death to one of his female heirs—Female heir becomes tenant in her own right—Sex no bar for grant of land [PLD 1973 Lah. 726]. 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 Collector has to consult the Remount Department but should not accept every statement of the Remount

39

[CGL ACT, 1912]

Department blindly. The discretion rests with the Collector and he should exercise it after making sure of the position [PLD 1959 W.P (Rev) 39]. Horse—breeding grant—Succession—Collector to set out relative claims of different heirs while making grant to particular heir---According to the former [Section 10] Punjab Government Memo No. 868-C dated 19.02.1952 “in the case 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 any other applicant [PLD 1959 (W.P) Revenue 139]. Horse Breeding grant—Succession—Suitability overriding considerationExclusion from inheritance, of grandson whose father had predeceased his grand-father-–Not a relevant consideration [PLD 1959 W.P (Revenue) 142]. Horse-breeding grant—Allotment-Recommendation of District Remount Officer—Ordinarily to be accepted [PLD 1959 (W.P) Revenue 150]. Mule- breeding grant—Succession to—To be ordinarily decided on recommendation of District Remount Officer Rule of primogeniture mot applicable---Held, that the rule of primogeniture had never been applied in the case of succession to a mule-breeding grant---No person can be selected as a tenant unless the District Remount Officer Pronounces him as suitable in all respect [PLD Rev 1956 W.P 48]. 8. ALLOTMENT WITHIN PROHIBITED ZONE Member (Colonies) vide his order made offer to lessee of land for exercise of one of the options with regard to land which had fallen in prohibited zone: to continue as a temporary lease; to get alternate land outside the prohibited zone; to purchase it on current rate---Lessee exercised last option and opted to purchase land on current price---Process was started, assessment was made accordingly and lessee deposited the money in full as per assessment made by Assessment Committee---After order of Authority had attained finality; request was made on part of District Administration for review of order of Authority as land in question had fallen in the prohibited zone---Unanimous finding of Board of Revenue that order of Authority passed on option of lessee had attained finality and the sale was to be construed as sale through private treaty and, in circumstances, would not require any relaxation of policy [2004 CLC 87]. Allottee applied for conferment of proprietary rights in 1960, contending that he had fulfilled conditions under scheme – Original scheme did not contain any concept of prohibited limits – if petitioners scheme had been processed, with reasonable speed, same would have been completed long before establishment of Town committee concerned, bringing land under prohibited zone District Collector was directed to process petitioners case for conferment of proprietary rights in accordance with law to the extent of their share [PLJ 2003 Revenue 8]. Allotment of land in favour of oustee of Mangla Dam which land was made available to such oustees, was challenged on ground that land in dispute could not have been allotted as same fell within prohibitory zone---Held once

40

[CGL ACT, 1912]

land was made available for allotment, it would supersede all notifications imposing such prohibition---Land allotted to allottee, could not be cancelled from [Section 10] his name [1994 MLD 801]. Board of Revenue, on question prohibited zone, has issued instructions that distance should be measured as required when allotment was made and not as and when proprietary rights were conferred [1994 SCMR 975]. Condition that the land in respect of which proprietary rights were to be granted should not fall within five mile radius of a Mandi Town or other Town, envisaged that the Municipal limits for the grant of proprietary rights were the Municipal limits at the time the scheme allowing the concession of sale of petitioner came into force and not the time when collector made the order refusing to grant proprietary rights to petitioners [1989 MLD 3148]. S. 10 (2) Grant of proprietary rights to lessees under Grow More Food Scheme Relevant time for determining whether land allotted under Grow More Food Scheme Falls within 5-miles radius/outer limits of a Mandi Town, other Town or municipality as contemplated by memoranda dated 10.07.62 and 08.08.62 would be tine when memoranda dated 10.07.62 and 08.08.62 allowed concession of sale to lessees and not time when Collector decides or lessee’s application for grant of proprietary rights [NLR 1989 Revenue 37]. Grant of proprietary rights – such rights refused on ground of lands being situated within prohibited limits of Town Committee having been constituted long after applications for grant of proprietary rights were made, held, would not affect rights of petitioner to grant of such rights [PLD 1986 Rev. 2]. Mamun Kanjan (admittedly) constituted as Town Committee 1983 whereas petitioners applying under notification dated 03.09.1979 – Held; Becoming of Mamun Kanjan as Town committee in 1983 not to affect rights of petitioners [PLJ 1986 Revenue 6]. Proprietary rights, conferment of Notification dated 03.09.1979 – City, Municipal Committee at time of issue of Notification – Distance of prohibited zone was to be counted as 5 miles – rejection of application for grant of proprietary rights at that time on ground that land was situated within 10 miles of cantonment Board, held, not proper [PLD 1985 RE. 57]. 9. ALLOTMENT OF CHARAGAH LAND Request of lessee for grant of proprietary rights in respect of land leased out to him under Temporary Cultivation Scheme, was finally turned down on the ground that land in question being Charagah land---No policy of Board of Revenue existed under which proprietary rights of Charagah lands could be granted to the lessees and grant of proprietary rights for Charagah lands had been specifically prohibited as such lands were required for public purpose--Request of lessee for grant of proprietary rights had rightly been turned down, in circumstances [2004 CLC 215].

41

[CGL ACT, 1912]

Land in question was reserved as ‘Charagah’ land meant for extension of ‘Abadi Deh’ and for projects of general welfare of the community---Said land was leased out to lessee for temporary cultivation for a fixed period only---Said land having been transferred to Education Department for construction of building of10] [Section a school---Lessee, who had undertaken to surrender land as and when required by Government for public purpose, had no locus standi to challenge transfer of land to Education Department for construction of a school which was public purpose [2003 CLC 1049]. Land reserved for Charagah could not be allotted under Islamabad Oustees Scheme. [1997 MLD 2587] Land, vesting in Government viz “Baqia Sarkar” un allotted land was allowed to be exchanged with ‘Chiragah land’ which had earlier been leased out to tenant and proprietary rights of such exchanged “Baqia Sarkar” land were allowed to tenant by Board of Revenue in revision [PLD 1987 Revenue 42]. 10. LOCUS STANDI Order of cancellation and resumption of land in question, had no nexus with allotment of the same in favour of respondents—petitioner, thus had no locus standi to challenge order of allotment in favour of respondents Relief claimed by petitioner of declaring order of cancellation of land in question, from his name was illegal and further relief that he was entitled to grant of proprietary rights, could not have been granted to him under the law [PLJ 2003 Lahore 313]. Petitioner was neither party to lease deed nor did he claim any right, title or interest in promises which he desires to be cancelled from name of respondent-–case contract was between respondent official and contesting respondent-–petitioner thus, can not be deemed to be aggrieved party within meaning of Art. 199 (a) (vi) of constitution, therefore, writ petition was not maintainable [PLJ 2003 Lahore 356]. Grant of State land. Locus standi to challenge. Owner of the land in the village has no locus standi to take out proceedings against a grantee of State land under the relevant scheme [2002 SCMR 807] Petitioners having not applied for allotment after they allegedly took over Ihata from original allottee, they had no locus standi to dispute allotment in favour of respondent. [1991 CLC 586] Allotment to respondents challenged by appellants acting pro-bonopublico-Locus standi of appellants [PLD 1989 Supreme Court 16]. Sub-tenancy, claim of---Government department, under whom plaintiffs’ claimed to be sub-tenants, itself not tenant---Effect---Transferee of state land taking over management of Farm for implementing Government policy of development and breeding of livestock---Position of such transferee being not as tenant but agent of Government, plaintiffs, held, could not claim sub-tenancy

42

[CGL ACT, 1912]

under such Government agent---Plaintiffs were not entitled to protection under section 7 (2) of Act V of 1912. [1987 CLC 1232] Locus standi to file appeal before Board of Revenue against order of commissioner accepting tenant’s appeal and restoring his tenancy under Horse [Section 10] Breeding Scheme which was resumed by Collector---Appeal filed by such person before Board being in competently made, order of Board setting aside order of Commissioner would be lawful authority [NLR 1986 Revenue 240]. 11. ALTERNATE ALLOTMENT Exchange of land allotted to respondent at other place with that of disputed land regarding which petitioner’s case for grant of proprietary rights was pending before Revenue Authorities---Validity---Contention of petitioner was that after conferment of proprietary rights and execution of sale deed by Revenue Authorities in favour of respondent in respect of land allotted to him at other place, such land become privately owned land, which could not be allowed by Revenue Authorities to be exchanged with disputed land as same could not be treated as available land till final decision in judicial remedies available to petitioner respecting his claim that he as allottee/ Patadar of disputed land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights--Supreme Court granted leave to appeal to consider, inter alia, such contentions [2006 SCMR 890]. Bara Reclamation Scheme, 1945---Government share of land under Bara Reclamation Scheme--- Record showed that land falling to Government share had not been excluded from ambit of Bara Reclamation Scheme, 1945 ---Government share of land under Bara Scheme was necessarily cultivated, when division of land between original allottee and Government took place--Petitioners had thus not put in any extra effort in bringing same under plough-Petitioners case being hit by Conditions Nos.2(a) and 2(b) of Notification, dated 19-3-1995, was dismissed---Board of Revenue observed that District Collector might consider case of petitioner for grant of alternate land, if they were otherwise eligible [2002 YLR 2577]. Appellants were directed to pursue their application for grant of alternate land before the relevant Authority. Ban on allotment would not be applicable in case of appellants for right had accrued to them under the relevant scheme much before the ban. [1993 SCMR 1572] High Court’s direction to Board of Revenue, with regard to lessee’s claim for grant of proprietary rights of land in question, was upheld, while, its direction for allotment of alternate land to rival contender who was a blind man i.e., person in actual but unauthorised possession of same and for compliance report was substituted to the effect that Member, Board of Revenue in his discretion may provide him with alternate land [1992 SCMR 1163]. The BOR wrongfully observed that since the affectee had received cash compensation from WAPDA he could not be relevancy to alternate allotment [KLR Civil Cases 268 (Lahore)].

43

[CGL ACT, 1912]

12.

VILLAGE MUEENS:

Government of the Punjab, Colonies Department had excluded “Imam Masjid” from list of moeens” however, he was given right for allotment of four [Section 10] acres of land for his subsistence-Imam Masjid is, thus, a respectable person of locality having sufficient religious knowledge and pious man---“Imam Masjid” is neither subordinate to Lambardar of village nor any of Colony/ Revenue Officer--Imam of village mosque being neither “kammi” or “Moeen” cannot be appointed either by Lambardar or Revenue Officer [PLJ 2005 Lahore 639]. Government of the Punjab, Colonies Department vide letter No.12331-71TV/ 3348-CL, dated 08.11.1971, has excluded Imam Masjid from the list of Mueen but he has been given the right for allotment of four acres of land for his subsistence [2004 CLC 834]. Term “Mueen”---Connotation---Mueen, in a village, is a person who serves the people/ inhabitants of the village, performing their functions in different categories like Dhobi (washer man), Tarkhan(Carpenter), Chowkidar (Watchman) and Chuhra (sweeper) etc.---All these persons serve the villagers/ people and are known as village servants [2004 CLC 834]. Petitioner being proprietor could not have been allotted “Ihata” which was meant for “Mueens” only---“Mueens” being non-proprietor, Government had earmarked certain Ihatas for them which could not be allotted to proprietors [PLJ 1997 SC 429]. 13. LEGAL EFFECT OF DELIVERY OF POSSESSION No person would be deemed to be a tenant or to have acquired any title, right or interest in state land in absence of written order of Board of Revenue/ Provincial Government [2009 YLR 955]. Once petitioners were allowed to cultivate the barren land in dispute, they could not have been ejected from said land which was developed by them—No doubt the possession of the petitioners over the land in dispute was illegal, but their longstanding possession over said land could not be overlooked—Accepting revision, impugned orders were set aside, with direction to the Authority to look into the matter, consider the claim of petitioners, scrutinize the record and after hearing them should decide the case [2008 CLC 312]. Respondent had been proved to be never in possession of land in dispute and had never been a tenant as contemplated by S. 10 (4) of Colonization of Government Lands (Punjab) Act, 1912 and had no right whatsoever over the land---Allotment of land made in favour of respondent, in circumstances was void ab-initio and no limitation would run against a void order---Allotment made in favour of respondent, automatically stood cancelled, when he failed to pay initial deposit within stipulated period of 30-days and by receiving some amount from respondent, land would not stand restored in his favour [2007 CLC 1892]. Possession of a particular individual who come to cultivation the land leased out to a lessee in the midst of period of lease after death of original lessee

44

[CGL ACT, 1912]

when no order of transfer had been passed u/s 10 (4) would not legitimize possession of such an individual for the left over period of lease [NLR 2003 [Section 10] Revenue 60]. Plaintiffs had claimed that suit land was allotted to their father under Abadkari Scheme in Thal and that in view of provisions of S. 19-A of Colonization of Government Lands (Punjab) Act, 1912 on death of Muslim tenant, succession was to open in accordance with Islamic Law---Plaintiffs had simply relied upon 'Parchi Aarazi Kasht' and apart from that no other document had been produced to prove that their father had any link with the suit property---No cogent evidence was on record to prove that father of plaintiffs ever took possession of property in question as a tenant under Government and that he was ultimately allotted that property--- Plaintiffs having failed to prove their assertions and version as asserted in their plaint, Courts below were not justified to decree the suit [2002 YLR 2611] After the payment of advance rent, it had become the responsibility of Collector to hand over the possession to lessee and issue “Parcha Dakhal” unless the default could be shown to have occurred on the part of the lessee/ allottee—It should always be construed that the requirement of S. 10(4) of Colonization of Government Lands (Punjab) Act, 1912 had been fulfilled—Lease of 15 years in favour of lessee, thus, would be deemed to stand in his favour. [1997 CLC 2000] Forums of revenue hierarchy recorded findings of fact that land in question was initially granted to petitioners who had paid full rate Malkana and that they had remained in peaceful possession of same till their possession was disturbed by subsequent grantee—Board of Revenue, set aside such finding of fact and found grant in favour of respondent to be valid and legal—Concurrent findings of two revenue forums could not have been set aside by Board of Revenue on basis of duplicate grant. [PLD 1997 Karachi 299] Land reserved for Charagah could not be allotted under Islamabad Oustees Scheme. [1997 MLD 2587] Provision of S. 10 (4), Colonization of Government Lands (Punjab) Act, 1912 has a damaging effect against plaintiff’s pre-emption suit, providing therein that no person would be deemed to be a tenant or to that effect had been passed and he had taken possession of land with the permission of Collector. Possession of plaintiff was result of private arrangement with vendor which arrangement was not recognized by law or the Government [PLD 1995 Lahore 178]. Petitioner was admittedly in cultivating possession of Government land as a leases for the last thirty years–land in question was, however, given to respondent without hearing petitioner---possession of land in question, being with the petitioner same was not available for allotment to respondent at any stage--petitioner, therefore could not be deprived of such land because of his admitted

45

[CGL ACT, 1912]

possession over it…. said land would be given to petitioner on lease on the same terms and conditions on which it was given respondent [1995 MLD 859]. Sub-letting of land by allottee/ tenant would clearly offend against S.10(4). [Section 10] Sub-lettee could not be deemed to be a tenant and would not have right of possession. Sale by allottee/ tenant after acquiring proprietary rights would not be pre-emptible by sub-lettee who would not be a tenant u/s 10(4). [NLR 1995 Rev 59] Entries in Jamabandi for specific years as also entry in Khasra Girdawari showed petitioner to be “Ghair Morusi Baseegha Darya Burdi”--- All such documents, unless rebutted in a proper enquiry, prima facie, lent some support to petitioner’s contention that land in question was allotted to him, though temporarily, in lieu of his “Darya Burdi” land [1994 CLC 484]. Period after expiry of one year, was treated as holding over possession of lessees, in revision and lease of lessees was restored and extended accordingly, subject to deposit of rears by lessees who would be at liberty to apply for grant of proprietary rights, under new scheme [1994 CLC 2173]. Allottee or a purchaser of State land would attain status of a tenant, only after he had been placed in possession of land by an order or with the permission of Collector [1992 MLD 37]. Allotment under well sinking scheme of “ uncommanded Land” obtaining physical possession of land and developing it, can not be deprived of proprietary Rights in Land for require that land at time of it’s allotment was not state waste land. Held by virtue of possession of land for 30-years a vested right was created in favour of allottee to remain in possession and to claim ownership right of land under Law [NLR 1992 Revenue 39]. Expression “cultivating possession” does not mean physical possession of a tenant with a right to cultivate. Tenant would not be entitled to proprietary rights in case revenue records do not prove delivery of possession of land to him. [NLR 1991 Revenue 96] Tenant holding land under Guzara Scheme/ Ejected Tenants Scheme--Cannot be made to suffer on account of failure of Colony Authorities to implement their own orders to get him possession of the land---Colony Schemes are framed as egalitarian measures to come to aid of poor people and also to meet requirements of food production in country—Order by Colony Authorities passed in a slip-shod manner while completely ignoring purpose of law and objects to be achieved by Schemes would be unsustainable in writ jurisdiction. [NLR 1989 Revenue 86] Delivery of possession, actual or constructive---Essential requirement for creation of tenancy---Mere deposit of sale price or execution of conveyance deed---Cannot confer proprietary rights on allottee of land under Colonization Scheme [PLD 1978 Revenue 78].

46

[CGL ACT, 1912]

Colonization of Government Lands (Punjab) Act (V of 1912). S. 10 (4) – Possession envisaged by S. 10 (4). Does not make any distinction between physical and constructive possession Allottee put in constrictive possession by authorities themselves Acquires status of tenant under Act V of 1912 – Full price [Section 10] of land having been paid and sale deed execute and sale deed executed and registered in favour of tenant Government and its functionaries, held, cannot retrace steps and reclaim land [PLD 1978 Lahore 1146]. Acquisition of proprietary right without allotment order---Entry in “Roznamcha Waqiati” of such acquisition---Validity---Supreme Court granted leave to appeal to consider whether in absence of any allotment order by competent authority, mere report of “Roznamcha Waqiati” could confer right to claim proprietary rights in addition to effect of jurisdictional bar perceived by Colonization of Government Lands (Punjab) Act, 1912 [2007 SCMR 554]. 14. FULFILLMENT OF CONDITIONS Use of land for the purpose other than for which it was granted---Land, the subject matter of the suit was colony land granted for agriculture purposes--Plaintiff entered into agreement to sell with defendant regarding the suit land--Whole consideration amount was paid by the plaintiff and possession was delivered by the defendant---Plaintiff started developing the land for residential purposes---Construction of the plaintiff was interfered by the defendant on the ground that the plaintiff could not use the land for residential purposes---Trial Court declined to grant interim injunction in favour of the plaintiff---Validity--Plaintiff had undertaken that he would alone be responsible for the consequences and for payment of any royalties, penalties and other dues chargeable by Colony department/ Board of Revenue or any other agency in respect of development of disputed land and its conversion to residential uses--Order passed by the Trial Court was set aside and application for interim injunction was allowed by High Court [2008 YLR 915]. Allotment of land in "Jori Scheme"---Land in dispute was allotted to predecessor-in-interest of respondents and one other and after death of predecessor-in-interest of respondents a dispute arose as petitioner had claimed that land in dispute was allotted to him---Suit filed by respondents had concurrently been decreed by the Trial Court and Appellate Court and respondents were held owners of land and that petitioner had got nothing to do with the suit-land---In absence of any ground for interference with the concurrent findings recorded by the courts below which were fully supported by the record, revision against said concurrent findings, was dismissed [2008 CLC 833]. Contention of plaintiffs was that all the courts below had decided case against them in violation of mandatory provisions of Ss.10 & 19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Supreme Court could not go behind concurrent findings of fact recorded by courts below, unless it was shown that such findings were, on the 'face of it, against the evidence or so patently improbable, or perverse that to accept them would amount to perpetuating a

47

[CGL ACT, 1912]

grave miscarriage of justice, or if there had been any misapplication of principle relating to appreciation of evidence or finally, if finding could be demonstrated to be physically impossible [2007 SCMR 1602] High Court dismissed Constitutional petition on ground of laches. Validity. [Section 10] Finding of fact of Board of Revenue that petitioner was in breach of conditions of agreement, had attained finality. Such findings of High Court did not suffer from any legal infirmity. [2004 SCMR 508] Contention of petitioner based on the report of Audit Officer was that respondent having not brought under cultivation fifty per cent of area was not eligible for restoration of his earlier allotment. Validity. Such report was totally one-sided. Initial allotment in favour of petitioner had been made in oblivion of such notification, thus his such contention was not of any help to him. [2003 SCMR 38] Allotment under Grow More Food Scheme (1956) Non-satisfaction of requirement of 50 % of the area being brought under cultivation would be inconsequential when allotment of rival allottee was made in oblivion of Notification dated 26.04.1971. Held: Orders of Revenue authorities in favour of allottee under Grow More Food Scheme which were maintained by High Court with dismissal of writ petition filed to challenge orders of Revenue authorities were unexceptionable and did not warrant interference. [2003 UC 447] Respondent was allotted State land as an oustees from Islamabad Capital Territory, when there was no prohibition on its allotment and it was not Chiragah. Respondent made full payment therefor and obtained sale deed. Collector subsequently converted said land into Chiragah and cancelled its allotment. Respondent challenged vires of order of Collector in civil suit, which was decreed by Civil Court and its decree remained upheld by First and Second Appellate Court. Validity. In absence of any violation of the terms and conditions of the grant by the respondent, neither the administration i.e. District Collector, Commissioner and/ or Member, Board of Revenue nor the Civil Courts had any jurisdiction to undo his grant [2002 SCMR 807] Collector allotted land reserved for common use of community to petitioners converting same for use of residential purposes of petitioners—Larger interest of community could not be allowed to be hurt for convenience of a few— Even otherwise Collector had no power to convert classification of land. [2001 CLC 340] Under the instructions prevailing at the time of filing application for extension of lease, petitioner being not entitled to any extension in lease his application for extension was rightly not accepted by Authorities---Petitioner having failed to prove filing of application for grant of proprietary rights, no order for grant of proprietary rights could be passed---Petitioner was thus, liable to account for and pay mesne profits for the use and occupation of land in question from date status quo was directed to be maintained by High Court after expiry of ten years period of lease. [1998 MLD 575]

48

[CGL ACT, 1912]

Ejected Tenants Scheme read with Memoranda dated 08.10.1960 and 22.01.1971. Allottees conferred proprietary rights under memorandum dated 08.10.1960 visualized 12.50 acres as maximum limit of land in which proprietary rights could be granted. Resumption order passed under Memorandum dated [Section 10] 22.11.1971 which decreased maximum limits from 12.50 acres to 8 acres of land. Held, allottee cannot be made to loose right vested in them by lawful orders of District Collector passed under memorandum dated 08.10.1960 [NLR 1996 Revenue 23]. Assistant Commissioner/ Collector incompetently cancelled allotment of original allottees and allotted same in the names of petitioners—Petitioners being encroachers having shown their high-handedness twice by occupying land which was in lawful cultivating occupation of allottees, cancellation of allotment from names of original allottees and subsequent allotment in the names of petitioners/ encroachers by Assistant Commissioner/ Collector was not justified in circumstances [1995 MLD 246]. Both petitioners were at fault in not applying for extension of their allotment and lease at the time of expiry of their respective tenures—Additional Commissioner, in circumstances, had rightly refused claim of both parties observing that disputed land was available State land should be disposed of further according to policy. [1995 CLC 1616] Land in question, was allotted to respondent under Grow More Food Scheme on 14.12.1956 and he came in possession thereof 08.04.1957 said land was subsequently allotted to petitioner under Islamabad Oustees Scheme. Land under Grow More Food Scheme allotted to respondent was never included in the schedule of Islamabad Oustees Scheme. Allotment of such land to petitioner was thus, void ab-initio. [PLD 1992 SC 37] Bara Scheme. Petitioners were granted State land under Bara Scheme for a period of 8-years. Petitioners thus did not fulfill the condition of cultivation of 80 % of the land. Questions of fact having been decided against the petitioners, no case for interference was made out. Petition was dismissed [1989 SCMR 1668 (2)] Cultivated areas and areas already leased out under any of schemes of Government could not be let out under Tubewell Sinking Scheme-Any lease granted by a public functionary regarding such land, held, void ab initio [1984 CLC 1192]. Tube Well Sinking Trial boring for---Condition precedent---Failure to fulfill---Effect of--- Authority making no trial boring despite of fixed amount for such purpose in time and several representations made by petitioner--- Held: Trial boring being condition precedent for subsequent sinking of Tube Well in lot allotted to particular allottee, petitioner not to be deemed to have waived such condition merely because of their having accepted such allotment without test bore--- Held: further---Authority having failed to discharge its own obligation,

49

[CGL ACT, 1912]

petitioners to stand absolved of their obligations under grant and no (subsequent) alleged breach of conditions to be attributed to them [PLJ 1983 Lahore 565]. Opinion of Collector that petitioners had not fulfilled condition of cultivation of 80-percent of land was justified and not open to question [NLR [Section 10] 1983 Revenue 128] Land leased out to petitioner resumed on expiry of lease period---Land already standing included in schedule of Islamabad Oustees Scheme--Temporary Cultivation Condition being applicable to lessees and resettlement of persons on state land constituting public purpose, land, held, rightly resumed--Disputed land standing included in schedule of Islamabad Oustees Scheme at time of its please. Temporary Cultivation Condition (dated 22.09.1944) made applicable to leases granted under notification dated 07.02.1978. Resumption of allottees land on expiry of ten years lease period. Unexceptionable [1981 SCMR 1134]. All Ihatas in colony of Punjab owned by provincial Government –Ihatas unless Finally transferred with full proprietary rights to allottees—Held, remain amenable to provisions of Act V of 1912 [PLD 1979 Rev. 37]. Colonization of Government lands (Punjab) Act ( V of 1912), S. 10 read with statement of conditions of grant of tenancies (issued under S. 10) para 21-Permanent residence in Chak not an essential “pre-requisite” in case of “prospective” allottee for allotment in his favour [PLD 1968 Lah. 321]. Instructions issued by Board of Revenue in connection with allotment of and transfer of proprietary rights in land under Grow More Food Scheme, 1956--Have force of law and are not merely department instructions for information of Revenue Officers [PLD 1968 Lah. 1155]. State land leased out to lessees in 1966 for the years, was regularised by Board of Revenue one year before expiry of lease period- According to latest instructions temporary lease was to be extended from time to time till 1995 ---Lease of lessees who were in cultivating possession land, was extended till 1995 accordingly [1997 MLD 2629]. 15. SALE BY PRIVATE TREATY While determining the value of the land acquired by the Government, only the past sales should not be taken into account, but the value of the land with its potentiality should also be determined by examining other factors [2008 CLC Pesh. 58]. Disputed land was leased out to grandfather of petitioner and according to the decision of Board of Revenue, dated 29-9-1992, petitioner was entitled to proprietary rights of the land---Provincial Government did not implement the order of Board of Revenue on one pretext or the other---Plea raised by petitioner was that proprietary rights be conferred upon him at the rates prevailing at the time of expiry of lease in year 1956---Validity---In view of the earlier stance of Provincial Government and Board of Revenue, the authorities were estopped to

50

[CGL ACT, 1912]

challenge the claim of petitioner for grant of proprietary rights of lease land---Sale under the lease instrument was to be at a reasonable price, which was distinct from market price---Order of Board of Revenue had attained finality and according to that order petitioner was the only living grandson of the original [Section 10] lessee, who was entitled to proprietary rights of subject land under the instrument dated 30-11-1891---No reason was available on record as to why the order of Board of Revenue could not be implemented [2006 YLR 554]. Request of petitioners for regularization of their unlawful occupation over said land, was rejected, but keeping in view long affiliation of petitioners with land in dispute since independence, petitioners, were allowed to purchase on payment of current market price with 50% penalty for un authorised possession and 10% surcharge [1996 MLD 751]. Petitioner and his father had been in possession of land in question for the last fifteen years and had developed the same fully --- petitioner was, however, allowed to purchase land in question on market price, as on the date of present order provided Collector was satisfied that he had developed such land was permanently residing there on [1991 CLC 660]. 16. ALLOTMENT TO GOVERNMENT SERVANTS School teacher would not be disentitled to allotment under notification dated 24.04.1971 as mere employment as a teacher cannot be held to be impediment in his self and personal cultivation when he was duly and properly entered in relevant revenue record and Khasra Girdawari as a self cultivator [NLR 2004 Revenue 83]. Both, at the time of first and second allotment of state land, allottee was a teacher of a school run by a Local Authority and as such was not government servant, but when Educational Institutions were nationalized, allottee entered in field of government service---It was a subsequent event and could not retrospectively forfeit initial and basic eligibility of allottee to get allotment and hold on to it---Initial eligibility of allottee was required to be judged on criteria laid down at time of allotment of land under Grow More Food Scheme---Supervening disability for continuance of allotment of state land by government servants could not be allotment of land which was valid at the time, it was made---Scheme did not compulsorily require disclosure of subsequent induction in government service by allottee and it did not create any disability for him to hold and continue his allotment of land [1993 CLC 2444]. Fifteen Year’s Lease Scheme framed by Punjab Government under Notification No.1622-71/1205-CL-I, dated 24.04.12971. Cancellation of allotments on ground that allottees being Government servants were disqualified under Scheme. Unexceptionable. Argument that allottees’ revision application to Board of Revenue was decided by person who was not authorised by law to deal with it. Repelled as being of no consequence inasmuch as allottees were initially ineligible for grant of lease of land under Scheme. [NLR 1981 Revenue SC 164] 17. OCCUPANCY TENANTS

51

[CGL ACT, 1912]

Status of–-Ghair Dakheelkar without payment of batai is not that an owner---status as Ghair Dakheelkar without payment of Batai, held, was not [Section 11] synonymous with owner [1989 CLC 457]. Entitlement to rights of ownership by occupancy tenants – plaintiffs were given ownership rights in land held by them as occupancy tenants in proportion to share of Batai rent paid by them to their land lords – plaintiffs, however claimed that they paid rent partly in cash and partly in form of share of produce and were thus entitled to acquire rights in entire land held by them – Documents on record showed that plaintiffs paid Batai rent only and averment that they paid rent party in cash and partly in form of share of produce, held, could not be accepted as true version in presence of record---An occupancy tenant who paid no rent beyond the amount of land revenue etc. be came owner of the entire land comprised in his tenancy without payment of any compensation [1988 CLC 1498]. Occupancy rights in state land pre-emptible—Land held, includes occupancy rights and decree pre-emption suit quo sale of occupancy rights executable without permission of commissioner, [p. 919C] [1988 MLD 917]. Land held, includes occupancy rights and decree in pre-emption suit qua sale of occupancy rights executable without permission of Commissioner [1988 MLD 917]. Eligibility to acquire occupancy rights—Applying for conferment of such rights does not by itself raise any presumption that tenant had acquired occupancy status [PLD 1960 W.P (Rev) 11].

