2006 PLP 890 (SCMR)

MUNIR A. SHEIKH, J.

Leave is sought against the judgment, dated 19-2-2003 of the Lahore High Court, Lahore, whereby Constitutional petition filed by the petitioner has been dismissed.

2. The facts of the case are that land measuring 55 Kanals, 17 Marlas situated in Chak No.65, Tehsil and District Kasur, in dispute was allotted to the petitioner under Temporary Cultivation Scheme on 7-9-1968 which was extended upto 1978 after which according to the learned counsel, there is no order either for cancellation of this lease or its extension. In. the year 1995, a scheme was introduced for conferment of proprietary rights on the allottees of such land under the said scheme, therefore, the petitioner made an application on 15-6-1995 for conferment of proprietary rights vis-a-vis the said land as its allottee under the Temporary Cultivation Scheme. This application was rejected by the Collector on the ground that according to the revenue entries, he was Ghair Dakhilkar and not Pattadar under the scheme. The appeal filed by him was however, accepted by the Additional Commissioner on 19-9-1995. It was held that to the extent of land measuring 38 Kanals, the petitioner was Pattadar and even if he had not paid rent for the said land, the same was rectifiable, as such, he was directed to pay the rent. Regarding the other portion of the land, he was held to be in illicit cultivation therefore, he was ordered to pay Tawan and also penal rent which according to learned counsel for the petitioner, was paid on 6-11-1955. When the question of conferment of proprietary rights came up for consideration, it transpired that respondent No.5 earlier on 3-2-1994, had made an application to the Chief Minister, Punjab, for exchange of land allotted to his father as Chashma Barrage Affectee in Mianwali with the land in dispute, which according to him was available. The Chief Minister on 9-7-1995 allowed the exchange of land, therefore, he was in the first instance given in exchange the land measuring 38 Kanals but subsequently, on 28-8-1995, on his request, respondent No.5 was further given the remaining land to make it 58 Kanals which had the result of depriving the petitioner of his rights under order, dated 19-9-1995.

3. After coming to know about the order dated 19-9-1995, respondent No.5 approached the Board of Revenue through a miscellaneous application that the said order may be set aside which was treated as a revision petition. On 9-7-1995, the petitioner on the other hand filed a Constitutional petition before the High Court challenging the orders of the Chief Minister and the Board of Revenue, allowing exchange of the land of respondent No.5. at Mianwali with the land in dispute in which respondent No.5 appeared and stated that the matter was pending before the Board of Revenue on which the petitioner did not press the said petition and filed an application before the Board of Revenue against the permission to exchange land of respondent No.5 at Mianwali with the land in dispute. (sic) Board of Revenue, who through order dated 27-10-1995 accepted the revision petition of respondent No.5 against the order of Additional Commissioner dated 19-9-1995 but dismissed the application of the petitioner treating it as a review against the order of the Board of Revenue of allowing respondent No.5 to exchange his land at Mianwali with the land in dispute. It was through composite order, therefore, the petitioner filed another application seeking review of the said order both in the applications filed by the petitioner as also the judgment passed in the application of the respondents which was treated as revision petition which was dismissed through order dated 11-1-2003 by holding that second review application was not maintainable against which Constitutional petition filed by the petitioner has been dismissed through the impugned judgment, dated 19-2-2003 by affirming the view taken by the Member, Board of Revenue that second review application was not maintainable.

4. Learned counsel for the petitioner submits that the application filed by the petitioner for recalling the administrative order of permitting respondent No.5 to , exchange the land in dispute with his land at Mianwali was not in the strict sense a review application therefore, should have been considered on the administrative side praying for recall of the order of the Board of Revenue of exchange which was always available as the original order allowing exchange of the land in dispute with the land at Mianwali of respondent No.5 was void ab initio, for according to law, after conferment of proprietary rights in a particular land allotted under any of the schemes and execution of sale-deeds by the Revenue Authorities in favour of the allottee, no exchange could be allowed by the Revenue Authorities as it becomes privately owned land. Learned counsel stated that about the land allotted to the father of respondent No.5 at Mianwali as Chashma Barrage Affectee, proprietary rights had been conferred and sale-deed executed. He (sic) second review application against the order of allowing permission to exchange the land but the same was the first review application against the judgment of the Board of Revenue passed on judicial side on the application of the respondent treating it as revision petition against the order, dated A 19-9-1995 of the Additional Commissioner therefore, the said review application was not hit by the said principle that second review application was not maintainable, therefore, both the Board of Revenue and the learned Judge in Chambers of the High Court while adopting the said view had failed to exercise jurisdiction vested in them under the law to decide the case judicially on application of independent mind about the contention that after conferment of proprietary rights in the land at Mianwali, no exchange could be permitted by the Revenue Authorities and that land in dispute could not be treated to be available till final decision in the judicial remedies available to the petitioner that he as allottee/Pattadar of the said land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights had been made.

5. The contentions inter alia require examination, ,therefore, leave is granted to consider the same.

6. Till the disposal of the appeal, status quo shall be maintained. S.A.K./M-191/SC?????????????????????????????????????????????????????????????????????????????? Leave granted.