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Intra-Court Appeal No. 50 of 1976, decided on 18th February 1979.

(a) Land Reforms Regulation, 1972 [M. L. R. 1151-

Para. 25--Tenancy-Protection of tenure and possession-Contesting respondent never a tenant of Thal Development Authority Utmost claim of such respondent being to have been a tenant of succeeding allottees and to have also become a tenant of appellantContesting respondent, however, not even a tenant of appellant for reason of no such agreement of tenancy having been pleaded Reliance on Khasra Girdawari in support of plea of tenancy-Not sufficient to establish tenancy-Contesting respondent even if a subtenant of former allottees his right to hold land ceased with cancellation of allotment of allottees-Contesting respondent neither being a tenant of appellant, protection of para. 25, held, not available to respondent-Even otherwise, held further, para. 25 not applicable to tenants of Thal Development Authority.

(b) Land Reforms Regulation, 1972 [M. L, R. 115]

Para. 2(7)--Word "person"-Held : Does not include, inter alia, a body incorporated by a Central or Provincial law-Thal Development Authority being a body incorporated under a Provincial Act not a person within meaning of Martial Law Regulation 115 of 1972.-[Words and phrases].

(c) Land Reforms Regulation, 1972 [M. L. R. 115]

---- Para. 25-Tenant-Protection of tenure -Definition of tenant as made applicable to para. 25 requiring landlord to be a person and Thal Development Authority being not a person, contesting respondent even if a tenant under such Authority, held, could not claim to be a tenant within meaning of para. 25 and could not claim protection of tenure under such para.

Writ Petitions Nos. 1475 of 1972, 583 of 1971, 955 of 1970, 496 of 1971, 83 of 1971, 1653 of 1972, 627 of 1971, 652 of 1971, 575 of 1971, 633 of 1971, 787 of 1971 and 593 of 1971 (unreported) ref.

Malik Muhammad Afzal for Petitioner.

Muzaffar Qadir for Respondent No. 1.

M. M. Saeed Beg for Respondents Nos. 2 and 3.

Date of hearing : 4th December 1978.

AFTAB HUSSAIN, J.-This is a respondent's appeal against the order of acceptance of Writ Petition No. 860 of 1976 dated 6-5-1976.

2. Respondent No. 1 was in possession of agricultural land measuring eight acres in Chak No. 122/T. D. A. Tehsil Leiah, District Muzaffargarh from Kharif 1964 as a tenant of various allottees from the Tbal Development Authority, namely, Nasrullah Khan, Malik Allah Yar Khan and Malik Ghulam Haider who occupied the land on the basis of their claim to a returnable share for adjustment against their claim of their land acquired by the Thal Development Authority. On an inquiry conducted under the orders of respondent No. 2 the above-named persons were not found entitled to hold possession of the area in dispute. Consequently their allotment was cancelled and the area in dispute along with some other area was given on lease to the appellant for the year 1973-74.

3. This order could not be implemented for some time on account of some stay order issued in a civil suit. However only formal possession of the area in dispute was delivered to the appellant on 22-7-1975 (vide copy of Roznamcha Waqiati Annexure 'C'. The persons in possession of the area including Khushi Muhammad were instructed by the Patwari to pay in future the share of the produce to the appellant. The Member Board of the Revenue after reconsideration of the matter directed physical possession of the area to be delivered to the appellant. He also directed preparation of Missal Tawan against unauthorised occupants for effecting its recovery from them (Annexure E').

4. Respondent No. 1 and one Khuda Bakhsh represented against this order before the Settlement Officer, Tehsil Leiah. He referred this representation for proper orders to the Deputy Secretary (Colonies), Board of Revenue on 3-12-1975 (vide Annexure G' to Writ Petition 525/76). He reported that the above-named persons had already been dispossessed under orders of the Board of Revenue (Annexure E') but recommended their case for lease of land in preference to the appellant on the ground that according to them they had already sown Rabi crops and had been cultivating the same area from Kharif 1964 to Kharif 1975.

5. The Board of Revenue turned down this request and directed that 11 years Tawan for illicit cultivation be recovered from them (vide Annexure H' dated 24-4-1976 in Writ Petition 525 /76) .

6. Respondent No. 1 filed Writ Petition 525/76 against the imposition of penalty for illicit cultivation and Writ Petition 860/76 against the order of Board of Revenue dated 21-10-1975 (Annexure E) directing delivery of actual possession to the appellant.