11. Legal effect of statement of conditions. Subject to the provisions of this act, the grant of any tenancy in accordance with any statements of conditions which have been or may hereafter be issued by the Provincial Government under the Government Tenants (Punjab) Act, 1893, or under this act, shall be deemed to be transfer of a land within the meaning of the Crown Grants Act, 1895, and shall be governed by the provisions of the said Act. COMMENTS
Terms and conditions conflicting with statutory provisions-Cannot be issued by Government-Section 11 providing for legal effect of statement of conditions and rendering grant of tenancy according to such statement of conditions to be transfer of land within meanings of Government Grants Act, 1895 subjected to provisions of Act V of 1912-Contention that Commissioner's authorisation to grant lease deemed to be a statement of conditions under S. 10 (2) of Act V of 1912, held, devoid of force and no statement of conditions could

52

[CGL ACT, 1912]

have any force if not in accordance with provisions of Act V of 1912 [Section 12] [1980 CLC 1042]. Grant of tenancy according to “statement of conditions” issued under Act V of 1912---Deemed to be transfer of land within meanings of Act XV of 1895 and governed by provisions of such Act. [PLD 1976 Supreme Court 435]

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 has established a permanent residence in the estate in which his holding is situated. COMMENTS
Where the grantee had paid all the dues to the Government, he had been vested with proprietary rights and was competent to transfer the suit-land in favour of the plaintiffs by means of registered sale-deed executed in their favour---When sale-deed in favour of the plaintiffs was competently made, the subsequent transfer of the said land by grantee in favour of third party was without legal authority [2002 MLD 518] Contention that petitioners case was covered by a directive issued by Colonies Department--High Court, however, finding that no such contention was raised before Member, Board of Revenue and observing that remedy of petitioner lay in agitating matter before Board of Revenue in accordance with law--Petitioner unable to controvert finding of High Court--Petition for leave to appeal dismissed [1987 SCMR 755]. Respondents prior allottees under 'Grow More Food' Scheme but, land resumed for default in rent and allotted to respondents-Restoration of land to prior allottees, held, unexceptionable, particularly when petitioners offered alternate land as compensation-Petitions dismissed on, merits in circumstances [1979 SCMR 415]. Section 12 of the Colonization of Government Lands (Punjab) Act, 1912 provides that any condition included in any statement of conditions which imposes an obligation of residence should not be deemed to have been infringed by reason only of the temporary absence of a tenant who has established a permanent residence in the estate in which his holding is situated. When the grantee had admittedly built a residential house and had been living in the village in which his holding was situated, for about fifteen years and the report of the Patwari only stated that he had gone to his previous residence seven or eight days before, it was held that there was no material before the Colonization Officer was, therefore, not entitled to resume the grant under section 24 of the Punjab Colonization of Government Lands Act, 1912. [PLD 1960 (W.P.) Lahore 995]

53

[CGL ACT, 1912]

[Sections 13-15]

13. Entries in record of rights or in annual record to be equivalent entries in register issued under Act-III of 1893. Where in any statement of conditions issued before the commencement of this Act reference is made to any register prescribed under the Government Tenants (Punjab) Act, 1893, then the record-of-rights or the annual record shall, so far as may be, deemed to be such a register. 14. Position of tenants holding hitherto under Act-III of 1893. Any person who at any time before the commencement of this Act was a tenant from 23[Government], of land to which the Government Tenants (Punjab) Act, 1893, applied and for which a statement of conditions was issued under that Act, shall, notwithstanding any previous agreement or anything contained in the Punjab Tenancy Act, 1887, or any other enactment now in force, be deemed to have accepted and to hold the lands of which he is a tenant in accordance with such statement of conditions. Provided that unless such tenant 24[not being a Muslim] shall, by deed executed and registered within twelve months from the date on which this Act comes into force, declare that the succession to his tenancy shall be in accordance with the statement of conditions applicable thereto, succession to his tenancy shall be regulated by the provision of sections 20, 21, 22 and 23 of this Act. 15. Purchaser to be tenant pending payment in full of purchase money. A purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled.
23 24

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964 Inserted by the Punjab Act III of 1952

54

[Section 15] [CGL ACT, 1912]

COMMENTS SYNOPSIS
1. Allottee becomes full owner- 2. Conveyance deed not necessary. Other conditions also required 4. to be fulfilled. Widow becomes absolute owner. 6. Allottee ceases to be a tenant.

3. 5.

Government functionaries become functus officio. Purchase price can be deposited without getting permission of Collector. Effect of breach of conditions.

7.

Sale of land pre-emptable even 8. before issuance of conveyance deed.

1.

ALLOTTEE BECOMES FULL OWNER. CONVEYANCE DEED NOT NECESSARY.

After full price is made and proprietary rights are acquired in respect of land allotted to tenant under provisions of Colonization of Government Lands (Punjab) Act, 1912, tenancy comes to an end and allottee is not governed by statement of conditions---Such allottee becomes absolute owner and is not governed by the provisions of Colonization of Government Lands (Punjab) Act, 1912 [2009 YLR 1593]. Tenant---Meaning of---Tenant---means purchaser from Government who has been placed in possession of land by order of the Collector---Remaining tenant under the government till he pays the full amount of purchase to the government and after payment of full price of land he becomes absolutely owner of the property comes out of ambit of colony [PLJ 2007 Lahore 724]. Any person remains tenant under government till he pays full amount of purchase to the Government---After payment of full price of land such person becomes absolute owner of the same and property comes out of the ambit of Colony/ Revenue hierarchy [2006 CLC 543]. Allottee/ tenant of the Crown land becomes owner of the land when makes the payment of entire price of the land under S. 15---Date of the payment of price is effective date for passing of title in favour of grantee notwithstanding the conveyance deed is not executed in his favour. [1994 MLD 1630] Requirement of execution of sale deed after conferment of proprietary rights is merely a formality. Allottee would be owner without execution of sale deed when entire sale price stands deposited. [NLR 1992 UC 531]

55

[CGL ACT, 1912]

[Section 15]

Deposit of whole of price of land by allottee of land would make him its full owner for all purposes. Preparation and registration of final conveyance deed in such case would be a mere formality. [NLR 1992 Revenue 124] Proprietary rights in respect of land were given to petitioners subsequently who paid almost entire sale price of land except last instalment--Land was cancelled from names of petitioners--- Order of Authority giving proprietary rights to petitioners had never been assailed by any other interested party---Petitioners who were willing to pay immediately the last instalment of remaining price of land, could not be deprived of their proprietary rights in respect of land in question [1991 CLC 1443]. Price of land having been deposited in 1958 and such fact having been proved by unrebutted evidence, respondent had become absolute owner of land the moment he paid the requisite price and his title was not postponed to the acquisition of conveyance deed [1991 CLC 2005] Lambardari Grant—Deceased Lambardar having been allowed proprietary rights of entire land and deposited some instalments of the price acquired vested rights in full lot [1989 CLC 2489]. Government land. Allotment of Tenant dying before making full payment. Inheritance of. Section 15 of Act provides in express words that “A purchaser from Government, of land, who has been placed in possession of land by order of Collector, shall be deemed to be a tenant of such land until full amount of purchase money with any interest due thereon, has been paid and other conditions set forth in statement of conditions of sale issued by Collector, have been fulfilled”. Admittedly Nizam Din was tenant of Government land and price had yet to be paid by him. Held: Section 19-A of Act would not be available for determining heirs of Nizam Din and that mutation of inheritance was in accordance with law governing inheritance as provided in section 20 of Act. Appeal dismissed. [PLJ 1989 SC 397] Payment of full price and fulfillment of other conditions---Confer automatically, proprietary rights subject to conditions set forth in conveyance deed and schedule-II---Further transfer by allottee, after automatic transfer of proprietary rights, not barred notwithstanding Collector’s order to contrary. [1978 RLR 22] Person, acquiring land from government under Colonization of Government Lands (Punjab) Act, 1912, becomes proprietary of land on payment of all installments due and thereafter his succession not governed by provisions of that Act, relating to inheritance, but by ordinary law of succession despite fact that formal conveyance deed neither drawn up or executed nor requirement of registration of sale deed, specified in S. 54, Transfer of Property Act, 1882, complied with. [PLD 1971 Baghdad-ul-Jadid 38] Acquisition by tenant of proprietary rights in land included in tenancy – Dates from date of deposit of price, not from subsequent date of execution of

56

[CGL ACT, 1912]

[Section 15]

sale – deed – Tenant absolute owner from date of deposit [PLD 1956 (W.P) Lahore 609]. 2. ALLOTTEE CEASES TO BE A TENANT. After completion of the sale and payment of the entire price, the purchaser could himself take proceedings to get the possession of land--Once the Government had sold away the land and title was vested in the purchaser, provisions of S.32 of Colonization of Government Lands (Punjab) Act, 1912 could not, be invoked by the purchaser [2001 YLR 223] Allottee of land from out of Chiragah—Ceases to be a tenant under Act after payment of full sale price—Cancellation of allotment after payment of sale price would be illegal—It can be challenged by way of civil suit. [NLR 1990 Revenue 63] 3. OTHER CONDITIONS ALSO REQUIRED TO BE FULFILLED. Full payment alone not sufficient to confer title on auction-purchaser of Government land--Formal execution of conveyance deed is an essential requirement to become owner of State land---Conditions for conferment of title on auction purchaser stated [1990 CLC 970] Delivery of possession, actual or constructive---Essential requirement for creation of tenancy---Mere deposit of sale price or execution of conveyance deed---Cannot confer proprietary rights on allottee of land under Colonization Scheme [PLD 1978 Revenue 78]. Sale takes place on payment of full purchase money only if “other” conditions of sale are also fulfilled---Tenant not a hereditary Lambardar---Sale of Lambardari land, held, not complete by mere payment of full purchase money--Erroneous grant of permission of sale---Government may recall such permission on principle of locus poenitentiae---Such recall or cancellation of permission is in accordance with law. [PLD 1967 Lahore 52] 4. GOVERNMENT FUNCTIONARIES BECOME FUNCTUS OFFICIO. Full price of land having been paid and sale deed executed and registered in favour of tenant---Government and its functionaries, of held, cannot retrace steps and reclaim [PLD 1978 Lahore 1146]. 5. WIDOW BECOMES ABSOLUTE OWNER Widow purchasing proprietary rights from Government before commencement of Colonization of Government lands (Punjab) (Amendment) Act, 1944, -- Becomes absolute owner – Deed of sale not necessary – Date of deposit and acceptance by Government of purchase money is the date of acquiring proprietary rights [PLD 1956 Lahore 94]. 6. PURCHASE PRICE CAN BE DEPOSITED WITHOUT GETTING PERMISSION OF COLLECTOR.

57

[CGL ACT, 1912]

Purchase money permissible to be deposited even without obtaining prior [Section 16] sanction of Collector and once full price paid and other conditions full filled proprietary rights automatically stand transferred subject to certain conditions set forth in conveyance deed and schedule-II of Act V of 1912--- Respondent having acquired proprietary rights after payment of entire price and ceased to be governed by provisions of Act V of 1912, held, fully competent to alienate his share to any one [PLD 1978 (Rev.) 15]. 7. SALE OF LAND PRE-EMPTABLE EVEN BEFORE ISSUANCE OF CONVEYANCE DEED.

Grantee of land under Islamabad Oustees Scheme who had paid the full price would acquire proprietary rights in the land and sale of such land by the grantee would be sale of agricultural land which was pre-emptible. [1992 SCMR 1018] 8. EFFECT OF BREACH OF CONDITIONS. Grant can be cancelled if tenant has committed breach of conditions of tenancy or defaulted in the payment of installment. Section 15 very clearly envisages that a purchaser of the government land who has been placed in possession of the said land shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled. [1991 SCMR 2415] Before executing a sale deed and conferring proprietary rights, Collector to see that purchase money paid and conditions of sale fulfilled---Collector has no jurisdiction to intervene after conferment of proprietary rights even though there has been breach of some condition of sale deed. [PLD 1983 Lahore 294] Appellant though paying up full amount of purchase money yet not fulfilling basic condition of being a hereditary lambardar---Appellant, held, rightly found to be deemed a tenant of land and not qualified to acquire proprietary rights of same. [1975 SCMR 440] Once the conditions of a tenancy obtained by sale or otherwise have been complied with and full proprietary rights acquired by the execution and registration of a deed of conveyance, the purchaser ceases to be a tenant and becomes an owner. Therefore, section 15 of the Colonization of Government Lands Act cannot be applied against him. If the Revenue officer wishes to take any action against him or cancellation of the sale, he will have to go to Civil Court and cannot do so by resorting to the Colonization of Government Lands Act [PLD 1959 W.P. Revenue 167].

16. False information by a tenant. If any person who after the commencement of this Act has been put in possession of land in a colony as a tenant shall have given false information 58

[CGL ACT, 1912]

intending or having reason to believe that any 25[servant of the State] may be thereby deceived regarding his qualifications to become a tenant, he shall be deemed to have committed a breach of the conditions of his tenancy. Proviso deleted vide Punjab Ordinance XII of 1978. COMMENTS
Plaintiff was transferee of suit land from its original allottee, but Board of Revenue cancelled allotment of original allottee without notice to the plaintiff who was subsequent vendee---Suit filed by plaintiff was concurrently decreed by Courts below including the High Court [2008 SCMR 749].

[Sections 16 & 17]

Auction of lease of State land---Petitioner had claimed that he participated in the auction and despite offering highest bid, same had not been approved and Authority had ordered reduction of the land---Petitioner had failed to place on record comparative statement to show that he was the highest bidder--Authority had rightly refused to give approval of bid offered by petitioner in view of the complaint of residents of locality that no publicity was given in respect of auction of the land---Mere participation in auction proceedings by petitioner would not create vested right in him to obtain lease subjected to auction--- No legal ground, thus, was available to interfere by Board of Revenue with concurrent findings of Courts below [2000 YLR 2964]. Order of Colony Authorities based on finding that petitioners had obtained a temporary lease of disputed land for three years but later on got their names entered by fraudulent means as allottees under Ejected Tenants Scheme---Not open to interference in writ jurisdiction. [NLR 1982 Revenue 57] Leave to appeal granted to consider whether omission of the proviso in 1978 could affect the order of cancellation which had been passed 11 years earlier and whether after the respondents had been found guilty of fraud and misrepresentation, could they be permitted to seek the equitable relief of declaration under S.42 of Specific Relief Act from a Civil Court [1989 SCMR 1528]

17. Exchange. Subject to any orders that he may receive from the 26[Executive District Officer (Revenue)], the Collector may allow any tenant to exchange the whole or any part of his tenancy for other land in the colony, had the land so taken in exchange shall, in the absence of any special condition to the contrary recorded in writing by the Collector, be deemed to be
25 26

Substituted for the words “Officers of the Crown”, by West Pakistan Laws (Adaptation) Order 1964 Substituted for the words “Commissioner” by the CGL (Punjab Amendment) Ord. No.XXXII of 2001.

59

[CGL ACT, 1912]

held on the same conditions and subject to the same [Section 17] obligations as the surrendered land was held. COMMENTS
Grievance of appellant was that while his application for proprietary rights was still pending before Revenue authorities, the land in dispute stood transferred to respondent by Provincial Government---Validity---Disputed land stood transferred in the name of respondent by way of exchange allowed by Provincial Government, therefore, Revenue authorities could not sit over the order of government and decide the fate of land by extending lease of appellant with retrospective effect after a lapse of 17/18 years even if the appellant was lessee of land or happened to be in possession of some portion thereof [2007 SCMR 905]. Leave to appeal was granted by Supreme Court to consider whether after conferment of proprietary rights to respondent, no exchange could be permitted by Revenue authorities and that land in dispute could not be treated to be available till final decision was made in judicial remedies available to petitioner that he as allottee/ Patadar of such land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights [2007 SCMR 905]. Order of exchange was passed by Commissioner in casual and cursory manner without diligent application of mind by ignoring the fact that state land could not have been exchanged with private land proprietary rights whereof were obtained by appellants about thirteen years back and mutations were also attested in their favour and duly registered in Register Haqdaran Zamin---Closed and past transactions could not have been reopened by the Commissioner having no locus standi whatsoever which amounted to misuse and abuse of authority never conferred upon him---Commissioner had ignored that only state land could be exchanged for state land and therefore, order passed by him was in violation of S. 17 of Colonization of Government Lands (Punjab) Act, 1912--Supreme Court directed the authorities to hand over the possession of land originally allocated to appellants and appellants were directed to vacate the possession of state land [2007 SCMR 1525]. Applied for exchange of proprietary rights to Board of Revenue---Request was considered under policy and rules---Assailed---Exchanged after proprietary rights---Held---Collector was empowered to allow exchange in the same colony land purchased at auction cannot be exchanged without express order of the government which would be sought in exceptional cases---No application for exchange can be entertained once proprietary rights have been acquired in a grant [PLJ 2007 Lahore 724]. Exchange of land allotted to respondent at other place with that of disputed land regarding which petitioner’s case for grant of proprietary rights was pending before Revenue Authorities---Validity---Contention of petitioner was that after conferment of pr and execution of sale deed by Revenue Authorities in

60

[CGL ACT, 1912]

favour of respondent in respect of land allotted to him at other place, such land become privately owned land, which could not be allowed by [Section 17] Revenue Authorities to be exchanged with disputed land as same could not be treated as available land till final decision in judicial remedies available to petitioner respecting his claim that he as allottee/ Patadar of disputed land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights--Supreme Court granted leave to appeal to consider, inter alia, such contentions [2006 SCMR 890]. Petitioners intended to exchange their proprietary land in one district with state land situated in other district but the authorities did not allow the exchange---Petitioners were proprietors of land and not tenants, thus S. 17 of Colonization of Government Lands (Punjab) Act, 1912, was not attracted to their case, as they had ceased to be tenant of land---Collector was empowered to allow exchange in the same colony only but the petitioners had applied for exchange of their land from one colony to another colony and only Government enjoyed such power---Request of petitioners was declined by Board of Revenue having the authority of Government---Land purchased at auction of otherwise could not be exchanged under paragraph No.364 of Colonies Instructions provided in Colony Manual, without express order of Government, which should only be sought in exceptional cases---No application for exchange could be entertained once proprietary rights were acquired in a grant [2006 CLC 543]. Respondent who was allotted land, exchanged said land with equivalent area of state land with appellants through registered exchange deed and appellants were delivered possession of such land—Board of Revenue cancelled the exchange deed without any notice or intimation to appellants.—Orders passed by Board of Revenue and those of High Court maintaining cancellation of allotment of land without either impleading appellants as a party or hearing them, could not be upheld. [1999 SCMR 2774] Certain area of land out of area purchased by vendee through auction, having been found to be under Abadi, graveyard, school and mosque, Board of Revenue granted other State land situated in same village to vendee as alternate land in lieu of area found in Abadi, graveyard, etc: --Later on certain portion of land so granted to vendee was leased out to petitioner-Committee for purpose of establishment of a Feeder-Market, but when vendee agitated matter of lease of his land, Board of Revenue cancelled that lease holding on the ground that land in dispute had already been granted to vendee/respondent ---Order cancelling lease was challenged on ground that case being of exchange of land, only Collector was competent to sanction same and Board of Revenue which had granted land in favour of vendee had no jurisdiction to do so---Land in dispute which was granted to vendee as alternate land in lieu of his equivalent area which was found under Abadi and graveyard etc. could not be said to have been given to vendee in exchange as contended by petitioner-Committee---Order granting land in dispute to vendee in lieu of land purchased by him in auction, not shown to be suffering from any legal infirmity, could not be interfered with in

61

[CGL ACT, 1912]

Constitutional jurisdiction of High Court especially when that order was just and [Section 18] fair in facts and circumstances of case [1993 CLC 2327] Allotment of land. Cancellation of. Land originally leased out to lessee under 15-years’ Lease Scheme by drawing lots, being unfit for cultivation due to Sem and Thur, was finally exchanged with land in dispute. Lessee, after such exchange, applied for conferment of proprietary rights in respect of land so exchanged in his favour. Application of lessee was finally dismissed in revision by Board of Revenue holding that land in dispute being Charagah, initial allotment in favour of lessee, was irregular. Order of Board of Revenue was upheld by High Court. Order of Board of Revenue having proceeded on a misunderstanding of allotment in favour of lessee that it was irregular which was not the case the appeal was accepted and case remanded for fresh decision in accordance with law. [1993 SCMR 1358] Where Revenue Officer was specially empowered under S. 17, Colonization of Government Lands (Punjab) Act, 1912, to allow exchanges of land, his order to allow exchange of specific land, could not be treated as illegal. [1992 SCMR 993] Member, Board of Revenue, in his discretion may provide him with alternate land. [1992 SCMR 1163]. Land, vesting in Government viz “Baqia Sarkar” un-allotted land was allowed to be exchanged with “Charagah Land” which had earlier been leased out to tenant and proprietary rights of such exchanged “Baqia Sarkar” land were allowed to tenant by Board of Revenue in revision [PLD 1987 Revenue 42]. Stranger to exchange transaction-Such exchange, held, could not affect rights of stranger to exchange transaction [1985 MLD 1574].

18. Rights of tenant not to be attached or sold. None of the rights or interests vested in a tenant from Government of land to which this Act applies shall be attached or sold in execution of a decree or order of any court or in any insolvency proceedings. COMMENTS
Departmental authorities functioning under the Act having passed the order of recovery of Tawan, no court or insolvency proceedings would be involved in the matter and in its terms S. 18 would not be applicable [PLD 1990 Supreme Court 736] S.18—Applicability—Not applicable to lands allotted to co-operative farming societies as members thereof are not given any tenancy rights directly by Collector. [1984 Law Notes (Lahore) 1123]

62

[CGL ACT, 1912]

Sanction to alienate under S. 19 not obtained from competent authority--Decree of Civil Court, held, could not be executed in view of provisions of S. 19 [Section 19] read with Ss. 18 & 36. [PLD 1983 Rev. 53] Properties exempted from attachment or sale under Act---Held, cannot be allowed to be treated properties and proceeded against by Courts or authorities for benefit of creditors or decree holders. [PLD 1978 Lahore 429]

19. Transfers of rights to be void. Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the 27[Executive District Officer (Revenue)], or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of the tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the orders of the Collector. Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated. COMMENTS SYNOPSIS
1. 3. 5. 7.
27

Transfer of tenancy rights- 2. Permission thereof. Person in possession without 4. permission. Occupancy Tenants. Sale of the proprietary 6.

Agreement to sell-Validity. Specific performance. Permission under section 19 valid for six months. Permission by Collector-Not

grant of 8. rights-Not

Substituted for the words “Commissioner” by the CGL (Punjab Amendment) Ord. No.XXXII of 2001.

63

[CGL ACT, 1912]

prohibited. 9. 11. 1. Oral agreement of sale. Transaction under 19-Pre-emptible. section 10.

appealable before Commissioner. Sub-leasing.

