2015 S C M R 58

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

COMMISSIONER MULTAN DIVISION, MULTAN and others---

Petitioners Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Petition No. 569-L of 2011, decided on 29/10/2014.

(On appeal from the judgment/order dated 3-3-2011 passed by Lahore High Court, in Writ Petition No.2686 of 2001)

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 5(5) & 19---State land leased to allottee---Proprietary rights in leased land---Proof---Tehsil Register maintained by
Provincial Government---Resumption of leased land---Register of the concerned Tehsil maintained by the Provincial
Government revealed that the Commissioner had not recommended conferment of proprietary rights in the leased land,
and accordingly lease in question was not approved for transfer of proprietary rights---Heirs of allottee thus lacked
entitlement to obtain proprietary rights of the leased land---Supreme Court remanded the case to the Board of Revenue
for reviewing its order whereby allottee was held to have become entitled to grant of proprietary rights of the leased land-
--Supreme Court directed that the Board of Revenue while reviewing its order should bear in mind recommendations
made by its Judicial Member for allotment of alternate land to the allotee and his heirs on account of their long standing
service rendered for more than 100 years in the development of the land leased out to them---Appeal was allowed
accordingly.
(b) Civil Procedure Code (V of 1908)---
----O. XLI, R. 27---Additional evidence before Appellate Court---Supreme Court, jurisdiction of--- Scope--- Authentic
documentary evidence consistent with the pleadings and relevant to the findings of the case---Additional evidence
facilitating resolution of controversy---Such additional evidence was admissible on record in the Appellate Court---
Jurisdiction of the Supreme Court to do complete justice between the parties favoured additional evidence to be
admitted in order to meet the ends of justice.

Muhammad Tariq v. Shamsa Tanveer PLD 2011 SC 151 and Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan PLD 1992
SC 96ref.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19---State land leased to allottee---Resumption of leased land---Pre-requisites---Agreement to sell or sale deed of
leased land---Unless a sale had been completed, inter alia, by transfer of possession of leased land under an agreement
to sell and byconversion of such land to unlawful use, the allottee was not liable to penal action (i.e. resumption of leased
land).

Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821 ref.

(d) West Pakistan Board of Revenue Act (XI of 1957)---
----S. 7(2), proviso---West Pakistan Land Revenue Act (XVII of 1967), S.164---Board of Revenue---Revisional
jurisdiction---Scope---Purported revisional jurisdiction exercised by Member Board of Revenue (Judicial) to annul/recall
an earlier revisional order passed by Member Board of Revenue (Colonies)---Legality---Order passed by Member
Board of Revenue (Judicial) was devoid of legal authority since S. 7(2) of West Pakistan Board of Revenue Act, 1957
barred revisional jurisdiction of the Board for adjudicating the correctness or validity of a revisional order passed by
Single Member of the Board---Appeal was disposed of accordingly.

(e) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30---Allotte of State land---Allottee entering into agreement to sell State land prior to grant of proprietary rights in
such land---Liberal treatment was accorded by law to such agreement to sell, concluded by allottee with a vendee in
anticipation of securing proprietary rights in the State land---Such agreement to sell being contractual was valid inter
partes but the same could not be enforced until proprietary rights were conferred on the allottee by the State.

Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821 ref.

Ch. M. Iqbal, Additional A.-G. and Malik M. Sharif, Naib Tehsildar for Petitioners.
M. Asif Saeed Rana, Advocate Supreme Court for Respondents.
Date of hearing: 4th August, 2014.
ORDER
UMAR ATA BANDIAL, J.---This petition filed by three Land Revenue Authorities of the Provincial Government is directed
against the judgment dated 3-3-2011 by a judge in Chamber of the High Court that allows Writ Petition No.2686 of 2001
filed by the respondents. The impugned judgment declares the respondents to be owners of State land leased to their
predecessor-in-interest, namely, Gahna, in the year 1908. The said predecessor-in-interest was allotted 384 Kanals, 17
Marlas of barren State land situated in village Abdul Hakeem, Tehsil Kabirwala, District Khanewal (previously District
Multan) under the Tuhad Khawahi (Peasant Grant) Scheme vide a lease deed dated 13-3-1908. That scheme
contemplated the lessee, Gahna, to sink wells in order to bring 1/3rd of the barren leased land under cultivation and to
keep the wells in use and working order.
2. Gahna complied the conditions of lease which was extended upto the year 1941. After his death, the lease hold rights
were transferred to his legal heirs, i.e., Allah Bakhsh and Ghulam Muhammad vide mutation No.279 dated 12-11-1942.
On 5-1-1989Ghulam Muhammad passed away and vide mutation No.2286 dated 21-10-1989 his leasehold rights were
transferred to Muhammad Hussain and Ahmed Bibi (respondents Nos.1 and 5 in this petition). Likewise, heirs of Allah
Bakhsh also succeeded to their forebear and are impleaded as the remaining respondents in this petition.
Notwithstanding devolution of leasehold rights to Gahna's heirs, the record does not show that the lease of the
aforementioned land was renewed or extended after 1941. However, the heirs of the allottee have since remained in
possession of the said land.

