SAFIA BEGUM Versus BOARD OF REVENUE, PUNJAB

The dispute in this case relates to land measuring twenty. five acres (from Squares Nos. 15, 20 and 21) situated In Cbak No. 120/L Tehsil Sahiwal. This land originally was given to Ghulam Ghauns father of the petitioners in W. P. Nos. 1392/1971 and 1393/1971, on Horse Breeding Conditions. Ghulam Ghauns was killed on 1‑11‑1953 and the question of granting land to one of his heirs was taken up for consideration by the authorities concerned. The Remount Officer, on 14‑3‑1955, put up a recommendation in favour of Sami Ullah but the Collector on 25 4‑1955, rejected it holding that as he was involved in the murder of his father Ghulam Ghauns. therefore, he was not eligible for grant of the land (see Annex. R/1 in W. P. No. 1393/1971) which was withdrawn by Sami Ullah and was dismissed by me as such on 8.3‑1973). Sami Ullah did not file any appeal against the aforesaid order of the Collector. To cut the lengthy details short, it may be mentioned that on further recommendation, the Collector then, "as a special case" granted tenancy to the widow of the deceased, namely, Mst. Inayat Begum on 8‑6‑1965.

2. Mst. Inayat Begum died on 20‑2‑1969 and the question for grant of the land again came up before the authorities concerned. The District Remount Officer on 16‑7‑1969, recom. mended Sami Ullah (see Annex. P. 5) (in W. P. No. 1393/1971). The Colony Assistant, however, on 29‑9‑1969, asked the D. R. 0. to reconsider the matter alongwith other applicants. The District Remount Officer by means of his letter, dated 18‑10‑1969, again recommended Sami Ullah (see Annex. P. 6 in W. P. No. 1393/1971). The matter was taken up by the Collector who by means of his order, dated 30‑3‑1970, remanded the case to the District Remount Officer to summon various applicants and recommend any person other than Sami Ullah, (see Annex. P. 7 in W. P. No. 1393/1971). Further recommendation was then made by D. R. O., on 23‑4‑1970 vide Annex. R/3 in W. P. No. 1392/1971 in favour of Subedar Muhammad Asghar respondent No. 2 herein and the present writ petitioners were ignored. Feeling aggrieved, Sami‑Ullah bad filed an appeal against order of Collector, dated 30‑3‑1970, which was accepted by Mr. Qasim Rizvi, Commissioner Multan Division, Multan, by means of his order, dated 1‑6‑1970 (Annex. F' 11) (in the same writ petition), whereby he directed that Sami Ullah may also be considered on merits alongwith the other candidates. Sami Ullah did not feel satisfied with the matter in which the order of the learned Commissioner was couched and he, therefore, filed a revision before the Karnal kember, lard of Revenue which was disposed of by him on 29‑7‑1910, as per Annex. Exh. P.

9. The relevant portion of the order of the learned M. B. R., reads as follows:‑‑

"The present case has no bearing on the previous one when Mst. Inayat Begum was appointed as Horse Breeding tenant. That case stood finalised. The learned Commissioner has rightly directed that at the time of the disposal of this case, the Collector may also hear the petitioner and pass appropriate orders on his merits/claim. The petitioner repeatedly stated with anxiety that the Collector will only give him a hearing and would not consider his rise for allotment. The intention of the order of the learned Commissioner does not appear to be so. Anyhow, the petitioner should be heard and considered on merits and decision taken in accordance with the orders and instructions applicable to such case. With these observations the order of the learned Commissioner is upheld and the Revision petition is rejected in limine.

4. After remand, the matter was attended to by the D. R. O., who sent recommendations of three persons other than Sami Ullah and his sister Mst. Safia Begum. The Collector, however, on 6‑4‑1971, passed an order giving the land to Mst. Safia Begum (see Annex. P. 10 in W. P. 1393/1971).

5. Sami Ullah and certain other persons filed appeals. The appeal of Sami Ullah was rejected but the appeal of a rival candidate namely, Subedar Muhammad Asghar (respondent No. 2 herein) was accepted and the grant was given to him. See Annex. P. 11 which is a copy of an order of the Commis sioner, dated 18‑6‑1971.