[Section 19]

TRANSFER OF TENANCY RIGHTS-PROVISION THEREOF

Respondent before obtaining permission u/s 19 of Act, 1912 made discreet inquiry about the title of petitioner by inspecting the revenue record but proceedings conducted by colony authorities—Ownership of property in dispute was still within provincial government and such remained so till when petitioner obtained sale deed from Provincial Government—Held, Mere inspection of revenue record showing, respondent as original tenant of the state land, therefore, only inspection of revenue record was not sufficient to hold respondent as bona fide purchaser [PLJ 2008 Lah. 173]. Land in dispute was in the ownership of Provincial Government and deceased father of defendants could not sell the same without permission of the authorities under S.19 of Colonization of Government Lands (Punjab) Act, 1912--- Lower Appellate Court granted decree of the land which was owned by Provincial Government and no contract was entered into by plaintiffs and the government [2008 CLC 795]. Plaintiff could not seek enforceability of agreement earlier to period when defendant was not authorized by Collector to transfer suit-land---Plaintiff had never abandoned cause of enforceability of agreement, which was totally different and had no nexus with dispute raised in earlier suit for injunction--Both suits had emanated from different causes and had nothing in common--Subsequent relief of specific performance was independent of earlier relief of injunction---Bar of O.II, R.2, C.P.C. was not applicable to subsequent suit for specific performance of agreement [2008 YLR 2277]. Land normally was granted under the Government Land Policy including the Colonization of Government Lands (Punjab) Act, 1912, for a specific purpose, like Poultry or on Wahi Chahi basis; and for a limited period extending from 10 years to 30 years etc., and that too on nominal charges---No ownership right was created in favour of the grantee in the granted land and grantee had no right to transfer the same to any person or to mortgage with any Authority or Bank etc.--Even the leasehold right could not be transferred to anybody---If a grantee would fail to comply with the conditions of grant, then he should return the land and on his failure the government should itself invoke agreed conditions and cause reversion of said land and thereafter could grant same to new applicant, but transfer inter-se between the individuals etc. should not be permitted otherwise the gist and very purpose of scheme of grant would fail [2008 YLR 2651]. Cooperative Society was duty bound to ensure that property had devolved upon the legal heirs but Cooperative Society did not fulfill its obligations and violated law and procedure---Joint possession of plaintiffs and defendant

64

[CGL ACT, 1912]

was established on record and further section 19 of Colonization of Government Lands (Punjab) Act, 1912 also confirmed this position---Legal heirs could not be [Section 19] non-suited on question of limitation [2007 CLC 31]. Transfer of tenancy rights---Essentials---Transfer of tenancy rights under S.19 of Act of 1912 is different from sale after obtaining full proprietary rights in a tenancy---Rejection of petition for transfer of rights on the ground that same was intended to defeat realization of Government dues on transfer, needs reconsideration in that, Government dues on transfer at the time of conveyance deed would have to be paid by purchaser however, requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through registered deed, would defeat object for which S. 19 was provided in Act of 1912---Tenant can seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary rights, without even payment of any cost of land or at any stage thereafter, as be wines to acquire right and vested interest in tenancy at the time [PLJ 2003 Revenue 10]. Dominant discretion of Government to select person as transferee of colony land is so important that even original allottee cannot transfer or sell such land to third person unless permitted by Collector in terms of S. 19 of Act V of 1912---Right to acquire or purchase property in colony area is right specifically permitted by Government and such right cannot be substituted by ignoring provisions of S. 19 of Act V of 1912. Thus, so long as any property in colony area was owned by Government and not by a private party, any transaction done under S. 19 of Act V of 1912, would not be pre-emptible. Besides, owing to nonwithdrawal by Government of Punjab of Notification No.74, dated 12.06.1944, issued by the then Government of Bahawalpur, land in colony area falling within the ambit of Act V of 1912 remains non-pre-emptible. [PLJ 2003 SC 649] Title of property cannot be conferred to a third person by allottee of Government land without obtaining proprietary rights due to prohibition contained in S. 19. Sale through registered or unregistered sale deed would not be validated till the acquisition of proprietary rights by vendor allottee---Concurrent finding of fact that sale transaction was not hit by S. 19 even if erroneous would not attract interference by Supreme Court when it does not suffer from any legal defect. [NLR 2002 Revenue SC 169] Sale and transfer of State land before acquisition of proprietary rights by allottee/ vendor. Validity. Such sale would not take effect and its operation would remain suspended till the acquisition of proprietary rights by vendor. Such transfer would become operative on acquisition of proprietary rights by vendor. Protection provided under of Transfer of Property Act, 1882, would be available to title of such transferee under the sale, who would become owner of land from date of acquiring title by vendor/ transferor. [2002 SCMR 1821] Tenants holding land under Temporary Lease Scheme not containing provision for conferment of proprietary rights or tenant holding a scheduled tenancy or a lease holder of State land for a poultry farm, fish farm, nursery etc. would not fall within the ambit of S.19 of the Act as no vested interest or right

65

[CGL ACT, 1912]

could be said to have created in such tenants/lease holders warranting transfer of tenancy rights onward to another person---Cases of cultivating State land [Section 19] leased out for specific purpose to a Department of Federal or Provincial Government or a Company were not covered as tenants of State land---Cases of tenants under Scheme containing an inbuilt concept of conferment of proprietary rights to the extent provided in the Scheme could be covered subject to continuance of tenancies as per terms and conditions governing them [2002 YLR 2414]. S. 19. Bar on transfer of tenancies contained in Punjab Governments letter (dated 30.10.1974) would be ultra vires and have no force being in violation of S.19 [NLR 1992 SCJ 433]. Tenant who had not paid up all the installments towards purchase price of land could not sell the said land or empower any other person to sell the same without obtaining consent in writing from the Revenue Officer as contemplated under S. 19 of the Act [1991 SCMR 2415]. Petitioner was allotted land under the Well Sinking Scheme---Transfer of such land by the allottee was prohibited under Condition 20 of the grant as well as S. 19 of the Act without prior permission of the Development Authority--Petitioner sold the land to respondent, through an agreement, received consideration and delivered possession to her, but challenged the transaction being in violation of Condition 20. Ss. 19, 21. S. 19 of the Act, Held, petitioner was not in a position to avail of the provisions of Condition 20, in circumstances, which could have only been availed of by the grantee of the land i.e. Development Authority [1989 SCMR 135] Succession would be determined in accordance with Muslim “Personal Law---Nominee of tenant could not inherit such rights to the exclusion of heirs of deceased. [1989 CLC 110] Sanction to alienate under section 19 not obtained from competent authority---Decree of Civil Court, held, could not be executed in view of provisions of S. 19 read with Ss. 18 & 36. [PLD 1983 Rev. 53] Transfer made in violation of prohibitory instructions contained in memo: dated 20.03.1972---Void not only as against Commissioner but also as between parties to transaction---Rights of tenancy acquired on basis of such transfer---Not enforceable. [1978 RLR 44] Allottees accepting a big sum as consideration and passing over possession of lot to petitioner’s attorney—Alienation and transfer, held, completed—Fact that alienation could not be incorporated in revenue records due to absence of Government’s permission—of no consequence—Allotment in circumstances cancelled and transfer of lot, in view of financial loss and mental agony suffered by him, sanctioned in favour of petitioner. [PLD 1975 Rev. 62] Section 19—Permission to sale necessary while grantee is still a tenant although sale deed was executed and entire price paid – permission may be given ex-post facto [PLD 1959 W. P (Rev) 99].

66

[CGL ACT, 1912]

Tenant cannot transfer land without consent of Commissioner---Transfer [Section 19] without sanction is void. [PLD 1958 (W.P.) Lahore 340] Tenant cannot transfer land without consent of Commissioner---Transfer without sanction is void---Civil Court has no jurisdiction to quest consent of Collector. [PLD 1958 (W.P.) Lahore 340] Validity of sanction not attacked in plaint---Nevertheless objection as to validity, being question of law, cannot be ignored---Sanction must be prior--Subsequent sanction would not validate transfer from date on which it was effected. [PLD 1954 Lahore 253] 2. AGREEMENT TO SELL-VALIDITY Agreement to sell corpus of land is permissible but tenancy rights cannot be sold without sanction of the government, likewise a sale deed cannot be executed---Where the parties had executed an agreement to sell wherein a sum of Rs.14,900/- was paid and balance of Rs.100/- was kept in abeyance and was required to be paid on the grant of proprietary rights, such document was not a sale deed, therefore, the rigours and embargo of S. 19, Colonization of Government Lands (Punjab) Act, 1912 would not be applicable to the transaction [2006 CLC 1253]. Agreement which was merely executory in nature and did not amount to a conveyance was not violative of section 19 of the Act---Contention that object of agreement was unlawful under S.23 of Contract Act, 1872 because the same would defeat provisions of S.19 of Colonization of Government Lands (Punjab) Act, 1912 was repelled having no force [2006 YLR 896]. Plaintiffs and defendant being brothers jointly purchased state land in defendant’s name---Defendant through agreement acknowledged half share of plaintiff and delivered him his share of land---Plaintiff filed suit when later on dispute arose between two brothers---Defendant could not back out from agreement by pleading that same was violative of S. 19 of the said Act---Equities were in favour of plaintiff, who had successfully substantiated execution of agreement by defendant [2004 SCMR 1059]. Permission from the Collector for agreement to sell under S.19, Colonization of Government Lands (Punjab) Act, 1912 is not mandatory [2003 CLC 1404]. Execution of agreement to sell prior to obtaining proprietary rights--Scope---Specific performance of agreement to sell was postponed to a date when the grantees would acquire the proprietary rights---Such agreement to sell was not violative of either the express provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912, or of the public policy behind such statutory provisions [2003 CLC 1670]. Sale and transfer of ownership rights of Colony Land without prior sanction in terms of S. 19 either through registered or unregistered sale deed would not be a sale. It would only be a contract of sale which would not be hit by

67

[CGL ACT, 1912]

provisions of S. 19 and would be enforceable in law as sale after acquisition 19] [Section of proprietary rights by vendee/ allottee. [NLR 2002 Revenue SC 169, NLR 2002 Revenue SC 169, 1994 SCMR 470, LN 1986 SC 41, 2002 SCMR 1821, 1989 SCMR 604, PLD 1966 SC 612] Grantee did not sell rights and interest in the property while executing agreement to sell but only promised to alienate the same in favour of plaintiff on acquiring the proprietary rights---Such agreement did not itself create any charge on suit property, rather a right to sue accrued---Such an agreement was not hit by provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912. [1999 YLR 958] Where Provincial Government was the owner of such land, any agreement with regard to such land, executed by the person in possession/ grantee was not a void agreement. [1999 YLR 2410] Agreement to sell corpus of land after getting proprietary rights--Permission under S. 19, Colonization of Government Lands (Punjab) Act, 1912 when required---Agreement to sell would not create any right or title on property---Such agreement would be effective after proprietary rights had been acquired---Provision of S. 19, Colonization of Government Lands (Punjab) Act, 1912, would bar transfer of tenancy rights through sale, exchange, gift, will, mortgage or other private contract---Agreement to sell corpus of property to become effective after obtaining proprietary rights, there was no necessity of getting permission under S. 19, Colonization of Government Lands (Punjab) Act, 1912. [1997 CLC 1735] Agreeing to sell corpus could not amount to sale deed but could be termed as agreement to sell in spite of the fact that transfer or had received full amount and had delivered possession thereof---Transfer in question was thus not in violation of S.19, Colonization of Government Lands (Punjab) Act, 1912---Land in question, being situated in colony area, transferor had agreed to sell the corpus of land in question and not his tenancy rights. Document in question, agreeing to sell corpus could not amount to sale deed but could be termed as agreement to sell in spite of the fact that transferor had received full amount and had delivered possession thereof---Transfer in question was thus, not in violation of S. 19 [1994 SCMR 470]. No evidence on record was available to show that non-Muslims/ allottees of land had not paid the price of the land to Province of Punjab before migration to India---Persons permanently settled on such land by Settlement Authorities as full owners were competent to execute the agreement to sell such land without seeking permission from the Collector under S. 19 of the Act---Agreement to sell the colony land is not violative of S. 19 of the Act as such agreement does not create any vested right of executants in the property. [1994 MLD 1630, NLR 1993 Revenue 4, 1981 SCMR 993, 1989 SCMR 604]. It has authoritatively been settled by Supreme Court that want of sanction under section 19 of Act prior to execution of an agreement of sale, is not fatal

68

[CGL ACT, 1912]

and a decree for specific performance of such a contract can be granted--[Section 19] Petition dismissed. [PLJ 1993 Lahore 139] Allottee or a purchaser of state land attains status of a tenant only after he has been placed in possession of land by order or with permission of Collector. Agreement which does not indicate that purchaser had been put in possession of state land, much less with permission or by an order of Collector, would not be hit by S. 19. [NLR 1992 Revenue 14] Government of Punjab letter No.6932-74/ 5217-CI, dated 20.10.1974--Bar to transfer of tenancies contained in the Punjab Government’s letter dated 30.10.1974 being in violation of S. 19 of the Colonization of Government Lands (Punjab) Act, 1912 would be ultra vires the Act and have no force. [1992 SCMR 1018] Bar of S. 19 would succeed only if it is shown that intention of agreement was to defeat law. It would not apply to agreement stipulating that proprietary rights in land would be conveyed after they are obtained from government. [NLR 1992 AC 19] Plaintiff’s suit for declaration on basis of agreement to sell dismissed by Trial Court as also his appeal---High Court, in revision, however, decreed plaintiff’s suit---Point of real contest which was before High Court and had again been raised in petition for leave to appeal, was that proprietary rights having not been obtained at time of agreement in plaintiff’s favour said agreement could not be made a basis for civil action either against the vendors or against the defendants, because no sanction was obtained under S. 19, Colonization of Government Lands (Punjab) Act, 1912, before the execution of agreement in favour of plaintiff---High Court’s finding being unexceptionable leave to appeal was refused. [1991 SCMR 1785] Section 19 imposes restrictions on transfer of rights or interests of tenant without consent in writing of the Commissioner or such officer as may be empowered by him in this behalf, by way of sale, exchange, gift, will, mortgage or any other private contract excepting a sub-lease for not more than one year in case of tenant who has not acquired a right of occupancy. Section 19 further envisages in very unequivocal terms that such transfer or charge made without such consent in writing shall be void and if the transferee has obtained possession he shall be ejected under the orders of the Collector. This section is concerned with two questions which are firstly, that a tenant cannot alienate without consent of the Commissioner and secondly, that such alienation is void. This restriction is to remain operative during the subsistence of tenancy rights and shall come to an end as soon as proprietary rights are acquired because after acquisition of proprietary rights, statement of conditions would not govern the rights of the person who has become the proprietor. A transfer which is prohibited by section 19 is void as between the parties to the transaction. An agreement reached before any interest is acquired in the Government land is

69

[CGL ACT, 1912]

outside the scope of the Act. There is no bar to a person agreeing to transfer or [Section 19] acquire jointly proprietary rights [1991 SCMR 2415]. An agreement made between parties to share land before it was, auction, not hit by provisions of this section as the purchaser in auction had not become a tenant within the meaning of S. 10 (4) & S. 15 of the Act. [1991 Law Notes (Lahore) (1116)] Mere agreement to transfer one’s rights in land, held, was not hit by provisions of S. 19 of Act v of 1912, -- Transfer deed, i.e. transfer of rights in praesenti in land however, would be hit by provisions of S. 19 of the Act [1988 PLD Lahore 390]. Where requirements of S. 19 Act, 1912 were adequately met by order of collector, it was not necessary for courts to go behind sanction order to find out whether instructions issued by Authorities on subject had been followed--Transfer made without such consent in writing would be void – where requisite sanction was obtained after execution of agreement of sale, prohibition contained in s. 19 of Act V of 1912 would not affect such agreement [1986 MLD 1936]. Agreement to sell land by a grantee of land who had yet to acquire proprietary rights under the Act, not violative of the provisions of this section and as such enforceable through suit for specific performance. [1985 Law Notes (SC) (41)] S. 19 expressly prohibited transfer of rights by tenant without consent from officer empowered---Will executed in respect of tenancy land, in violation of S. 19, held, was void even as between parties to the deed. [1984 CLC 2141] Agreement to sell anticipated grant of land – Grantees of Government lands executing an agreement to sell land – sale deed to be executed after granteesvendors acquired proprietary rights in land and not before---Document in question, held, did not in terms violate express words of S. 19 of Act v of 1912. [p. 997]4 [1981 SCMR 993]. Cancellation of allotment of land on request of allottee---Order of High Court that such cancellation could not be challenged by prospective transferee of land in dispute on basis of agreement of sale entered into with allottee---Held, cannot be taken exception to. [1981 SCMR 998] Agreement that sale shall be made after original allottee had been transferred proprietary rights---Not hit by S.19. [NLR 1981 Revenue 64] Grantee of land on Bara conditions---Agreement by, for transfer of his rights in land---Falls within mischief of S. 19---Such agreement without written consent of Commissioner, Collector or any officer to transfer agreement---Void--Agreement in contravention of S. 19---Cannot be recognized by Colony Authorities, on whose records grantee continues to be grantee of disputed land despite transfer of his rights in favour of transferee---Grantee, and not transferee, entitled to obtain proprietary rights on fulfillment of conditions of grant---Plea as to enforceability of agreement between grantee and transferee after severance of

70

[CGL ACT, 1912]

unenforceable clause of agreement, held in circumstances of [Sectionnot case, 19] sustainable---Entire agreement bad being in violation of S. 19---Stipulation qua transfer of proprietary rights after acquisition---Cannot be separately enforced. [1978 RLR 57] State land---Transfer without Collector’s permission---Deed merely reciting already existing jointness in expenses and usufruct and promising handing over possession of land if promise disagreed to existing joint possession---Not creative of any right in land, hence, not affecting any transfer. Agreement deed being, acknowledgment of oral agreement to acquire right, held, perfectly valid plaintiff became co-sharer in land on acquisition of proprietary rights and agreement not hit by S. 19. [PLD 1976 Lahore 923] Section 19 of the Colonization of Government Lands Act does not prohibit any every kind of agreement but only agreement which purport of transfer or to charge the rights and interest vested in a tenant holding land under the said Act [PLD 1966 Supreme Court 612]. 3. PERSON IN POSSESSION WITHOUT PERMISSION Transfer of tenancy rights by way of gift claimed by brother of deceased tenant—Validity—Period of tenancy had already expired—Deceased tenant had neither paid 1/4th lease money in time nor cultivated land—Deceased tenant had other brothers and sisters, who had not come forward with such claim— Deceased tenant without written permission of competent authority could not transfer any right or interest in State land—Such transferee not being a lessee or tenant could not take benefit of S.24 of CGL Act, 1912—Claim of transferee, held was, not maintainable. [2008 SCMR 291] Person in possession of land in violation of S. 19, could be ejected from land by Collector but such ejectment should be for benefit of Government and not for benefit of person who might have himself committed breach of said provisions. [PLD 1984 Karachi 413] Agreement to sell by lessee of state land---Does not confer any possessory or proprietary rights upon purchaser of land from lessee---Any such stipulation without consent in writing by Collector is void and cannot be acted upon---Possession taken by purchaser under agreement to sell by lessee of state land---Cannot be protected by Civil Courts by grant of declaratory relief--Dismissal of purchaser’s suit for declaration of ownership and for perpetual injunction restraining respondent from interference with their possession--Unexceptionable. [NLR 1982 Revenue 47] Unless there be a possibility of creation of relationship of landlord and tenant between the Government and the persons said to be holding adversely to the tenant. This view is confirmed by the legal provision that transfer of possession in contravention of provisions of section 19 is void and a person in unauthorised possession can be evicted by use of force under section 32 [PLD 1978 Lahore 1228].

71

[CGL ACT, 1912]

Transfer of possession in contravention of S. 19 is void and unauthorised [Section 19] possessor can be evicted under S. 32. [PLJ 1978 Lahore 475] 4. SPECIFIC PERFORMANCE. Execution of agreement to sell was not denied by defendants but suit was dismissed by Trial Court on the ground that it was violative of provisions of paragraph 24 of Land Reforms Regulations, 1972 (M.L.R. 115) and S.19 of Colonization of Government Lands (Punjab) Act, 1912---Lower Appellate Court allowed appeal against judgment and decree passed by Trial Court, resultantly the suit was decreed in favour of plaintiff---Judgment and decree passed by Lower Appellate Court was maintained by High Court ---Appeal was dismissed [2007 SCMR 1332] Plaintiffs alleged that before grant of proprietary rights to defendant, he entered into agreement to sell the suit-land to them but after grant of the same, he sold suit-land to another person---Suit filed by plaintiffs was decreed only to the extent of alternate relief---Judgment and decree passed by Trial Court were maintained by Lower Appellate Court as well by High Court [2007 SCMR 1047]. Suit for specific performance of agreement to sell land---Such suit, after the acquisition of proprietary rights was not only competent but the same could legally be decreed on the proof of agreement to sell [2007 CLC 1309] Defendants did not deny execution of agreement to sell in favour of plaintiff but asserted that, being in violation of S.19 of Colonization of' Government Land (Punjab) Act, 1912, the agreement to sell was void---Trial Court decreed the suit on ground that defendants/vendees were not bona fide purchasers without notice---Appeal filed thereagainst was also dismissed by lower Appellate Court---Validity---Plaintiff's agreement to sell with defendant/allottee and receipt of sale consideration by the latter were proved and established on record---Agreement simpliciter along with payment of consideration and delivery of' possession was not to attract mischief of S.19 of Colonization of Government Lands (Punjab) Act, 1912--Appeals, filed by defendants were dismissed [2006 MLD 1858] Relief by way of specific performance was discretionary and it was not incumbent upon Courts below to grant such relief even where it was lawful to do so but impugned judgment showed that such relief was only declined on ground that the agreement was violative of S.19 of Colonization of Government Lands (Punjab Act, 1912---Trial Court did not deliberate on its discretion to refuse specific performance, therefore, its finding was reversed by High Court and appellant was held to be entitled to a decree for specific performance of agreement [2006 YLR 896]. Proprietary rights in respect of suit land having not yet been transferred in favour of defendants, a decree for specific performance could not have been passed in favour of plaintiffs---Specific performance of agreement as per terms of said agreements, would need to await till conferment of proprietary rights on defendants, especially when parties themselves being cognizant of that

72

[CGL ACT, 1912]

limitation, had agreed that enforcement of agreements would be postponed till [Section 19] conferment of proprietary rights on defendants [2006 CLC 689]. Suit for specific performance of agreement filed by vendee against allottee/ vendor who had acquired ownership rights in respect of land in dispute, was not hit by section 19 colonization of Government Lands (Punjab) Act, 1912 and court was not debarred to decree suit in favour of vendee – Agreement of sale did not fix date or period for finalization of sale in dispute, instead it agreed to complete sale on conferment of proprietary rights in land on demand of promisee/vendee – In absence of any evidence to show that performance of agreement was demanded and refused at a point of time exceeding three years from date of suit, suit was no barred by time [1994 CLC 1576 and 1994 MLD 1671]. Predecessor of appellants had acquired proprietary rights of suit land on payment of necessary consideration, and at time of execution of agreement to sell and decree for specific performance, he was full fledged owner of suit properly and competent to sell same under law. [PLJ 1993 SC 150, 1993 SCMR 145, PLD 1986 Supreme Court 70, PLJ 1986 SC 154] Benefit of S. 19 could be granted notwithstanding the fact that it was an oral agreement---When the (alleged) agreement was entered into the proprietary rights had not been granted to the allottee/ grantee and these were subsequently granted to his successors---Bar in S. 19 being against the alienation and not against the agreement, agreement could be enforced through specific performance after the grant of proprietary rights. [1992 SCMR 1510] Disputes with regard to title between private parties are to be settled and adjudicated upon in the Civil Courts and raising such plea cannot stop Revenue Authorities from performing their functions under section 19 and 32 of the Act unless stay order is brought from the Civil Court. [1991 SCMR 2415] Rule that a purchaser without obtaining sanction U/S 19 cannot enforce contract---Does not dis-entitle purchaser to successfully defend suit filed against him by tenant/ alienor though state can attack transaction for want of permission---Held: Alenor/ tenant cannot rely upon his own illegal act in entering sale transaction without permission U/S 19 in view of principle of pari delicto. [NLR 1988 Revenue 36] Acceptance by allottee of a big sum as consideration with passing over of possession of lot to petitioner’s attorney—completes alienation and transfer— Fact that alienation could not be incorporated in revenue records for want of Government’s permission—Immaterial [PLJ 1975 Tr.C. (Rev.) 234]. 5. OCCUPANCY TENANTS. Pre-emption decree qua sale of occupancy rights in state land--Executable without permission of Commissioner. [NLR 1984 Revenue 107] Transfer of tenancy by occupancy tenant under Government---Transferee privately admitting a co-sharer in tenancy on the latter’s contributing a share of purchase money---Transfer to co-share, held, void. [PLD 1951 Lahore 177]

73

[CGL ACT, 1912] [Section 19]

6.

PERMISSION U/S 19 VALID FOR SIX MONTHS.

Collector passed order whereby the permission granted by him was set aside holding that said permission was only effective for a period of six months. Period of six months as contained in clause 64 para-iv of Colony Instruction was merely directory in nature and was primarily for the guidance of the officials and did not lay down a prescribed period of limitation as was understood under the law of limitation would not ipso facts nullity the permission. Collector who had acted as a delegate of the Commissioner, could not exercise any power of recalling or revoking the permission once granted by him, especially when he had no power to review his own order [2002 CLC 639]. 7. SALE OF THE PROHIBITED GRANT OF PROPRIETARY RIGHTS---NOT

Agreement in favour of plaintiff was made in year 1977---Vendor, after acquiring proprietary rights, sold land to defendant in year, 1979---Plaintiff thereafter filed suit in year 1979---Trial Court dismissed suit---Appellate Court decreed suit, which on revision was maintained by High Court by opining that suit was not time-barred for having been instituted subsequent to acquisition of proprietary rights on basis of which sale-deed was executed in favour of defendant; and that agreement to sell was not hit by mischief of S.19 of Colonization of Government Lands (Punjab) Act, 1912 [2006 SCMR 1541] Sale of state land after acquisition of proprietary rights was not prohibited either in terms of Thal Development Authority Act, 1948 or in terms of S. 19, Colonization of Government land (Punjab), 1912 [PLD 1994 Lahore 108] . Price of land having been deposited in 1958 and such fact having been proved by unrebutted evidence, respondent had become absolute owner of land the moment he paid the requisite price and his title was not postponed to the acquisition of conveyance deed---Agreement to sell having been executed by respondent after he deposited amount for acquisition of proprietary rights, such agreement did not require consent of Collector under S. 19 of Act V of 1912, which was applicable only when title vested in government and occupant of such land wanted to make transfer of tenancy rights. [1991 CLC 2005] Prior permission for sale. Not necessary in a case where the seller had become full owner of the land before entering with agreement of sale and the purchaser was not asking in the suit to be substituted as their tenant. [LN 1988 SC 532 and 1988 SCMR 590] Property although granted by Government yet remaining vested in it – Agreement to sell or any sale in respect of such property, held void and ineffective---Land once vested in grantee after compliance with conditions of grant even through sale- deed not executed bar of S. 19, held, removed and

74

[CGL ACT, 1912]

agreement to sell executed during period when property vested in Government becomes effective after vesting of property in grantee [1979 CLC 570].[Section 19] Respondent having acquired proprietary rights after payment of entire price and ceased to be governed by provisions of Act V of 1912, held, fully competent to alienate his share to any one.(P.16)C [PLD 1978 (Rev.) 15]. Bar contained in S. 19---Not applicable once tenant acquires proprietary rights. [1978 RLR 15] Payment of full price and fulfillment of other conditions—Confer, automatically, proprietary rights subject to conditions set forth in conveyance deed and Schedule II—Further transfer by allottee, after automatic transfer of proprietary rights, not barred notwithstanding Collector’s order to contrary [1978 RLR 22] Tenant acquiring proprietary rights---Bar contained in S. 19 held, not applicable. [PLD 1978 Baghdad-ul-Jadid 71] 8. PERMISSION BY COMMISSIONER. COLLECTOR-NOT APPEALABLE BEFORE

Collector passing order with holding or granting consent under S. 19 – Exercises not his own powers but a power exclusively belonging to Commissioner but delegated to him by Commissioner – Held, not subject to appeal or revision before Commissioner [PLD 1978 (Rev) 15]. Order of Collector withholding or granting his consent u/s 19---Passed as delegate of Commissioner (delegator)---Such order is not subject to appeal or revision before Commissioner---Order of Commissioner reversing Collector’s order u/s 19---Coram non-judice and of no legal effect [1978 RLR 22] 9. ORAL AGREEMENT OF SALE Transfer of proprietary rights. Oral agreement of sale by vendor (transferee) in favour of vendee was not hit by S. 19. Colonization of Government Lands (Punjab) Act, 1912. [PLD 2000 SC 792, PLD 1986 SC 70, 1986 PSC (Pak.) 99, PLD 1985 SC 154] Transfer of rights---Restrictions on---Oral agreement for transfer of land to respondent (No.1) after conferment of proprietary rights reached between predecessor-in-interest of appellants and respondent---Price of land also received in advance---Subsequently, appellants granted proprietary rights as legal heirs of deceased. Held: Oral agreement of sale (entered before conferment of proprietary rights) not to be hit by provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912. [PLJ 1986 SC 154] 10. SUB LEASING Sub-lease agreement by allottee allowing sub-lessees to continue to be in possession of allotted land for all times to come---Falls within purview of S. 19 which makes consent of Collector essential for validity of agreement---Recital in

75

[CGL ACT, 1912]

sub-lease agreement that possession was already with sub-tenants before execution of agreement would not dispense with permission of Collector 19-A] [Section U/S 19---Such sub-lease agreement without consent of Collector violates S. 19 and does not entitle sub-tenants to seek its specific performance by way of civil suit. [NLR 1989 Revenue 118] 11. TRANSACTION U/S 19—PRE-EMPTIBLE? So long as the property in colony area was owned by the Government and not by a private party, any transaction made under S. 19, Colonization of Government Lands (Punjab) Act, 1912 would not be pre-emptible. [PLD 2003 SC 588] Agreement to sell made by allottees under Abadkari Scheme—Part payment made and in consequence of agreement possession delivered to all purchasers---agreement between petitioners and allottees was hit by S. 19 [NLR 1981 Revenue 175] When a person claims that he is a tenant or an occupancy tenant of state land, what he really claims is that he is a grantee by the Government. It will not, therefore, be correct to say that a claim of tenancy can be made without bringing into light his relationship with the Government. The terms “tenant” and “landlord” are complementary and denote the dual interest in land. The law does not contemplate a tenancy sans landlord. The claim of occupancy tenancy of state land must, therefore, be a claim of occupancy tenancy of state land must, therefore, be a claim of holding the property under the Government—Agreement reached before any interest acquired---Is outside scope of Act---Government may object to cultivation or possession of person other than tenant---But no objection can be taken after acquisition of proprietary rights. [PLD 1951 Lahore 244] Executive District Officer refused to grant permission on the ground that such case had been initiated to evade Government Revenues leviable on conveyance deed/ mutation of transfer of proprietary rights/ registration fee etc.--Validity---No provision existed in the Act to exclude such case from purview of consideration under S. 19 of the Act [2002 YLR 2414].
28

[19-A. Succession of the tenancy. When after the coming into force of the Colonization of Government Lands (Punjab) Amendment Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 23 of this Act shall be applicable to his case.
28

Added by Punjab Act III of 1951

76

[CGL ACT, 1912]

Provided that when the tenancy rights are held by a [Section 19-A] female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat). Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death.] COMMENTS SYNOPSIS
1. 3. 5. 7. 1. Co-operative Farming Scheme Tenancy rights. Pedigree Livestock Breeding Scheme. Retrospective effect. 2. 4. 6. 8. Lease rights. Effect of Muslim Personal Law. Horse Breeding Scheme Occupancy rights.