3. Before this Court, respondent heirs of the allottee Gahna claim that after the creation of Pakistan they started pursuing
the Provincial Government for grant of proprietary rights of the leased land. The foundation of their claim is stated to be
letter No.6051/C dated 11-12-1941 issued by the Deputy Secretary, Development Department, Government of Punjab
and addressed to the Commissioner, Multan Division. That letter directs implementation of various actions taken in
respect of different Tuhad Khawahi leases granted in District Multan. The first part of the letter deals with leases in the
Sindhnai area falling in Tehsil Kabirwala and Tehsil Multan. The letter intimates that leases mentioned at Sr. Nos.8, 9,
14, 24, 25, 27, 54 and 55 of the "Tehsil Kabirwala Register" covering a total area of 258 Acres, 4 Kanal and 4 Marlas
are "allowed to acquire proprietary rights in their respective holdings @ Rs.5 per acre as provided in the lease deed."
It is not disputed between the parties that the lease of State land granted to Gahna, predecessor-in-interest of the
respondents, is mentioned at Sr. No.3 of the said Tehsil Kabirwala Register.

4. Ultimately,in the year 1970, the sons of Gahna, Allah Bakhsh and Ghulam Muhammad both respondents herein, filed
Writ Petition No.972 of 1970 in the Lahore High Cotirt claiming relief in respect of their leased land against the Member,
Board of Revenue, Commissioner Multan Division and Deputy Commissioner Multan. The said three revenue authorities
are the present petitioners before the Court, with the difference that the District Collector, Khanewal has replaced the
Deputy Commissioner, Multan. The order of the High Court dated 21-5-1986 disposed of the afore-stated petition on the
statement by writ petitioners that the respondents had restored possession of their leased land and consequently the
petitioners would approach the relevant authorities for the grant of proprietary rights of the leased land. The said
dispositive order dated 21-5-1986 by the High Court also observed that "if and when petitioners apply for the grant of
proprietary rights, the concerned authorities shall decide their application in accordance with law."

5. The first
official acknowledgment of a written application by the heirs of Gahna for the grant of proprietary rights of the
leased land is made in the order dated 11-7-1990 passed by the District Collector, Khanewal. This order allowed the said
application by the heirs and granted them the proprietary rights prayed at a price of Rs.100 per acre. However, the order
dated 11-7-1990 was short lived. On 16-7-1990, the District Collector reviewed his earlier order on the ground that the
leased land was located within the municipal limits of Town Committee, Abdul Hakeem and therefore fell within the
Prohibited Zone. Nevertheless, he recommended that the case of the respondents be given sympathetic consideration
by the Board of Revenue. The respondents' applications for relief filed before the Board of Revenue, however, did not
receive any attention. Accordingly, they filed Writ Petition. No.3341 of 1992 and Writ Petition No.1869 of 1994 before the
High Court against administrative inaction by the Board of Revenue. On 24-4-1994, the High Court issued directions to
the Board of Revenue to decide the respondents' pending applications within two months.

