BEFORE THE ASSISTANT COMMISSIONER/ COLLECTOR,

KHANEWAL.

In re:
Muhammad Nawaz through legal heirs Vs. The State.

APPLICATION FOR EARLY DECISION OF THE CASE REMANDED

VIDE ORDER DATED 11.07.2013 PASSED BY THE
LEARNED ADDITIONAL COMMISSIONER (REVENUE),
MULTAN DIVISION BY AN EARLY DATE AFTER
HEARING THE PETITIONER._____________________

Respectfully Sheweth:
1. That the brief facts giving rise to the instant application are that the
petitioner was allotted state land comprising lot No.1 measuring 150-
acres (1184K-06M), situated in Chak No.66/10-R, Tehsil and District
Khanewal under Tube Well Sinking Scheme in 1959-60. Initial period
of lease was 20-years which was extended for a further period of 10-
years. The petitioner was duly put into possession of the said land as
required under section 10(4) of the Colonization of Government Lands
(Punjab) Act, 1912. As per register haqdaran-e-zamin 1962-63, the
said land (1184K-06M) consisted of 840K-18M ghair mumkin land and
343K-08M banjar qadeem land. The petitioner has invested his
lifetime in bringing the land under cultivation.
2. That the petitioner installed Tube Well and brought the land under
cultivation with hard labour and by incurring heavy expenditure.
3. That the lot was later on cancelled without any notice to the petitioner
in 1969. However, the petitioner remained in continuous cultivating
possession of the lot in question for nearly half a century. The
petitioner brought the barren sandy land under cultivation with hard
labour over the years. He has constructed two ‘deras’ and has
installed Tube Well after getting electricity connection from WAPDA.
In 1962, the petitioner installed a tubewell operated by diesel engine
and started developing the land in question. After about 2-years i.e. in
1964, the petitioner got electricity connection and started irrigating the
land with electric tubewell.
4. That the petitioner remained engaged in a long round of litigation.
Ultimately, the civil petition No.1550/2009 of the petitioner was
 2

dismissed vide order dated 02.05.2011 with the following

observations: -
Ín the foregoing circumstances, we find no merit in this petition.
The same is, therefore, dismissed with special costs of
Rs.100,000/- which shall be payable by the petitioner to the
Board of Revenue. Additionally, the Board of Revenue shall be
entitled to recover tawan or charges for use and occupation or
other dues from the petitioner, subject to prevalent rules.”

5. That the petitioner has already paid cost to the Board of Revenue,
Punjab as per order of the august Supreme Court. Possession of the
land has also been resumed from him. In pursuance to the other
direction of the august Supreme Court regarding recovery of tawan or
charges, the learned Assistant Commissioner, Khanewal
misconstrued the direction and on an adverse report of the patwari
halqa, imposed tawan of Rs.2,67,40,575/- on 28.09.2011 quite
contrary to the provisions of law.
6. That the petitioner assailed the order dated 28.09.2011 passed by this
honourable Court by filing appeal before the learned Additional
Commissioner (Revenue), Multan Division, Multan, who after hearing
the parties set aside the order dated 28.09.2011 and remanded the
matter to this honourable Court for fresh decision, vide order dated
11.07.2013, with the following observations: -
‫ حکم و ریکارڈ عدالت‬،‫ ) بحث فاضل کونسل اپیالنٹ سماعت ہوئی‬5"
‫ کلکٹر خانیوال‬،AC ‫ماتحت و ریکارڈ پٹواری حلقہ و رپورٹ آمدہ ازاں‬
‫و رستاویزی ثبوت پیش کردہ فاضل کونسل اپیالنٹ کا بغور مالحظہ و‬
‫تجزیہ کیا گیا ہے۔ جس سے پایا گیا ہے کہ امثلہ جات تاوان ناجائز‬
‫کاشت مرتبہ عملہ فیلڈ پر کوئی شرح مستاجری فصل وار درج نہ ہے‬
‫اور نہ ہی ہر مثل تاوان ناجائز کاشت پر کاروائی عدالت کی جاکر‬
‫اپیالنٹ کے خالف فصل وار تاوان ناجائز کاشت عائد کیا گیا ہے۔‬
‫ بھی‬06.05.2013 ‫کلکٹر خانیوال مورخہ‬AC ‫رپورٹ موصولہ‬
‫قانونی تقاضے پورے نہ کرتی ہے اور نہ ہی ماتحت عدالت نے حکم‬
‫زیر اپیل صادر کرتے وقت حکم عدالت عظمی آف پاکستان مورخہ‬
‫ کا بغور مالحظہ کیا ہے۔ کیونکہ عدالت عظمی پاکستان‬02.05.2011
‫ چارجز‬/‫کے متذکرہ فیصلہ میں اپیالنٹ سے رقبہ زیر اپیل کا تاوان‬
‫وصول کرنے کی ہدایت کی گئی۔ مگر عدالت ماتحت نے اپنے حکم‬
‫زیر اپیل میں تاوان عائد کیا ہے۔ اور چارجز وصول نہ کرنے کی بابت‬
‫کوئی وضاحت نہ کی ہے۔ ان حاالت کے پیش نظر حکم مورخہ‬
‫ کلکٹر خانیوال‬/AC ‫ مصدرہ فاضل عدالت ماتحت‬28.09.2011
‫ کلکٹر خانیوال کو ارسال کیا‬/AC ‫کالعدم قرار دیکر مقدمہ ہذا واپس‬
‫ چارجز حسب‬/‫جاتا ہے اور ہدایت کی جاتی ہے کہ اپیالنٹ سے تاوان‬
 3