COOPERATIVE FARMING SCHEME.

Allotment of state land as member of Cooperative Farming Society of the area had already been found by the authorities as eligible for grant of proprietary rights when he passed away---Allottee’s interest and rights in the said land stood devolved upon his legal heirs under Muslim Personal Law of inheritance notwithstanding anything contained in the bye-laws of the Cooperative Society--Nomination of a person by the late allottee would not, by itself, deprive his legal heirs to inherit the estate of deceased [2007 SCMR 1227].

77

[CGL ACT, 1912]

Cooperative Farming Scheme allotment under---Death of original member [Section 19-A] allottee---Claim of son of deceased allottee as independent allottee---Validity--Original Register containing resolution regarding permanent allotment in favour of deceased allottee showed interpolation---Record showed that suit land had never been allotted to son or any other child of the deceased---Rights, interest and liabilities of deceased member would devolve upon his legal heirs under S. 21 of Cooperative Farming Act, 1976, who would become member of the Society in place of deceased member---Suit land therefore, would devolve upon all legal heirs of the deceased allottee [2006 CLC 1141]. Allotment of land by Cooperative Society to deceased predecessor of plaintiff—Such land after death of deceased (allottee) was allotted to his nominee —allotment made in favour of nominee of deceased was void ab initio and could not stand test of judicial scrutiny. [1998 SCMR 388] Bye laws of a society, a practice, custom or usage, cannot override provisions of S.19-A that tenancy of a Muslim tenant shall devolve in accordance with Shariat. [NLR 1992 TD 343] Clause 8 of Cooperative Farming Society laying down holding of a member and his share and other interests in society to be only inherited by his eldest son and in absence of a male issue such share or interest to devolve on his nominee---Deceased having nominated his younger son as his nominee 5years before his death, such nomination never challenged, Collector declining such nominee eligible to obtain proprietary rights, and such order also never challenged, deceased having not obtained proprietary rights before his death, Section 19-A, held not applicable to case and proprietary rights rightly granted to respondents’ nominee. [PLD 1976 Rev. 72]. 2. LEASE RIGHTS Original lessee had died as lessee and not as grantee or tenant of land, thus, provision of S.19-A of Colonization of Government Lands (Punjab) Act, 1912 would not be attracted to case of petitioners [2004 CLC 108]. Father of parties dying in 1975 before obtaining proprietary rights of land in his possession purely on Guzara basis---Held: Question of inheritance by legal heirs not to arise at such stage---Held further: Lease rights to be competently transferred to those in cultivating possession. [PLJ 1985 Revenue 4]. Lease of State land for five years—Determines at death of lessee— Continuance of lease in favour of legal heirs of deceased lessee—Falls in absolute discretion of Government—Refusal to continue lease—Not justifiable before superior courts. [NLR 1979 Revenue SC 105] 3. TENANCY RIGHTS There was nothing on record to suggest that either Colonization of Government Lands (Punjab) Act, 1912, was not applicable to the suit land or the allotment of lands which was made before application of Colonization of Government Lands (Punjab) Act, 1912, to district Bahawalpur would not be

78

[CGL ACT, 1912]

governed by the same after it was extended to the district---Tenancy of the 19-A] [Section suit land on promulgation of Colonization of Government Lands (Punjab) Act, 1912, was to be governed by the same and original allottee being tenant of the land was entitled to proprietary rights by operation of law and had become allottee under Colonization of Government Lands (Punjab) Act, 1912---Suit property was devolved upon the legal heirs of the original allottee under West Pakistan Muslim Personal Laws (Shariat) Application Act, 1962 [2005 SCMR 268]. Land in dispute was allotted to predecessor-in-interest of parties under Ejected Tenants Scheme and proprietary rights in respect of land were also conferred on him---After death of original allottee/ predecessor-in-interest, only two of his legal heirs who allegedly were in cultivating possession of land in question applied for grant of proprietary rights to them---Tehsildar recommended transfer of tenancy under S. 19-A of Colonization of Government Lands (Punjab) Act, 1912 to all the legal heirs of the deceased original allottee---District Collector transferred the land to all the legal heirs of the deceased---Appeal filed by said applicants was accepted by Additional Commissioner---Validity---Additional Commissioner, in circumstances, had erred in setting aside order of District Collector---All legal heirs being equally entitled to inheritance of deceased allottee according to policy, order of Additional Commissioner transferring inheritance to only two legal heirs of deceased and depriving the other legal heirs, could not be upheld [2004 CLC 603]. Tenant having died before application for proprietary right or, even before declaration of eligibility for proprietary rights in respect of leased property, right of tenant was that of only a temporary tenant under' 15 Years' Lease Scheme--Said temporary lease/tenancy would devolve upon all legal heirs of deceased tenant [2002 CLC 1230]. Where the tenancy was not heritable the petitioners had neither any right to remain in possession of that land nor they could insist that the lease in favour of their predecessor be granted to them. [PLD 2000 Lahore 244] Government land. Allotment of Tenant dying before making full payment. Inheritance of. Section 15 of Act provides in express words that “A purchaser from Government, of land, who has been placed in possession of land by order of Collector, shall be deemed to be a tenant of such land until full amount of purchase money with any interest due thereon, has been paid and other conditions set forth in statement of conditions of sale issued by Collector, have been fulfilled”. Admittedly Nizam Din was tenant of Government land and price had yet to be paid by him. Held: Section 19-A of Act would not be available for determining heirs of Nizam Din and that mutation of inheritance was in accordance with law governing inheritance as provided in section 20 of Act. Appeal dismissed. [PLJ 1989 SC 397] 4. EFFECT OF MUSLIM PERSONAL LAW Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would not apply to such case—Suit for declaration filed by daughters

79

[CGL ACT, 1912]

after 47 years of such mutation was dismissed in circumstances [2008 SCMR [Section 19-A] 230]. Daughter claimed to have inherited her Sharai share in possessory rights held by propositus in suit land---Validity---Section 19-A of Colonization of Government Lands (Punjab) Act, 1912 and Punjab Muslim Personal Law (Shariat) Application Act, 1948 came into force much later than the death of propositus, which could not apply to past and closed transactions by giving retrospective effect---Section 20 of Colonization of Government Lands (Punjab) Act, 1912 was in force at the time of death of propositus, thus, succession of his tenancy would open as per terms mentioned therein---Petitioner being married at the time of death of propositus was not entitled to succeed him as per terms of S. 20 of the said Act [2007 CLC 1394]. Where deceased tenant had not made full payment and had not become absolute owner, then tenancy would be inherited by his male lineal descendant--Promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 being a general law on the subject would not have effect of derogating from terms of Colonization of Government Lands (Punjab) Act, 1912 under which grant was made and which was a special law---Where Muslim tenant died after coming into force of Colonization of Government Land (Punjab) Act, 1912, then nothing in S.20 thereof would apply---If Muslim tenant had died prior to year 1951, then his daughters could neither claim benefit of S.19-A of Colonization of Government Lands (Punjab) Act, 1912 nor could be benefited from retrospectivity of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 [2005 SCMR 658]. Limited estate held by widow was terminated and succession was required to take place in accordance with Shariat Law by virtue of S.19-A of Colonization of Government Lands (Punjab) Act, 1951, as the same was inserted in the year, 1951---It was under the provision S.19-A of Colonization of Government Lands (Punjab) Act, 1951, that the widow deposited the sale price on 8.4.1951 before her death---Both the Courts below had taken a correct view that with the deposit of sale price, proprietary rights stood conferred---After the death of widow, the succession would be deemed to have opened as if the original allottee had died and succession would take place in accordance with Muslim Personal Law [2005 SCMR 938]. Entitlement of female heirs to inherit tenancy--- Under provisions of S.19A, Colonization of Government Lands (Punjab) Act, 1912, female heirs were also entitled to inherit tenancies---Provisions of S.19-A, Colonization of Government Lands (Punjab) Act, 1912 were extended to District Rahimyar Khan wherein the land in question was situated through promulgation of Colonization of Government Lands (Punjab) West Pakistan Amendment Ordinance, 1963--Contention of respondents was that as predecessor-in-interest of parties had died in 1957, rights had vested in respondents prior to amending Ordinance and declaratory suit filed by petitioners was rightly dismissed by Courts below--Validity---Respondents had paid instalments of outstanding amount to the

80

[CGL ACT, 1912]

Government after death of predecessor in-interest of parties and had acquired proprietary rights therein after instalments had been paid---Impugned judgments and decrees of Courts below were unexceptionable [2005 YLR 1806]

[Section 19-A]

Law of Inheritance applicable in former State of Bahawalpur—In absence of evidence of any special custom governing right of inheritance, rule of Muhammadan Law was rightly applied by to the case and there was no ground to interfere with judgment of High Court. [NLR 1996 Revenue 1] West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2-A. Statutory tenancy under the Colonization of Government Lands (Punjab) Act, 1912, was also subject, notwithstanding its statutory character, to customary limitations in the matter of alienation, the law hitting at such alienation would reach the tenancy created under the Act as well. [PLD 1991 SC 71] 5. PEDIGREE LIVESTOCK BREEDING SCHEME Allottee rights under Pedigree Livestock Breeding Scheme are not heritable in accordance with S.19-A as clause 25 of Scheme itself provides for rule of succession---Devolution of tenancies u/s 19-A would be applicable only to permanent grants or at most to tenancies of long terms. [NLR 1995 Revenue 49] Allotment of state land under Pedigree Livestock Breeding Scheme— Such allotment whether heritable in accordance with S.19-A, Colonization of Government Lands (Punjab) Act, 1912---One of the heirs (eldest son of deceased) of allottee (who was also a Lambardar) on demise of such allottee was appointed Lambardar and thus, lot of state land was linked with his office— Allotment of land to him was grant for the offer also—Other heirs of deceased allottee had, therefore, no share therein. [1995 CLC 838] 6. HORSE BREEDING SCHEME. Suitable allottee had to be chosen by District Collector and on the death of deceased contestant, his right devolved on his heirs---Heirs of deceased would, thus, be entitled to contest allotment of horse breeding tenancy. [1996 MLD 395] Allottee son---Not debarred from inheriting a tenancy of his deceased father merely because he had acquired proprietary rights in a lot allotted to him separately under same scheme. [NLR 1980 Revenue BOR 123] 7. RETROSPECTIVE EFFECT Application of Colonization Act in Bahawalpur in 1926 by incorporation by Adaptation Law of 1926—Did not have automatic application of S.19-A which was added subsequent to incorporation---Provision of S.19-A did not apply to Government tenant who died in Bahawalpur after addition of S.19-A—Inheritance of deceased in such case done u/s 20 would not be open to challenge with plea that inheritance was governed by S.19-A. [NLR 1990 SCJ 264] Extension of Colonization Act to Bahawalpur by Bahawalpur Adaptation Law of 1926—Did not incorporate extension of S.19-A which was enacted in 1951 subsequent to extension of Colonization Act to Bahawalpur in 1926---

81

[CGL ACT, 1912]

[Section 20]

Inheritance to deceased tenant who had not yet paid price of land allotted to him —Would not be governed by S.19-A. [NLR 1989 SD 718] Last Muslim male owner having died issue less, his property was devolved upon his widows in 1939. Such widow after having paid Government dues in respect of said land acquired proprietary rights and thereafter sold it to defendants. Plaintiffs; suit on basis of being heirs of last male owner claiming ¾ share of his property was dismissed by Trial Court, but was decreed on appeal by First Appellate Court which was up held by the High Court in revision. Defendants’ contentions that their case was governed by S. 30-A and not by S. 19-A of Act V of 1912 and that vendor widow being full owner of disputed land was entitled to alienate it and that by provisions of S. 2-A of the amended Act V of 1962, plaintiffs’ suit stood abated, had also been raised before High Court and had been attended to. No interference, held, was called for by Supreme Court in the light of principle laid down by Supreme Court. [1989 SCMR 1958]. Bahawalpur Shariat Act repealed Section 5 of Punjab Laws Act, 1872 and made Mohammedan Law of Succession applicable to all cases of inheritance of Mohammedans---This was a general law as compared to Act which dealt with Government grants and tenancies thereof---Held: Promulgation of Shariat Law in Bahawalpur on 04.03.1951 and repealing of section 5 of Punjab Laws Act, had not effect of derogating from terms of Act under which grant was made. [PLD 1987 SC 123] Act was extended to Bahawalpur on 02.05.1926 with a number of amendments---Sections 13, 14, 27 and 31 of Act were made inapplicable to Bahawalpur, so also all references to Punjab Tenancy Act, 1893 and whole of Schedule No.1---Such incorporation, adaptation and application of Act in Bahawalpur did not permit subsequent amendments in Act like section 19-A to be made applicable automatically to Bahawalpur Region. [PLD 1987 SC 123, PLD 1985 SC 159]. 8. OCCUPANCY RIGHTS Occupancy tenancy is heritable but not divisible—Failure to implead some of minors of deceased occupancy tenant who filed appeal during his life time— Would entail total abatement of appeal. [NLR 1987 Revenue 234]
29

20. Succession to tenants acquiring otherwise than by succession. Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon: (a) the male lineal descendants of the tenant in the male line of descent. (The term, lineal descendants,
29

Substituted by the Punjab Act III of 1920

82

[CGL ACT, 1912]

[Section 20]

(b) (c)

(d)

(e)

shall include an adopted son whose adoption has been ratified by a registered deed). the widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act. the unmarried daughters of that tenant until they die or marry or lose their rights under the provisions of this Act. the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother, 30[his predeceased son’s widow, his pre-deceased grand son’s widow], his married daughter, his daughter’s son, his sister, his sister’s son and the male agnate members of his family. the successor or successors nominated by the Collector from among the persons enumerated in clause (b) of this section. COMMENTS

Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 w.e.f. 01.08.1983 had abolished all customary rights and declared Shariat as rule of inheritance---Suit, appeal etc., pending on 01.08.1983 seeking enforcement of custom as a rule of inheritance stood abated forthwith---Courts below by deciding inheritance of deceased under Muslim Law had not committed any illegality or irregularity [2008 CLC 161]. Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would not apply to such case—Suit for declaration filed by daughters after 47 years of such mutation was dismissed in circumstances [2008 SCMR 230]. Any male to whom the tenancy is first allowed by Collector is an original allottee---In absence of male lineal descendants, the tenancy would to devolve upon the widow of the tenant until she dies or re-marries, failing the widow tenancy devolve upon the unmarried daughters of the tenant until they die or marry---Being a Sunni land was distributed upon the opening of succession to [Section 20] the estate [PLJ 2007 Lahore 160]. Widow inherited tenancy rights in year 1930, but acquired proprietary rights in February, 1963, when conveyance deed was executed in her favour--30

Inserted by the Punjab Act XIII of 1941

83

[CGL ACT, 1912]

Widow on 14.05.1964 through mutation gifted such land to plaintiff (non-heir)--Revenue Authorities reviewed gift mutation on application of legal heirs of deceased tenant and widow---Widow in year 1930 had succeeded deceased tenant as limited owner---Such limited estate had terminated on 31.12.1962 with enforcement of West Pakistan Muslim Personal (Shariat) Application Act, 1962 re-opening succession of deceased male tenant to be decided in accordance therewith---Execution of conveyance deed in favour of widow in February, 1963 would not constitute her as full owner [2006 SCMR 882]. Section 20 of Colonization of Government Lands (Punjab) Act, 1912 provides that on death of original tenant, in absence of male lineal descendants, tenancy shall devolve upon the widow of tenant until she dies or re-marries failing the widow tenancy to devolve upon unmarried daughters of tenant until they die or marry therefore petitioner widow when contracted second marriage suit-land mutated in favour of daughter of deceased original tenant---Definition of such original tenant in section-3 of the Colonization of Government Lands (Punjab) Act, 1912 confines strictly to male grantees to whom tenancy is first allowed by Collector---Daughter of deceased original tenant was the limited owner of suitland hence when she died unmarried the tenancy was held to have devolved under section 21(a) of the Act upon all the persons entitled to inherit the deceased (original) tenant according to Shariat---Share of late daughter however would also be distributed among her legal heirs in accordance with Sunni Law of inheritance as petitioners had failed to prove that deceased lady was governed by Shia Law [2006 MLD 1748]. Allotment was made in favour of wife of Shaheed for the act of gallantry of her husband---Plaintiffs, being the legal heirs of Shaheed claimed the disputed land, that since the wife of Shaheed had re-married she had lost her right to retain the land aforesaid under sections 19-A, 20 & 21 of the Colonization of Government Lands (Punjab) Act, 1912---Plaintiffs' suit for declaration was dismissed as the Trial Court was of the view that the grant was not in the nature of a limited estate so as to terminate on the re-marriage of petitioner, however appeal was accepted---Appellate Court relied upon the provision from the Regulations for Pay and Allowances of the Pakistan Army, 1982 that on remarriage a widow lost the right to the allowances---Validity---Impugned judgment and decree by Appellate Court based on wholly irrelevant and inapplicable considerations were set aside and that of the Trial Court were restored [2006 YLR 1208]. Provisions of S.20 of Colonization of Government Lands (Punjab) Act, 1912, are applicable to succession to original tenants but the case of tenants who have acquired tenancy by succession, their case is covered by S.21 of [Section 20] Colonization of Government Lands (Punjab) Act, 1912. [2001 CLC 1785] Limited estate under Colonization of Government Lands (Punjab) Act, 1912, is at par with a customary limited estate and subject to provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 [2000 YLR 635].

84

[CGL ACT, 1912]

On death of allottees, his widow succeeded to tenancy and on latter's death, tenancy devolved upon her daughter, who acquired proprietary rights thereof by paying Zar-e-Malkana on 20-3-1945 and formal sale-deed was executed in her favour by Collector on 19-4-1947---Any daughter of original allottee, thereafter, on 7-4-1979 gifted whole of land to her son ---Collaterals of original allottee challenged such gift in a suit which was decreed---Defendant's appeal and revision failed---Validity---Leave to appeal was granted to consider whether suit filed by plaintiff (respondent) to call in question. alienation made by daughter of original allottee in favour of her son was hit by provisions of S.2-A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and decree passed therein was null and void [1997 SCMR 1412]. There is nothing in language of Section 21 to support contention that succession to tenancy in cases falling within scope of section 21(b) will be governed under section 20—Rule of inheritance contained in Section 20 deals with succession of tenancy rights of original tenant, would not be applicable to case governed by S.21(b)—Held, Succession to tenancy of original tenant of agricultural land is governed in accordance with provisions of S.20 on death of original tenant [PLJ 1996 SC 503]. Succession to tenancy of original tenant of agricultural land is governed in accordance with S. 20 on death of original tenant. [NLR 1996 Revenue 1] Limited estates in respect of immovable property acquired by Muslim females under custom stood terminated with effect from 31.12.1962—Special tenancy of limited character in favour of widow of a Government tenant in terms of Ss. 19-A & 20, Colonization of Government Lands (Punjab) Act, 1912, ran counter to the basic concept of Muslim law of succession as enshrined in the injunctions of Islam—heirs of last male owner would inherit property in question, in accordance with Muslim Law of Inheritance. [1993 CLC 2058] Statutory tenancy u/s 20(a) which was, notwithstanding character, subject to customary limitations in matter of alienation—Would be hit by S.2-A, Muslim Personal Law (Shariat) Application Act, 1962. [NLR 1991 SD 101] Limited estate holder succeeding to original tenant and acquiring proprietary rights in 1956 would be governed by S. 2A, Muslim Personal Law (Shariat) Application Act (V of 1962 [inserted by Amendment Ord. XIII of 1983]. On acquisition of proprietary rights limited female owner would not become full owner but her rights would be subject to Shariat. Held. Finding of Courts below that on acquisition of proprietary rights limited female owner (daughter of original tenant) had become full owner was clearly untenable. [NLR 1991 SCJ 783] Promulgation of Shariat Law in Bahawalpur on 04.03.1951 and repealing [Section 20] of S.5 Punjab Laws Act (1872)—Did not have effect of derogating from terms of Colonization Act (1912) under which grant was made to a tenant. [NLR 1990 SCJ 264] Government land. Allotment of Tenant dying before making full payment. Inheritance of. Section 15 of Act provides in express words that “A purchaser

85

[CGL ACT, 1912]

from Government, of land, who has been placed in possession of land by order of Collector, shall be deemed to be a tenant of such land until full amount of purchase money with any interest due thereon, has been paid and other conditions set forth in statement of conditions of sale issued by Collector, have been fulfilled”. Admittedly Nizam Din was tenant of Government land and price had yet to be paid by him. Held: Section 19-A of Act would not be available for determining heirs of Nizam Din and that mutation of inheritance was in accordance with law governing inheritance as provided in section 20 of Act. Appeal dismissed. [PLJ 1989 SC 397] Petitioners assailing order of Border Area Committee whereby it allotted land to respondent, a military personnel--Petitioners claiming that earlier owing to their two century old tenancy over land, Deputy Commissioner offered its sale to them through a letter and accepting same they entered into a formal agreement with Provincial Government to purchase it on instalments and even deposited first instalment against receipt [1988 MLD 1538] Land granted to original grantee as horse breeding grant, not subject to rule of inheritance or any customary law--On death of original grantee thereof, same, held, would be reverted back to Government and Government at its sweet will could grant the same afresh to any one--After expiry of original grant, land in dispute granted afresh by. Government to eldest son of original grantee without conferring any vested right in favour of any heir of deceased grantee--No heir of deceased grantee, could at law enforce any right against new grantee as he had become full owner on payment of compensation to Government [1988 CLC 2084]. Estate held by a Muslim female u/s 30-A (1) before enforcement of Shariat Application Act, 1962 was in reality a limited estate held under custom. Judgment and decree passed by Trial court and affirmed in first and second appeals on view that estate of Muslim female acquiring proprietary rights u/s 30A was not hit by Shariat Application Act set aside by Supreme Court. [1983 SCMR 80] Tenancy rights held by female as limited owner. Succession would open out on termination of her limited interest in favour of all persons who are entitled to inherit property at time of death of last full owner. Such succession would be governed by Muslim Personal Law (Shariat). [NLR 1982 Revenue SC 110] Conditions under which widow inherited tenancy u/s 20(b) to be referable to then prevailing law of succession and in essence by imposing condition of her holding estate till her marriage or death or otherwise loss of her rights under provisions of Act, estate being conferred to be only limited, held further, there [Section 20] being no such condition under Muslim Law, widow tenant holding rights under section to be legitimately assumed as customary limited owner. [PLJ 1982 SC 635] Section 20 being self-contained law of succession does not require help of personal law for its interpretation and enforcement. Sons of predeceased son

86

[CGL ACT, 1912]

of original tenant held, entitled to inherit original tenancy left by their grandfather alongwith his living sons, as representatives of their deceased father. Muhammadan Law Succession. Doctrine of Exclusion. [1981 CLC 3] Life interest held by a widow u/s 20(b), Colonization Act—Not abolished u/s 3, Shariat Act—Such interest outside scope of Shariat Act—S.3, Shariat Act, applied only to life estates held by widows under Customary Law—It does not apply to life interest held by widows under statutory law (like Colonization Act). [1978 RLR 29] Land allotted to petitioner’s husband’s brother on death of allottee devolving on petitioner’s husband, and on such husband’s death mutation effected in petitioner’s favour as limited owner---Petitioner continuing payment of installments for land but when applying for permission to pay up entire price in lump sum, permission refused on ground of petitioner having only a limited interest---Held: Proprietary rights purchased by petitioner---Deemed inherited from her deceased husband as limited owner and petitioner debarred from alienating land except to extent of her own share of one fourth---Petitioner if acting otherwise, reversioners entitled to seek legal remedy and stop her--Collector directed to grant “Patta milkiat” to petitioner. [PLD 1976 Rev. 70] Original grantee of land dying issueless and no male descendant being available to succeed him, succession devolving on his widow under section 20 (b) of Act of 1962---Such succession, held, no abolished by Shariat Application Act, 1962. [PLD 1976 Rev. 75] Government being owner of property and also creating tenancy rights could regulate succession to tenancy rights in land covered by Act---A personal law---Applies as far as persons are concerned and not so far as properties are concerned---Property of Muslim propositus wherever and in whatever Province situated---To go to his Muhammadan Law heirs. [PLD 1975 Peshawar 71] Tenancy granted after tenant’s death to one of his female heirs—Female heirs becomes tenant in her own right – sex no bar for grant of land [PLD 1973 Lahore 726] Ss. 20 and 21 govern succession to “tenant”. Not applicable where proprietary rights have been acquired and tenancy ceases to exist---Daughter succeeding to tenancy and paying up government dues for transfer of proprietary rights---Becomes owner of land in her own right subject to limitations provided in [Section 21] S. 30-A of the Act. [PLD 1961 Baghdad-ul-Jadid 52]
31

21. Succession to tenants acquiring by succession. When after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies,

31

Substituted by the Punjab Act III of 1920

87

[CGL ACT, 1912]

marries, or re-marries, the succession to the tenancy shall devolve: (a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her, (b) in all other cases, on the person or persons who would succeed if the tenancy were agricultural land acquired by the original tenant. COMMENTS
Courts below had concurrently found that "A" was last male owner and plaintiff was his daughter and defendant was not in any manner related to him--Rightful heir of said land after death of "A" and his wife, were plaintiff and his sister---Supreme Court dismissed petition and refused leave to appeal [2008 SCMR 1190]. Execution of sale deed in favour of female on payment of full price of land to the extent of her share---Held, such female was full owner of land as per registered sale deed [2007 SCMR 800]. Rule of succession to “tenancy” contained in Act would not be applicable to cases of succession falling u/s 21(b) which governs succession to land acquired by a tenant under provisions of Act. [NLR 1996 Revenue 1] Tenancy of agricultural land—Entitlement to inheritance of such tenancy, parties being Christians—Plaintiff was proved to be the only daughter of original grantee—Plaintiff being only surviving child would alone inherit in terms of S.37, Succession Act, 1925—Defendant’s claim to succeed on basis of Custom was repelled in absence of proof of custom among Christians of that area. [1996 CLC 562] Last female of original tenant neither succeeding to tenancy under Customary Law nor under Muslim Law to exclusion of collaterals but found to have been occupying same on basis of fresh allotment made in her favour before being clothed with ownership rights, and her possession never held to be that of a squatter or trespasser by authorities concerned-Such. case, held, does not fall [Sections 22-24] within mischief of S. 30-A (.1) `but covered by S. 30-A (2) and law of succession applicable to inheritance of such female grantee of State land to be found in S. 2 of West Pakistan Muslim Personal Law (Shariat) Application Act; 1962 [1980 CLC 1319]. Words “on account of some male person”—Husband applying for grant of land under Darya burdi scheme but dying before actual grant—Land subsequently, sanctioned in husband’s name but mutated in widow’s name as

88

[CGL ACT, 1912]

his successor—Widow paying malikana, acquiring proprietary rights and gifting away land to another—Widow granted land not in her own right but “on account of some male person”—Widow in circumstances did not become full owner and could not gift away property so as to deprive husband’s heirs. [1970 SCMR 246] Ss. 20 and 21 govern succession to “tenant”. Not applicable where proprietary rights have been acquired and tenancy ceases to exist---Daughter succeeding to tenancy and paying up government dues for transfer of proprietary rights---Becomes owner of land in her own right subject to limitations provided in S. 30-A of the Act. [PLD 1961 Baghdad-ul-Jadid 52] Tenancy right in hands of male tenant who is not original tenant must be regarded as ancestral land qua collaterals of tenant, if tenant is governed by custom in matters of succession. [PLD 1958 (W.P.) Lahore 340].