6. Before the Board

of Revenue could respond under the said direction by the High Court, the District Collector, Khanewal
passed an adverse order dated 3-5-1994 against the respondents on the basis of a field report by the Assistant Collector,
Kabirwala. Without serving a show cause notice stating the allegation and the facts sustaining it or hearing the
respondents thereon, the District Collector, Kabirwala ordered resumption of the respondents' leased land on the ground
that agreement to sell for a portion thereof for residential/ commercial purposes had been concluded by the respondents
against Government instructions and policy. Whilst the respondents' appeal against the District Collector's resumption
order dated 3-5-1994 was awaiting hearing by the Commissioner, Multan Division, the Member (Colonies) Board of
Revenue ["MBR (Colonies)] heard and allowed on 17-11-1994 the pending ROR No.2902 of 1994 filed by the respondents
seeking proprietary rights of their leased land. The District Collector's order dated 3-5-1994 was not brought to the notice
of MBR (Colonies) who decided on 17-11-1994that the allottee had become entitled to grant of proprietary rights of the
leased land well before such land came within the Prohibited Zone. His heirs who are respondents herein were
accordingly allowed proprietary rights in the land but subject to deposit of dues/arrears as per Government policy. In the
light of said order dated 17-11-1994 by the MBR (Colonies), the Commissioner Multan Division vide order dated 21-10-
1996 remanded for fresh decision the appeal by the respondents pending before him against the resumption order dated
3-5-1994 by the District Collector, Khanewal.

7. The success achieved by the respondent heirs of the allottee, by way of the order dated 17-11-1994 passed by the
MBR (Colonies) did not, however, bear fruit. Notwithstanding the said order, the District Collector vide order dated 22-11-
1999 re-agitated that the respondent heirs of the allottee had alienated chunks of the leased land for
residential/commercial purpose and thereby violated the conditions of their allotment. Consequently, the respondents had
forfeited their entitlement to grant of proprietary rights wherefor the leased land was liable to resumption. The District
Collector also observed that the respondents' leased land was statedly valued at Rs.24 1acs per acre whereas the grant
of proprietary rights at a price of Rs.100 per acre would cause colossal financial loss to the State. Consequently, through
the Commissioner Multan, he forwarded a request to the MBR (Colonies) to review his order dated 17-11-1994 and to
direct implementation of the District Collector's resumption order dated 3-5-1994. The request by the District Collector,
Khanewal for review of the order dated 17-11-1994 by MBR (Colonies) was, however, ignored by the Commissioner
Multan. Instead the latter vide order dated 24-1-2000 dismissed the appeal filed by the respondent heirs of the allottee
against the District Collector's resumption order dated 22-11-1999. Accordingly, the respondents again agitated their
claim for grant of proprietary rights in Revision Petition bearing ROR No.280 of 2000 filed before the Member (Judicial)
Board of Revenue ["MBR (Judicial)"]. By order dated 15-8-2000 the said Member affirmed the view taken by his
subordinate authorities. He determined that conditions of respondents' lease had been violated by their sale of pieces of
the leased land for residential/commercial purposes without permission of the competent authority. It was also observed
that the leased land was situated within the limits of Municipal Committee Abdul Hakeem which was a Prohibited Zone.
Provincial Government policy barred such land from being transf erred through grant of proprietary rights to its occupants.
In short, by his order dated 15-8-2000, the MBR (Judicial) adjudicated the earlier order dated 17-11-1994 by the MBR
(Colonies) and pronounced it a nullity for being against the applicable law and Government policy. Accordingly, he
recalled the earlier order dated 17-11-1994 and restored the order of resumption of leased land passed by the District
Collector on 3-5-1994. However, the MBR (Judicial) directed the District Collector to provide relevant data to the MBR
(Colonies) for considering the allotment of alternate agricultural land to the respondent heirs of the allottee to the extent
of the area retained and not alienated by them.

8. In the foregoing background of changing fortunes of the respondent heirs of the allottee, the Single Judge in Chamber
of the High Court allowed their Writ Petition against the concurrent orders dated 15-8-2000, 24-1-2000 and 22-11-1999
passed by the Provincial revenue authorities. Vide the impugned judgment dated 3-3-2011, the Single Judge adopted a
simple approach to the controversy between the parties. In paragraph-9 of the impugned judgment, he declared that the
respondent heirs of the allottee had already been granted proprietary rights of the leased land by the Provincial
Government vide its letter No.6051/C dated 11-12-1941. The impugned judgment has, therefore, concluded that:--

"the petitioners have proved their case being owner of the land even before the creation of Pakistan and as such the
impugned orders being without lawful authority are hereby declared having no force of law and are not effective against
the rights of the petitioners. However, the petitioners were bound to pay the price of land as and when demanded by the
respondents. The respondents are, however, entitled to recover interest on the price of land fixed by the Deputy Collector
at Rs.100 per acre in his order dated 11-7-1990."

