HAMAYUN Versus ADDITIONAL COMMISSIONER (REVENUE)

The predecessor‑in‑interest of the writ petitioners, Saleh Muhammad who was allotted 74 Kanals, 6 Marlas of land comprising Killas Nos.3/2, 4 to 7, 8/1 13/2, 14 to 17, 18/1, 23/2, 24 and 25 of Sq. No.24/25 situated in Chak No.336/G-B, District Toba Tek Singh under the Ejected Tenants Scheme and subsequent thereto an area admeasuring 10 Kanals, 5 Marlas was withdrawn and proprietary rights in the remaining area were allowed in the name of Saleh Muhammad under the Scheme notified by the Government of the Punjab, Colonies Department. Allottees were making payment of instalments. Resumption order of 10 Kanals, 5 Marlas of land passed by the Collector on 12‑12‑1981, appellate order passed by Additional Commissioner (Revenue), Faisalabad on 3‑8‑1982 and the order of the Member (Colonies), Board of Revenue passed on 21‑10‑1982 were impugned in the suit. The said suit was contested by the Government of Punjab and following issues were framed:‑‑‑--

(1) Whether the plaintiff has no cause of action? OPD

(2) Whether this Court lacks jurisdiction? OPD

(3) Whether the suit is undervalued for the purposes of court‑fee if so, what effect? OPD

(4) Whether the impugned order is illegal, void and ineffective as against the rights of the plaintiffs? OPP

(5) Whether the plaintiffs are entitled to obtain proprietary rights of the suit land? OPP .

(6) Whether the plaintiffs are entitled to obtain prayed for? OPP

(7) Relief.

The trial Court discussed Issues Nos. l, 4, 5 and 6 together and decided all the issues in favour of the plaintiffs/petitioners. Issues Nos.2 and 3 regarding lack of jurisdiction and valuation were not pressed before the trial Court. The suit was decreed.

2. The appeal was filed by the respondent and the same was accepted by the learned District Judge, Toba Tek Singh on 28‑11‑1987 and the suit was accordingly dismissed reversing the findings of the trial Court on all the issues.

The question of jurisdiction was decided in favour of the plaintiffs and the plaint was held to be properly valued. In the revision petition order in appeal was challenged.

3. The learned counsel for respondent No.2 has raised preliminary objection regarding jurisdiction of the Civil Court and has referred me to section 36 of Colonization of Government Lands (Punjab) Act, 1912. He has further submitted that 10 Kanals, 5 Marlas of land was not within the relaxable limit of 10% as given in Memo. Exh.P/6.

4. I have no hesitation to hold that the Civil Court had jurisdiction in such cases where the authorities as mentioned in Colonization of Government Lands (Punjab) Act, 1912 had not acted in accordance with the provisions of the said Act and have failed to comply with the rules and notifications issued by the Provincial Government in this behalf. Reliance is placed on Abdul Rab, etc. v. Wali Muhammad, etc. (1980 SCMR 139).

5. The parties had produced their evidence and the plaintiffs summoned Allah Rakha, Colony Clerk, D.C. Office, Toba Tek Singh to appear as P.W.1 and prove documents from Exhs.P/1 to P/6. Humayun, one of the petitioners, appeared as P.W.2 and stated that they had deposited 19 instalments of the land whereas they were also entitled to 10 Kanals, 5 Marlas of land which was originally allotted to them and was in their continuous possession and was outside the prohibitory limits of the Municipal Committee. The defendants produced Muhammad Saleem Alvi, Colony Clerk as D.W.2. He stated that the petitioners were granted proprietary rights in land admeasuring 64 Kanals on 12‑12‑1981 and that the petitioner had not exercised their option to purchase excess land in accordance with the Government instructions in this behalf. He also produced Exh.D/2, copy of Memorandum No. 1285 of 1970.

6. The District Judge accepted the appeal on the ground that the appellate as well as the revisional Revenue Courts had properly appreciated the documents on the file and as according to P/6 only 10 % of the area over and above 64 Kanals could be allowed to the ejected tenants and the plaintiffs/petitioners were not entitled to acquire proprietary rights in 10 Kanals, 5 Marlas of land.