‫قواعد و فیصلہ عدالت عظمی آف پاکستان کو مد نظر رکھتے ہوئے اند‬

‫ یوم کیا جائے۔ نقل حکم معہ ریکارڈ عدالت ماتحت بغرض اطالع‬30
‫ کلکٹر خانیوال ارسال ہو۔ مثل بعد‬/‫و مزید کاروائی نزد اسسٹنٹ کمشنر‬
"‫ترتیب و تکمیل داخل دفتر ہو۔‬

7. That with regard to legal position, it is stated that the petitioner is liable
to pay charges i.e. lease rent for the period of occupation because the
petitioner was not a trespasser or encroacher and the provisions of
Section 32/34 of Colonization of Government Lands (Punjab) Act,
1912 are not attracted in this case.
8. That the petitioner was a bonafide lessee and legal occupant of the
land. He was handed over possession of the land which comprised of
barren land with huge sand dunes (“Ghair Mumkin Tibba Rayt” about
70% and “Banjar Qadeem” about 30%). The condition of the land
indicates that it was not cultivable when handed over to the lessee
and required huge efforts, both from physical and financial aspects, to
make it cultivable. These efforts could span over years and it was not
possible to get any income from it straight away. The ex-lessee had
made roughly 70% of the land (barren with huge sand dunes)
cultivable and instead earning any money, was in a gradual process
of making rest of the land cultivable when concerned authority took
possession of the land. This means, the lessee had made required
financial and physical efforts on the land for many years to bring it to
the present state. Also, this may be noted that along with other
expenses, newly developed sandy barren land requires many times
more water for irrigation of crops and bears less yield than normal
fertile land, for many years. Watering of crops, was done by tube well
that was operated on electricity which was an expensive option. This
always resulted in expenses on harvest well above the market value
of the yield. From perusal of related documents/ revenue record, this
can easily be established that ex-lessee has not made any harm or
loss to the Government. He just took legal possession of barren and
sandy land, spent huge money, did hard work on the land for years,
removed huge sand dunes, made the land cultivable and at the end
returned “Abad” piece of land to the Government. This has already
made government a beneficiary in this particular case.
 4