The impugned judgment accordingly directs the grant of proprietary rights to the respondent heirs of the allottee
to beimplemented by the Provincial Government.

9. The petitioners before the Court are the Land Revenue Authorities of the Provincial, Government. They have called
in question the finding of respondents' ownership of the leased land given in the impugned judgment dated 3-3-2011
by the High Court. To disprove the said finding the petitioners have filed C.M.A. No.807-L of 2014 seeking leave to
adduce additional documents. The merits of the said application shall be examined in due course. Presently, the
grounds of challenge to the impugned judgment dated 3-3-2011 laid out by the learned Additional Advocate-General
Punjab are as follows:--

(i) The finding that the respondent heirs of the allottee became owners of the leased land in the year 1941 is based on
a presumption and finds no support from the terms of the Provincial Government's letter bearing No. 6051/C dated 11-
12-1941;

(ii) The
Provincial Government letter dated 11-12-1941 approves grant of proprietary rights to lessees recommended in
the Tehsil Kabirwala Register by the Commissioner, Multan Division. Whereas in the said Register the Commissioner
has recommended conferment of proprietary rights on lessees under leases appearing at Sr. Nos.8, 9, 14, 24, 25, 27,
54 and 55 of the said Register, however, no such recommendation is made for the lease at Sr. No.3 in the said Register
granted to the respondents' predecessor allottee Gahna. In fact with respect thereto the Commissioner has observed in
the Register that the leased land is valuable on account of its proximity to a proposed mandi at Abdul Hakeem. Therefore,
the lease should be ended till the next Settlement and the land be disposed of by other mode. The said C.M.A. No.807-
L of 2014 filed by the petitioners attaches copies of entries in the original Register to rebut the impugned finding by the
High Court;

(iii) The impugned judgment dated 3-3-2011 does not discuss the merit of the grounds given by the order of the MBR
(Colonies) dated 15-8-2000. These grounds are summarily rejected by the impugned judgment for being non-existent on
11-12-1941, the wrongly presumed date of grant of proprietary rights to the respondents. The grounds are:

(a) that the respondents have violated the provisions of sections 5(5) and 19 of the Colonization of the Government Lands
Act, 1912 ("Colonization Act"), the terms of their lease/ allotment and the Government policy on the conferment of
proprietary rights of State land. The alleged violation is caused by the unauthorized sale of part of the leased land by the
respondents to third parties without permission of the competent authority. As a result the respondents' right and interest
are liable to automatic cancellation;

(b) that the leased land is situated within the limits of Municipal Committee Abdul Hakeem which is a Prohibited Zone
and its proprietary rights cannot be granted to the respondents;

(iv) The declaration that ownership of the leased land vested the respondent heirs of the allottee since 1941 is a status
that was never ever claimed by the respondents before any forum. In several rounds of their litigation with the Provincial
Government, the respondents have admitted ownership of the leased land by the Provincial Government and have
therefore sought the grant of proprietary rights. The impugned judgment is against pleadings and the record.

10. On the other hand, the learned counsel for the respondent heirs of the allottee has defended the finding given
in theimpugned judgment on the following grounds:--

(a) Gahna and his heirs have since 1908 complied with terms of lease and have qualified themselves for grant of
proprietaryrights of the leased land on account of their long standing, consistent and compliant performance as
lessees;

(b) The grant of proprietary rights of the leased land to the respondents has been unfairly denied by the Provincial
Government. The petitioner revenue authorities have failed to specify any disqualifying event that occurred during the
several decades of the respondents' possession of the leased land before filing of their application for proprietary rights.
As such the denial of proprietary rights to the respondents is arbitrary and discriminatory;

(c) The adverse order of resumption of land dated 15-8-2000 by the MBR (Colonies) sustains earlier orders by his
subordinate authorities. Resumption of the respondents' land is ordered without specifying the particulars of any
transaction that violates the Colonization Act or the terms of the respondents' lease. Nor any show cause notice setting
out the offending facts was served. Vague and unsubstantiated allegations are used by the petitioners to deprive the
respondents of their valuable rights in the leased land;

(d) The order dated 15-8-2000 by the MBR (Colonies) declines proprietary rights of the leased land for being located
within a Prohibited Zone. Record is silent about the existence of a Municipal Committee in Mouza Abdul Hakeem, let
alone the breach of limits of a Prohibited Zone. The respondents have been condemned in this matter on a speculative
allegation;