6. Sami Ullah filed a revision and Mst. Safia Begum filed an appeal which alongwith other connected cases were heard and disposed of by Mr. A. G. Raza learned Member, Board of Revenue on 26‑10‑1971 (Annex. P. 12 in W. P. No. 1393/ 1971). The learned Member, Board of Revenue rejected the revision of Sami Ullah and the appeal of Mst. Safia Begam and maintained the order of grant of land in favour of Subedar Muhammad Asghar. The brother (Sam] Ullah) and sister (Met. Safia Begum) filed the two writ petitions hereinbefore mentioned, but as earlier mentioned Sami Ullah has withdrawn his writ petition on 8‑3‑1973, which was accordingly dismissed. The present judgment will dispose of W. P. No. 1392/1971.

7. The law relevant in a situation of the present kind is contained in Condition No. 25 of the Statement of Conditions issued vide Development Department of the Punjab Government Notification No. 2965.(3, dated 22‑7‑1941 under section 10(2) of the Colonization of Government Lands (Punjab) Act V of 1912 (hereinafter called the Act), which reads as follows :‑

"25. Any tenancy granted on the conditions set forth in this _ statement shall determine‑

(a) on the expiry of the lease under clause 4;

(b) on the decease of the tenant;

(c) on the tenant's ceasing to hold, either as proprietor or as a tenant of Government otherwise than under these conditions land in the estate in which this tenancy is situated;

(d) on resumption of the lease ordered under section 24 of the Colonization of Government Lands (Punjab) Act, 1912, for a breach of the conditions herein set forth

(e) on relinquishment of the tenancy by the tenant giving In writing to the Collector on or before the 15th day of January in any year notice of his intention to relinquish the tenancy at the end of the agricultural year then current

Provided that when a remount breeding tenancy determines under such clauses (a) to (e) and no suitable tenant, holding land in the estate concerned, in forthcoming, the Commis sioner after considering the objections, if any, of the proprietors and tenants of the estate wherein the vacant tenancy is situated, may‑

(i) transfer the tenancy to another estate where a suitable candidate holds land either as proprietor or tenant otherwise than under these conditions; or

(ii) appoint to the vacant tenancy a candidate holding land in another estate in the colony either as proprietor or tenant otherwise than under these conditions. In this case a resident sarbrah approved by the Collector shall be appointed in respect of the remount‑breeding tenancy, but such appointment will not relieve the remount‑breeding tenant of responsibility for the fulfilment of any of the conditions of his tenancy except that of personal residence in the estate wherein the remount‑breeding tenancy is situated."

A perusal of the above will show that the tenancy in disputed was not a "heritable tenancy" as such, and if after the death of a tenant, it was granted, for example, even to one of his female heirs, the said selected heir would become a tenant in her own right. See Fazil v. Sadiq ((1947‑59) 1 R R 252), Chaughatta and another v. Shahamad ((1960‑66) 2 R R 211), Mst. Zardar Begum v. Sultan Mahmood and 5 others (P L D 1971 S C 580) overruling Lt: Col. Muhammad Siddiq Khan and others v. Major Muhammad Karim Khan (P L D 1954 Lah. 167), where the Supreme Court further held that sex was no bar for grant of land as such in the face of this legal position it is obvious that when after the death of Ghulam Ghauns the tenancy was granted to her widow Mst. Inayso Begum she became a tenant in her own right and the fact that the land was granted to her as a special case is neither here nor there, because, such like concepts will not: detract her from the aforesaid status. Pb.

8. Mst. Inayat Begum thus being the last tenant or to use another terminology just for the sake of convenience, she being a propositus, the condition, rule or law under which a grantee after her death was to be selected, (just as she was so selected after the death of her own father), is contained fn two letters (Annex. P. 1), dated 31‑10‑1950 and Annex. P. 2 dated 19‑2‑1952. These letters read as follows :

(ANNEX. "1")

"Copy of Memorandum No. 4245‑C dated the 31st October 1950 from the Deputy Secretary to Government Punjab. Resettlement and Colonies Department to the Deputy Commissioner, Montgomery (2) Layallpur (3) Multan, (4) Sheikhupura, (5) Jhang, (6) Shahpur.

