MUHAMMAD ASLAM BALOCH Versus MEMBER, BOARD OF -REVENUE (COLONIES), PUNJAB

In this writ petition, orders dated 28‑11‑1984, passed by Collector, dated 23‑2‑1986, passed by Commissioner, Multan Division, Multan and dated 28‑5‑1986, passed by learned Member Board of Revenue, whereby the petitioner's request for grant of proprietary rights in respect of land held by him as sub‑tenant was rejected, have been challenged.

2. The facts of this case in brief are that land measuring 400 Kanals comprising Khasra numbers 1 to 25 of Squares Nos. 17 and 33 was allotted to one Allah Rakha father of the present petitioner as lessee for a period of 10 years from 1968 to 1978. In the year 1978, this lease was extended for another period of five years. However, earlier in 1970, land comprising Khasra numbers 1 to 12, 13/1 of Square No. 33 measuring 100 kanals was allotted to one Taj Muhammad under Lambardari scheme and therefore, it is an admitted position between the parties that in the year 1978 when the lease of said Allah Bakhsh was extended it was with regard to remaining land measuring 300 Kanals.

3. The father of the petitioner namely Allah Bakhsh, applied for grant of proprietary rights under the statement of conditions for purchase of proprietary rights issued by the Governor of the Punjab, through Gazette of Punjab extraordinary dated 3rd September, 1979. He was granted proprietary rights in respect of land measuring 100 Kanals comprising Khasra numbers 13/2 and 14 to 25 of Square No. 17 as under the said statement of conditions no lessee could be conferred proprietary rights in the land beyond 100 Kanals. The remaining land held by him under the said statement of conditions was surrendered by Allah Bakhsh to be disposed of and dealt with according to the said conditions. Out of the land surrendered by Allah Bakhsh as abovementioned, the petitioner held land measuring 100 Kanals comprising Khasra numbers 13/2 and 14 to 25 of Square No. 33. The petitioner applied for conferment of proprietary rights over the said land basing his entitlement as a sub‑tenant of the original lessee namely Allah Bakhsh. The Collector by his order dated 28‑11‑1984, rejected the application of the petitioner. The petitioner agitated against this order by filing appeal before Commissioner, Multan Division, Multan, which was also dismissed by order dated 23‑2‑1986. The petitioner took the matter further in revision before the Board of Revenue which was also dismissed through order dated 28‑5‑1986. The legality of all these orders have been challenged in this writ petition.

The ground on which the claim of the petitioner has been rejected by the impugned orders mainly is that he being sub‑tenant of his father, the original lessee, could not claim conferment of proprietary rights being a member of the family of his father. This finding appears to have been given keeping in view condition No.4 (b) according to which a family could have only one grant.

4. Learned counsel for the petitioner submits that the impugned orders are violative of the said conditions notified by the Government inasmuch as condition No.5 defines the family for the purpose of these conditions as under:‑

"The family for this purpose shall include the lessee's parents, minor children, husband, wife or wives and dependents."

As such, it has been urged that the petitioner who is major having his own family cultivating the land as sub‑tenant or original lessee Allah Bakhsh, could not have been denied the right of conferment of proprietary rights under condition No.13 and could not be held to be member of family of his father or treated to be in any manner a person dependent upon him. Learned counsel, in order to demonstrate the consistent, interpretation put by the revenue authorities on this term so as not to include sub‑lessee who may be son of the tenant or other relative, has placed on record certified copies of orders Annexures 'B' and 'C' passed by Commissioner and order, dated 20‑5‑1987 passed by Member Board of Revenue (Colonies) in which in similar circumstances, under the same conditions the sons of lessee were granted proprietary rights. It was argued therefore, that the petitioner could not be held to be a dependent member of family of his father.