(e) The Provincial Government has twice determined that the respondents are entitled to proprietary rights of the leased
land. The first order dated 11-7-1990 by the Collector Khanewal was recalled in review jurisdiction on 16-7-1990 and
the second order dated 17-11-1994 by the MBR (Colonies) was annulled in revisional jurisdiction by the MBR (Judicial)
on 15-8-2000.
Notwithstanding other alleged defects, both the retractive orders acknowledge the respondents' right to be given
allotment of alternate land. The petitioner revenue authorities are themselves convinced about the moral and legal force
of the respondents' entitlement to transfer of proprietary rights of State land;

(f) The MBR (Judicial) lacked jurisdiction under proviso to section 7(2) of the Punjab Board of Revenue Act, 1957 to
adjudicate and set aside in revisional jurisdiction the earlier revisional order dated 17-11-1994 passed by the MBR
(Colonies) which has attained finality.

11. The learned counsel for the parties have filed their written submissions on the merits of the controversy and with
respect tothe petitioners' C.M.A. No. 807-L of 2014 for leave to file additional documents. These materials have been
considered in the light of oral submissions by the learned counsel and the record. At the outset we will decide the
aforesaid application filed by the petitioners, which seeks leave for the production of additional documentary evidence
comprising the Tehsil Kabirwala Register maintained by the Provincial Government. This Register records the particulars
of and departmental comments made in respect of leases of State land situate in Tehsil Kabirwala, District Khanewal.
The Register is part of the official record and enjoys the presumption of regularity. The entries in the Register in particular
the comments by the revenue authorities in relation to the leases mentioned in the Provincial Government letter dated
11-12-1941 that are granted proprietary rights find support and elaboration from the contents of the Register.

12. According to the aforementioned letter dated 11-12-1941, the leases mentioned at Sr. Nos.8, 9, 14, 24, 25, 27 and
(54, 55) of the Tehsil Kabirwala Register have been granted proprietary rights. These leases are fully described in the
Register with regard to their respective terms, the compliance of such terms and future rights of the lessees. The entries
and comments by revenue authorities in the Register pertaining to the aforementioned leases and also the respondents'
lease have been placed on record. These comments in the Register are recorded by two revenue authorities, namely,
Colonization Officer and the Commissioner, Multan Division. The two officers have specifically recommended the grant
of proprietary rights to the respective lessees enumerated in the Provincial Government letter dated 11-12-1941. The
volume of the Tehsil Kabirwala Register produced on record contains the particulars of six out of eight leases mentioned
in letter dated 11-12-1941. In relation to these six leases, the respective comments recommending grant of proprietary
rights are available on record. The significance of the contents of the Register for present purposes is that respondents'
lease at Sr. No.3 thereof did not receive recommendation for conferment of proprietary rights by the aforementioned
revenue authorities. In fact, the Commissioner, Multan Division has given the following remarks in relation to Gahna's
lease:

"In view of the probability that this land may become very valuable owing to location of a mandi at Abdul Hakim, I
agree that Government should pass orders in the alternative as recommended by the Colonization Officer."

The remarks by the Colonization Officer dated 31-12-1940 that are approved by the Commissioner, Multan Division
are as follows:--

"If irrigation from canal is illicit as appears it must be stopped and penalty imposed. If the land remains uncommanded
the lease must continue till settlement. If irrigation is correctly being given the lease can be terminated and the land
disposed of as in other similar cases."

Consequently, the said observations dated 31-12-1940 made by the revenue authorities explain the exclusion of Gahna's
leasefrom the list of leases approved for grant of proprietary rights in the Government's letter dated 11-12-1941.

13. As such, the contents of the additional documentary evidence proposed by the petitioners in their C.M.A. No. 807-L
of 2014 reveal an error in the finding given in the impugned judgment of the High Court to the effect that the Provincial
Government's letter dated 11-12-1941 confers proprietary rights of leased land granted to Gahna in 1908. That finding
was given without being informed about the status of the respondents' lease. The additional documentary material
comprising entries in the Tehsil Kabirwala Register rebuts the finding given by the High Court. The evidentiary content of
the record produced is consistent with the overall plea taken by the petitioners that the respondent heirs of allottee Gahna
lack entitlement to obtain proprietary rights of the leased land. The additional documentary evidence proposed by the
petitioners is authentic, consistent with the pleadings of the petitioners and directly relevant to the findings of ownership
of the leased land given in the impugned judgment. Such additional evidence facilitates resolution of the controversy
between the litigating parties. This Court has held in Muhammad Tariq v. Sharma Tanveer (PLD 2011 SC 151) and
Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan (PLD 1992 SC 96) that additional evidence having the afore-going qualities
is admissible on record. The jurisdiction of this Court to do complete justice between the parties also favours additional
evidence to be admitted in order to meet the ends of justice. Applying the foregoing tests to the additional evidence
proposed by the petitioners, their application bearing C.M.A. No. 807-L of 2014 carries merit and is accordingly allowed.

