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Civil Appeal No. 285 of 1969, decided on 18th March 1975.

(On appeal from the judgment and order of the erstwhile High Court of West Pakistan, Lahore, dated the 15th July 1966, in Writ Petition No. 2 of 1963).

--‑‑S. 15‑Appellant though paying up full amount of purchase money yet not fulfilling basic condition of being a hereditary lamberdar-- Appellant, held, rightly found to be deemed a tenant of land and not qualified to acquire proprietary rights of same.

Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha P L D 1966 S C 639 distinguished.

Sh. Abdul Karim, Advocate‑on‑Record for Appellant.

Riaz Ahmad, Assistant Advocate‑General, (Pb.) instructed by Ejaz All, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 and 3: Ex parte (Vide Court's order dated 13‑5‑1971)

Date of hearing : 18th March 1975.

This is an appeal by special leave of this Court. Leave was granted to consider whether the facts of the case are covered by the decision of this Court in 4nJurnaa‑e.Ahrna‑J ya, Sargodha v. The Deputy Commissioner, Sargodha (PLD1966SC639.).

The appellant has been aggrieved by an order of the respondent-- Government dated the 28th of August 1962 whereby as earlier order granting the appellant permission to deposit price in respect of certain land as Lamberdari grant was cancelled. The appellant faired to get the impugned order set aside on a writ petition before the erstwhile High Court of West Pakistan, Lahore seat.

It appears that the appellant was appointed as Lamberdar in September 1940, and obtained a half square of land as Lambrrdari grant, in June 1950. Under the terms and conditions then existing Lamberdari land grantees were not entitled to acquire proprietary rights in such land. Subsequently by a memo. dated 22‑5‑1951 the then Government of Punjab decided to give option of purchasing the proprietary right in respect of such lands to hereditary Lamberdars. Such option was to be exercised within one year of the date of the issuance of the memo. i.e. before the 22‑5‑1952. The appellant applied on the 15th of May 1952 for permission to deposit the price of the said Lamberdari land amounting to Rs. 21,870. Having received the permission by a letter of the Government of Punjab dated the 4th of May 1953, he deposited the amount on the 19th of June 1953. However, no sale deed was ever executed in respect of the said land. In the meantime on the 1st of January, 1962 the appellant entered into an agree ment for the sale of the land in dispute with respondents Nos. 2 and 3.

The appellant's case is that all of a sudden without having been afforded any opportunity of being heard, he received the impugned order of the respondent‑Government dated the 28th August 1962 cancelling the order of the Government as contained in their Memorandum dated 4th May 1953, and directing the refund to the appellant of the purchase price paid by him. The order also stated that the appellant might retain the land on existing terms and conditions till the Lamberdari fell vacant.

It has been contended on behalf of the appellant that an order transferring the proprietary rights to Lamberdars having been made, and the appellant having deposited the price of the land in pursuance of the permission to do so, he became full owner of the land in dispute, and the same could not be set aside by an executive order.

While dismissing the appellant's writ petition the learned Judges of the High Court found that the appellant was not qualified to acquire the proprietary rights in the land as he was not a hereditary Lamberdar, and the Government was, under Section 15 of the Colonization of Government

Lands (Punjab) Act, competent to recall the order dated the 4th of May 1953. The learned Judges further held that the decision in P L D 1966 S C 639 was distinguishable.

It appears clear from the foregoing that although the appellant was neither qualified nor entitled to apply for transfer of the proprietary right in question he somehow got permission to deposit the price of the disputed land. Nevertheless as soon as the mistake was discovered the said permission was withdrawn.

Under Section 15 of the Colonization of Government Lands (Punjab) Act, 1912, a purchaser of Government land who has been placed in possession of the land shall be deemed to be a tenant until (1) the full amount of the purchase money has been paid, and (2) the other conditions set forth in the statement of conditions of sale issued by the Collector have been fulfilled. In the present case although the 1st condition was fulfilled, the basic condition that the appellant must be a hereditary Lamberdar was not ,q fulfilled, and, therefore, he continued to be deemed to be a tenant. We are, thus unable to find any fault with the impugned order of the High Court.

As regards the applicability of the decision in Anjuman‑e‑Ahmadiya, Sargodha, it is not applicable to the facts of the present case. In the case under report the question in issue was different from the one now before us. It was a case of cancellation of grant, and the main question was whether the grant was a valid one. The High Court failed to consider the question, and dismissed the Constitution petition on the ground that a suit was an adequate alternative remedy. The Supreme Court sent back the case to the High Court for determination of the said question, and for disposal of the Constitution petition in accordance with law.

Appeal dismissed.

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