ABDUL RAB ETC, vs WALI MUHAMMAD ETC.

ORDER

' KARAM ELAHEE CHAUHAN, J.-The land in dispute which is located in square No, 46 of Chak No, 167 E.B. Tehsil Pakpattan, District Sahiwal, was allotted to Wali Muhammad had Jhanda (hereinafter called the plaintiffs) under the Colonization of the Government Lands (Punjab) Act V of 1912 (hereinafter called the Act) (exact date of their allotment has not been stated before us by the learned counsel for the parties). However, the Collector cancelled their allotment on 19th March 1963 and allotted some alternative land to them in Squares Nos. 40 and 41 in the same Chak. It appears that the possession of the land had not yet been taken back from the plaintiffs and nor had they been put in possession of new land when on 48th March 1963, the Government of West Pakistan issued a policy letter directing that the "ejected tenants", i.e, evictees from elsewhere to whom such land as involved in this case namely "lambardari" square had been allotted should not be ejected but should be allowed to purchase the proprietary rights of the land in their possession.

2. Despite this declaration and prohibition, the Collector on 19th April 1963 allotted the land in dispute to Muhammad Ilyas defendant/ petitioner on a lease for 10 years which was to expire on 19th April 1973. This gave rise to litigation between Wali Muhammad and Jhanda on one hand and Muhammad Ilyas on the other hand as hereinafter stated.

3. Wali Muhammad and Jhanda filed an appeal against the order dated 19th March 1963, praying for grant of the proprietary rights of the land in dispute to them under the letter/scheme dated 28th March 1963, but without any success as the same was dismissed by the Additional Commissioner on 26th November 1963.

4. Wali Muhammad and Jhanda then filed a revision petition which also met the same fate and was ejected by the learned Member Board of Revenue.

5. At that juncture Wali Muhammad and Jhanda (plaintiffs) filed a civil suit challenging the order dated 19th April 1963, whereby the Land was allotted to the defendant Muhammad Ilyas (now represented by petitioners who are his successors-in-interest.) The suit was decreed by the learned Civil Judge on 31st July 1964.

6. The defendants/petitioners and the Provincial Government filed two separate appeals which were accepted by the learned Additional District Judge on 4th December 1964, who set aside the decree and judgment of the trial Court and dismissed the plaintiff's suit.

7. The plaintiffs filed a regular second appeal being R. S. A. No 493/ 1965, which was accepted by a learned single Judge of the Lahore High Court on 10th July 1977 who up set the judgment of the learned Additional District Judge and restored the judgment and decree of the learned trial Court decreeing the plaintiffs suit. It was further observed that the lease of the defendants/petitioners had expired on 19th April 1973 and as such even from that point of view they had no interest in the land. This aspect of the matter it may here be stated is in controversy between the petitioners and the Government in writ petition No, 1375 of 1974 as the petitioners were refused further renewal of the lease in their favour after that date.

8. The defendants/petitioners have come up in a petition for special leave to appeal against the same to this Court.

9. The first point argued by the learned counsel for the petitioners was that the sole question involved in this case was about the interpretation of letter/scheme dated 28th March. 1963 and if on the construction of the same the Colonization Officers or Authorities had found that land in dispute was not available for being settled in proprietary rights on ejected tenants, the civil Court had no jurisdiction to interfere in the matter, merely because it placed a different construction of that letter/or scheme. The contention has no merit. The Colonization Officers have no independent jurisdiction of their own and in cases of this type, they are bound to settle land on persons concerned in accordance with the statements and conditions or the scheme promulgated by the Government on the subject. These "statements and conditions" or the scheme constitute a law on the subject and if Colonization Officers violate that law in the garb of putting in unwarranted interpretation or construction of the same, they act in excess of their power and authority civil Court will always have jurisdiction to strike down their orders. The proposition is well settled but if authority be needed reference may be made to Thakur and another v. Bengal Duars Bank Ltd. (1), Karim Dad v. Arif All and another (2) and Jiwana v. Mst. Sahibi (3).

10. At this place it is advantageous to refer to the letter of the Government dated 28th March 1963. It clearly states that ejected tenants to whom lambardari squares had been allotted should not be ejected, but should be allowed to purchase the proprietary rights of the land in their possession.

Now it is a common ground that the plaintiffs were "ejected tenants" who had earlier been allotted this land under the ejected tenants scheme. Fortunately for the plaintiffs by the time the letter of 28th March 1963 was issued they were still in possession of this land and had not been B ejected from the same and nor were they put in possession of the alternative land by that date. In these circumstances the land in dispute could be dealt with under that letter, and in that respect, the case of the plaintiffs certainly deserved examination on merits, but without doing so the Colonization/Revenue Authorities instead allotted this land to the defendants/petitioners under the Pedegree Live Stock Breeding Scheme for 10 years from 19th April 1963 to 19th April 1973 (which period has also expired). In these circumstances the High Court was justified in declaring the aforesaid actions and orders of these authorities as void and in excess of their jurisdiction. Learned counsel for the petitioners argued that this letter had no retrospective effect and as before its issuance, the land in dispute had been cancelled from the names of the plaintiffs and was instead allotted to the defendants/petitioners, therefore it could not be applied to the earlier tenants. The contention has no merit. The wording of that policy letter to excuse repetition, is that such a person was not to be ejected. Therefore, if before the actual ejectment the letter or to be more exact the law under examination came into the field and bestowed rights on tenants in possession on that date it could not be said to be retrospective in any manner. As the plaintiffs were admittedly in possession on the relevant date therefore they were rightly eligible for grant o proprietary rights under the aforesaid letter/law.

11. The result is that this petition has no merit and is dismisse.

(1) AIR 1948 P C 33 (2) PLD 1978 Lah. 679

(3) PLD 1954 Lah. 253