14. As noted above, the contents of the Tehsil Kabirwala Register show that the respondents' lease is mentioned at
Sr. No.3 of the said Register and explain its exclusion from the list of leases approved for transfer of proprietary rights
under the Provincial Government letter dated 11-12-1941. The said background negates the finding given in the
impugned judgment dated 3-3-2011to the effect that the respondents were conferred proprietary rights of their leased
land by the said letter dated 11-12-1941. No other substantive reason is given by the impugned judgment to strike
down the order dated 15-8-2000 passed by the MBR (Judicial), that directed resumption of respondents' leased land
with the recommendation that alternate land be allotted to the respondents. Consequently, the learned Single Judge
has erred in reading the record, namely, the Provincial Government letter dated 11-12-1941. The impugned judgment
dated 3-3-2011 therefore cannot sustain. As a result, the order dated 15.08.2000 by the MBR (Judicial) continues to
remain in the field for its judicial evaluation. The respondents had voiced objections to the said order in their writ
petition but these were not considered nor decided on merit by the High Court. Therefore, the forum that may be both
competent and suitable to decide the respondents surviving objections and the remaining controversy between the
parties could properly be the High Court. However, after hearing the matter at some length, we consider that certain
factual aspects therein necessitate the controversy to be decided by the Board of Revenue.

15. The litigation between the parties, namely, the respondent heirs of allottee and the petitioner department on the
subject of proprietary rights of the leased land has existed since Writ Petition No. 972 of 1970 was filed by the
respondents before the Lahore High Court. From the above noted contentions advanced by learned counsel for the
parties, it is plain that the controversy between the parties possesses both legal and factual facets. It is claimed by the
learned counsel that disputed legal facets of the case have either been ignored or misinterpreted by the revenue fora
below. Also, the factual aspects of the dispute are such that require the collection and appraisement of evidence which
is an exercise to be undertaken by a suitableforum competent to do so. Lack of clarity on the two aspects of the dispute
has led to decades of litigation without the achievement of a clear result in the case.