9. That another important aspect regarding this case is that concerned

authority/ district government was supposed to take possession of the
land, after cancellation of lease by following the procedures/ legitimate
action mentioned under Section 25 of Colonization of Government
Lands (Punjab) Act, 1912. This legitimate action starts with the fixation
and then payment of compensation amount to the ex-lessee for the
development he has made on the land. In this particular case, lessee
was neither got compensated despite his recorded investment and
development made on the land and nor asked for subsequent
vacation of the land. This means the mandatory and legitimate action
according to the provisions of Section 25 ibid. to take possession from
the lessee was never initiated and completed. The petitioner was a
regular allottee/ tenant of the government. The order of resumption
was passed as far back as 02.12.1969 but the land, which should
have been taken into possession by the Collector under section 25
ibid., remained in possession of the petitioner despite lapse of a
period of about half a century and the petitioner has been paying the
dues according to law. As such possession of the petitioner can be
termed as of a “tenant holding over” or a “tenant at sufferance”. The
total charges recoverable from the petitioner, therefore, come to
Rs.2,25,562/- as detailed in forthcoming paragraphs. The petitioner is
prepared to pay these charges without any demur. However,
compensation of the buildings and structure/ tubewell etc. constructed
by the petitioner for facilitation of the cultivation may be given to the
petitioner.
10. That it is relevant to mention here that after expiry of the initial lease
period of 20-years, lease rent for extended period of 10-years (from
1981 to 1990) was decided to be charged at double the rate of
previous rent. Thereafter, the lease was extended further for two
years from Kharif 1991 to Rabi 1993 on 15% increase in rent vide
notification No.5339-91/549-CL-V, dated 11.03.1992. Lease was
again extended from Kharif 1993 to 1995 on 10% increased rent vide
notification No.1581-92/2058-CL-V, dated 23.05.1993. Thereafter
lease was extended from year to year with 10% increased rent over
the rent of previous years vide notification No.767-2002/934-CL-V,
dated 14.06.2002. In this way the rent due against the petitioner for
 5

the period from 1960 to 2010 comes to Rs.2,25,562/-. Breakup of the

rent in tabulated form is given below:-
period Rate Total rent
1960 to 1980 Rs.1,500/- per annum Rs.30,000/-
1981 to 1990 Double the previous rent Rs. 30,000/-
i.e Rs. 3,000/- per
annum
Kharif 1991 to Rabi 15% increase i.e Rs. Rs.6,900/-
1993 3,450/- per annum
Kharif 1993 to Rabi 10% increase i.e. Rs. Rs.7,500/-
1995 3,795/- per annum
1995 to 2001 10% increase every
year
1995 Rs.4,174.50
1996 Rs.5,591/95
1997 Rs.5,051/14
1998 Rs.5,556/25
1999 Rs.6,111/88
2000 Rs.6,723/-
2001 Rs.7, 395/38
2002 Rs.8,134/91
2003 Rs.8,948/41
2004 Rs.9,843/25
2005 Rs.10,827/57
2006 Rs.11,910/33
2007 Rs.13,101/36
2008 Rs.14,411/50
2009 Rs.15,852/65
2010 Rs.17,437/92
Total: Rs.2,25,562/-

11. That based on the above mentioned points, it can be established that
ex-lessee was a legal occupant of the land under Tube-well Sinking
Scheme. He was handed over with “Banjar qadeem and tibba rait”
type of land. He made no loss to the government, did not get any
income from the land in question because he was in a gradual process
of making whole piece of land “Abad” or cultivable (instead of getting
income from it) when the litigation at high court and August Supreme
Court levels was concluded against him. Also ex-lessee had not been
treated according to the provisions of Section 25 ibid. after
cancellation of lease. He kept making the land cultivable gradually, by
investing money from his own pocket and precious time of his life (that
spans over the years) during period of litigation. At the end, he
returned “Abad” land (about 70%) to the government instead of barren
 6