22. Acquisition of ownership not to affect nomination of heir. When a tenant has nominated a successor to his tenancy under section 20(d) and subsequently acquires a right of ownership in the tenancy, the right of succession of the persons so nominated, shall, unless the deed of nomination expressly provides to the contrary, be unaffected by such acquisition of ownership. 23. Revocation of nomination. When a tenant has under section 20(d) of this Act, nominated a successor, he may at any time, whether before or after acquiring ownership, revoke such nomination, but not otherwise than by registered deed. 24. Power of imposing penalties for breaches of conditions. 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 32[ten [Section 24] thousand 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 resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being
32

Subs. for the words “five thousand rupees”, by the Notif. No. Legis:3(XXVIII), dated 28.06.1999, which was previously subs. for the words “one hundred rupees“, by the Notif. No. Legis:3(2)/83, dated 18.01.1983.

89

[CGL ACT, 1912]

less than one month, to be stated in the notice and the tenant has failed to comply with such notice. COMMENTS SYNOPSIS
1. 3. 5. 7. 9. 1. Audi Altram partem Locus Standi Ineligibility Service of notice Technicalities 2. 4. 6. 8. 10. Breach of conditions. Extension in lease Notice Fraud Void orders

AUDI ALTRAM PARTUM

Grievance of petitioner was that his lease was cancelled by the authorities---Plea raised by the authorities was that the lease was for five years and the same was not renewed---Revenue authorities heard the petitioner and after going through the record rightly cancelled lease of the petitioner---High Court had considered the case in its proper perspective and after going through the material on record had rightly dismissed the revision petition of the petitioner with sound and cogent reason [2004 SCMR 1411]. It is well settled that no man should be condemned unheard – principle of audi alteram partem is enshrined in our judicial system – Apex court has held time and again that order effecting right of a party can not be passed without providing opportunity of hearing to that party [PLJ 2003 Karachi 41]. Availability and utilization of subsequent opportunity of hearing washes away the initial lack of such opportunity before a from below [2000 YLR 3027]. Allottees under the Act who had been delivered possession after payment of required portion of sale price and who were not alleged to have committed any breach of allotment, would become vested with right of being heard before cancellation of the allotment. Cancellation to allotment without giving them right of hearing would be violative of principle of natural justice. [NLR 1999 Revenue SC 172] Any order was violative of principle of audi alteram- partem would be deemed to be nullity in eye of Law where order sought o be implemented by [Section 24] appellants was passed in violation of audi alteram partem, High court could rightly refuse to issue order of mandamus for implementation of same [1998 PLC (C.S) 141]. Alienees were, thus condemned unheard and were not afforded a reasonable chance of defence for protecting their rights in land---Order of cancellation of allotment violated rules of natural justice that no person should be

90

[CGL ACT, 1912]

condemned unheard---Order in question, on that score alone was liable to be struck down as invalid [PLD 1994 Lah. 296]. Passing order of cancellation of resumption of land without hearing allottees before cancelling their allotment–Order cancelling allotment of allottees passed by Authorities could not sustain in circumstances [1994 CLC 473]. Tenancy cannot be resumed for violation of conditions of allotment without giving opportunity to tenant to state his objections against intended resumption and further opportunity to rectify breach within a reasonable time. Resumption order passed without giving such opportunity to tenant would be violative of requirements of S. 24. [NLR 1993 Revenue 28] Opportunity of being heard to aggrieved person—Allotment once made in favour of a person could not be withdrawn/ cancelled without grating opportunity of being head to him [1993 CLC 376]. Order passed by a Court without hearing a party would be violative of the established principles of natural justice and such illegality could not be rectified by reasoning that no appeal having been filed such order, same had attained finality [PLD 1992 Revenue 21]. Decision of important matter without hearing concerned parties, by itself was arbitrary and unreasonable [1984 CLC 2955]. Allotment under Ejected Tenants Scheme—Cancellation without an opportunity of hearing being given to allottee—Unlawful—Non-compliance with mandatory provision of S.24 renders resumption order as mere nullity. [NLR 1980 Rev. Lah. 71] In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting “the person or property or other right of the parties concerned” [PLD 1965 SC 90]. The arguments that the proceedings are not judicial is not supported by any authority or an principle of interpretation. It is, therefore, essential that opportunity of hearing should be given to the applicant and if no such opportunity is given the order of the Commissioner of Income Tax passed in such proceedings would be void and of no legal effect [PLD 1964 SC 410]. 2. BREACH OF CONDITIONS Tenant had neither remained in physical possession of land nor cleared outstanding dues nor appeared before E.A.C.O. in response to notice issued by him---Tenant had, got no interest in cultivation of land---Order of resumption of [Section 24] land was just and proper in circumstances [2008 SCMR 1208] Plaintiff who was allottee of suit-land under 15 years Lease Scheme had been reaping benefits from disputed land since long without paying anything to Government---When lease period expired plaintiff prayed for proprietary rights whereupon Collector vide notice under S.24 of Colonization of Government Lands (Punjab) Act, 1912 directed plaintiff to pay sale price with a penalty of

91

[CGL ACT, 1912]

Rs.2000---Said order was challenged through a declaratory suit which was dismissed---Appellate Court however decreed the suit holding that breach committed by plaintiff in terms and conditions of allotment was rectifiable-ValidityAppellate Court did not mention as to under which provision of law a breach was rectifiable and that plaintiff who admittedly was defaulter in the matter and also had failed to pay price of property and fine was yet entitled to the decree---Land in dispute was rightly resumed by Collector therefore Appellate Court should not have interfered with order passed by Collector in accordance with law [2007 MLD 472]. Complaint against allottee that he was ineligible to get alternate land and proprietary rights as he was not in self cultivation of original tenancy and had secured order of alternate land through interpolations in entries of Khasra Girdawari by means of ink-remover in collusion with Revenue Staff---Collector resumed land after canceling order of allotment [2006 SCMR 959]. Order of Collector proceeded simply on the basis of a report submitted by Assistant Commissioner---No indication in the report that plaintiff was associated or examined during preparation of report--- Report of Assistant Commissioner was based on incorrect reporting by field staff, and plaintiff was not afforded opportunity to disprove such report and to establish that he was not in breach of any condition of lease--- Plaintiff should have been given time to rectify any breach of conditions under S.24 of Colonization of Government Lands (Punjab) Act, 1912---Resumption of suit land was not in accordance with law [2006 MLD 1290] Provisions of S.24 of Colonization of Government Lands (Punjab) Act, 1912 provided that whenever a breach of conditions of tenancy had been committed by tenant, Collector could either impose a penalty or order resumption of tenancy, but where breach was capable of rectification, neither of the two measures could be taken before calling upon tenants to rectify said breach within reasonable period [2005 CLC 1877]. Tenancy was resumed by Collector due to non-payment of the price of land---Conditions governing Mule-Breeding Tenancy specifically laid down that in case a grantee defaulted in payment of purchase price, his grant would be liable to resumption--- Grant did not confer any right on legal heirs or successors of original grantee who had failed to deposit instalments as required by law--District Collector had rightly resumed tenancy, in circumstances [2005 CLC 1590] Resumption of tenancy for breach of conditions---Board of[Section 24] Revenue passed such order on 17.01.1984, against which Constitutional petition was filed in year 1994---High Court dismissed Constitutional petition on ground of laches--Validity---Finding of fact of Board of Revenue that petitioner was in breach of condition of agreement, had attained finality [2004 SCMR 508]. Cause of justice cannot be permitted to be sacrificed at the alter of technicalities [PLJ 2004 FSC 39].

92

[CGL ACT, 1912]

Order of cancellation of plot was declared to be void, illegal and ineffective qua his rights---Plaintiff was not given any opportunity for cancellation for rectification of breach of condition of agreement, if any, under S.24, Colonization of Government Lands Act, 1912 [PLD 1998 Lahore 429]. State land in dispute was allotted to petitioner under Grow More Food Scheme and proprietary rights were also allowed to him but owing to his constant illness he could not deposit price thereof—Notice issued by Authority for cancellation of lease, however, was harsh step depriving allottee of his legal rights—Non-payment of dues by allottee, was condoned by Board of Revenue keeping in view his poor economic condition with direction to deposit the dues within specified period. [1997 CLC 1203] Non-cultivation of leased land to the required extent and also nonpayment of arrears of lagan, being rectifiable, Board of Revenue, after receiving order of resumption, restored lease to petitioners/ lessees condoning lapse with penalty [1996 MLD 750]. Allotment of original allottee was cancelled illegally on the ground that he had failed to raise any construction thereon, within specified period---In cases relating to sale of immovable property, time would not be of the essence of contract, and mere failure to raise construction within period fixed in agreement could not result in cancellation of transfer [PLD 1995 Lah. 429]. Resumption of land, taking over of possession and appointment of receiver---Such order was passed by Collector inspite of order of High Court in earlier constitutional petition requiring him to re-consider petitioner’s case for renewal of lease---Collector’s order was set aside, land was ordered to petitioners and Authorities were directed to reconsider petitioner’s entitlement to grant of lease after giving her opportunity of hearing [1994 CLC 1836]. Resumption of land by Collector on Commissioner’s order---Validity--Petitioner’s contention that review being discretionary Commissioner’s order directing review was without jurisdiction---Direction for review was issued by Board of Revenue to Commissioner after consideration of Inspection Report relating to allotment of land in question---Collector’s order for resumption of land in question was, proper and valid in circumstances [PLD 1994 Revenue 9]. Breach of condition that tenant was not in self-cultivation at time of allotment is rectifiable. [NLR 1992 Revenue 36] Breach of terms of tenancy i.e. petitioners being not in self-cultivating possession, could be rectified—Respondent authorities could, however, consider [Section 24] petitioners’ case for rectification of breach and do the needful---Plot not in self – cultivating possession – Effect – Breach of terms and conditions of tenancy could be rectified [1992 CLC 1536]. The lessee whole land was grabbed by a trespasser and who was made to get rid of him despite restoring to remedies at law, could not be burdened with the responsibility of not fulfilling the condition of cultivating the land himself [1992 SCMR 1163].

93

[CGL ACT, 1912]

Section 24 empowers Collector to impose penalty on the tenant for breaches of the conditions of tenancy made by him after giving hearing to the tenant. Section 30 provides that after acquisition of proprietary rights by a tenant, he shall cease to be subject to any statement of conditions issued under the abovementioned Act but would remain bound by other provisions of this Act applicable to the proprietors of the land. [1991 SCMR 2415]. Non-cultivation by allottee under Guzara Scheme whose tenancy subsequently is merged in Ejected Tenants Scheme is a rectifiable breach— Resumption of land for such breach along with dismissal of application of allottee for conferment of proprietary rights would be illegal. [NLR 1989 Revenue 86] Power of resumption u/s 24 vests in Deputy Commissioner/ Collector and not in Commissioner—Order by Commissioner directing resumption would be devoid of jurisdiction and liable to reversal by Board of Revenue---Failure to cultivate land in accordance with terms of grant is capable of rectification— Resumption of land without giving opportunity of allottee/ grantee for rectification would not be warranted u/s 24---Resumption of land should be based on a speaking order directing evidence in support of resumption---Failure to cultivate land in accordance with terms of grant is capable of rectification [NLR 1988 Rev 100]. Breach of conditions was capable of rectification, no resumption of tenancy, held could take place unless grantee had been issued notice, requiring him to rectify breach of conditions---Where however, grantee failed to show that the breach of conditions was capable of rectification and there was any positive effort on part of grantee to rectify such breach of conditions, resumption of land by Collector could not be interfered with in constitutional jurisdiction of High Court. [PLD 1987 Karachi 394] Grant of land proprietary rights subject to terms and conditions, one of the tenant of such land unless and until he fulfils terms and conditions of the grant--Collector held, was empowered to cancel and resume land in case of a breach of any condition of the grant independently of S. 24 [PLD 1987 SC 123]. Cancellation of such allotment due to non-approval by District Collector--Non-approval of allotment by District Collector, held, would not be fault of allottee in possession over years [PLD 1986 Rev. 62]. Area still lying Banjar and possession of respondent entered in Khasra Girdawari—respondent allowed a time limit of 2-year to bring once under cultivation and to sow food grow crops failing which land world be resumed [PLD [Section 24] 1985 Rev. 6]. Cancellation of land still banjar – PC through revision approaching BOR for cancellation of allotment on ground that allottee failed to cultivation land upto fixed limit—BOR allowed two years time to respondent to bring area under cultivation and to sow food grain crops failing which land would be resumed [KLR 1985 Rev Cases 19].

94

[CGL ACT, 1912]

Penal provision of S. 24---Attracted only during continuance of lease. [NLR 1983 Revenue 128] Breaches of cultivating requirement---Rectifiable during continuance of lease but not rectifiable after expiry of lease---Formal notice U/S 24---Not needed where lease already stands expired---Provision U/S 24 relates only to question of termination of lease during its continuance. [NLR 1983 Revenue 218] Breach of terms and conditions of lease not established in absence of such findings cancellation of lease without any cause. [1982 CLC 833] Resumption of land. Petitioner not cultivating land for a long period and failing to fulfill requisite condition and breach becoming un-rectifiable. Resumption of land by Collector, held, needs no interference in circumstances. [1982 SCMR 149] Conditions of tenancy, breach of—Member, Board of Revenue not seriously considering whether any breach of conditions committed, failing to consider whether such breach if committed could be rectified and in case of same being capable of being rectified not requiring tenant to rectify breach— Provisions of S.24 having not at all been considered, material prejudice, held, caused to parties—Case in circumstances remanded for consideration. [1981 CLC 1700] Order of Collector forfeiting land without giving an opportunity to defaulter to rectify mistake. Order passed on allottee’s default to pay price within time of two months given by Commissioner on allottee’s appeal against earlier order of Collector, held, petitioner cannot legitimately raise any grievance against forfeiture of land from him, Held, also, plea claiming successive extension of time every time when a default is committed cannot be endorsed because if accepted it would lead to a situation where Collector would never be in a position to pass any order and inifinitum [1981 SCMR 1125, NLR 1981 Revenue SC 2] Resumption of land for non-payment of amount of installment. Petitioners twice afforded reasonable opportunities for making up default but they failing to do so. Held, no fault can be found with High Court, in dismissing Constitutional petition. [1981 SCMR 1182, NLR 1981 Revenue SC 23]. Rectifiable breach of condition (viz. non-payment of dues and failure to bring land under cultivation). Finding by Colonization Authorities and High Court that petitioner had already defaulted in non-cultivation of land for a long period and had not fulfilled requisite conditions of lease. Not open to challenge in Supreme Court constitution of Pakistan, 1973, Art. 185(3). [NLR 1981 Revenue [Section 24] SC 166] Forfeiture of allotment for default in payment of price within two months’ time given by Commissioner on allottee’s appeal against initial forfeiture order passed by Collector—Contention that u/s 24 (Colonization Act) it was incumbent on Collector to examine whether mistake on part of defaulter was rectifiable or not—Devoid of force. [NLR 1980 Revenue SC 16]

95

[CGL ACT, 1912]

Person in occupation of land, originally entering as tenant---Non-payment of rent, held, does not determine tenancy and such person’s status that of tenant [1979 CLC 433]. Allotment of state land under Notification No.837-C of 01.03.1933 (as amended subsequently---Scheduled tenancy within meaning of S. 4--Cancellation of allotment rectification of breach of conditions---Application of S. 24 excluded by virtue of S. 27. [PLD 1965 W.P. (Rev.) 16] 3. LOCUS STANDI Five years Lease Scheme---Proprietary rights, grant of---Tender holder--Locus standi---Appellant was neither party to the proceedings nor was an allottee of land in dispute, therefore, he was not entitled to any hearing before the lower forum---No misreading or non-reading of available material or misconstruction of law was done by Board of Revenue---Judgment of High Court being well-based and un-exceptionable did not warrant any interference by Supreme Court--Appeal was dismissed [2006 SCMR 1093] 4. EXTENSION IN LEASE Petitioner was granted land on tenancy for cultivation on animal breeding conditions. Renewal of the lease could not be claimed as a matter of right. Tenant was found disentitled for renewal of lease on account of poor purchasing results/ performance and of flagrant violation of the terms and conditions of lease, he was rightly refused further renewal of lease. [PLD 2002 SC 716] Petitioner having completed his period of specified cultivation to satisfaction of Authorities, there after, discontinuation of possession could not be made ground for refusal to confer proprietary rights and resumption of tenancy – Non compliance of statement of conditions would although give right to Revenue Authorities to resume land or cancel the same et notice was pre – condition for resumption or cancellation of such land [1997 CLC 1735]. Lease was not re-granted to petitioners on the ground that Authorities found that they were not entitled to re-grant as their performance was not up to the mark – Before taking such decision neither notice was sent to petitioners nor opportunity of hearing to satisfy Authorities was given to them Determination of merits of petitioner’s case without providing them opportunity of hearing was violative of not only the law but also principles of natural justice [1994 CLC 1836]. Grant of state land to petitioner on ten years’ lease---Petitioner’s application for extension of lease period was rejected by Collector on the ground that terms and conditions of lease were not fulfilled by petitioner and that only part of land was brought under cultivation by him---Order of Collector was affirmed in appeal---Validity---Circle Patwari had confirmed statement of petitioner that about 80 percent of land had been brought under cultivation by petitioner---Petitioner having brought substantial part of land under cultivation with hard labour and expense it would not be fair to deprive him of such land. [1986 MLD 407]

96

[Section 24] [CGL ACT, 1912]

Renewal of tenancy refused by Collector, on account alleged default on part of tenant, without hearing him—Order passed without following principle of natural justice—Held void. Subsequent order of appellant or revisional authorities also void---Tenancy---Period of tenancy expiring but tenant continuing in possession---Position of such tenant, not that of a trespasser but that of a “tenant holding over”. Tenant not putting up a permanent residence in village—breach of condition, rectifiable—such mistake not made a ground of resumption of tenancy during preceding tenure of tenancy—Held, cannot be made basis for refusal to renew tenancy [PLD 1973 Lahore 528] Land grant – ease, renewal of – Removal fine – grantee applying for further grant in good time and remaining in lawful possession of land –Delay in deciding further lease grant to lessee not due to his fault but occurring in Government offices – Lessee, held, cannot be penalized, in circumstance of case – Removal fine remitted [PLD 1968 W.P (Rev) 31]. Renewal of tenancy refused by Collector, on account of alleged default on part of tenant, without hearing him---Order passed without following principle of natural justice---Held, void---Subsequent orders of appellate or revisional authorities also void [PLD 1936 All. 686]. 5. INELIGIBILITY Transfer of tenancy rights by way of gift claimed by brother of deceased tenant—Validity—Period of tenancy had already expired—Deceased tenant had neither paid 1/4th lease money in time nor cultivated land—Deceased tenant had other brothers and sisters, who had not come forward with such claim— Deceased tenant without written permission of competent authority could not transfer any right or interest in State land—Such transferee not being a lessee or tenant could not take benefit of S.24 of CGL Act, 1912—Claim of transferee, held was, not maintainable [2008 SCMR 291]. If plaintiffs were granted temporary cultivation lease, they must had been issued in favour an order for delivery of possession which must had been noted and entered in Rapat Roznamcha Waqiati of the Patwari---Thereafter, their possession must had been shown upon the lands in dispute--- If the allotment of the lands in favour of the plaintiffs was to be found genuine, then they were to be considered entitle to the opportunity of hearing and notice---Persons who had obtained allotments on the basis of fraud, forgery and fabrication were not entitled to be shown with any indulgence---They could not be granted relief to perpetuate fraud and set a bad example in the books of justice [PLJ 2006 [Section 24] Lahore 1453]. Land in question, was restored on condition that petitioners would clear dues outstanding against them—Petitioners’ failure to clear dues resulted in resumption of land on second time—Petitioners’ plea that in terms of Memo. No. 3138-75-TH-1, dated 28.11.1973 they were liable to pay price of land in yearly instalments and not in lump sum, therefore, resumption of land was not warranted by law. [1996 SCMR 534]

97

[CGL ACT, 1912]

Land in dispute admittedly having been resumed, penalty was imposed on petitioner for illicit cultivation of that land. Amount of penalty to be recovered from petitioner not being commensurate with benefit obtained by petitioner, he was not entitled to discretionary relief of grant of leave to appeal against recovery of that amount ordered to be recovered from him by Courts below. [1991 SCMR 1726] Tenant summoned by Collector on information laid by another that tenant was ineligible to grant of tenancy held by him---Sufficient notice to tenant for cancellation of tenancy by Board of Revenue---Proceedings before Commissioner and Board of Revenue only continuation of proceedings initiated by Collector. [PLD 1964 (W.P.) Lahore 372] 6. NOTICE Lease of land under Tubewell Sinking Scheme for a period of twenty years extendable for another ten years was prematurely cancelled by the Collector---Lessee had failed to avail the statutory remedies of appeal before the Commissioner and the Board of Revenue---Held, resumption order of the Collector, after notice to allottee and hearing him in circumstances, was justified as there was a substantial compliance of S.24 of Colonization of Government Lands (Punjab) Act, 1912 [2005 SCMR 1612] Colombo Plan Scheme---Proprietary rights, grant of---Case of petitioner was recommended for grant of proprietary rights to him---Authorities, instead of deciding his applications, passed ex parte order against him--- Validity--Petitioner had more than one alternate remedy available against the order, before higher Revenue Authorities under the provisions of law, therefore Constitutional petition was not maintainable---Petition was disposed of accordingly [2005 CLC 1435]. Non-compliance of statement of conditions would although give right to Revenue Authorities to resume land or cancel the same yet notice was precondition for resumption or cancellation of such land---No notice having been given to allottee and he having deposited dues pertaining to proprietary rights with permission of Revenue Authorities, he would be entitled to acquire proprietary rights [1997 CLC 1735]. Notice issued to petitioner for vacating land in question was set aside and respondents were directed to allow petitioner to participate in open katchery for disposal of land in question as and when such occasion would arise and till then [Section 24] he would not be dispossessed [1996 CLC 676]. Resumption of tenancy without notice to tenant whose lease term has expired, would not be open to challenge in writ jurisdiction [NLR 1994 Revenue 127]. Lease of land, cancellation of lease of land duly granted to tenant, was cancelled by Authority on ground that tenant had violated terms and conditions of tenancy – No notice to appear and clear his position was given to tenant before canceling his lease- Cancellation of lease could only be made after giving tenant

98

[CGL ACT, 1912]

an opportunity to appear and state his objections to proposed cancellation [1993 CLC 902]. Allotment of land in question, duly made in name of predecessor-ininterest of petitioners, was subsequently cancelled on account of non-payment of balance amount---Contention of petitioners that not only petitioners were condemned unheard, but mandatory requirement of notice contemplated by S. 24 of the Act was not adhered to by Authority, remained un-controverted---High Court allowing Constitutional petition, set aside order canceling allotment being a nullity in the eye of law. [1991 MLD 1507] Authority decided case without issuing notice to and hearing other interested and contesting parties – order of such Authority was void altogether being against elementary principles of natural justice [1991 CLC Note 260]. Prior notice to grantee/ allottee was required before cancellation of his grant---No prior notice having been given to petitioners before cancellation of grant, statutory requirement was not fulfilled---Orders canceling grants of petitioners were thus liable to be set aside. [1990 MLD 2353] Show-cause notice to grantee before cancellation of his grant— Necessary only in cases where breach of conditions of capable of rectification and grantee has made some positive effort to rectify breach—Resumption/ cancellation of grant without show-cause notice would be unexceptionable in case of unrectifiable breach of condition. [NLR 1987 Revenue 180] Ejected Tenant Scheme. Cancellation of allotment on ground of nonpayment of rent. Ex-parte order passed by Colony Authorities. Upheld as being unexceptionable in circumstances of case [NLR 1986 SCJ 76] Cancellation of grant without prior notice in terms of S. 24 of Act, 1912, held, was not maintainable. [PLD 1986 Rev. 18] Original grantee filing appeal but Addl. Commissioner dismissing it on ground of limitation—MBR allowing revision on ground that original grantee was not served with a notice prior to cancellation—High Court accepting writ petition of subsequent grantee and setting aside order of MBR on ground that he was not justified to re-open issue which already stood concluded. [NLR 1985 Rev 120] Principle of natural justice deemed to be taken as part of every status unless its application not expressly excluded – order passed without notice and without hearing affected parties was void and no legal sanction could be attached [Section 24] to superstructure place on such a void order [1984 CLC 2955]. Statutory notice under S. 24 to original allottee not issued before cancelling his allotment – Defect inherent and order of cancellation null and void---Subsequent hearing of original allottee by authorities and subsequent finding in appeal, held, cannot cure inherent defect [1981 SCMR 1061]. Petitioner getting Government land on lease on condition of its being cancelled and resumed without compensation if required for public purpose— Tenancy cancelled and land resumed for establishing an industrial estate without

99

[CGL ACT, 1912]

notice—Failure to give notice, held, not always fatal to action taken—Person complaining must show such failure having resulted in prejudice to him— Cancellation of lease and resumption of land in circumstances, held, not ordered under S.24 but under terms and conditions of lease and therefore, valid. [PLD 1981 Lahore 343] Resumption order passed without notice to allottee of tenancy---Order, held, violative of mandatory provision of S. 24 as well as principle of natural justice and allottee entitled to proprietary rights in land. [PLD 1978 Lahore 1370] Resumption of Ihatas without giving notice to allottees calling upon them to rectify breach---Contravention of S. 24---Resumption of Ihatas without adverting to S. 24. [PLD 1976 Lahore 820] 7. SERVICE OF NOTICE Grievance of petitioner was that lease agreement was cancelled by authorities on the allegation of violation of terms of lease agreement, without giving him any opportunity of hearing---Validity---Order passed by authorities transpired that though notices were directed to be issued to petitioner but there was nothing on file to reflect that notices were actually sent---Petitioner was unaware of fixation of date of hearing, therefore, he was condemned unheard--Petition was allowed in circumstances [2009 YLR 1035]. When presumption is raised in terms of Art. 129 of the QSO, read with Section 27 of General Clauses Act, on a question of fact, it would stand rebutted if the addressee makes a statement on oath denying service and the onus to prove service would continue to be on the party relying on such a notice unless of course there is other evidence to indicate that the denial of the service by the addressee is against the record [PLJ 2008 SC 16]. Issuance of letters/notices to allottee at his given address by Authority before passing such order---Plea of allottee that he was not heard before passing such order---Validity---Presumption of correctness and regularity was attached to such documents, which were copies of official record---Such plea was not accepted in circumstances [2007 MLD 594]. Under clause (b) of conditions 18 of statement of conditions, Deputy Commissioner and not Commissioner is Authority vested with powers to resume land---Held: Commissioner has not acted in exercise of his lawful jurisdiction and impugned order is ultra vires---Breach of condition by appellant in his failure 24] [Section to cultivate land is capable of rectification within a reasonable period---No notice for rectification having been given, resumption of land is not legally correct---If order is not a speaking order, it implies that its maker did not apply his mind to relevant question. [PLJ 1988 Revenue 4] Cancellation of grant without adopting procedure of issuing notice of rectification of infringement in S. 24 of Act of 1912, held, was not proper. [PLD 1985 Rev. 197]

100

[CGL ACT, 1912]

Notice having been received by son of addressee at his residential address, held, was therefore, a valid service in circumstances. [PLD 1984 Karachi 413] Contended that defect of failure to issue requisite notice stood cured by subsequent finding of appeal, etc. by original allottee where he was heard by all subsequent authorities, Contention repelled as having no merit. Held, subsequent hearing in case of failure to issue a statutory notice cannot cure inherent defects laid down in PLD 1971 SC 580. [1981 SCMR 1061, NLR 1981 Revenue SC 59] Service of notice essential before passing order of resumption under S.24---Notice to be in accordance with S. 20, Punjab Land Revenue Act (XVII of 1887). Notice of service on tenant of grantee. Not valid---According to section 7 of the Act, the Punjab Land Revenue Act, 1887 is applicable to all proceedings under the Colonization of Government Lands (Punjab) Act. Hence notice under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 should be in accordance with the provision of section 20 of the Punjab Land Revenue Act, 1887. This section does not provide for service of notice on a tenant, therefore, service of a notice under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 to the tenant of grantee, likewise, would not be a valid notice to the grantee---Absence of tenant---Violation capable of rectification. [PLD 1960 (W.P.) Lahore 995] 8. FRAUD Fraud if established on record is sufficient to vitiate most solemn proceedings. As such, no benefit can be derived by a person claiming proprietary rights in a particular property based on fraudulent transaction [NLR 2003 Civil 146]. Fraud vitiates all solemn acts and any instrument, deed or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time and can be ignored altogether by any court of law before whom they are produced in any proceeding [1993 SCMR 618]. Every Court, Tribunal or Authority was vested with power to recall an order obtained from it by fraud. Fraud vitiates the most solemn proceedings and party cannot be permitted to reap and retain benefit of its fraud—Fraud cannot be sanctioned or protected by any Court, Tribunal or Authority, they have inherent jurisdiction to [Section 24] review their record to undo the acts of fraud [PLD 1993 Lah. 842]. 9. TECHNICALITIES When any authority or officer is empowered to make an order or give direction, such power is required to be exercised reasonably fairly justly and for the advancement of the purpose of enactment and assign reason for making such order [PLJ 2008 Cr.C Kar 225].

