MUSHTAQ HUSSAIN KAZMI Versus MEMBER (COLONIES), BOARD OF REVENUE
This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Col. Mushtaq Hussain Kazmi, the petitioner wants this Court to declare order, dated 28th April, 1981 passed by Member (Colonies), Board of Revenue, Punjab, respondent No. 1, to be without lawful authority and of no legal effect.
2. The facts leading up to this petition as stated by the learned counsel for the petitioner in brief are that in the year 1936 the disputed land, about 100 kanals, situated in Chak No. 46/K.B. Tehsil Burewala, District Vehari, was given to Noora father of Sultan Mahmood, respondent No. 2, as Lambardari grant. In the year 1948, the Government of Punjab vide memo. No. 1135, dated 15th March, 1948 declared that in future land would not be granted to new appointee Lambardars. In the year 1951 through memo. No. 2286‑C, dated 22nd May, 1951 those Lambardars who were holding that office on 15th March, 1948 were given option to purchase the proprietary rights of land held by them as a grant within one year and that on their failure to do so, the land would be resumed on their death. Sub sequently through various memos. time was extended till 1st February, 1958. Noora Lambardar, however, did not opt to purchase the proprietary rights of the land till his death in the year 1974. Consequently the land was resumed in favour of Government through Mutation No. 57 attested on 26th March, 1978. According to the learned counsel, this land after having been included in the schedule was placed at the disposal of G. H. Q. for allotment under Gallantary Award Scheme. Thereafter as a result of lots drawn by a Board of Officers at G. H. Q. the petitioner was earmarked for the allotment of the disputed land. On 21st June, 1979 the District Collector on the direction of the G. H. Q. passed a formal order of allot ment in favour of the petitioner under section .10 of the Colonization of Government Lands Act, 1912, followed by delivery of possession to him. The Collector executed sale‑deed of land in name of the petitioner. Mutation No. 68 in this respect was also attested on 27th February, 1980. Feeling aggrieved Sultan Mahmood filed appeal before Commissioner on the ground that he, after death of his father Noora, having been appointed as Lambardar, was entitled to have the land. The Commissioner dismissed the appeal on 12th May, 1980. Still not satisfied Sultan Mahmood, respondent, moved revision before the Board of Revenue, whereon respon dent No. 1 Member (Colonies), Board of Revenue. Punjab while accepting the revision not only set aside the order of allotment in favour of the petitioner but also cancelled the deed of conveyance and resumed the land restoring the same as Lambardarl grant to respondent No. 2 till further orders of the Government in pursuance to memo. dated 6th July, 1979.
3. Learned counsel for the petitioner in his lengthy arguments raised following points to urge that the impugned order was passed without lawful authority :‑---
(i) That the respondent No.1 has no jurisdiction to cancel the grant made for Gallantary Award. Reliance has been placed on Capt. Shah Sawar v. Muhammad As lam (1981 S C M R 911).
(ii) That once the sale‑deed was executed in favour of the petitioner, the same could not be cancelled by respondent No. 1 on any ground ;
(iii) that since section 30 (2) of the Colonization of Government Lands Act, 1912, applies when allotment is obtained through fraud but in the case in hand there being no allegation that the peti tioner was not eligible for Gallantary Award, therefore, respondent No. 1 could not invoke the provisions of section 30 (2) of the Colonization of Government Lands Act to cancel the sale‑deed ;
(iv) that respondent No. I has exceeded jurisdiction by relying on memos., dated 9th November, 1974, 7th August, 1976 and 20th March, 1979 inasmuch as the same are not applicable to this case; and
(v) that respondent No. 1 misread the record when he said that land was not shown as bakaya sarkar in revenue record whereas Mutation No. 57, dated 26th March, 1976 clearly shows that,‑---------
4. The learned counsel explained that the impression of respondent No. 1 that land being reserved for Lambardari grant could not be resumed and Allotted under Gallantdry Award Scheme is wrong because under memo. dated 22nd May, 1951 on the failure of Noora Lambardar to purchase the proprietary rights within the specified/extended time, the land was liable to be resumed on death of the Lambardar and in the instant case it has actually been resumed through mutation No. 57, dated 26th March, 1976. The learned counsel has argued that in the circumstances of the case memos., dated 9th November, 1974, 7th August, 1976 and 20th March, 1979 could not be relied upon by respondent No. 1. Furthermore, these memos. relate to those Lambardars who were awaiting the grant of proprietary rights and do not ‑apply to those who had not exercised option.
5. As against this, the learned counsel for respondent No. 2 has emphatically defended the impugned order on the ground that the disputed land being a land reserved for Lambardari grant, the same in view of the memos. relied upon by respondent No. 1 was in no case available for Gallantary Award Scheme and as such could not be given to the petitioner.