5. On the other hand, learned A.A.‑G. appearing for respondents has contended that the petitioner cannot be deemed to be an aggrieved person in the eye of law inasmuch as no vested right has been secured to him under the law of which he has been deprived of and therefore, he has no locus standi to maintain the writ petition. He however, argued that the petitioner has availed of all the remedies before the lower forum and no jurisdictional defect exists in the impugned orders passed by the authorities and as such, the same could not be interfered with in exercise of constitutional jurisdiction of this Court. In order to elaborate his contentions, learned A . A . ‑G . has referred to condition No.l (a) and proviso attached to it alongwith the preamble of the Notification. According to learned A.A.‑G, proviso to condition 1 (a) in explicit terms provides that no lessee shall be entitled as of right to the purchase of proprietary rights and the Board of Revenue retains its absolute discretion in the matter of grant of such rights and selection of grantees to whom the land is to be granted. He contended that conferment of proprietary rights under the said statement of conditions were concessions and ex gratia grant therefore, could not be claimed as a matter of right. He further submitted that under the said conditions sub‑tenant could only be considered for grant of proprietary rights if the lessee himself is found to be ineligible for the grant of proprietary rights and ineligibility of the lessee would mean only if he is found disentitled to conferment of proprietary rights over any of the pieces of land under his lease on account of violation of terms and conditions as provided under condition No.4 or other conditions under which he was holding the lease and if he has surrendered the land beyond 100 kanals because he could only be granted proprietary rights upto 100 kanals that shall not be on account of his ineligibility but shall be a surrender in general therefore, the land shall not be deemed to be available for grant of proprietary rights to sub‑tenant. He has further argued that even under condition No.13, the petitioner has got no right to be considered being at No.4 in order of priority till claims of the persons of first three categories mentioned therein are firstly settled through allotment of the additional land surrendered by the lessee. Learned A . A .‑G . has supported the findings of the Revenue authorities given in the impugned orders while advancing reasons that the intention of the said conditions that one family should be granted proprietary rights of 100 kanals so that as many people as may be possible could be accommodated therefore the term dependent member of family of lessee could include also the sub‑tenant who is his son as such member of his family.

6. In reply to the arguments advanced by learned A . A .‑G . the learned counsel for the petitioner reiterated that if a sub‑tenant merely on account of his sub‑tenancy is to be treated as dependent member of the family of his father, then the words minor children' and lessees parents occurring in condition No.5 will have to be held redundant which would be against the accepted principles of interpretation of statutory rules. According to learned counsel the presence of the said words necessarily excludes a son who is major and is not otherwise dependent upon his father from the term family. Learned counsel urged that since the petitioner was entitled to conferment of proprietary rights and the discretion vesting in the revenue authorities in this respect having been exercised arbitrarily, capriciously and on misinterpretation of the conditions which have force of statutory rules therefore the petitioner having been deprived of a benefit which would have accrued to him, had the condition been correctly interpreted, he could maintain the writ petition and shall be deemed to be an aggrieved person. According to him, it is not necessary that there should exist juristic right in order to maintain the writ petition. The deprivation of benefit according to him is sufficient to give locus standi to the petitioner to maintain the writ petition.

7. For the foregoing survey of the arguments, respectfully addressed by learned counsel for the parties, the first question that arises is whether by virtue of para 5 of statement of conditions, the petitioner is debarred from claiming the grant because of the fact that his father Allah Bakhsh has already been given grant of 100 kanals and the family as described in the said para could not have acquired more than that. The prohibition in the said para, is not applicable to the petitioner for the obvious reason that he is not covered by the person comprising family as described in the said para. Thus the conclusion is inescapable that para 5 cannot operate to nullify the petitioner's claim.

8. The next point to consider is whether the petitioner is entitled to a grant of proprietary rights in respect of land under his cultivation as sub‑tenant. The subject is dealt with, in para 13 of Statement of Conditions, the relevant part of which is reproduced below for ready reference:‑

"13. Grant of s urrendered resumed land .‑ .........................

Fourthly to those who have been cultivating the land as sub‑tenants under such lessees as were held ineligible to purchase proprietary rights under these conditions.

A plain perusal of the above provisions makes it manifest that a sub‑tenant is entitled to a grant in respect of land under his cultivation upto subsistent holding on the condition that the lessee is held ineligible for grant in respect thereof. In the instant case, the lessee Allah Bakhsh was not himself cultivating the land in question and consequently must be held ineligible to acquire the proprietary rights qua the same under para. 3 and 4 of the Statement of Conditions which are also reproduced below for ready reference:‑

Para 3. "Eligibility. Any person holding State land on temporary cultivation lease who is either landless or owner of less than a subsistence holding and has been in continuous cultivating possession of the leased land since before Kharif 1977 may be eligible for the purchase of proprietary rights in such land.