101

[CGL ACT, 1912]

Public functionaries are duty bound to decide the applications of citizens after judicial application of mind with reasons [PLJ 2008 SC 95]. High Court dismissed Constitutional petition on ground of laches. Validity. Finding of fact of Board of Revenue that petitioner was in breach of conditions of agreement, had attained finality. Such findings of High Court did not suffer from any legal infirmity. [2004 SCMR 508] Law does not intend to thwart adjudication of a lips on mere technicalities of procedure---Law favours decision of cases on merits rather stifling the matter on fetish pleas [2003 CLC 1011]. In order to seek justice, one must be fair and should do justice himself [2003 CLC 1652]. No body should be penalized by act of public functionaries---Public functionaries are duty bound to act justly, fairly, equitably, reasonably and without discrimination [2003 CLC 1711]. Where the law prescribes the method of doing a thing in a particular manner, the same has to be done in that manner failure where of may ensue the legal consequences [2003 CLC 1896]. High Court in exercise of Constitutional jurisdiction had found that resumption order of the Colony Assistant was malafide and incapable of being sustained. Resurrection of the matter at the level of the Colony Assistant after a period of more than 29 years of the delivery of possession to the respondent was also resolved by High court. High Court had not committed any illegality while holding that colony Assistant was not possessed of the requisite jurisdiction to make the resumption order. [2001 SCMR 209, NLR 2001 Revenue SC 114] No body should be penalized by the act of the court or by the act of the public functionaries---Where the basic order was without lawful authority then the superstructure built on it would fall on the ground automatically [2001 CLC 1741] Technicalities, no hurdles to be created in way of substantial justice [2000 SCMR 440]. Withdrawal of created right by a notification---validity---When any right is created in favour of a citizen, same cannot be taken away by a notification through an administrative order even by a competent authority [1999 MLD 2346] All citizens of the Province are equal before law and are entitled to equal protection of law [1999 CLC 1615]. Resumption of land should be based on speaking order discussing in [Section 24] support of resumption [NLR 1998 Rev 100]. Administrative order or Notification would not operate retrospective to disadvantage of person affected by it [1997 SCMR 503] Colony Assistant who had passed impugned order of resumption of land did not have powers of Collector vesting in him at the relevant time—Order of resumption of land before such specified date having been passed by Colony

102

[CGL ACT, 1912]

Assistant was in excess/ absence of jurisdiction and was, thus, nullity in law [PLD 1996 Lahore 219]. Order of resumption of land in contradiction to earlier order whereby appellant was allowed to retain land in question, on payment of specified amount to which appellant had agreed. Subsequent order canceling land from appellant’s name was thus, result of misconception, which was declared to be without lawful authority by the Supreme Court. [1994 SCMR 465] No litigant should suffer on account of the fault of the court or the court official---Technicalities of law should not be allowed to become a stumbling block in the path of justice [1993 MLD 2288] Authority to resume land after complying with S. 24, held, vested with Collector---Resumption of such land by Commissioner was ultra vires of his jurisdiction---Grantee’s failure to cultivate land being capable of rectification, resumption thereof, on such breach of condition, held, could not be ordered unless grantee was issued written notice requiring him to rectify breach of condition viz, cultivation, within reasonable time---Where order of Authority about resumption of grant was non-speaking order, implication, held, would be that Authority passing such order did not apply its mind to the question. [PLD 1988 Revenue 29] Review---Petitioner offering to pay price in time but necessary adjustment not made due to inefficiency on part of dealing staff and relevant document not produced before order sought to be reviewed came to be passed--Case not one of deliberate default on part of petitioner---Order reviewed in circumstances [PLD 1978 Rev. 75]. Cancellation of grant. Grant is to be read according to its tenor, any statute or law to contrary notwithstanding. Valid grant can be cancelled only in accordance with the provisions of Act and conditions of grant. [PLD 1966 SC 639] 10. VOID ORDERS Where basic order was illegal, void and without lawful authority any super structure built there on has to fall to ground automatically [PLJ 2003 Tr. C (Services) 21]. Such functionaries are to pass a speaking order ad not to act on a note/report submitted before them [2000 CLC 1204]. Colony Assistant who had passed impugned order of resumption of land did not have powers of Collector vesting in him at the relevant time—Order 25] [Section of resumption of land before such specified date having been passed by Colony Assistant was in excess/ absence of jurisdiction and was, thus, nullity in law. [PLD 1996 Lahore 219] Void order does not exist in eye of law---It can certainly be ignored for all practical purposes by Authority before whom it is to be produced for implementation [NLR 1991 Civil 85]

103

[CGL ACT, 1912]

Allotment of land made by Assistant Commissioner/ Collector for five years not got approved officials from District Collector – Collector subsequently resuming land in favour of state – Held: petitioner being not at fault, action to be taken against official at fault – petitioner in possession of land since 1970 – Held: lease to be restored to petitioner in case of his having paid all rent due and there being no other breach of condition [PLJ 1986 Revenue 11]. Order void ab-initio---A nullity---Such order does not require to be set aside in appeal or any other proceeding [PLD 1976 Supreme Court 208]

25. Power of re-entry and provisions as to compensation in certain cases. Where an order resuming the tenancy has been passed under the last preceding section, the Collector may forthwith re-enter upon the land and resume possession of it, subject to the payment of compensation, to be fixed by the Collector, for uncut and un-gathered crops and for the improvements, if any, that may have been made by the tenant. Provided that if the tenancy be allotted to any other person, the amount of the compensation, if any, paid to the outgoing tenant shall be recoverable by the Collector from the incoming tenant. COMMENTS
Petitioners were granted State land on lease under Tube-Well Scheme, but since they failed to comply with terms and conditions of tenancy, Authority resumed land and ordered payment of rent for the period petitioners remained in its possession---Payment of compensation to petitioners being otherwise not a precondition to resumption of State land, failure of Authority to pay the same, held, would not relieve petitioners of their obligation to pay rent for period they remained in possession of that land [1989 MLD 3089]. Grant made for a gallantry award. Cancellation of such grant by Board of Revenue. Unwarranted. [1981 SCMR 911] Payment of compensation---Not condition precedent to resumption of [Section 26 & 27] land under section. [1970 SCMR 235]

26. Provisions for re-entry on and compensation for building on sites allotted for residential purposes. In any case where a tenant has been allotted a site for residential purposes in consideration of his tenancy, and such tenancy has been resumed under the provisions of section 24 and 25 of this 104

[CGL ACT, 1912]

Act, the Collector may re-enter on and take possession of such site: Provided that the Collector shall fix and pay to the said tenant reasonable compensation for, or permit him to remove, any buildings or improvements made by him on such site. COMMENTS
Applies when land is resumed under S. 24. S. 26 not applicable in case of relinquishment. [1961 PLD 7]

27. Saving of certain tenancies and conditions. (1) Nothing in section 24, 25 or 26 shall apply to: (a) the case of land irrigated by the Rakh and Mia Ali Branches of the Chenab Canal allotted before the twelfth day of August, 1896, or (b) any breach of a condition regarding arboriculture included in any statement of conditions other than a statement pertaining to tree planting tenants, 33[or] (c) any tenancy scheduled under the proviso to section 4, except to such extent as may be specified in the statement of conditions applicable to such tenancy. (2) 34[X X X X X X X X X] COMMENTS
Ejected Tenant Scheme. Cancellation of allotment on ground of nonpayment of rent. Ex parte order passed by Colony Authorities. Upheld as being unexceptionable in circumstances of case. Colonization of Government Lands [Section 28] (Punjab) Act (I of 1912), Ss. 24, 27. [NLR 1986 SCJ 76] Leave to appeal granted to examine among other grounds whether resumption of tenancy on breach of a condition subject to affording opportunity for rectification and to examine effect of S. 27 on provisions regarding rectification contained in S. 24. [1982 SCMR 886] Allotment of state land under Notification No.837-C of 01.03.1933 (as amended subsequently---Scheduled tenancy within meaning of S. 4--33 34

Added by the Punjab Act VI of 1944 Deleted by the Punjab Act VI of 1944.

105

[CGL ACT, 1912]

Cancellation of allotment rectification of breach of conditions---Application of S. 24 excluded by virtue of S. 27. [PLD 1965 W.P. (Rev.) 16] Bara lease a scheduled tenancy-S. 24 not applicable-Resumption without notice may be ordered. [1961 PLD 76] Service of notice essential before passing order of resumption under S. 24-Notice to be in accordance with S. 20, Punjab Land Revenue Act (XVII of 1887)-Notice of service on tenant of grantee-Not valid. [1960 PLD 995]

28. Sums due to 35[Government] to be recoverable as arrears of land revenue. All sums due to 35[Government] in respect of a tenancy granted in pursuance of the Government Tenants (Punjab) Act, 1893, or under the provisions of this Act or of the rules and conditions issued thereunder, and all sums due on account of fines, confiscations, costs and penalties, shall be recoverable as if they were arrears of land revenue. COMMENTS
Sale through auction of land under lawful tenancy for recovery of amount wrongly described as Tawan—Would be unlawful and would merit setting aside. [NLR 1990 SCJ 558] Departmental authorities functioning under the Act having passed the order of recovery of Tawan, no court or insolvency proceedings would be involved in the matter and in its terms S. 18 would not be applicable---Recovery of value of crops which were unauthorisedly appropriated cannot be described as recovery of “tawan” but it would be a simple recovery of equal value of the crops appropriated---Land under lawful custody of a person against whom such recovery was ordered, thus, cannot be auctioned by the support and under the cover of Ss. 32, 33, 34 and 28 of the Act as these provisions have no real application nor even purported application in such a case. [PLD 1990 Supreme Court 736] Tender for temporary cultivation---Clause in tender regarding responsibility of tenderer for all loss to Government in case land had to be leased out on fresh tender---Suit can be filed by Government---Amount of loss cannot be [Section 29] recovered as land revenue. [1959 PLD 51] Demand of royalty by Government, if unilateral action on part of Government, is not enforceable under Act---Royalty Payable under Act amounts to penalty for purposes of recovery as arrears of land revenue under S. 28 [1957 PLD 58].

35

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964

106

[CGL ACT, 1912]

Certificate for recovery of total sum as arrears of land revenue due issued against one out of two joint tenderers by mistake-No intention of Government to give up claim against other tenderer-Mistake may be rectified [1952 PLD 200].

29. Power to abrogate conditions. The 36[Board of Revenue subject to the general approval of the Government] may at any time by notification in the official Gazette, abrogate any of the limitations and obligations imposed upon tenants as part of the conditions of their tenure. COMMENTS
Petitioners’ (retired Army personnel) applications for renewal of lease after expiry of lease period were still pending when Authorities reduced ceiling of entitlement of various retired Army personnel according to their ranks--Petitioners challenged right of Authorities to change the terms of lease while their applications for renewal of lease were pending but to no effect---High Court found that Authorities were competent to reduce the ceiling by framing new terms of grant---Rationale for reducing ceiling of area for allotment seemed to be that Government wanted to accommodate more retired Army personnel under the Scheme of Land Grant Policy---Where, however, lease was renewed up to the period expiring in June 1996, but the same was cancelled on the ground that petitioner’s performance was not found satisfactory, High Court had rightly observed that petitioner could agitate such question before the forum provided under relevant law. [1998 SCMR 1188] Board of Revenue under delegation of powers was the authority to deal with state land---Board of Revenue had earlier allowed appellant to retain land in question, on condition of payment of specified price---Board of Revenue’s subsequent notification whereby land occupied by appellant was ordered to be resumed was prompted by judgment of High Court where one of the parties (appellant) had gone in appeal concerning land in question, and wherein High Court while dismissing appeal against Government had observed that Government was not bound by the unauthorised act of Authority by transferring land in question to appellant in exchange of land which was acquired from him--High Court in its judgment had not issued any mandatory injunction against Government---Subsequent order canceling land from appellant’s name[Section 30] was thus, result of misconception, which was declared to be without lawful authority by the Supreme Court---Appellant was allowed to retain land in question in exchange on payment of specified amount which he had already offered to pay. [1994 SCMR 465] Board of Revenue Memo. No. l065070 / 1177-CL-IV, , dated 18-4--1970-Conversion of "Dera Deh" into Abadkari- Collector, held, was fully competent to order such conversion [1985 MLD 1277].
36

Substituted for the words “Provincial Government”, by West Pakistan Act XVI of 1957 as amended by W.P. Ord. XXXI of 1961 which were previously substituted for the words “Local Government” by A.O.1937

107

[CGL ACT, 1912]

Land-Reservation for public purposes- Appellants petitioners having themselves taken land on condition that they shall surrender when same needed for evictees- Land in question excluded from conferment of proprietary rights for having been earmarked for public purposes-Appellants petitioners, held, cannot get relief as against persons who are being or having been allotted land in lieu of their own lands acquired for public purposes [1983 CLC 485].

CHAPTER-III PROVISIONS RELATING TO PROPRIETORS. 30. Acquisition of proprietary rights. (1) Notwithstanding anything entered in any statement of conditions issued under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreements with, or under rules issued by the 37[Provincial Government], has acquired proprietary rights in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above mentioned Act; provided always that he shall in respect of such land be bound by the conditions set out in Schedule-II of this Act and be bound by the other provisions of this Act applicable to proprietors of land. 38 [(2) If, at any time, the Board of Revenue is satisfied that any person had acquired under this Act, tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have
37 38

Substituted for the words “Government” by A.O., 1937 Added by the Punjab Ordinance XII of 1978

108

[Section 30] [CGL ACT, 1912]

been acquired or reduce the area of such land or pass such order as it may deem fit.] COMMENTS ON SECTION 30(1)
At the time of allotment of the lands to the respondent, lands were beyond three miles from prohibited zone, but at the time of conferment of proprietary rights, it was shown within five miles limit prescribed in the notification---Location of land for the purpose of conferment of proprietary rights, was to be determined with reference to the date of allotment and not to the date of decision when proprietary rights were conferred [2008 MLD 89]. State land located in the heart of city and possessed by Municipal Committee since long---Sale of such land to respondent by using political influence without applying therefor to District Collector and publication of advertisement after relaxation of ban imposed on sale of State land through private treaty---Cancellation of such sale by Board of Revenue after hearing all parties---Governor referred to Member, Board of Revenue respondent's application made after one year and seven months of passing of cancellation order---Board of Revenue treated such application as review petition and restored such sale without issuing notice to Government or Municipal Committee or petitioner---Validity---Impugned order was hit by principle of audi alteram partem---No reason was disclosed for- condonation of delay nor was such application supported by affidavit of respondent---Review petition being barred by time was not maintainable, thus, impugned order was not sustainable in eye of law [2007 CLC 1858]. Proprietary rights in respect of land in possession under Fifteen years lease scheme---Petitioner entitled for grant of proprietary rights---Petitioner failed to deposit the installment---Colony Assistant directed the resumption of land--Appeal dismissed---Instead of challenging the order before B.O.R., petitioner made application to District Collector for extension of time which was allowed--Arrears were paid in compliance with the said order---Conveyance Deed was prepared---But some body from the village filed a complaint against petitioner--District Collector referred the matter to commissioner for review of order of appeal---Reference was answered in negative---Revision dismissed---Conduct of the petitioner was not fair enough to exercise the discretion but the petitioner associated the land for the last more than three decades---Petitioner was allowed to continue in possession in terms of the existing policy---Petitioner shall be at liberty to file fresh application for the grant of PRs as and when any scheme is [Section 30(1)] enforced [PLJ 2006 Lahore 273]. Condition in conveyance deed granting proprietary rights to petitioner in such land is wholly void being the condition in restraint of alienation---Section 30 (1) of the Act of 1912, lays down that upon grant of proprietary rights tenant shall seize to be subject to any statement of conditions, except the condition set out in Schedule-II to Act, 1912---No such restraint of alienation is to be read in Schedule-II [PLJ 2006 Lahore 1204].

109

[CGL ACT, 1912]

Acquisition of proprietary rights in favour of allottee after his death by his attorney and subsequent sale thereof by attorney---Validity---Order of grant of proprietary rights by executing sale-deed in favour of dead allottee was invalid and void---Doctrine of a bona fide purchaser for consideration without notice of defect could not be extended to an invalid and void purchase by a purported purchaser from incompetent vendor, in whose favour sale was fundamentally void---No rights under such sale could flow in favour of subsequent purchasers [2006 YLR 2038]. Suit property had come out of the pale of provisions of Colonization of Government Lands (Punjab) Act, 1912 after conferment/acquisition of proprietary rights, because in terms of S.30 of the Colonization of Government Lands Act, 1912 property in question ceased to be subject of any statement of conditions under the Act---Suit, in circumstances was correctly filed without impleading the State, impugned order of Appellate Court, was set aside declaring same as against the provisions of law [2006 YLR 2638]. Proprietary rights, grant of allotment under temporary cultivation scheme. Collector having no jurisdiction simply on general complaint, cancelled such allotment of respondent. Additional Commissioner remanded case to Assistant Commissioner for reconsideration, who found respondent’s allotment genuine. Such land during interregnum period was allotted to petitioner under Atomic Energy Oustees Scheme. High Court accepted Constitutional petition of respondent. Validity. Record showed that at the time of issuance of notification entitling respondent to secure proprietary rights, such land was not included in any permanent scheme. Possession of land had remained with respondent in spite of it was allotment to the petitioner. Respondent had been embroiled in uncalled for litigation for last three decades, in spite of the act that his allotment had been determined as genuine and valid. No legal infirmity having been pointed out in impugned judgment, Supreme Court dismissed petition and refused leave to appeal. [2003 SCMR 1931] Bara Reclamation Scheme was promulgated on 12-12-1945 envisaging conferment of proprietary rights over half of reclaimed land allotted under such Scheme--Period of eight years had been given for bringing barren land under plough---No concept of prohibited limits existed in original Scheme ---Allottee had applied for conferment of proprietary rights in 1960 after fulfilling conditions under Scheme, thus, he or his legal heirs could not be held responsible or made to suffer for lethargy of District Collector---Had the case been processed with reasonable speed, same would have been completed long before establishment [Section 30(1)] of Town Committee bringing such land under prohibited zone---Petitioners were not at fault---Board of Revenue directed the District Collector to process the case for conferment of proprietary rights on petitioners in accordance with law [2002 YLR 2412]. Proprietary rights in respect of land were granted by Assistant Commissioner/ Collector to the allottee, but Deputy Commissioner/ Collector on recommendation of Head Clerk Colony, ordered resumption of land by a non-

110

[CGL ACT, 1912]

speaking order and that order was upheld by Additional Commissioner—Validity —Order passed by Assistant Commissioner/ Collector could be reviewed by Collector only after obtaining permission of the Commissioner as provided under S.163(2)(a)(ii), W.P. Land Revenue Act, 1967. [2001 CLC 588] Once land was made available for allotment, it would supersede all Notification imposing such prohibition and once allotment has been made, presumption would be that such act was done in good faith and in a lawful manner and in circumstances, principle of locus penitential attracted [1994 MLD 801]. Section 30 provides that after acquisition of proprietary rights by a tenant, he shall cease to be subject to any statement of conditions issued under the abovementioned Act but would remain bound by other provisions of this Act applicable to the proprietors of the land. [1991 SCMR 2415] Allottee of land from out of Chiragah—Ceases to be a tenant under Act after payment of full sale price—Cancellation of allotment after payment of sale price would be illegal—It can be challenged by way of civil suit [NLR 1990 Revenue 63]. Where sale price had been deposited and possession was handed over to allottees, by the Collector, then no other Revenue Authorities even superior to the Collector could intervene and reverse the decision of Collector. [PLD 1990 Lahore 66] State land sold by auction with condition that if in future land became capable of irrigation from canal, petitioner-purchasers would pay additional sum to Government. Such condition not incorporated in formal sale deed executed in favour of purchasers. Canal authorities subsequently included land in commanded area requiring petitioners to obtain no objection certificate from Collector for supply of canal water. Collector’s refusal to issue no objection certificate unless additional sum was paid. Order of Collector unnecessarily challenged in writ petition. Leave to appeal granted to consider contention that said condition regarding payment of additional sum was not enforceable as it was not included in sale deed executed in favour of petitioner predecessor-in-interest and as such Collector was not justified in withholding no objection certificate. [1988 SCMR 18] Interpretation---Before executing a sale deed and conferring proprietary rights, Collector to see that purchase money paid and conditions of sale fulfilled--Collector has no jurisdiction to intervene after conferment of proprietary rights even though there has been breach of some condition of sale deed---Purchaser on execution of sale deed, held, ceases to be governed by conditions incompatible with those actually included in sale deed---Grant of proprietary rights---Interference---Collector, held, after grant of proprietary rights to a purchaser, has no power to impose conditions having no basis in law--Notwithstanding conferment of proprietary rights, tenant, held, bound only by conditions in schedule-II and all other conditions of Act applying to proprietors

111

[Section 30(1)] [CGL ACT, 1912]

and not to tenants, Purchaser on execution of sale deed, held, ceases to be governed by conditions in compatible with those actually included in sale deed. Collector, held, has no jurisdiction to himself cancel sale and resume property after conferment of proprietary rights in view of arbitration clause in para-155-A of Manual---Collector can enforce arbitration clause or approach Civil Court in that behalf---Ss.4 & 15 read with Colony Manual, Vol. II, para. 155-A---Power of collector, held, has no jurisdiction to himself cancel sale and resume property after conferment of proprietary rights in view of arbitration clause in para. 155-A of Manual---Collector can enforce arbitration clause or approach civil court in that behalf---S. 30 read with Government Grants Act (XV of 1895), S.3---Proprietary rights, grant of---Notwithstanding conferment of proprietary rights, tenant, held, bound only by conditions in Schedule-II and all other conditions of Act, applying to proprietors and not to tenants. [PLD 1983 Lahore 294] Tubewell Scheme—allotment made to respondent was in two parts (113 acres 1 kanals and 19 marlas vide order dated 17.10.1952 and 52 acres 6 kanals and 16 marlas vide order dated 13.04.1956) and for all intents and purposes these allotments were treated as one and same tenancy—Clause (c) of Conditions (published with Government letter No. 7943-60/4608-C(G), dated 18.06.1960) requiring respondent to exercise option of purchase in respect of whole tenancy and not only a part thereof—limit exceeding limit of 250 acres prescribed under conditions for purchase of proprietary rights in allotted land— BOR exercising its powers u/s 164 (Land Revenue Act) and Government notification No. Col-15-44-57, dated 16.02.1960, setting aside order of Collector, canceling deed of conveyance executed in respondent’s favour and resuming land in Government’s favour. [NLR 1979 Revenue 63] Orders (staying registration of conveyance deed) passed by Collector in course of proceedings under Colonization Act and not in his capacity as Registrar under Registration Act---Appealable to Commissioner. [1978 RLR 44]. Conveyance deed executed in petitioner’s favour and proprietary rights given---Colony staff subsequently finding four Killas of land already allotted to another having been allotted to petitioner also and Board of Revenue canceling petitioner’s allotment on plea of having been made by Additional Commissioner and not by Collector---Order of Board of Revenue, held, amounted to interference with proprietary rights of petitioner, land transferred after fulfillment of necessary conditions could not be cancelled on such technical ground and, [Section 30(2)] therefore, order of cancellation without lawful authority. [PLD 1978 Lahore 148] Valid grant cant be cancelled only in accordance with provisions of Act and conditions of grant---Arbitrary cancellation of grant---Fit case for relief under Art. 98, Constitution of Pakistan (1962). [PLD 1966 Supreme Court 639]

COMMENTS SECTION 30(2)
Allegation of fraud and forgery---Past and closed transaction---Authorities reopened the case of allotment of land in favour of petitioner on the plea of fraud and forgery---Validity---Mere allegation of fraud and forgery did not, ipso facto,

112

[CGL ACT, 1912]

vest the authorities with jurisdiction in a matter which had otherwise attained finality---If such a course was allowed to be adopted, then there would be no end to it---Issuance of memorandum and initiation of proceedings by authorities were without any factual or legal justification and were declared as of no legal effect [PLD 2009 Lahore 78]. Claim in the suit was that plaintiff was transferee of suit land from its original allottee, but Board of Revenue cancelled allotment of original allottee without notice to the plaintiff who was subsequent vendee---Suit filed by plaintiff was concurrently decreed by Courts below including the High Court---Validity---In absence of any misreading or non-reading of evidence judgment of Courts below and High Court could not be interfered with, especially when all points raised before High Court found properly attended to and reasonably met [2008 SCMR 749]. Subsequent vendee had no obligation to take precautionary measures before entering into sale agreement---Subsequent vendee was bonafide purchaser for value without having notice about such agreement [2008 SCMR 352]. Board of Revenue is competent to cancel the land provided the tenant has acquired the land by means of fraud or misrepresentation or was not eligible to have such rights from any reason [PLJ 2008 Lahore 216]. Board of Revenue was competent to cancel the allotment of land provided the tenant had acquired the land by means of fraud or misrepresentation; or was not eligible to have such rights for any reason---Case of the petitioner did not fall within the ambit of provisions of S.30(1)(b) of Colonization of Government Lands (Punjab) Act, 1912 [2008 CLC 825]. If provisions of S. 30 of Colonization of Government Lands (Punjab) Act, 1912 was to be invoked by Member, Board of Revenue, then there must have been a notice issued to allottee, specifying and pointing out the allegations of the kind of fraud or misrepresentation which allegedly was committed by original allottee, in process of obtaining state land and its formal conveyance deed [2007 YLR 1008]. Petitioner purchased land in question from the allottee who had been granted proprietary rights---Board of Revenue subsequently, found allotment a result of fraud and misrepresentation, therefore, conveyance deed in favour of allottee was cancelled---Grievance of petitioner was that such action could not have been taken by Board of Revenue without providing him an opportunity of hearing---Validity---Words “show cause” meant to make clear or apparent, as by evidence, testimony, or reasoning to prove---Expression “after giving such person a reasonable opportunity of showing cause” was not idle or empty form, it contained a very solitary and substantial provision of law; as such the expression did not mean that only an opportunity was to be given for offering explanation against proposed action in S. 30 (2) of Colonization of Government Lands (Punjab) Act, 1912---Adequate opportunity not only to offer explanation against

113

[Section 30(2)] [CGL ACT, 1912]

proposed action but also to produce defence was to be given---Words “showing cause” in S. 30 (2) of Colonization of Government Lands (Punjab) Act, 1912, did not imply that mere opportunity of submitting an explanation was enough which implied that adequate opportunity of leading evidence in support of contentions of person concerned and to controvert the contention raised against him must be given---Giving an opportunity of hearing should be granted to petitioner by Board of Revenue in the interest of justice [2007 CLC 1123]. Land in dispute was duly allotted to petitioners under "Grow More Food Scheme" and petitioners were delivered possession of said land, but allotment order in favour of petitioners, subsequently was withdrawn by Member Board of Revenue exercising suo motu powers of review--- Orders passed in review were declared to have been passed without any lawful authority and were of no legal effect [2006 PLD 418]. Power given to Board of Revenue is exercisable upon satisfaction that a person has acquired tenancy rights by means of fraud or misrepresentation that he was not eligible to have such rights for any reason whatsoever---Petitioner had acquired tenancy rights by means of fraud or that he was ineligible to have such rights [PLJ 2006 Lahore 1204]. Petitioner, who was allotted land in question under Five Year’s Lease Scheme, was held eligible for conferment of proprietary rights and a conveyance deed was executed and registered in his favour---Said conveyance deed subsequently was cancelled under S. 30 (2) of Colonization of Government Lands (Punjab) Act, 1912 on ground that petitioner had alienated said land--Contention of petitioner was that alleged alienations were made by him in favour of his mother and his sons and not for seeking profits or enrichment---Validity--Provisions of S. 30 (1) of Colonization of Government Lands (Punjab) Act, 1912 had laid down in clear terms that upon grant of proprietary rights, tenant would cease to be subject to any Statement of Condition, except the condition set out in Schedule-II to the Act---No such restraint of alienation was to be read in said Schedule-II---Respondents had purported to act under subsection (2) of S. 30 of Colonization of Government Lands (Punjab) Act, 1912 while passing impugned order---Power given to the Board of Revenue under S. 30 (2) OF Colonization of Government Lands (Punjab) Act, 1912 was exercisable only upon satisfaction that a person had acquired tenancy rights under the Act by means of fraud or misrepresentation or that he was not eligible to have such rights for any reason [Section 30(2)] whatsoever---No allegation was leveled that petitioner had acquired initial tenancy rights by means of fraud or misrepresentation or that he was not legible to have such rights---Impugned order, in circumstances was set aside being wholly without jurisdiction, illegal, void and without lawful authority [2006 CLC 1748]. Land permanently settled on the allottee could not be cancelled, the proviso conferring such jurisdiction had been removed from the statute book--Order of cancellation was thus without lawful authority [2006 YLR 1915].