Subject:‑---Allotment of horse/mule breeding tenancies to refugees.

Reference: Continuation Punjab Government Memo. No. 3157‑C, dated the 27 th October 1949.

The Intention of the orders contained in the memorandum under reference was to benefit suitable refugees who possessed) previous experience in horse/mule breeding. Their cases are to be considered on confiscation of tenancy for bad horse- mule breeding record in preference to Local Breeders. This does not imply that the heir of a deceased lessee with a good breeding record should be debarred from the re‑allotment of the tenancy to him. You are, therefore, requested to note that tenancy falling vacant on the death of a lessee with a good horse/mule breeding record, will, in future continue to be allotted to the heirs of the deceased, in preference to a refugee applicant.

(Sd.)

Deputy Secretary, Resettlement & Colonies"

"(ANNEX. P. 2)

Copy of Memorandum No. 868‑C, dated 19‑2‑1952, from, the Additional Secretary to Government of Punjab, Resettlement and Colonies Department to the Deputy Commissioner (1) Montgomery, (2) Multan.

Subject:‑--Allotment of Horse/Mule Breeding tenancies in the Montgomery Breeding area.

Reference.‑--In supersession of Punjab Government Memo. No. 3157/C, dated the 27th October 1949, as subsequently amended by Punjab Government Memo. No. 4245‑C, dated the 31 st October 1950.

It has been intimated by the Central Government Ministry of Defence that most of the refugees who were allotted land on horse/mule breeding conditions have .not proved satisfactory for breeding purposes, and that this has a detrimental effect on foaling results and availability of animals for Army requirements. The Government of Punjab have, therefore, decided with the concurrence of the Government of Pakistan. Ministry of Defence (Army Branch) that the allotment of horse/mule breeding tenancies falling vacant owing to confisca tion or other reasons should, in future, be made purely on merit and refugees, ex‑servicemen/and local farmers should be equally eligible for such tenancies. However, in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record it should continue to be allotted to the heirs of the deceased in preference to any other applicant.

2. The District Remount Officer is the local representative of the Army Remount Department in the Montgomery Breeding area and who holds records of all breeders in the Colony, should as usual be consulted and his recommendations given due consideration before the allotment of these tenancies are made.

(Sd.)

For Additional Secretary, Punjab,

Resettlement and Colonies Department."

These two letters, in my opinion, can well be construed as "statement of conditions" under subsection (2) of section 1 of the Act on the analogy just as administrative instruction in service matters were In The Province of West Pakistan and another v. Din Muhammad and others (P L D 1964 S C 21), Pakistan v. Sheikh Abdul Hamid (P L D 1961 S C 105), Government of West Pakistan v. Dr. A. A. Aziz (P L D 1966 S C 88) and Habibur Rehman v. West Pakistan Public Service Commis sion (4), construed as rules. According to these instructions or statement of conditions‑

(a) in cases where tenancy falls vacant, due to the death of a tenant, it is to be allotted to the heirs of the deceased in preference to any other applicant; and

(b) provided that the deceased tenant had a good horse/ mule‑breeding record..

9. Proceeding to examine the orders of the learned Member, Board of Revenue and of the Commissioner, in the light of the above instructions/statement of conditions, I find that the deceased tenant in the instant case would be Mst. Inayat Begum and not her husband. However, the learned Member, Board of Revenue in Paras. 20 and 21 of his judgment wrote as follows:‑‑

"20. I have given considerable thought to all the arguments advanced on behalf of the contestants and have come to the conclusion that the orders of the Board of Revenue/ Government with regard to succession of Horse‑Breeding Grant cannot ipso facto be made applicable in this case, and that there are circumstances in this case, discussed above, which justify an exception being made to the general police. laid down by the Board/Government in regard to succession, on which reliance has been placed by the learned counsel for Sami Ullah and Safia Begum‑

"21. In view of these considerations I uphold the order of the Commissioner whereby he allotted the grant in question to Sub. Muhammad Asghar and reject the appeal and revision petitions accordingly. Parties may be informed and orders issued accordingly."