sandy land, he was handed over with. Government is already a

beneficiary in this case. The activity of making such piece of land
cultivable made the ex-lessee financially drained and great sufferer
instead. Under these circumstances the ex-lessee deserves to be
placed in the category of ‘tenant at sufferance’ or ‘tenant holding over’
and the charges, instead of “Tawan”, based on the lease money fixed
by the Government for same piece of land i.e., “Tube-well Sinking
Scheme”, are requested to be made applicable. The detail of
applicable charges has already been given.
12. If the argument of the petitioner is not accepted and he is required to
pay tawan for the period of cultivation then question would arise that
at what rate the tawan is to be charged. Attention in this regards is
invited to the Board of Revenue, Punjab Notification No.1266-
70/1087-CL-IV, dated 04.11.1970 which provides the amount of
tawan as equivalent to 20 to 40 times of land revenue or double the
lease rent for similar plots of land in the locality. As the provision of
land revenue has been abolished since long, the amount of 20 to 40
times of land revenue cannot be calculated. As such tawan is to be
recovered @ double the lease rent which in this case has been
calculated as Rs.2,25,562/- its double would become Rs.4,51,124/-.
13. That despite the facts presented above, if concerned authority still
insists on the option of “Tawan” which may not be the legitimate
option, then the first question will arise that at what rate the amount of
“Tawan” will be calculated? The established revenue law says that the
amount of “Tawan” will be determined at the rate double the lease
money for similar plots of land in the locality. Here it is worth noting
that the lease money for similar plots (land earmarked for “Tube-well
Sinking Scheme”; where the land under question belongs to) has
already been fixed by Punjab Revenue Department and the amount
of “Tawan” can be calculated based on that. Any other option for
calculation of rate of Tawan may not hold legitimacy and justice
because of the condition of the land, lessee was handed over with (i.e.
“Ghair Mumkin Tibba Rayt” and “Banjar Qadeem”). Else, this may for
concerned authority to find similar plot of land in the locality which has
been leased out for agriculture. “Similar plot” would be the piece of
land comprising of about 70% “Tibba Rait” and rest “Banjar Qadeem”
 7

soil in this case. Such instances may not exist in the locality because
nobody likes to take a piece of land, consisting of 70% sand dunes
and rest 30% banjar qadeem soil, on lease for agriculture purpose
because of huge initial investment and labor for many years before
getting any income from it. Consequently, the only and appropriate
option we are left with is; to calculate the “Tawan” amount based on
double the lease money fixed by Punjab Revenue Department for the
same piece of land i.e. double the lease money of “Tube well Sinking
Scheme”, under which the land in question belonged to. Also the fact
that petitioner is ex-lessee who had not been vacated and treated
according to the provision of section 25 of Colonization of Government
Lands (Punjab) Act, 1912 after cancellation of lease should always be
kept in mind before reaching at any decision. Our request is that in
case “Tawan” is desired to be imposed, then the amount of “Tawan”
should be calculated at the rate double the lease money fixed by the
Government for the same piece of land; i.e. lease money for Tube-
well Singh Scheme. Otherwise tawan must be calculated at the rate
of “Ghair Mumkin Tibba Rayt” and “Banjar Qadeem” piece of land, the
ex-lessee was handed over with, instead of fully developed fertile
canal irrigated land.
14. That it may please be appreciated that the land at the time of lease as
per register haqdaran zamin 1962-63 consisted of 840K-18M ghair
mumkin land and 343K-08M banjar qadeem land. The petitioner could
be able to bring under plough about 100-acres of land out of 150-
acres over the span of years. The petitioner incurred expense in
average Rs.70,000/- per acre. However, due to other allied expenses
the petitioner has not earned any profit from the land. Rather he has
resumed developed land to the government. As such, the government
is already a beneficiary.
15. That the petitioner has spent crores of rupees in development of the
land in question. In addition to this the visible expense of the petitioner
over the land is detailed below: -
➢ Installation of tubewell Rs.10,00,000/-

➢ Residual house, residence for

servants and haveli for cattle Rs.30,00,000/-

➢ Electricity connection and Rs.5,00,000/-

 8

room constructed for it

The petitioner is at least entitled for reimbursement of the amount

incurred on the above amenities i.e. Rs.45,00,000/-.

Under the circumstances, it is respectfully prayed that the petitioner

may please be allowed to deposit the charges of the lot in dispute amounting
to Rs.2,25,562/- as detailed in above paras or at the most tawan may be
calculated @ double the lease rent. Moreover, compensation amount of
Rs.45,00,000/- incurred on construction of buildings, tube-well and electrical
connection in connection with the development of the land in question may
also be awarded to the petitioner in the best interest of justice and equity.
Petitioner.

Through
(SAMEER IJAZ)
Advocate High Court
11-Rabbani Road,
Old Anarkali, Lahore