7. Both these petitions were decided by one order and were allowed on 6-5-1976. It was found on the facts stated above that respondent No. 1 was a tenant of the land which vested in the Administrator Thal Development Authority and as such his tenure and possession was protected by para. 25 of Martial Law Regulation 115.

8. We have heard the learned counsel for the parties. From the fact stated above it is clear that respondent No. 1 was never a tenant of the T. D. A. His utmost claim was that he was a tenant of the succeeding allottees and had also become a tenant of Ahmad Din appellant. In these circumstances the finding that respondent No. 1 was a tenant of the T. D. A. is not sustainable.

9. Respondent No. 1 is not even a tenant of the appellant since no such agreement of tenancy has been pleaded. The learned counsel for respondent No. 1 only relied upon a copy of the Khasra Girdawari, Annexure C' in support of the plea of tenancy but he ha; not been able to satisfy us how a Patwari could create such a tenancy. For this reason he argued that the Patwari could not act on his own accord. He must have given formal possession to the appellant and instructed respondent No. 1 to pay the produce of land in future to the appellant under some orders from the higher authorities. The learned counsel has not been able to point out or produce any such order nor such an order has been relied upon in the writ petition. Assuming that respondent No. t was a sub-tenant of Nasrullah etc. former allottees, his rights to hold the land came to an end with the cancellation of their allotment.

10. In view of the finding that on his own showing respondent No. 1 is not a tenant of the Thal Development Authority and in fact is not even a tenant of the appellant, he cannot seek protection of para. 25 of Martial Law Regulation 115. But there is another aspect of the case. Para.; 25 is not applicable to tenants of the Thal Development Authority. That para provides that a tenant shall not be ejected from his tenancy except on the grounds stated therein. The word tenant' is not defined in Martial Law Regulation 115. For this reason the Land Commission in exercise of powers under para. 4 (8) of the Regulation issued a notification on 23-4-1973 adopting the definition of the term tenant' as given in section 4 (26) of the West Pakistan Land Revenue Act. In that Act the word tenant' is defined to mean a person who holds land under another person.

11. The question, therefore, is whether the Thal Development Authority is a person Para. 2 (7) of Martial Law Regulation 115 defines a person as follows :-

" Person includes a religious, educational or charitable institution, every trust, whether public or private, a Hindu undivided family, a Company or association or body of individuals, and a co-operative or other society, but does not include a local' authority, a University established by law, a body incorporated by a Central or Provincial law, or any educational institution exempted by Government from the operation of this Regulation."

12. The word person', therefore, does not include inter alia a body incorporated by a Central or Provincial law. The Thal Development Authority.. is pt body incorporated under a Provincial law known as the Wes Punjab Thal Development Act XV of 1949. Its section 3 provides that the Thal Development Authority shall be a body corporate and shall has perpetual succession and a common seal and shall by the said name sue and be sued. The Thal Development Authority thus being a body incorporated under a Provincial Act is exempted from the definition of person and is not a person' within the meaning of Martial Law Regulation 115.

13. The definition of tenant' as made applicable to para. 26 of Martial Law Regulation 115 requires that the landlord should be a person' which the Thal Development Authority, as discussed above is not. Even if respondent No. 1 had been a tenant under the said authority, he could not claim to be a tenant within the meaning of para. 25 of Martial Law Regulation 115 and could not claim any protection of tenure under that para.

14. 'This question came up for consideration in several writ petitions i.e. Writ Petitions Nos. 1475/72, 583/71, 955/70, 496/71, 88/71, 1653/72, 627/71, 652/71, 575/71, 633/71, 787/71 and 593/71 all filed against the Thal Development Authority and decided by- our learned brother Shafiur Rehman, J. on 19-1-1973. It was held that a perusal of the Martial Law Regulation 115 makes it clear that they (petitioners) did not fall within the description of a tenant as provided in clause (25) nor does the Thal Development Authority fall in the category of an owner or a person. The definition of person excludes from its purview among others "a body incorporated by a Central or Provincial law". The Thal Development Authority being the creation of Provincial law does not fall within the ambit of the Martial Law Regulation 115.

We are in respectful agreement with the statement of law in the judgments of the writ petitions referred to above.

15. The appeal is, therefore, allowed with costs, the impugned order is set aside and Writ Petition No. 860/76 is dismissed.

s. A. H. Appeal allowed,

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