These Paras. are to be read with para. 10 of the order of the Commissioner, where he wrote as follows:‑

"10. I have heard the arguments of counsel for the appellants and the respondent at length and have also gone through the orders of the Collector, dated 6‑4‑1971. He has apparently been influenced by the decision in P L D 1959 West Pakistan (Rev.) 39, that normally such allotment in case of satisfactory record should go to the heirs of the deceased allottee. The learned Collector, however, overlooked the fact that the original order allotting the grant to the mother of Mst. Safia Begum was for a limited period i.e. four years in order to enable the widow to look after her children and marry away her daughters, although even at that time, the deceased had left other landed property also. This was in 1955 but somehow the widow continued to have the lease extended till her death in 1969. In the circumstances this was not a regular grant in favour of the heirs of deceased person but only on compassionate grounds. With her death, the said arrangement has terminated and I feel that Board of Revenue's decision quoted above does not apply in this particular case."

10. The various passages reproduced above show that the authorities concerned did not consider Mst. Inayat Begum as the propositus‑a plea which has even now been raised the written statement of the contesting respondent Subedar Muhammad Asghar. According to me, this view of the learned Member, Board of Revenue, and the learned Commissioner which gives effect to the aforesaid pleas of the respondent was without lawful authority and against the law declared by the Supreme Court in Mst. Zardar Begum v. Sultan Mahmood an others. I have already observed that on what considerations a tenant is granted land, does not detract from the status of the tenant as such, and the mere fact that the authorities concerned held that the land was allotted to Mst. Inayat Begum as a special case, did not stand in her way of being considered as a tenant for all intents and purposes. The authorities concerned fell in error in taking such extraneous aspects into consideration which resulted in a total wrong approach to the case in hand.

11. The next point to be noticed is that the authorities concerned probably considered the view of the District Remount Officer, as contained in its report, dated 23‑4‑1970‑(ignoring Mst. Safia Begum) as binding on them. It is well‑settled that the view of the D. R. O., is only a relevant consideration but has no veto‑value, the real deciding authority in the case SO‑ Bearm always being the Collector, who in the instant case held her Board of quite competent to have the grant (see order of Collector Revenue, Pb. dated 6‑4‑1971). Any implication to the contrary in the orders ‑‑ of the learned Member, Board of Revenue, and the learned Commissioner would be without lawful authority. Similarly, the Chauhan, second reason given by the learned Member, Board of Revenue to ignore Mst. Safia Begum on ground of sex is also without lawful authority Inasmuch as, to be a young girl of marriage‑ D able age by itself is no disqualification. Lot of cases to the contrary are available. (See P L D 1971 S C 580). Even other wise the petitioner has placed on record a long list of forty‑two cases in this very district where females have been grand after the death .of the last tenant. The plea take any tenancy Subedar Muhammad Asghar in ground (f ) of Para. 9 of is written statement that " the record of horse‑breeding of Mst. Inayat Begum was helpful only for the continuation of the renewal of the allotment in her favour and no more", it is obvious is not correct. My finding is that even this plea is against law as contained in the relevant statement of conditions reproduced above. The authorities concerned acted without lawful authority in not giving benefit of the provisions of law to the petitioner.

12. The upshot of the above discussion is that the writ petition is accepted; the order, dated 18‑6‑1971, passed by the learned Commissioner and order, dated 26‑10‑1971, passed by the learned Member, Board of Revenue are hereby quashed and are declared to be without lawful authority and of no legal consequence against the petitioner with the result that the only operative order which remains in the field is that of the Collector dated 6‑4‑1971, whereby he allotted the tenancy in dispute to the petitioner after the death of her mother Mst. Inayat Begum the last horse‑breeder. There will be no order as to costs.

S. A. H. Appeal accepted.