P L D 1973 Lahore 829 (PLP)

S.A. RAHMAN, J.

‑A petition for special leave to appeal from a Judgment and order of the High Court of West Pakistan presented on behalf of Khushi Muhammad, petitioner was dismissed on the 27th of January 1965. This is a petition for review of that order of dismissal, on behalf of Khushi Muhammad. It appears that Hafiz Khurshid Hassan, counsel for the petitioner in the Sigh Court, had raised only two contentions before that Court, via., (1) that his client had no notice of the proceedings of consolidation, and (2) that the fields allotted to him did not form a single block. The learned counsel had given up the first point which he was con fronted with the evidence that not only was there a beat‑of‑drum announcement in the village but that Khushi Muhammad was actually represented) in the proceedings by a counsel, Ch Nazir Ahmed Virk, as reported by the Board of Revenue. The same learned counsel had appeared before this Court in support of the petition for special leave to appeal. He was unable on the previous occasion, to show any reason why he should be allowed to resile from the position he accepted in the High Court. Mr. Saeed Hassan has however, now attempted to argue on behalf of the petitioner that Ch. Nazir Ahmad Virk was not the counsel for the petitioner and the report sent by the Board of Revenue to the High Court was erroneous. On this question of fact, no affidavit has been filed in support of this allegation. There was a solemn averment in an official report which could only he contradicted by the submission of an affidavit by the relevant person that Ch. Nazir Ahmad Virk had never represented the petitioner in the proceedings. The petitioner indeed seems to be anxious to raise a new point before this Court which was never urged in the High Court. If the facts were as the petitioner alleges, perhaps he could have a remedy by a fresh petition to the High Court. No ground has been made out for review of the previous order of this Court on the facts as they stand on the record and the petition is dismissed.

4. Taking clue from the last lines of the above passage, the petitioner has filed the present writ petition, again challenging the order dated 28‑12‑1962 of the learned Member, Board of Revenue, which he had earlier challenged without any success.

5. The first point argued by learned counsel for the petitioner was that hi was not impleaded as a party in the two revision petitions namely, Revision Petition No. 326 of 1961‑62 Rao Muzafar Ail Khan v. Muhammado and Revision Petition No. 327 of 1962, Mst. Batul Begum v. Noor Muhammad etc. and as such the impugned order passed by the learned Member, Board of Revenue without making him a party was without lawful authority. The contention has no force. It is to be pointed out that a similar point was earlier raised by Muhammad Baqir a resident of the village in W. P. No. 380 of 1963 (filed against the same order of the learned Member, Board of Revenue, dated z8‑12‑19621, which was dismissed by a Division Bench of this Court consisting of S.A. Mahmood and Sajjad Ahmad Jan, JJ. on 23‑1‑1964. In paragraph 4 of the Judgment, the learned Judges wrote as follows:‑‑- The main ground taken in this petition before us on behalf of petitioner No. 2 who is owner of the land in dispute, is that neither Baqir nor Syed Begum nor Farid Khan having been made parties to the revision petition, the impugned order could not have been made against them by Mr. I. U. Khan. We have seen the revisional record and found that not only the parties mentioned therein but all the residents of the village were made parties to the revision petition under the orders of the learned Member, Board of Revenue and their service was affected by beat‑of‑drum for the date of hearing. In these circumstances, the complaint that they were not made parties is not legitimate. In Writ Petition No. 416/63 titled Ramzan etc. v. Land Colonization Department, a similar point was raised by the petitioners therein. The learned Judges Mr. Justice Muhammad Yaqub Ali and Mr. Justice Muhammad Iqbal (as then his Lordship was), dismissed the petition on 3‑10‑1963 and wrote as follows :‑-- "We have perused the records of the learned Member, Board of Revenue. It negatives tike plea raised by the petitioners that they were not made parties to the case in the revision petition find the impugned order was made on their back. The memoranda of parties shows that 0ey were stated as respondents and according to the report of Patwari, dated 18‑12‑1962, all the right‑holders of village Kanianwala were served by beat of drum to appear in the Court of Member, Board of Revenue for 26th of December 1962. Dismissed in limine. (Actually it should be 28th of December 1962). The orders reproduced above, pertain to the same revision petitions, decision wherein was rendered by the learned Member, Board of Revenue vide his order, dated 28,12‑1962, which is being challenged by the petitioner. It is, therefore, now self‑evident that the petitioner, like all residents of the village, had been made a party by the learned Member, Board of Revenue and was served by beat‑of‑drum. The contention raised by the learned counsel, therefore, does not hold water. It is further to be pointed out that the land of Mst. Batul Bagum was given to Khushi Muhammad petitioner and it was Mst. Batul Begum who had filed a revision in the Court of learned Member, Board of Revenue (being revision Petition No. 327 of 1962). In that revision petition even otherwise Khushi Muhammad petitioner was duly and formally made a party. Looked at from any angle, the contention raised, does not appear to be factually correct.