6. I have considered the arguments advanced by the learned counsel for the parties with care. From the statement of facts given above and the arguments of the learned counsel, it appears that facts, that the disputed land was originally reserved for Lambardari grant : that in the year 1936 it was allotted to Noora Lambardar, father of respondent No. 2, that Noora died in the year 1974 admittedly before 4th September, 1974 ; that he never opted to purchase the proprietary rights; that after the death of Noora his son occupied the land; that respondent No. 2 was appointed as a permanent Lambardar on 13th May, 1975 by the District Collector, that the land was, however; resumed on 26th March, 1978 vide Mutation No. 57 that in Mutation No. 57 it has been mentioned,
(Lambardar foot ho choka hai Raqba bakaha Serkar hi) that the same was placed at the disposal of the G. H. Q. for allotment to Gallantary Awardees; that the petitioner was earmarked for this land; that it was allotted to respondent No. 2 under section 10 of Colonization of Government Lands Act by the Deputy Commissioner/Collector vide his order, dated 21st June, 1979 followed by deed of conveyance and Mutation No. 68, dated 27th February, 1980; that the possession of the land was delivered to the petitioner in June, 1979; that the land was permanently reserved for Lambardari grant since the colonization of the area concerned; that this "reservation" was never cancelled by specific order of any compe tent authority and that the Member (Colonies). Board of Revenue, found that "availability of this land as reported to the Board of Revenue and the General Headquarter was contrary to the facts and its allotment to respon dent and the issuance of deed of conveyance to the respondent as a sequal to the misrepresentation of facts was a nullity in the eye of law", are the admitted facts of the case. To my mind, in the circumstances of the case the crucial question for determination is as to whether at any stage the land had ceased to be the "service grant reserved for allotment to Lambardar of the Chak or not". The learned counsel has not shown any order passed by competent authority cancelling the above‑said reservation. I am clear in my mind that the declaration in Mutation No. 57 that "Rakba bakaya sarkar hai" and its resumption from Noora do not take out the land from reservation for grant to Lambardar of the village and does not make the same available for Gallantary Award Scheme. I am convinced that the words "Rakba bakaya sarkar hai" do not tantamount to the cancellation of reservation even by implication and rakba remains bakaya only for allotment to lambardar of the village and as such Board of Revenue on executive side was not competent to place this land at the disposal of General Head quarter for allotment to gallantary awardees. All subsequent proceeding including allotment order, execution of conveyance deed, delivery of the possession and Mutation No. 68 in favour of petitioner were, therefore, of no legal effect. For all these reasons I feel inclined to concur with respondent No. 1 that allotment to the petitioner was in fact a result of misrepresentation of the facts by the Deputy Commissioner/Collector to higher authorities. That being the position, the learned Member (Colonies), Board of Revenue, respondent No. 1, under section 30 (2) of the Colo nization of Government Lands Act was quite competent to set aside the allotment order, cancel the conveyance deed and direct restoration of land to respondent No. 2.
7. The submissions of the learned counsel for the petitioner appear to be without any substance. As for point at (i), the authority referred to by the learned counsel is quite distinguishable because in that case the provisions of section 25 of the Colonization of Government Lands Act were taken into account and section 30 (2) of the Act was not under discussion. The impugned order shows that the same has been passed under section 30(2) of the Colonization of Government Lands Act. So far as point No. (if) is concerned, respondent No. 1 having revisional powers against the order passed by the Deputy Commissioner/Collector, was quite competent to reveres or modify the orders impugned before him. He has applied his conscious mind to the legal and factual aspects of the case and has given sound reasons in support of the conclusion arrived at by him. Coming to point (iii) I find that the real question is not as to the eligibility of the petitioner to allotment for gallantary award but the point involved for determination is whether the land which was permanently reserved for service grant to Lambardar of the Chak could legally be included in any schedule or could be placed at the disposal of the General Headquarter for grant to gallantary awardees. I have already held that the disputed land having not been cancelled from Lambardari grant reservation was not legally available for disposal by the General Headquarter in Gallantary Award Scheme. The respondent No. 1 who had a jurisdiction over the matter, has found, for reasons that the allotment to the petitioner was a result of misrepresentation of facts by the Deputy Commissioner/Collector. Adverting to point No. (iv) I am of the opinion that the memos. referred to in this point although quite relevant with the matter in dispute yet were lost sight of by the Collector. The respondent No. 1 has, therefore, properly relied on these instructions.
8. The last point also does not hold any water inasmuch as the land was available only for allotment to a Lambardar and not to anyone else. The impugned order, therefore, does not suffer from misreading of the record. It is worth notice that the various memos. No. 1135, dated 15th March, 1948, No. 2286‑C, dated 22nd May, 1951, No. COL‑10/12‑56, dated 8th August, 1956 and No. 10594‑57/5308‑C, dated 27th December, 1957 referred to by petitioner were not urged before the Member, Board of Revenue. In the larger interest of justice have considered the effect of these instructions. The same do not rehabilitate the legal flaws and infir mities in the orders of the District Collector and the administrative order of the Board of Revenue placing the disputed land at the disposal of the General Headquarter which having been permanently reserved for Lambardar of the village, could neither be placed at the disposal of the General Head quarter nor could be allotted to the petitioner.
9. For what has been stated above, there being no merit in the petition the same is dismissed leaving the parties to bear their own costs.
M. Y. H. Petition dismissed.