"Para. 4. Ineligibility.

(a) Any lessee who is owner of a subsistence holding or does not cultivate the land himself shall not be eligible for the purchase of proprietary rights in the leased land and shall surrender it peaceably to the Collector immediately on the expiry/ termination of his lease."

Consequently, the eligibility of the petitioner for grant of land in his cultivating possession to the extent of subsistence holding is beyond question and I hold accordingly. This view is also in accord with the departmental interpretation adopted by the authorities holding that such sub‑tenant is entitled to grant of proprietary rights in similar circumstances vide Annexures 'B', 'C' and order dated 20‑5‑1987 aforementioned.

9. Before, parting with the case, it seems necessary to dispose of the objection raised by the learned A . A .‑G . on behalf of the respondents to the effect that since according to condition No.l, the grant of land is in absolute discretion of the authority and that the petitioner cannot claim such a grant as a matter of right.

10. This point of view to my mind has an entirely wrong angle. It may be observed that law does not contemplate that exercise of powers possessed by a public functionaries can be refused arbitrarily. The statement of conditions in connection with the allotment and conferment of proprietary rights in the land having been issued under section 10 of the Colonization of Government Lands Act constitute a law and the fulfilment of a condition of the said statement of conditions therefore made it incumbent on the state that the law be thus honoured, the application of which may be invoked by an affected person under the said constitution.

11. Adverting to another argument of learned A . A . G . that grant under the said statement of conditions is "concession and ex gratia grant" therefore, the petitioner could not claim the same as a matter of right and as such the writ petition was not maintainable. It may be observed that the concept of the dealing of the State with the individual citizen and his rights has undergone an important change in the judicial history of this country in the last two decades. The expression ex gratia literally means, "out of, or as a matter of grave". The word "grace" here means "favour". The conferment of proprietary rights as provided by condition 10 of the statement of conditions is to be made subject to payment of price of the land at the market value to be calculated, therefore, it cannot be urged that the same was either ex gratia grant or concession or as a matter of J grace. Even otherwise, had it been a grant without any, payment o If price even then in my view, the arguments has no force, for the following reasons.

12. The word "without lawful authority" in sub‑clause (ii) of Article 199 (1) (a) of the Constitution have been used deliberately to give meaning and content to the solemn declaration under Article 4 of the Constitution itself that it is an inalienable right of every citizen to be treated in accordance with law. Law here is not confined to statute law but it is used in its general sense as connoting all that is treated as law in this country and postulates a strict performance of all the function and duties laid down by law. If the above interpretation of Article 4 of the Constitution is applied to the present case, the statement of conditions issued under section 10 of the Colonization of Government Lands Act would have to be treated as law. In this connection reference may be made to judgment reported as Muhammad Ashraf v. Board of Revenue, West Pakistan and another (P L D 1968 Lah. 1155). The petitioner then clearly is entitled to its protection and treatment according to it. All grants to be made under the said statement of conditions are for the benefit of the State. It may not be out of place here to observe that all the wealth, assets and resources of the country vest in the State for the benefit of citizens because we are a republic. If, therefore, as in the instant case, a person is able to bring his claim within the fore corners of relevant provisions governing the subject, the power of the public functionaries to grant the same will be construed as coupled with a duty to exercise that power in that behalf, therefore, this objection is also hereby repelled.

13. The argument of the learned A.A.‑G. that under condition No.13, the petitioner is entitled to conferment of proprietary rights only if there are no persons falling within the first three categories mentioned therein, as the petitioner is a person who falls in category No.4, should not detain me and can be shortly disposed of on the ground that none of the authorities below declined to confer proprietary rights on the petitioners for the reason that there was a person out of the first three categories contesting the claim of the petitioner as such, the argument has no substance.

14. In the result, the writ petition succeeds and the same is hereby accepted with no order as to costs. The impugned orders dated 28‑11‑1984, 23‑2‑1986, and 28‑5‑1986 are hereby declared to have been passed without lawful authority and of no legal consequence.

M. Y. H./M‑486/L Petition allowed.