6. The next point arguers was that the petitioner, Khushi Muhammad was not represented before the learned Member, Board of Revenue by Mr. Nazir Ahmad Virk, Advocate, who was shorn in the report earlier submitted to this Court as having appeared on his behalf. There is no affidavit of Mr. Nazir Ahmad Virk and as such a bald plea of this nature cannot inspire confidence. Alternatively, as I have held that the petitioner was duly served for appearing before the learned Member, Board of Revenue for the relevant date, then if he did not appear, the fault would be entirely his own and he cannot gain anything by raising the point presently under adjudication. This reason of mine is just in the alternative and it is clarified that my positive finding, however, is that the petitioner was served and was duly represent ed through a counsel before the learned Member, Board of Revenue.

7. Another aspect of the case is that Khushi Muhammad petitioner, after possession of the land given to him in consolidation proceedings has alienated a big portion out of it, the details of which are given in the affidavit filed on behalf of Abdul Ghafoor, Sarder Ali, Nazeer Ahmad and Muhammad Shafi, residents of Village Kanianwala. This affidavit was not controverted before me either by any cross‑affidavit or in argu ments. According to that affidavit, Khushi Muhammad petitioner has sold acne acre of land to a mill, two acres for a church to the Christian community and has leased out fifteen acres of land for a brick‑kiln for a period of ten years and has also effected sale of earth of some land which has turned now into the shape of deep pits: This will show that the petitioner has altered the state of land during the course of the pendency of this writ petition in this Court. This conduct of the petitioner also disentitles him to a discretionary relief which is now being claimed in tae writ petition, especially, when it will not be possible for this Court to restore the status quo ante which the petitioner virtually wishes to be restored through this writ petition. Looked at from whatever point of view, the petition filed by the petitioner cannot succeed.

8. Towards the end, learned counsel for the petitioner wanted to argue that the petitioner had earlier filed a revision petition against the order, dated 13‑3‑1962, of the Addl. Commissioner which was accepted by the learned Member, Board of Revenue on 5‑11‑1962 and the case was remanded. It appears that against the same order of the Addl. Commissioner two other Revision Petitions Nos. 326 and 327 had been filed by certain other aggrieved persons. Those revision petitions were accepted by the learned Member, Board of Revenue on 28‑12‑1962. It is argued that after having remanded the case of the petitioner on 5‑11‑1962 the learned Member, Board of Revenue could not have passed an order against the petitioner on 28‑12‑1962. This is a plea which was neither raised in the earlier Writ Petition No. 946 of 1963 nor in the Civil Petition for Special Leave to Appeal nor in Review before the Supreme Court and nor is it contained in the present writ petition. I am not prepared to allow the petitioner to raise this plea at this belated stage, when the petitioner has, as already mentioned, himself altered the nature of the land. Even otherwise the revision petition filed by the petitioner was only against one Ghulam Muhammad whereas the revision, which had been filed against the petitioner, was by Mst. Batul Begum whose land was given to the petitioner by the Addl. Commissioner but was restored to her by the learned Member, Board of Revenue. Even after the order of remand in pursuance of the order of the learned Member, Board of Revenue, dated 5‑11‑1962, the Addl. Commissioner by his order, dated 16.4‑1963 (Annex. "C"), made no change vis‑a‑vis the petitioner and the said Ghulam Muhammad. The petitioner did not file any further revision before the Member, Board of Revenue. Be that as it may, the overall facts and circum stances of the case and the conduct of the petitioner do not entitle him to raise such a plea at this belated stage when he will himself not be able to restore status quo ante which he wishes to be restored through this writ petition as against others. If the petitioner does not wish to retain the area given to him by the learned Member, Board of Revenue, then it means that he will have to surrender that area but obviously in the changed situation in which he has placed himself, by his alienations, he will not be able to do so.

9. The result is that the writ petition is dismissed with costs. S.A.H. Petition dismissed.