16. With regard to the legal points it is noted firstly, that the omission by the Provincial Government's letter dated 11-12-
1941 to confer proprietary rights of the leased land mentioned at Sr. No.3 of the Tehsil Kabirwala Register upon the
respondent heirs of the allottee, does not foreclose their eligibility for conferment of such rights. The additional evidence
brought on record shows that there are other Tuhad Khawahi leased lands recorded in the Tehsil Kabirwala Register
that were neither resumed from nor sold to their respective lessees under the Provincial Government letter dated 11-12-
1941. Such leases are available at Serial Nos.1, 2, 5, 6, 7, 30, 31, 32, 33 of the Tehsil Kabirwala Register. These were
not touched and were continued by the ProvincialGovernment letter dated 11-12-1941. The lease of the respondent heirs
of allottee, recorded at Serial No.3 of the said Register was also treated in the same manner by the said letter. The
respondents could be meted the same fate as other similarly placed lessees. Additionally, the respondents may claim
proprietary rights under a series of schemes notified by the Provincial Government under the heading of "purchase of
proprietary rights in State land granted on temporary cultivation schemes".
These schemes are reproduced in standard reference books for the Colonization Act and, inter alia, include notification
dated 24-4-1971 issued by the Colonies Department of the Provincial Government. The said notification sets out the
statement of conditions for the purchase of proprietary rights by existing lessees in State land. The said notification is
extended or succeeded by subsequent notifications issued on the same subject by the Provincial Government on 3-9-
1979, 20-4-1983, 19-3-1995, 9-7-2001 and 18-2-2005. The contents of the Tehsil Kabirwala Register explain the non-
conferment of proprietary
rights of the leased land on the respondent heirs of the allottee but these do not permanently defeat the claim for such
rights. A final outcome on this score is possible after the said claim is considered by the petitioners in the light of law and
policy. The order dated 15-8-2000 passed by the MBR (Judicial) and prior orders passed by subordinate revenue
authorities fail to assess the eligibility and entitlement of the respondents for transfer of proprietary rights with reference
to legal material that lay down the criteria and conditions applied/specified by the Provincial Government in similar cases.
Secondly, it is noted that the order dated 15-8-2000 by the MBR (Judicial) finds that the leased land of the respondent
heirs of the allottee falls within a Prohibited Zone and therefore, denies the transfer of its proprietary rights to the said
respondents.
However, this finding is given without mentioning the basis for the existence of such a zone in Mouza Abdul Hakim,
Tehsil Kabirwala. It is not apparent on record whether the leased land in the said Mouza breaches the perimeter limits
of a municipal committee or a town committee or some other protected area. It is the duty under law of the petitioner
revenue authorities to disclose and confront the particulars of the municipal entity that constitutes a prohibited zone in
the area. Any adverse finding given in the absence of such disclosure, as is presently the case, is unsubstantiated and
presumptuous.
Thirdly, the foregoing observation also applies to the other ground of adverse decision given in the order dated 15-8-
2000 by the MBR (Judicial). It is determined that the respondents have violated the terms of their lease by sale of parts
of the leased land for commercial/residential use. Consequently, the leased land is liable to resumption. Prior to this
finding, no show cause notice setting out the details about the alleged offensive transactions in respect of parts of the
leased land was served on the respondents nor these particulars are mentioned in the order dated 15-8-2000. The
order dated 15-8-2000 by the MBR (Judicial) assumes that the alleged signing of agreements to sell by the respondents
for pieces of their leased land constitutes the sale of such land. The rulings of this Court on Section 19 of the Colonization
Act hold an agreement to sell or sale deed of leased State land by an allottee to be contingent upon and not fatal to the
conferment of proprietary rights on such allottee.
Reference is made to Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR 1821) to elucidate the said point.
Therefore, unless a sale has been completed, inter alia, by transfer of possession of leased land under an agreement to
sell and by the conversion of such land to unlawful use, the allottee is not liable to penal action. In the present case,
neither the particulars of the offensive transactions concluded by the respondents nor the terms of law or policy thereby
breached have been highlighted or confronted to the respondents. Consequently, the two grounds upon which the order
of the MBR (Judicial) dated 15-8-2000 rests are unsubstantiated with reference to essential facts. Such order is therefore
passed without reference to record and is presumptuous.

Fourthly, and more relevantly to our present discussion, the order dated 15-8-2000 passed by the MBR (Judicial)
purportedly exercises revisional jurisdiction under Section 164 of the Punjab Land Revenue Act, 1967 to decide petition
bearing ROR No.280 of 2000 filed by the respondents. This order annuls and recalls the earlier revisional order dated
17-11-1994 passed by the MBR (Colonies) in the respondents' Revision Petition No.2902 of 1994. The order dated 15-
8-2000 is passed incompetently because the proviso to section 7(2) of the Board of Revenue Act, 1957 bars revisional
jurisdiction of the Board of Revenue for adjudicating the correctness or validity of a revisional order passed by Single
Member of the Board of Revenue. Therefore, in the present case, the order dated 15-8-2000 passed by the MBR (Judicial)
is utterly devoid of legal authority to adjudicate the earlier revisional order dated 17-11-1994 passed by the MBR
(Colonies). Consequently, the order dated 15-8-2000 cannot stand for being passed in excess of jurisdiction and is
accordingly declared so.

17. It is worthy of mention that the earlier order dated 17-11-1994 passed by the MBR (Colonies) granting proprietary
rights of the leased land to the respondents was taken up for compliance by the Collector, Khanewal culminating in the
latter's order dated 22-11-1999. In this order, the District Collector, Khanewal highlights a new ground to seek review
of the order by the MBR (Colonies) dated 17-11-1994. The District Collector reports that the respondent heirs of the
allottee held the leasehold land for agricultural purposes but changed its use contrary to Para-2 of the conveyance
deed by selling pieces of the leased land for residential/commercial purposes in violation of the conditions of lease.
Accordingly, the District Collector, Khanewal observed as follows:--

