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Revision Side No. 128 of 1958‑59, decided on 25th August, 1959, District Multan:

Colonization of Government Lands (Punjab) Act (V of 1912),

S. 10‑Conditions of tenancy‑Eligibility to acquire occupancy rights‑Applying for conferment of such rights does not by itself rips A presumption that tenant had acquired occupancy status.

Kh. Abdur Rahim for Petitioner.

Ashraf Iftikhar for Respondent.

This is a revision petition against the order of the Additional Commissioner Multan dated 15‑1‑1959, upholding the order of the Collector by which State land measuring 10 acres was resumed. The facts of the case are as follows. The tenancy was originally held by a member of a criminal tribe, Labha, under specific conditions applicable to such grants. Labha died in 1951. The land was resumed and allotted to Muhammad Siddiq petitioner in exchange of the latter's own tenancy. Ladha, the brother of Labha deceased, appealed to the Commissioner claiming the tenancy as Labha's successor; but his appeal was dismissed on 26‑11‑1953. He went in revision before the Financial Commissioner along with respondent Mst. Allah Rakhi the daughter of deceased Labha, who also joined the proceedings. The then Financial Commissioner, Mr. H. A. Majid accepted the revision petition by his order dated 30‑3‑1954 in which he particularly raised the question whether it was not the duty of the Collector to continue the grant of Labha in the name of his successor to be appointed by him under section 20 of the Colonization of Government Lands Act. He also required in his order that after the appointment of Labha's successor, the land should be taken back from petitioner Muhammad Siddique. Muhammad Siddiq thereupon preferred a review application before the Financial Commissioner's successor, Mr. Nasir Abmad, who by his order dated 7‑6‑1955, rejected the review petition, but incidentally observed that Muhammad Siddiq had obtained the exchange of his tenancy after holding it for 15 years, which was contrary to Government Policy. Therefore, he thought that "the exchange should remain cancelled". Muhammad Siddiq filed a second review petition which came back before the former Financial Commissioner Mr. H. A. Majid, now functioning as a Member, Board of Revenue. He reiterated that the question whether the tenancy in question was a scheduled tenancy or not or whether section 20 of the Colonization of Government Lands Act was applicable should be looked into by the Collector. Incidentally he also remarked, "if the land which previously constituted Labha's tenancy becomes free for allotment, it will be possible for the Collector to grant it in exchange for the petitioner's existing allotment". The case was remanded and the Collector has now found that it was a "scheduled tenancy" and, therefore, section 20 was not applicable. I accept this finding and hold that respondent Ladha, in any case, cannot claim the land as Labha's successor. But a more or less new case has now developed out of certain irrelevant remarks made by the Addi tional Commissioner. It is claimed that Labha deceased was eligible to acquire occupancy rights in this land and had applied for the same during his lifetime and it should be presumed, in consequence, that he had become an occupancy tenant so that the respondents could claim the tenancy as his successors. According to para. 27 (Supplement No. IV) several conditions and stipula tions have to be fulfilled by the tenant before occupancy rights can be conferred on him by the Collector. There was no conferment of occupancy rights in the present case. Therefore, the respondent's new plea also falls through and I hold that the Additional Commissioner's order remanding the case on this issue was misconceived and must be set aside.

As regards the petitioner's exchange, I have no doubt that the case has not been properly examined. It is true that Mr. Nasir Ahmed in his order dated 7‑6‑1955, observed that the petitioner had held his tenancy for 15 years and therefore his exchange was wrong ; but the allegation that the petitioner had held the tenancy for 15 years before exchanging it has throughout been challenged by him right up till now. However, his successor Mr. Majid, Member, Board of Revenue, for different reasons, observed that "it will be possible for the Collector to grant in exchange for the petitioner's existing allotment". In other words Mr. Majid's subsequent order dated 23‑6‑1956, reopened the question of the petitioner's exchange in review proceedings. But the Collector in the course of his remand inquiry did not realize this implication and assumed that the question of the petitioner's exchange had already been finally decided by Mr. Nasir Ahmad's earlier order. He,‑ therefore, did not apply his mind to the positive claim put forward by the petitioner that his tenancy was not as old as 15 years and that it was only 2 to 3 years old. He claims that his original grant was given to him in 1951 and he got it exchanged with Labha's tenancy by the Collector's order dated 17‑8‑1953. He took this ground in his appeal before Mr. H. A. Majid. He filed a certified copy of Jamabandi of 1950‑1951 and also a copy of the Additional Commissioner's order in support of his claim. He has also taken this ground in revision.

Upon these facts I have no doubt that his case deserves to be examined. I, therefore, set aside the orders of the Additional Commissioner and the Collector, and remand the case back to the latter with the direction that he should examine the question of validity of the petitioner's exchange in a proper manner and dispose of it on merits.

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