114

[CGL ACT, 1912]

ACQUISITION OF LAND. Colonization of Government Lands (Punjab) Act (V of 1912). Ss 16 & 30(2)---Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Ss. 16 & 30(2) of Colonization of Government Lands (Punjab) Act, 1912 but not with regard to land permanently settled on the allottees--Where the respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land, in such circumstances, their allotment could not be cancelled---Board of Revenue was not equipped with any authority even to cancel allotment in favour of the respondent, after receipt of price and execution of sale deed [PLJ 2005 Lahore 1175, 2004 MLD 441& 2004 YLR 1650]. Board of Revenue was not empowered with any authority even to cancel allotment in favour of the respondent after receipt of price and execution of saledeed. Absence of fraud or misrepresentation – power Under Section 30 (2) could not be exercised by the Board of Revenue without holding inquiry. Order of Board of Revenue based on the notification relating to the fact that the allotment to the respondents fell within prohibitory zone of Municipal Limits was not a good ground to cancel the allotment because once land made available for allotment and was transferred and settled on the respondents, it would supersede all the notification imposing prohibitions [PLJ 2005 Lahore 1175]. S.30(2) only empowers Board of Revenue cancellation of tenancy rights obtained through fraud or misrepresentation. This power cannot be exercised by Board of Revenue in a case of transferee from allottee who had paid the entire sale price and purchase documents were executed in his favour---Provisions of notice before cancellation of allotment under S.30(2) is a statutory requirement--Board of Revenue can proceed under Ss. 16 and 30(2) against transfer of tenancy/ lease rights obtained through misrepresentation but not with regard to permanently settled land made in favour of allottees---Powers to resume tenancy rights under S.30(2) are subject to certain pre-requisites prescribed in S.30(2). Cancellation of allotment and resumption of land in absence of satisfaction of these requisites would be illegal and not sustainable in law. Order under S.30(2) would be a void order---Transfer of land and its permanent settlement in favour of allottee would supersede all prohibitions against allotment of such land. In such case, Board of Revenue under the principles of locus poenitentiae would not be justified to cancel such allotment as according to presumption of law it would be presumed that allotment and permanent settlement of land in favour of allottee [Section 30(2)] was done in lawful manner. [NLR 2005 Revenue 52] Jurisdiction to scrutinize tenancy/ lease rights under the Colonization of Government Lands (Punjab) Act, 1912 having been removed, Authority was not equipped with any power to cancel allotment in favour of a tenant permanently settled [2004 YLR 1650]. After death of original lessee, his sons who neither remained members of Cooperative Farming Society of the Chak concerned nor were resident thereof nor even remained in self-cultivation of land in dispute, by committing fraud and

115

[CGL ACT, 1912]

misrepresenting facts, got conveyance deed of proprietary rights in their favour in respect of land in dispute---Self-cultivation of land being basic condition for grant of proprietary rights under Cooperative Farming Scheme, order of District Collector granting conveyance deed to sons of the original lessee was unlawful and void---Conveyance deed issued in favour of sons of original lessee being based on misrepresentation, illegality and fraud was cancelled under section 30(2) [2004 CLC 40]. Person owning land equal to or more than subsisting holding and not in cultivating possession of leased land or having acquired land in any other scheme was not entitled to grant of proprietary rights---Petitioners had failed to fulfill conditions prerequisite for grant of proprietary rights under such notification---Petitioners had acquired proprietary rights through fraud or misrepresentation---Board of Revenue had rightly cancelled conveyance deed in exercise of powers under section 30 (b) of the Act [2004 CLC 108]. Respondent was allotted state land as an oustee from Islamabad Capital Territory, when there was no prohibition on its allotment and it was not Chiragah. In absence of any violation of the terms and conditions of the grant by the respondent, neither the administration and/ or Member, Board of Revenue nor the Civil Courts had any jurisdiction to undo his grant [2002 SCMR 807]. Where acquisition of tenancy was result of fraud and misrepresentation or the person was not eligible to have such rights, Board of Revenue could exercise power under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912--As no fraud or misrepresentation had been committed by the petitioners nor they had suffered from any ineligibility in securing allotment/ grant of proprietary rights of the land, the jurisdictional facts for invoking the extraordinary power under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912, were lacking and missing—Settled rights of parties could not be interfered with on general unsubstantial allegations. [2002 YLR 2310] Power of District Officer Revenue (defunct Collector) to cancel sale and resume land---Scope---Such purchaser would still remain subject to statement of conditions as provided in S.3 of Government Grants Act, 1895---District Officer Revenue, in case of breach of any of conditions of grant itself, could cancel sale and resume land even after conferment of proprietary right---Where terms and conditions of grant were not fulfilled, there would be no legal bar or any embargo [Section 30(2)] to cancel or modify a grant [2002 YLR 2615]. Powers vested in Authorities under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 were available to Authorities only for the period during which transferees from Government retained title of suit-land and said powers could not have been exercised after transferees had further conveyed land to bona fide purchasers. [2002 YLR 3788] Allotment of land. Cancellation. Land in question was reserved for permanent scheme of the Islamabad Oustees. Predecessor-in-interest of the respondents was allotted the same who had paid entire price and the Deed of

116

[CGL ACT, 1912]

Conveyance was also registered in his favour. Appellant assailed the allotment on the ground that the land had already been allotted to him under the Grow More Food Scheme which allotment was cancelled by the Board of Revenue under the provisions of S. 30(2) of Colonization of Government Lands (Punjab) Act, 1912. High Court in exercise of Constitutional jurisdiction set aside the order of Board of Revenue and the allotment was restored in favour of the respondents. Validity. Record did not show that the land in question was ever allotted to the appellant under the Grow More Food Scheme. Respondents had been dragged unnecessarily by the appellant in the litigation. Judgment passed by High Court was based on the accepted principles and there was no irregularity or illegality therein requiring interference by Supreme Court. [2001 SCMR 1283] S. Under Section 30(2) –- Voidable conveyance – Voidable conveyance remains effective and does not, in any manner, impair the rights of the vendee to deal with the land conveyed, untill the same is set aside on the ground of fraud. Any such subsequent determination by Board of Revenue could not possibly affect the title of the petitioners as the same was acquired at a time when such title was vested in the respondent – Not open to the Board of Revenue to resume the land which already stood vested in the petitioners prior to the date of resumption in exercise of powers under S. 30 (2) of Colonization of Government Lands (Punjab) Act, 1912, –- Order of Board of Revenue was set aside [2000 CLC 953]. Cancellation of allotment by order of Revenue Authorities---Respondent obtained decree from Civil Court in his favour as far back as 1974---State did not appeal and on basis of said decree mutation was sanctioned in favour of respondent---State subsequently moved Board of Revenue in terms of S. 30 (2) (b), Colonization of Government Lands (Punjab) Act, 1912 for cancellation of allotment in favour of respondent---Effect---Board of Revenue refused to invoke provision of S. 30(2) (b) of the Act in favour of state on account of its inaction against decree of Civil Court granted in favour of respondent and its moving for cancellation of allotment so belatedly---Provision of S. 30(2) (b), Colonization of Government Lands (Punjab) Act, 1912, does not give open ended authority to Board of Revenue to set aside a deed at any time. [1996 MLD 258] Resumption of land--- Requirements--- Inquiry resulting in the resumption of order must be held by the Board of Revenue itself. Further the power to resume is subject to the necessary condition precedent that the tenancy rights had been acquired by means of fraud and misrepresentation. Whether [Section 30(2)] there was fraud or misrepresentation is, therefore, a jurisdictional fact and it is upon the establishment of that fact that the power of the Board of Revenue to resume land depends [1993 Law Notes (Lahore) 67, PLD 1993 Lahore 114]. Power to resume was however, subject to the necessary condition precedent that tenancy rights had been acquired by means of fraud or misrepresentation, such fact being jurisdictional fact, power of Board of Revenue

117

[CGL ACT, 1912]

to resume such land would depend upon the establishment of fact [PLD 1993 Lahore 114]. Plot in question, having been allotted to petitioner and he having fulfilled terms and conditions of allotment same could not be cancelled due to subsequent change of policy by the Chief Minister [1993 CLC 376]. Powers of cancellation of allotment u/s 30(2) vest in Board of Revenue. Exercise of these powers by Colony Assistant would be unwarranted and without jurisdiction. [NLR 1992 Revenue 198] Petition for leave to appeal merited dismissal on the short ground that against the order of High Court, Member, Board of Revenue did not file Intra Court appeal—Even otherwise Board of Revenue’s order being violative of the provisions of S.30(2), Colonization of Government Lands (Punjab) Act, 1912 was not legally maintainable—No question of law of public importance having been raised for examination in petition—Leave to appeal was refused. [1990 SCMR 1008] Power u/s 30(2)—Not confined to cases of misrepresentation or fraud—It can be invoked to examine eligibility and merits of case. [NLR 1987 Revenue 161] Once proprietary rights have been conferred on tenant such tenant, held, was required to be given show cause notice before resuming his land under S. 30 (2) of Act v of 1912 [1986 MLD 2065]. Special horse breeding grant--Conditions--Renewal of leases subject to good performance as to breeding of horses as well as due compliance of terms and conditions of grant with powers to resume tenancy on expiry of term vesting in Government-- Renewal of grant refused on ground of lessees having bad record of which they were not given any notice nor provided any opportunity of defending themselves--Held, such decision was clearly adverse to lessees and reflected upon their performance as breeders and in this view of matter lessees were entitled to be given opportunity to defend themselves before passing any such order [1985 SCMR 9]. Board of Revenue empowered to resume land in respect of which proprietary rights had been acquiring by fraud or misrepresentation or on account of ineligibility of a lessee – Order tainted with fraud or misrepresentation, held, could not be allowed to attain finality [1985 CLC 1645]. Purchase was allowed in favour of respondent after fulfilling [Section 30-A] all formalities and even appeals filed against transfer rejected by judicial orders---Held, proceeding under S. 30(2) of Colonization of Government Lands (Punjab) Act, 1912 against respondent not justified. [PLD 1985 Rev. 8] Conveyance deed not showing any restriction on vendee of state to further sell land—Litigation before Deputy Commissioner/ Collector was only for correction of field number of land, sold to respondents, in mutation—No fraud or misrepresentation practiced in obtaining sale of land—Held, there was no

118

[CGL ACT, 1912]

sufficient ground or justification to invoke suo motu jurisdiction under S.30(2) [PLD 1985 Rev. 19] Resumption of land after conferment of proprietary rights and execution of sale deed—Board of Revenue empowered to interfere in its revisional jurisdiction with order tainted with fraud or misrepresentation. [NLR 1985 Revenue 56] Board of Revenue competent to suo motu cancel allotment obtained by misrepresentation—In circumstances, Board exercising suo motu power and revoking conveyance deed executed in favour of respondent lambardar and also canceling mutation. [NLR 1984 Revenue 142] Allotment of charagah land in 1956---Its cancellation on ground that land being charagah land was not available for allotment---Unwarranted---Held. This view is against terms of scheme and cannot effect rights of allottee [NLR 1983 Revenue 251]. Insertion of Sub-section (2) to S.30—Retrospective insertion of subsection (2) empowers BOR to resume land in respect of which proprietary rights have been acquired by fraud or misrepresentation or on account of ineligibility of a lessee. [NLR 1979 Revenue 63] Land transferred after fulfillment of necessary conditions could not be cancelled on such technical ground and, therefore, order of cancellation without lawful authority [PLD 1978 Lahore 148].

Full price of land having been paid and sale deed executed and registered in favour of tenant – Government and its functionaries, of held, cannot retrace steps and reclaim PLD 1978 Lahore 1146.
39

[30-A. Right of alienation in respect of and rule of succession to certain proprietary rights acquired by a female. (1) Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab) Amendment Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same:-

39

Inserted by the Punjab Act VI of 1944

119

[CGL ACT, 1912]

[Section 30-A]

if she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir; and (b) if the tenancy was first allotted on account of some male person, either to her, or to another female to whom she succeeded either directly or in a continuous line of female succession, as if the proprietary rights had been acquired by such male person and she had succeeded to such rights as his heir, and in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietary rights in question, the said rights shall devolve upon the persons who would be entitled to succeed, if such rights had been acquired by the last male tenant, or the male person on whose account the tenancy was first allotted, as the case may be. (2) Nothing herein contained shall be construed to alter the law of succession applicable to any female tenant, in respect of proprietary rights in land acquired by her, if the tenancy in such land was acquired by or accrued to her in circumstances other than those specified in sub section (1). (3) For the purposes of this section the expression “any such land” shall be deemed to include any land obtained in exchange for part or all of the land in which proprietary rights have been acquired.] COMMENTS
Allottee of land. Allottee died before obtaining proprietary rights. Inheritance of. Whether appellant acquired her share as full owner or limited owner. Question of Mst. Bakhtawar’s case was not of estates devolution to a female from a male last holder under section 30-A (a) or (b). Her case was covered by Section 30-A (2) of Act. Held: On obtaining proprietary rights, Mst. Bakhtawar shall have to be treated as full owner of property in dispute. Appeal accepted. [PLJ 1993 SC 406]

(a)

120

[CGL ACT, 1912]

[Section 30-A]

Female tenant whose case is not covered by sub-section (1) shall, on obtaining proprietary rights, have to be treated as full owner of property. [NLR 1993 SCJ 362] Original owner had not yet paid the proprietary dues when his death took place. Widow having paid the proprietary dues and obtained proprietary rights was to be treated as full owner of the property. [1993 SCMR 1094] Limited estate holder succeeding to original tenant and acquiring proprietary rights in 1956 would be governed by S. 2A, Muslim Personal Law (Shariat) Application Act V of 1962 [inserted by Amendment Ord. XIII of 1983]. On acquisition of proprietary rights limited female owner would not become full owner but her rights would be subject to Shariat. Held. Finding of Courts below that on acquisition of proprietary rights limited female owner (daughter of original tenant) had become full owner was clearly untenable. [NLR 1991 SCJ 783] Last Muslim male owner having died issue less, his property was devolved upon his widows in 1939. Such widow after having paid Government dues in respect of said land acquired proprietary rights and thereafter sold it to defendants. Plaintiffs; suit on basis of being heirs of last male owner claiming ¾ share of his property was dismissed by Trial Court, but was decreed on appeal by First Appellate Court which was up held by the High Court in revision. Defendants’ contentions that their case was governed by S. 30-A and not by S. 19-A of Act V of 1912 and that vendor widow being full owner of disputed land was entitled to alienate it and that by provisions of S. 2-A of the amended Act V of 1962, plaintiffs’ suit stood abated, had also been raised before High Court and had been attended to. No interference, held, was called for by Supreme Court in the light of principle laid down by Supreme Court. [1989 SCMR 1958] Estate held by a Muslim female u/s 30-A (1) before enforcement of Shariat Application Act, 1962 was in reality a limited estate held under custom. Judgment and decree passed by Trial court and affirmed in first and second appeals on view that estate of Muslim female acquiring proprietary rights u/s 30A was not hit by Shariat Application Act set aside by Supreme Court. [1983 SCMR 80] Female succeeds to property of last male tenant as his heir—As such her succession would open to heirs of last male tenant upon death or remarriage of female proprietor—Contention that limited estate of female held by her u/s 30-A of Act, 1912 would not be hit by Shariat. [NLR 1982 UC 389] Words “on account of some male person”—Husband applying for grant of land under Darya burdi scheme but dying before actual grant—Land subsequently, sanctioned in husband’s name but mutated in widow’s name as his successor—Widow paying malikana, acquiring proprietary rights and gifting away land to another—Widow granted land not in her own right but “on account of some male person”—Widow in circumstances did not become full owner and could not gift away property so as to deprive husband’s heirs. [1970 SCMR 246]

121

[CGL ACT, 1912]

[Sections 31& 32]

Ss. 20 and 21 govern succession to “tenant”. Not applicable where proprietary rights have been acquired and tenancy ceases to exist---Daughter succeeding to tenancy and paying up government dues for transfer of proprietary rights---Becomes owner of land in her own right subject to limitations provided in S. 30-A of the Act. [PLD 1961 Baghdad-ul-Jadid 52]

CHAPTER-IV SUPPLEMENTARY PROVISIONS 31. Mares, camels or their progeny maintained under prescribed conditions not to be attached or sold. No mare or camel or other animal maintained in accordance with any prescribed statement of conditions and no progeny, if less than eighteen months old, of any mare or camel so maintained, shall be liable to attachment or sale in execution of any decree. 32. Power of re-entry in case of squatters and trespassers. When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of 40[Government] without payment of any compensation whatsoever. COMMENTS
Once petitioners were allowed to cultivate the barren land in dispute, they could not have been ejected from said land which was developed by them—No doubt the possession of the petitioners over the land in dispute was illegal, but their longstanding possession over said land could not be overlooked—Accepting revision, impugned orders were set aside, with direction to the Authority to look into the matter, consider the claim of petitioners, scrutinize the record and after hearing them should decide the case [2008 CLC 312]. Allotment got by fraudulent means---Effect---Subsequent possession of such person would amount to encroachment and being encroacher, question of entitlement would not arise [2005 SCMR 1673]. Allotment of land to Islamabad affectees---Petitioners though not allottees of any portion of disputed land under any scheme filed Constitutional petition, which was dismissed by High Court---Contention of petitioners was that they as
40

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964

122

[CGL ACT, 1912]

[Section 32]

trespassers were in possession of land, which they were entitled to retain as Government was legally bound to provide them shelter---Validity---Same could not be a ground available in law to contest claim of allottees under Islamabad Oustees Scheme---Trespasser could not claim any right to maintain Constitutional petition---Petitioners should have independently approached Government for providing them shelter and not to challenge allotment made lawfully in favour of respondents as Islamabad affectees under a scheme framed for them [2004 SCMR 779]. Right of hearing under provisions of S. 32 of Colonization of Government Lands (Punjab) Act, 1912---Scope---Such provisions neither exclude right of hearing to person likely to be affected nor determination there-under can be made at the back of person in possession [2003 CLC 1922]. Resumption of State land from illegal occupant---Petitioner's contention was that he being sub-tenant under original tenant was entitled to grant of proprietary rights Validity---Nothing on record was available to show that petitioner had been a sub-tenant under the original allottee--Perusal of Khasra Girdawari indicated the petitioner to be an illegal, occupant --- Revision petition was dismissed in circumstances [2002 YLR 2591]. Contention of petitioner was that he had constructed house over the land in dispute and wets living there since long, thus, was eligible for grant of proprietary rights under Board of Revenue, Punjab Policy Letters of 1988 and 1993---Status of petitioner was that of an encroacher, who could not be allowed to retain land in question---Collector had correctly ordered ejectment of petitioner and no injustice had been done to him---Board of Revenue dismissed revision petition in circumstances [2002 YLR 2584]. Land in illegal occupation of petitioners---Auction of such land-Contention of petitioners was that neither arty notice of auction was given to them nor proper advertisement was made; and that they were prepared to offer Rs.18,000 as against the highest bid of Rs.11,500---Validity--Large number of properties including disputed land had been duly advertised in a national Daily--No ground was made out for interference with auction proceedings of disputed land in favour of highest bidder--Board of Revenue dismissed revision petition in circumstances [2002 YLR 2406] Specific Relief Act (I of 1877), S.42---Suit for declaration---Title in respect of State land---Case set up in the plaint was that Municipal Committee had been in possession of the suit land for about fifty years and had always considered itself to be the owner in possession of the land---Suit was contested by the Authority contending that land throughout belonged to the Provincial Government and at no stage was given to the Municipal Committee---Mere treatment by plaintiff-Committee of suit land as its own for number of years, was not enough to vest title in it nor the grant of lease of land by it to various persons or even alternation of proprietary rights would suffice to constitute Municipal Committee as the owner of land which was a State land [2001 MLD 1916] .

123

[CGL ACT, 1912]

[Section 32]

Where Collector is satisfied that any person has taken or is in possession of land in colony to which that person has no right or title, Collector is competent under S.32, Colonization of Government Lands (Punjab) Act, 1912 to resume possession of that land [2000 YLR 2498]. Appropriate action proposed by Assistant Commissioner against petitioner was maintained up to Board of Revenue—High Court on basis of material on record had found that petitioner had been shown as illegal occupant of land in question, in Khasra Girdawari, therefore, he was not entitled to any relief in equitable and discretionary jurisdiction of Court—Leave to appeal was refused in circumstances. [1999 SCMR 1331] Question as to who are allottees of land in Cholistan areas and who were occupying it unauthorisedly is a question of fact which is to be determined on basis of allotment orders/ title documents to be produced by alleged allottees before competent forum. Occupants who have no title would have no legal right to remain in occupation, and, therefore, they would be liable to be ejected. Supreme Court remanding cases to Board of Revenue to proceed in the matter in accordance with requirements of Colonization of Government Lands (Punjab) Act, 1912. [NLR 1999 Revenue 1] Petitioners/plaintiffs got possession of a pond existing in "Charagah", filled the same and constructed their houses thereon---Process under Ss.32 & 34 of the Colonization of Government Lands (Punjab) Act, 1912, was initiated against the petitioners/plaintiffs---Plaintiffs filed suit for declaration to the effect that they being in possession of said land had the possessionary rights of the property which was not allotted to them under any scheme---Trial Court dismissed the suit under O. VII, R.11, C. P.C. and the order was upheld by the lower Appellate Court---Validity---No proprietary rights could be conferred upon the unauthorised occupants of the property---Judgment of the Trial Court and that of the lower Appellate Court was modified to the extent that the plaint was rejected [1999 CLC 1396]. Request of petitioners for regularization of their unlawful occupation over said land, was rejected, but keeping in view long affiliation of petitioners with land in dispute since independence, petitioners, were allowed to purchase on payment of current market price with 50% penalty for un authorised possession and 10% surcharge [1996 MLD 751]. Notice issued to petitioner for vacating land in question was set aside and respondents were directed to allow petitioner to participate in open katchery for disposal of land in question as and when such occasion would arise and till then he would not be dispossessed [1996 CLC 676]. Plaintiff was not recognized a tenant in occupation of Government land--Ejectment--- Courts below had directed Government that plaintiff should not be ejected from the land in question, except in accordance with law [1994 CLC 1663].

124

[CGL ACT, 1912]

[Section 32]

Upon payment of purchase price for the state land and conferment of proprietary rights in it, land in question, would go beyond the pale of S. 32/ 34, Colonization of Government Lands (Punjab) Act, 1912---Land in question, having ceased to be state land, dispute regarding title between two private parties could not be adjudicated upon under S. 32, Colonization of Government Lands (Punjab) Act, 1912---Such question could only be dealt with by a Civil Court. [1994 MLD 1381] Section 32 empowers Collector to dispossess squatters and trespassers and resume possession of the land and all crops, trees and buildings thereupon without payment of any compensation whatsoever---Section 32 would apply only in respect of squatters and trespassers on the government land and in such a case Collector was empowered to resume possession of the land and also the crops, trees and buildings without payment of any compensation---For want of sanction in writing as provided under S. 19 for the reason that both remedies under Ss.19 & 32 being different in nature would apply in different situations--Question as to possession of land in dispute---Constitutional jurisdiction, exercise of---Revenue Officer being the competent Authority should have been allowed to bring the proceedings to a finale so far as question of possession of disputed land was concerned---Interference by High Court under Constitutional jurisdiction with regard to possession of property was not justified---Section 32 of Colonization of Government Lands (Punjab) Act, 1912 is not intended to be operated for the benefit of one private party contending against the other. In other words any dispute regarding title between two private parties cannot be adjudicated upon under section 32---Disputes with regard to title between private parties are to be settled and adjudicated upon in the Civil Courts and raising such plea cannot stop Revenue Authorities from performing their functions under section 19 and 32 of the Act unless stay order is brought from the Civil Court. [1991 SCMR 2415] Provision of S.32 does not exclude right of hearing to persons likely to be affected—Determination u/s 32 cannot be made at back of person in possession. [NLR 1991 Revenue 21] Order directing eviction of an encroacher passed without giving him opportunity of being heard, cannot be sustained as it is violative of law. [NLR 1991 Revenue 99] No order adverse to the interest of a person could be passed without granting him opportunity of being heard---While deciding whether petitioner was encroacher, he should have been associated with the enquiry being conducted by the Assistant Commissioner---Order in question was thus, violative of law and same was not sustainable---Collector, however, could proceed afresh in accordance with law after granting opportunity to petitioner of being heard. [1991 MLD 2394] Recovery of value of crops which were unauthorisedly appropriated cannot be described as recovery of “tawan” but it would be a simple recovery of

125

[CGL ACT, 1912]

[Section 32]

equal value of the crops appropriated---Land under lawful custody of a person against whom such recovery was ordered, thus, cannot be auctioned by the support and under the cover of Ss. 32, 33, 34 and 28 of the Act as these provisions have no real application nor even purported application in such a case. [PLD 1990 Supreme Court 736] Revenue Officer cannot press into service S. 32 or S. 19 for benefit of a private party for resolving a private dispute regarding colony land between two private parties---Person in possession of land in violation of S. 19, could be ejected from land by Collector but such ejectment should be for benefit of Government and not for benefit of person who might have himself committed breach of said provisions---Section 32 has been provided for to protect interest of government and not to provide forum to a private party to resolve private dispute [PLD 1984 Karachi 413] Unauthorized occupant of Government land—Ejectment—Order, held in circumstances of case, was not open to exception. [NLR 1981 Revenue 62] Fact that application initially moved before Collector was made u/s 32 or under any other provision of law—Not important—Collector is competent to act in circumstances of case under any provisions of law applicable to facts of case [NLR 1981 Revenue 175] Unauthorised occupant of Government land. Ejectment order, held, in circumstances of case, was not open to exception. [1981 SCMR 1064] Temporary lease only having been granted to allottee, question of sharing property on acquisition of any right did not arise. Status of petitioner is no more than that of a trespasser and he is liable to be dispossessed u/s 32. [1981 CLC 1204] Collector not empowered to impose penalty or fine for encroachments on State agricultural land by claimants under 5-marlas scheme—Any encroachment on State land for residential purposes can be dealt with either u/s 32 by resuming possession of land alongwith any constructions thereon or/ u/s 33(b), (d) read with S.34. [NLR 1980 Revenue BOR 126] Unless there be a possibility of creation of relationship of landlord and tenant between the Government and the persons said to be holding adversely to the tenant. This view is confirmed by the legal provision that transfer of possession in contravention of provisions of section 19 is void and a person in unauthorised possession can be evicted by use of force under section 32 [PLD 1978 Lahore 1228]. Transfer of possession in contravention of S. 19 is void and unauthorised possessor can be evicted under S. 32. [PLJ 1978 Lahore 475] Period of tenancy expiring but tenant continuing in possession—position of such tenant, not that of a trespasser but that of a “Tenant holding over” [PLD 1973 Lahore 528].