"Therefore, petitions be filed requesting that the learned Member (Colonies) be pleased to review his order dated 17-
11-1994 so that order 3-5-1994 resuming land and directing recovery of the sale proceeds of the illegal sale could be
implemented. It may further be noted that rate of land within the limits of Municipal Committee is generally Rs.15000
per marla i.e. Rs.24,00,000 per acre and grant of proprietary rights at Rs.100 per acre would be totally unjustified and
would constitute a great loss to the State. In view of their long association with the land for generations which was
allotted to them for agriculture, the case may be referred to the Board of Revenue, through Commissioner, Multan
Division, for sympathetic consideration for the grant of proprietary rights of some other land. Moreover, since electricity
and telephone connections have been installed by Government Departments without ascertaining title of the premises,
the matter be referred to the FIA for legal action against this irregularity." (emphasis added).

18. The matter in issue highlighted above, namely review of MBR (Colonies) order dated 17-11-1994 was not forwarded
by theCommissioner Multan to the Board of Revenue under section 8 of the Punjab Board of Revenue Act, 1957. Instead
vide order dated 24-1-2000 the Commissioner Multan affirmed the order by the Deputy Collector, Khanewal, dated 22-11-
1999 assailed before him in appeal filed by the respondents. This was followed by the aforenoted revisional order by MBR
(Judicial) dated 15-8-2000. Whereas the revisional order dated 15-8-2000 by the MBR (Judicial) is passed without
jurisdiction, however, the fact is that the application for review made by the District Collector, Khanewal on 22-11-1999
through the Commissioner, Multan Division has neither been considered nor decided. A lawful and competent remedy of
review is available for assessing the correctness of the order dated 17-11-1994 passed by the MBR (Colonies). The
remedy is provided by Section 8 of the Punjab Board of Revenue Act, 1957. Accordingly, in the present case, the
petitioners have an option to follow in accordance with law the course provided by section 8 ibid, to seek a fair resolution
of their dispute with the respondent heirs of the allottee.

19. Before parting with this case, which deals with the subject matter of conferment of proprietary rights of State land to
lessees thereof, it is important to note that there is a distinction between the disputes pertaining to claim for proprietary
rights by an allottee or his successors against the State from disputes between allottees and their vendees of state land
under transactions concluded prior to grant of proprietary rights. Liberal treatment is accorded by the law to an agreement
to sell, concluded by an allottee with a vendee in anticipation of securing proprietary rights of State land. As held in
Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR 1821), an agreement or deed of sale of land leased by the State,
being contractual is treated as valid inter partes but the same cannot be enforced until proprietary rights are conferred
by the State. In this respect the State retains its power to deny proprietary rights to an allottee under the Colonization Act,
if there is violation of a mandatory condition of law or the lease by the allottee. In Province of Punjab v. Abdus Sattar
(2012 SCMR 1007), sale of leasehold rights in State land was entered and completed by the allottee with the express
permission of the competent authority under section 19 of the Colonization Act. The permission was granted not
withstanding that the leased land was situated within the Prohibited Zone. For that reason, this Court validated the sale
and affirmed the vendee's claim for proprietary rights. With respect to the reference date of ascertaining the operative
territorial limits of a Prohibited Zone, it was held that departmental practice on the subject should prevail. Accordingly the
principle laid down in Province of Punjab v. Ghulam Muhammad (1994 SCMR 975) was followed. In the absence of rules
or settled instructions on the subject, it seems fair that the limits of a Prohibited Zone ought tobe reckoned with effect
from the date of written application by a qualified and eligible allottee for conferment of proprietary rights.

20. Therefore, in the present

case the entitlement of the respondents to be conferred proprietary rights of their leased land
ought to be assessed with reference to disclosure of specific facts that bear upon their entitlement. The Board of Revenue
Punjab shall also whilst reviewing the order of the MBR (Colonies) dated 17-11-1994, if the law and facts of the case so
require, bear in mind the recommendations made by the petitioner authorities for allotment of alternative land to the
respondents on account of their long standing service rendered for more than 100 years in the development of the land
leased out to them. In this regard, the terms of the schemes for allotment of alternate land enforced by the Provincial
Government shall be strictly adhered.

21. For the foregoing discussion, this petition is converted into an appeal and allowed. The matter is remanded to the
Board of Revenue, Punjab for reviewing the order dated 17-11-1994 passed by the MBR (Colonies), in accordance with
law and the observations made herein above. No order as to costs.

MWA/C-6/SCAppeal allowed.