7. The whole of the premises of the judgment and decree of the learned District Judge, Toba Tek Singh misplaced. It was in fact in the year 1963, as was evident from Exh.P/1, that the proprietary rights in land admeasuring 9 acres, 2 Kanals and 6 Marlas were granted to the present petitioners on 20‑6‑1963 and that they had paid 19 out of 20 instalments and that they were in possession of the property and mutation of inheritance of Saleh Muhammad was duly attested in the name of the present petitioners. It is further mentioned therein that the Governor's Inspection Team had raised objection that proprietary rights could only be granted in 64 Kanals of land and 10 Kanals, 6 Marlas of land was liable to be resumed which was in excess of 64 Kanals and was not within the allowable limit of 10%. This order of resumption was passed on 12‑12‑1981 and impugned orders of the Additional Commissioner and Member, Board of Revenue were similarly passed thereafter and the present petitioner lost no time in filing a suit. The grant of proprietary rights in 10 Kanals and 5 Marlas were refused by Member, Board of Revenue vide impugned order dated 21‑10‑1982 as:‑‑

"The area 10 Kanals, 5 Marlas which was resumed from the petitioners was in excess of 10 % of the prescribed units and thus it could not be sold on market price. There is thus no force in the revision petition which is hereby dismissed. "

The District Judge while dismissing the appeal relied on Exh.D/2 which was issued by the Board of Revenue on 22‑1‑1971 but failed to look into the contents of Exh.P/6 which was issued subsequent thereto. Following paragraph of Exh.P/6 was important for the determination of the entitlement of the petitioners. The same reads as under:‑‑

"3. However, the price of the area in excess involved up to 10% may be charged in accordance with item (b) of para. 1 of. Government Circular Memorandum No.1286‑70/251‑ CLV, dated 22‑1‑1971, and in casq the area in excess exceeds 10% such cases may be referred to the Board of Revenue. Punjab, for obtaining orders of Member (Colonies), Board of Revenue, Punjab and for charging price of excess areas from concerned allottee."

8. The version alleged by the defendants/respondents that the plaintiffs had not exercised their option to purchase the excess area is believed by the contents of the orders of the Member, Board of Revenue dated 21‑10‑1982. What the learned Member, Board of Revenue was called upon was simply the agitation by the present petitioners that they were entitled to retain the area in excess of their entitlement on different grounds including the one that proprietary rights were granted in their favour by the Collector in the year 1963.

9. Another fact which is worth taking note of in the present case is the lapse of time between the grant of proprietary rights and the order of resumption. The District Collector had granted proprietary rights in 9 Acres, 2 Kanals and 6 Marlas of land on 20‑6‑1963 under memorandum dated 8‑10‑1960. The maximum limit of land in which the proprietary rights were to be granted was fixed at 12‑50 acres in the year 1960 which was subsequently decreased vide Memo. dated 22‑1‑1971. The petitioners having been granted proprietary rights, almost 17 years before the date of resumption and 7 years before the decreasing of limits from 12‑50 acres to 8 acres, could not be made to loose their right ‑vested in them under the lawful orders of the District Collector.

10. Issues Nos. l, 2 and 3 are, therefore, decided against the defendants whereas Issue No.4 is decided in favour of the plaintiffs /petitioners. Issue No.5 is decided in favour of the petitioners subject to payment of market price according to P/6 or the letter subsequently issued whichever may be beneficial to the plaintiffs as they are the litigants against the State. Issue No.6 is decided in favour of the plaintiff and resultantly the impugned orders passed by A.C./Collector, Toba Tek Singh, Additional Commissioner (Revenue) Faisalabad Division, Faisalabad and the Member, Board of Revenue dated 12‑12‑1981, 3‑8‑1982 and 21‑10‑1982 respectively are declared to be ineffective against the rights of the plaintiffs/petitioners. The suit of the plaintiff is decreed. The petitioners are further declared to be entitled to retain the excess area admeasuring 10 Kanals, 5 Marlas subject to their making payments of price fixed by the Colony Authorities according to Exh.P/6 or according to any other notification issued subsequent thereto, comparatively beneficial to the plaintiff as they were granted proprietary rights in total area admeasuring 9 acres, 2 Kanals, 6 Marlas by the District Collector on 20‑6‑1963. The consequential relief by way of issuance of perpetual injunction is also granted. Decree be framed accordingly.

A.A./H‑6/L Revision accepted.