126

[CGL ACT, 1912]

[Section 33]

33. Penalties. If any person, without permission of a Revenue Officer of a grade to be specified by the 41[Board of Revenue]: a) clears or breaks up for cultivation, or cultivates any land which is owned by, or is in the possession of 42 [Government] and is not included in any tenancy or allotted residential enclosure or which has been set apart for the common purposes of a town or village community or section of the same or for a road, canal or water course; or b) erects any building on any such land; or c) fells or otherwise destroys standing trees on such land; or d) otherwise encroaches on any such land; or e) makes an excavation or constructs a water channel on any such land he shall, on complaint made by order of or under authority from the Collector, be punished on conviction by any Magistrate with a fine not exceeding 43[two hundred thousand rupees or with rigorous imprisonment not exceeding six months or with both]. Explanation:- The felling of trees planted by an owner or tenants on any village road or water course traversing his holding is not an offence under this section. COMMENTS
Petitioner on whom Tawan was imposed for illicit cultivation of state land had contended that he was in fact a lessee of land in dispute, but he could not substantiate his version—Petitioner who was occupying land in dispute without
41 42

Substituted for the words “Financial Commissioner”, by West Pakistan Act XVI of 1957 Substituted for the words “Provincial Government”, by West Pakistan Act XVI of 1957 as amended by W.P. Ord. XXXI of 1961 which were previously substituted for the words “Local Government” by A.O.1937 43 Substituted for the words “five thousand rupees or with rigorous imprisonment not exceeding six months or with both”, by the Notification No. Legis:3(XXVIII), dated 28.06.1999, which was previously substituted for the words “Rs.200/-“, by the Notification No. Legis:3(2)/83, dated 18.01.1983.

127

[CGL ACT, 1912]

any lawful authority was rightly imposed Tawan by Assistant Commissioner/ Collector—Amount of Tawan being too much, same was reduced by 50% and order of Collector was modified accordingly in revision. [1994 CLC 2108]

[Section 34]

Recovery of value of crops which were unauthorisedly appropriated cannot be described as recovery of “tawan” but it would be a simple recovery of equal value of the crops appropriated---Land under lawful custody of a person against whom such recovery was ordered, thus, cannot be auctioned by the support and under the cover of Ss. 32, 33, 34 and 28 of the Act as these provisions have no real application nor even purported application in such a case. [PLD 1990 Supreme Court 736]

34. Additional powers of Collector in regard to offences. When the Collector is satisfied that an act punishable under section 33 has been committed, he may in lieu of proceeding against the offender under that section or after conviction of the offender under that section: (i) in the case of an offence under section 33(a), confiscate the crops growing on any land cultivated in contravention of this Act or, if the crops have been cut, recover such sum as he may assess as the value thereof from the offender, (ii) in the case of an offence under section 33(c), recover such sum as he may assess as the value of the trees or tree destroyed; (iii) In the case of an offence under section 33 (b), (d), or (e), cause the building or other encroachment to be demolished or removed or the excavation or channels to be filled up and levy the costs of so doing from the person responsible for such act. COMMENTS
Legal heirs remaining in possession of land after death of the original lessee---Demand of “Tawan” by Authority---Validity---Petitioners had not occupied land forcibly or illegally, but had continued their possession under impression that they, as legal heirs of original lessee, were entitled to grant of its proprietary rights---Authority had not taken legal action for resumption of land from petitioner---Petitioner could not be penalized for such default of authority--High Court set aside levy of “Tawan” on petitioners [2004 CLC 108].

128

[CGL ACT, 1912]

Payment of “Tawan” for unauthorized occupation of land would not be [Section 34] sufficient to term un-authorized possession of property into permissive possession---Plaintiffs thus, had no cause of action, therefore, their plaint was rightly rejected by courts below calling for no interference in revisional jurisdiction [PLJ 2003 Lahore 150]. Petitioners being encroachers having shown their high-handedness twice by occupying land which was in lawful cultivating occupation of allottees, cancellation of allotment from names of original allottees and subsequent allotment in the names of petitioners/ encroachers by Assistant Commissioner/ Collector was not justified in circumstances. [1995 MLD 246] Upon payment of purchase price for the state land and conferment of proprietary rights in it, land in question, would go beyond the pale of S. 32/ 34, Colonization of Government Lands (Punjab) Act, 1912---Land in question, having ceased to be state land, dispute regarding title between two private parties could not be adjudicated upon under S. 32, Colonization of Government Lands (Punjab) Act, 1912---Such question could only be dealt with by a Civil Court. [1994 MLD 1381] Petitioner challenged order of authorities levying tawan on him contending that he was not in illicit cultivation of land in dispute, but was tenant/ pattedar under respondents/ allottees---In Khasra Girdawari for relevant years, suit land in cultivation column, had been shown to be in name of respondents/ allottees through petitioner which had established that land was sublet by allottees to petitioner in contravention of S. 19 of Act, 1912 and as such petitioner had entered upon land in dispute and cultivated it under authority given by allottees to whom land stood validly allotted---Respondents/ allottees did not challenge such entries in Revenue Re cord anywhere, thus by implication they had not denied relationship of land lord and tenant between parties---In view of such relations between parties, petitioner, could not be said to be a trespasser and thus he could not be said to be in illicit cultivation of state land [1993 MLD 1934]. No order adverse to the interest of a person could be passed without granting him opportunity of being heard---While deciding whether petitioner was encroacher, he should have been associated with the enquiry being conducted by the Assistant Commissioner---Order in question was thus, violative of law and same was not sustainable---Collector, however, could proceed afresh in accordance with law after granting opportunity to petitioner of being heard. [1991 MLD 2394] Sale through auction of law under lawful tenancy for recovery of amount wrongly described as Tawan—Would be unlawful and would merit setting aside. [NLR 1990 SCJ 558] Recovery of value of crops which were unauthorisedly appropriated cannot be described as recovery of “tawan” but it would be a simple recovery of equal value of the crops appropriated---Land under lawful custody of a person

129

[CGL ACT, 1912]

against whom such recovery was ordered, thus, cannot be auctioned 35 & 36] [Sections by the support and under the cover of Ss. 32, 33, 34 and 28 of the Act as these provisions have no real application nor even purported application in such a case [PLD 1990 Supreme Court 736] Unauthorized use of Government land---Penal action---Penal action, held could be taken for unauthorized use of Government land. [PLD 1986 Rev. 49(2)] Person seizing government land and getting it cultivated through tenants-Provisions of S. 34 applicable. [PLD 1957 W. P. (Rev.) 45]

35. Power to levy a cess for administration of common village expenses. (1) if in any estate the majority of the tenants and owners of the estate shall apply for the levy of a cess for village purposes, the Collector may order the payments of such a cess from the proprietors, tenants and inhabitants of the village in such way and at such rates as he holds to be suitable. 44 (2) Any cess leviable in any estate under this section shall be recoverable as arrears of land revenue. 36. Jurisdiction of Civil Court barred as regards matter arising under the Act. A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the 45[Provincial Government], 46[Board of Revenue] or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act. COMMENTS
Jurisdiction of civil courts—Principles—When action of authorities was without jurisdiction and void, plaintiff was within his rights to maintain suit before civil court—Bar of S.36 of CGL Act, 1912 would not apply and civil court could competently proceed to entertain and adjudicate [2008 SCMR 521]. Admission of the plaintiff that defendants/authorities had not issued any notice for cancellation of the allotment of land and the plaintiff apprehended that the allotment would be resumed by the authorities clearly showed that the plaintiff had filed suit on the basis of assumption, apprehension, presumption, surmises and conjectures---Apprehension and presumption, how strong might be, Court could not accept the same to maintain the suit [2008 CLC 1373].
44 45 46

Substituted vide Ordinance XXXVI of 1969, dated 7th November, 1969. Substituted for the words “Local Government” by A.O. 1937 Inserted by W.P. Act XVI of 1957 as amended by W.P. Ordinance XXXI of 1961

130

[CGL ACT, 1912]

[Section 36]

Bar on jurisdiction of civil court---Object and scope---Intention of Legislature qua such bar seemed to be that officers working under the Act, should exercise their powers freely and should not be interrupted unnecessarily while administering colony land according to terms and conditions issued by competent authority---Ambit of jurisdiction of officers working under the Act was defined and they could not act beyond their scope of jurisdiction---Section 36 of Colonization of Government Lands (Punjab) Act, 1912 did not give unfettered powers to officers working under the Act---Bar under S. 36 would be available only where authorities acted within four corners of their jurisdiction, but not otherwise [2007 SCMR 554]. Grow More Food Scheme---Allotment of land under such scheme and delivery of possession to plaintiff in March, 1957---Policy decision of Government to resume land for auctioning, tenancy of which had expired on or before Rabi, 1962---Resumption of plaintiff’s land under such policy---Suit by plaintiff to declare order of resumption of land to be void---Civil Court decreed suit--Appellate Court dismissed suit for lack of jurisdiction of Civil Court, which judgment was affirmed by High Court---Validity---Suit land was not available and could not be resumed as stipulated period of five years had to be completed after Rabi, 1962, thus, question of termination of lease would not arise---Supreme Court emphasized on implementation of such Government instructions regarding grant of proprietary rights in letter and spirit in present case also---Supreme Court set aside judgment of High Court and Appellate Court and restored that of Civil Court [2007 SCMR 1169]. Jurisdiction of Civil Court barred as regards matter arising under the Colonization of Government Lands (Punjab) Act, 1912---Scope---Such exclusive jurisdictional provisions in any law were subject to judicial proceedings, provided that the order complained against was either unlawful, without jurisdiction, coram non judice or passed in the absence of the aggrieved party [2007 YLR 1880] Bar of jurisdiction of civil court---Applicability---Civil court has no jurisdiction to entertain matters/disputes over which Revenue hierarchy has jurisdiction to decide---Where Revenue Authorities act beyond the provisions of law and without jurisdiction, bar of jurisdiction of civil court contained in S.36 Colonization of Government Lands (Punjab), Act, 1912, does not apply [2007 YLR 1696]. Plaintiffs filed a suit for declaration with contentions that they were allotted land on five years Temporary Cultivation Scheme, rights of proprietorship were conferred upon them, price of land was paid and the conveyance deed was issued in their favour and that Member, Board of Revenue had no jurisdiction to cancel deed of proprietorship---Record had established that plaintiffs had failed to prove the genuineness of allotment---Foundation stone of whole case therefore was the order of Member, Board of Revenue whereby he annulled the conveyance deed, which order was validly passed in circumstances---Plaintiffs who had obtained allotment on basis of fraud, forgery and fabrication were, held, not entitled to any more right of notice and opportunity of hearing particularly

131

[CGL ACT, 1912]

[Section 36]

after the case having been fought in Civil Court with full opportunity to prove the genuineness of alleged allotment [2006 CLC 1265]. Civil court would not be divested of its jurisdiction when Colony Authorities, in passing orders challenged before Civil Court, acted without jurisdiction and exercised powers not vested in them under the Act. Civil Court would be right in assuming jurisdiction and striking clown orders of Colony Authorities which were patently perverse, illegal, unlawful, arbitrary and without competence [NLR 2004 Revenue 83]. Civil Court would ordinarily have jurisdiction to decide, whether or not an act having been done purportedly in exercise of powers conferred by such Act, could be validly done there under---Section 36 of the Act did not divest jurisdiction of Civil Court to decide, what legal effect an order of Revenue Officer validly passed under the Act would have on the rights of parties [2003 CLC 1922]. Suit challenging the very authority to pass order under Colonization of Government Lands (Punjab) Act, 1912---Section 36 of the Act would not be a bar to such suit [2003 CLC 1922]. Leave to appeal was granted by the supreme court to consider, whether respondent/ plaintiff could resort to civil court without first exhausting his remedies before the Authorities in Revenue/ colony hierarchy; whether vires of order of collector could be assailed in civil suit [2002 SCMR 807]. Directions could be issued by civil court to revenue functionaries to give effect to any determination made by it in respect of title, right, interest of an individual in some property [2001 CLC 375]. Suit for declaration to the effect that appellants were grantees & gift holders and were in possession more than 60 years—Dismissal of suit by trial court as well as by First Appellate Court—Held: Appellants are in possession of suit land, have not violated any terms of lease and as such are entitled to grant of occupancy/proprietary rights subject to fulfillment of such terms and conditions as law prescribes—Appeals accepted. [PLJ 2001 Lahore 767] Civil courts shall not interfere or entertain disputes falling within the hierarchy of the Revenue courts---Jurisdiction of civil court as barred under provisions of S.36 Colonization of Govt. lands (Punjab) Act, 1912, in any matter in which the Collector, Additional Commissioner or the Board of Revenue is empowered to dispose of the matters and those matter stand disposed of within their lawful authority and exclusive jurisdiction [2000 CLC 159]. Right of the petitioners had already been adjudicated upon and determined by the civil court of plenary jurisdiction and the same mere affirmed by the lower Appeal Court were such determination of rights had taken place before the competent forum and was not agitated further in appeal, such rights has attained finality and were binding or the litigating parties [2000 CLC 1083].

132

[CGL ACT, 1912]

[Section 36]

Grow More Food Scheme was a scheme of permanent nature and was distinguishable from lease on temporary cultivation basis—regardless of date of termination of lease, in view of policy laid down by Board of Revenue, allottees of Grow More Food Scheme were eligible to obtain proprietary rights---Order of restoring allotment in favour of respondent was not open to exception and could not have been challenged in Civil Court because to deal with such matter was the exclusive function of Revenue Authorities under the provisions of Colonization of Government Lands (Punjab) Act, 1912. [2000 SCMR 1083] Jurisdiction of civil court in colony matter, is barred in any matter in which Collector, Additional Commissioner or Board of Revenue is empowered to dispose of that matter and those matters stood disposed of within their lawful authority and exclusive jurisdiction. [PLJ 1999 Lahore 1784] Jurisdiction of Civil Courts was ousted by S.36 of Colonization of Government Lands (Punjab) Act, 1912, save in circumstances, where person passing order was not authorised to pass such an order or order passed was based on fraud or mala fides. [1999 CLC 123] Bar of jurisdiction of Civil Court contained in S. 36 of the Act was mandatory and civil court had no jurisdiction to entertain dispute over which Revenue hierarchy had jurisdiction/ authority to decide—orders passed by Revenue Officers were not shown to suffer from lack of jurisdiction—Plaintiffs had remedy to move appeal/ revision before Board of Revenue, which they admittedly talked to avail—Civil court was not competent to interfere where Revenue courts/ Authorities had exclusive jurisdiction [1998 SCMR 468]. Provision of S. 36, Colonization of Government Lands (Punjab) Act, 1912, does not give unfettered powers to functionaries under the Act—Civil Court while exercising supervisory jurisdiction, would have authority to interfere, if orders were without jurisdiction, malafide, collusive or otherwise not in accordance with law or based on fraud. Despite clear ouster of jurisdiction of Civil Court in particular law, there were instances where jurisdiction could be exercised— Jurisdiction could only be barred, if Authorities concerned had acted within four corners of their powers and not where acts were ultra vires, without jurisdiction, void or in excess of their jurisdiction [1998 MLD 413]. S.36 does not oust jurisdiction of Civil Courts with regard to orders of Colonization Officers which are without jurisdiction, malafide, collusive or otherwise not in accordance with law or are based on fraud. Intention of S.36 is that officers working under the Act should exercise their powers freely and should not be interrupted un-necessarily in administration of Colony land according to statement of conditions issued by Government---Ouster of jurisdiction of civil courts by S.36 should not be readily admitted as civil courts have always power to see if the act of any authority under Act is beyond scope of its powers---View of civil court that orders illegally passed by Colonization Officer are sacrosanct and cannot be questioned in view of bar of jurisdiction u/s 36. suffers from perversity and cannot be accepted. [NLR 1998 Revenue 47]

133

[CGL ACT, 1912]

[Section 36]

Bar of jurisdiction of civil Courts contained in S.36 would not apply when order of Collector passed under Act was based on jurisdictional facts which did not exist. [1997 UC 316] Civil Court has jurisdiction where Colonization Authorities have not acted in accordance with provisions of Act and have failed to comply with rules/notification issued by provisional Govt. in this behalf [NLR 1996 Revenue 23]. Civil courts, despite provisions of S. 36 Colonization of government lands (Punjab) Act, 1912, have jurisdiction to entertain any suit if order passed by Revenue Authorities was bad in law, without lawful authority and malafide [1996 CLC 311]. Assertion that order of cancellation was passed without hearing plaintiffs’ predecessor was raised after 45-years by the legal heirs of such predecessor who was alive for about 40-years after passing of the order of cancellation but never raised such objection during his lifetime. Such assertion, therefore, had little evidentiary value. Right to sue having accrued to plaintiffs’ predecessor with effect from the order of cancellation forty-five years back, suit should have been brought within six years under Art, 120, Limitation Act, 1908. Suit brought after about 45-years of order in questions, was clearly time-barred and liable to dismissal. [PLD 1994 SC 245] Civil court would have jurisdiction to examine case to be satisfied whether executive functionaries had exercised their powers in accordance with law and had followed the statutory obligations as also the principles of natural justice [1994 CLC 317]. Exclusion of jurisdiction of Civil Courts when not attracted--- Where Board of Revenue, while resuming land had exceeded its powers under section 30(2), Colonization of Government Lands (Punjab) Act, 1912 and its order was ultra vires of that section, bar contained in Section 36 of CGLA, 1912 was not attracted [PLD 1993 Lahore 114]. Civil Court is empowered to review acts of revenue authorities found beyond periphery of law [1993 CLC 2444]. Revisional proceedings were not barred under s. 10 Civil procedure code, 1908, especially when revision was lodged earlier to civil suit [PLD 1993 Revenue 3]. Orders passed by Colony Authorities within four corners of their jurisdiction would be immune to interference by civil court in view of bar u/s 36. [NLR 1991 Revenue 96] Allottee of land from out of Chiragah—Ceases to be a tenant under Act after payment of full sale price—Cancellation of allotment after payment of sale price would be illegal—It can be challenged by way of civil suit. [NLR 1990 Revenue 63]

134

[CGL ACT, 1912]

[Section 36]

Allotment of land under Grow More Food Scheme, cancelled and resumed by the Collector – Held jurisdiction of Civil Courts to challenge resumption order was barred under S. 36 of the Act [1989 SCMR 1741]. Even if it be accepted that order of Collector was bad in law, forum for its correction was Commissioner and Board of Revenue---Held further: Without having recourse to them in first instance, suit was barred. [PLJ 1989 Lahore 370] Mere fact that a land is situated within limits of Colony area—Would not oust jurisdiction of Civil Courts to examine legality of orders passed by Colony Authorities. [NLR 1989 Revenue 153] Civil suit against appellate order passed u/s 164, Land Revenue Act, 1967 in case where plaintiff fails to invoke his revisional remedy against appellant order—Not competent. [NLR 1988 Revenue 113] Question in appeal before the court was whether High Court was right in holding that the Collector was not competent to examine whether the order of transfer of Ihata in dispute had been obtained by practicing fraud upon him and whether the civil courts had the jurisdiction to entertain the suit of respondent--Respondent neither stating in his plaint that he was not given an opportunity by Collector of presenting his version or leading evidence in support thereof nor alleging that order of Collector was based on no evidence---Suit of respondent, held, was therefore, clearly barred by S. 36 of Act. [1987 SCMR 1620] Question of jurisdiction, could not be decided without factual inquiry. [1986 CLC 603] Petitioner found to be ineligible by Collector after scrutiny – No express provision of law or any relevant rule found to have been disregarded – Concurrent finding of three Courts below that suit against resumption of allotment was barred by S.36 of Act— Held, not open to exception [1984 SCMR 1308]. Sanction to alienate under S. 19 not obtained from competent authority--Decree of Civil Court, held, could not be executed in view of provisions of S. 19 read with Ss. 18 & 36. [PLD 1983 Rev. 53] Ouster of jurisdiction---Civil Court---Ouster of jurisdiction not to be presumed or readily admitted despite a clear ouster in a particular law, there are situations in which jurisdiction can be exercised. Jurisdiction can only be ousted, if found that order passed by statutory functionary lay within ambit of its power and neither based on fraud nor mala fides. [PLD 1983 Lahore 294] Civil Courts have jurisdiction only when orders passed by authorities under Act not within jurisdiction. [1982 CLC 55] Statements and Conditions of Scheme promulgated by Government under that law in grab putting an unwarranted interpretation or construction of same, they would acting in excess of their power and authority---Civil Court will always exercise jurisdiction to strike their order which proceed on unwarranted

135

[CGL ACT, 1912]

[Section 36]

interpretation of Colonization of Government Lands (Punjab) Act (V of 1912) [NLR 1982 Revenue SC 129] Findings by Revenue Authorities about disentitlement of an aspirant for grant of lease of state land—Not open to corrective processes of civil courts. [NLR 1981 Revenue 131] Civil Courts entitled to see whether authority acted in compliance with law —Objection about bar of jurisdiction—Not sustained. [NLR 1980 Rev Kar. 3] Civil Courts entitled to see whether authority acted in compliance with law. [1980 CLC 662, 1980 SCMR 261] Stay order issued by a civil court restraining Board of Revenue from examining correctness or otherwise of an order passed by Collector---Held, stay order is a coram-non-judice order and would be no bar to looking into vires by Board of Revenue of Collector’s order in accordance with law and procedure [NLR 1979 Rev. 63]. Cancellation of allotment – Jurisdiction of civil courts ousted in matters falling within the competence of collector [1978 SCMR 1620]. Civil Courts empowered to decide whether or not act purporting to have been done under Colonization Act could be validly done under Act—S. 36 does not divest civil courts of jurisdiction to adjudicate what legal effect order of a Revenue Officer validly passed under Colonization Act could have on rights of parties before it. [NLR 1978 Revenue 219] Section 36 applicable only where authorities concerned acted within power and four corners of their jurisdiction and not where their acts are ultra vires or without jurisdiction or void, or in excess of their jurisdiction. [PLD 1978 Lahore 679] Court cannot confer any grant or right which is conferred by the Act of functionaries under the Act. [PLJ 1978 Lahore 475] Any grant or right conferred by Act or confer able by functionaries under Act – Cannot be conferred by court— Jurisdiction of civil court, held, barred in such matters under S. 36 [PLJ 1978 Lahore 1228]. Respondent acquiring proprietary rights in land and conveyance deed executed---Transaction having been completed making respondent full owner of allotted land---Civil court alone, held, could interfere in matter and revision petition before Board of Revenue not competent. [PLD 1976 (Rev.) 65] Party should not rush to Civil court without first exhausting remedy before appellate and revisional authority under Act [PLD 1966 (W.P.) Lahore 342]. Civil Court has no jurisdiction to quest consent of Collector---Civil court can decide whether land is ancestral or not. [PLD 1958 (W.P.) Lahore 340] Jurisdiction---Civil court can decide whether act was done validly under the Act of what is the legal effect of an order validly passed under the Act. [PLD 1954 Lahore 253]

136

[CGL ACT, 1912]

[Sections 37 & 38]

37. Public servants indemnified for Acts done under this Act. No suit shall lie against any public servant for anything done by him in good faith under this Act. 38. Legalization of orders passed previous to the Act. (1) Any act hitherto done or order passed by the 47[Provincial Government] or by an officer holding the post of Colonization Officer, Assistant Colonization Officer, or Settlement Commissioner, or exercising the powers of an Assistant Collector or of a Revenue Officer of higher class within any area to which the Government Tenants (Punjab) Act, 1893, has been applied or to which this Act may hereafter be applied, which is not contrary to the provisions of this Act, shall be deemed to have been done or passed under this Act. (2) In particular and without prejudice to the generality of the foregoing sub section, no right of occupancy or right of ownership and no condition applicable there shall be invalidated by reason of: 1. the right having been granted before the particulars regarding it have been entered in a prescribed register; or 2. the prescribed register not having been signed by the tenant; or 3. the prescribed statement of conditions having been affixed to the prescribed register instead of being prefixed thereto: Provided that if the register has not been signed by the tenants, the statement of conditions applicable to the tenancy shall be deemed to be that which was in force for tenancies of the same description at the time when the land was allotted.

47

Substituted for the words “Local Government” by A.O. 1937

137

[CGL ACT, 1912]

[Schedules]

SCHEDULE-I
LIST OF EXCEPTED TENANCIES REFERRED TO IN SECTION 4. A. In the Lower Chenab Colony the tenancies of tenants holding on the conditions applicable to: (1) (2) (3) (4) (5) (6) Camel-owning tenants. Camel-owning Chaudhries. Village headmen, ordinary. Village headmen, mule-breeding. Tree-planting tenants. Village menials.

B. In the Lower Jhelum Colony the tenancy of tenants holding on the conditions applicable to: (1) Horse-breeding tenants. Horse-breeding nazrana paying tenants. Village headmen. Tree-planting tenants. Village menials.

(2)
(3) (4) (5)

C. In the Lower Sohag Para Colony the tenancies of tenants holding on the conditions applicable to Village headmen.

SCHEDULE II
(Referred to in section 30) Conditions applicable to grantees who acquire proprietary rights. 1. Exceptions of channels rights to minerals, etc. 48[Government] does not grant to the grantee but hereby absolutely excepts and reserves to itself out of and in respect of the said lands (1) all grounds situate in the said lands or any part thereof already marked out, excavated or otherwise utilized for the distributing channels, and (2) all existing rights to and over al mines and minerals, coals, gold washings, earth-oil and quarries in or under the said lands or any part thereof, together with all easements heretofore enjoyed by 48 [Government] in respect of the said lands or any part thereof. And it likewise excepts and reserves the right of the public to use existing thoroughfares traversing the said lands or any part thereof including a width of 1 ½ Kadams on either side of survey base line, and also any lines of road which, though not yet [Schedule-II] made, have been marked out upon the ground. 2. Power of the Government entry to search for minerals, etc. The grantee shall at all times permit the 49[servant of the State] to enter and do all
48 49

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964 Substituted for the words “Officer of the Crown”, by West Pakistan Laws (Adaptation) Order, 1964

138

[CGL ACT, 1912]

acts and things that may be necessary and expedient for the purpose of searching for working, getting, or carrying away any such mines and minerals, coals, gold-washings, earth oil, and quarries, and for the full enjoyment of the ground and of the rights hereinbefore reserved to 50[Government] to and over all mines and minerals, coals, gold-washings, earth-oil, quarries and easements in or under the said lands and all parts thereof. 3. Compensation for damage by entry. The 50[Government] agrees to pay the grantees compensation for all damage occasioned by the exercise of the rights reserved to itself in clauses-1 and 2. Such compensation shall be assessed by the Collector, and if the grantee is not satisfied with the finding of the Collector, he may appeal to the 51[Executive District Officer (Revenue)]. 4. Demarcation of boundaries. The grantee shall duly comply with such directions as the Collector shall from time to time issue requiring him to construct boundary marks on the limits of the said lands or any part thereof, and shall keep them when erected in good repair to the satisfaction of the Collector. 5. In the event of any dispute arising between the 52[Provincial Government] and the grantee as to the property and rights hereby reserved to 50[Government], or as to any matter in any way relating thereto, or as to any of the condition of the grant, or as to any matter or thing anywise connected therewith, the said dispute shall be referred for the opinion of the 51Executive District Officer (Revenue) whose decision shall be final and conclusive between the 52[Provincial Government] and the grantee.

50 51 52

Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964 Substituted for the words “Commissioner” by the CGL (Punjab Amendment) Ord. No.XXXII of 2001. Substituted for the words “The Crown”, by West Pakistan Laws (Adaptation) Order, 1964

139

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master Your Semester with a Special Offer from Scribd & The New York Times

Cancel anytime.