2001 PLP 1986 (CLC)

4. Learned counsel for the respondent, Housing and Physical Planning Department submitted that the Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973, rule 3 gives a right of appeal and rules 6 and 7 give a right of revision to Board of Revenue, therefore, the arguments advanced by the learned counsel for the petitioners are of no effect. He further submitted that this writ petition is completely incompetent as the petitioners have already availed the opportunity to challenge the order of the Additional Commissioner and the mutations in favour of the Housing and Physical Development before the learned Civil Court. The learned Civil Court, has through a detailed order refused injunctions to the petitioners. The appeal against the same was filed in the Appellate Court which was dismissed. Later on the main suit challenging Mutation No.189, dated 3‑1‑1985 was also dismissed. The appeal against the same was stayed sine die due to the status quo order issued in the instant writ petition. He further submitted that the appeal against the order of the Additional Commissioner could be assailed under rules 6 and 7 of the Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973 before the Member, Board of Revenue. Even the Mutation No.189 attested on 3‑1‑1985 has not been challenged before any Revenue Authorities as the petitioners were always afraid of real probe into the matter of his entitlement by the Revenue Functionaries. He also was afraid of that adjustment of the land at Pattal Munda transferred to Mandi Town may not be disclosed before the Revenue hierarchy.

5. Land measuring 12334 Kanals, 9 Marlas was transferred to respondents vide Notification, dated 3‑2‑1971, Mutation No.189 attested on 3‑1‑1985. The mutation was incorporated in the Jamabandi. On a representation filed by the petitioner the Government of Punjab vide Notification; dated 19‑10‑1986 has directed change in Revenue Record. Moreover, one of the petitioner, namely, Sultan Ahmad from whom petitioners Nos.2, 3 and 4 claimed their right has given an application to Revenue Officer that the area at Pattal Munda be cancelled. The same was cancelled by the Revenue Authorities. Fazal Mehmood etc. the adverse party being aggrieved from this judgment filed an appeal which was dismissed being time‑barred; Revision against‑the same is pending adjudication before the Board of Revenue. The proceedings of the Board of Revenue are also stayed sine die because of the status quo order passed by this Court in the instant writ petition. The learned counsel for respondent No.2 argued that petitioner Sultan was a Girdawar and it is through his connivance with the Revenue Field Staff that fraud was committed and as it is a settled principle of law that fraud vitiates the whole proceedings, therefore, the learned Additional Commissioner has rightly exercised jurisdiction, condoned the delay as the department was not a party before the E.A.C.O. and the E.A.C.O. without inquiring into the matter got adjusted the land in favour of the petitioners near Mandi Town and inside Mandi Town without even ascertaining from the Revenue Record that it stood transferred to the respondent‑Housing and Physical Development Department. As the impugned order of the E.A.C.O. was passed behind the back of the petitioners the transaction of sale through Civil Court decrees shows that the petitioner after adjustment tried to dispose of the land quickly. The Thal Development Authority was formed in the year 1971, the payment was made in the year 1976, the transaction was complete in favour of department in the year 1976, the adjustment order was made in the year 1979 behind the back of the respondents. During this interregnum period respondent has spent crores of rupees on development of land and roads etc. The Additional Commissioner has made a remand order and remand order cannot be challenged in writ petition. He placed reliance on 1994 CLC

871. He further submitted that the Constitutional jurisdiction cannot be exercised in aid of injustice. He relied on PLD 1998 SC 858, 1995 SCMR 678, PLD 1991 SC 691, PLD 1992 SC 96 and PLD 1997 SC

351. The E.A.C.O. ignored the material fact that the land was never available. Petitioner has already availed the remedy before challenging all the orders impugned in the instant writ petition before the Civil Court which is pending in appeal before the learned Appellate Court and the matter is relating to the disputed land is also pending before the Revenue Courts. In these circumstances the competent forums can decide these matters and make the inquiry into the factual controversy.

6. I have heard the learned counsel for the parties at length and carefully perused the record.

7. It is sorry state of affairs that m the instant writ petition are that two Courts one, the Civil Court of general jurisdiction and the Revenue Court, the Court of Member, Board of Revenue, the proceedings are stayed by the status quo issued in the instant writ petition while the circumstances of this case disclosed that the civil suit challenging all the transactions in favour of respondent‑Housing and Physical Planning Development Department and the mutation in their favour was challenged through a civil suit. Ad interim injunction was refused by the learned Civil Court while giving an exhaustive order on 5‑7‑1989. Appeal against the same also stood dismissed. Later on the suit was also dismissed and appeal against the suit is still pending adjudication as the proceeding were stopped through restraint order passed by this Court in the instant writ petition. Great emphasis has been laid by the learned counsel for the petitioners that the transfer against the adjustment order of the E.A.C.O. was not amenable before the Additional Commissioner. He has referred Thal Development (Colonization) (Appeal and Revision) Rules, 1973. In section 2 of the same authority is defined as under:‑‑ "(a) 'Authority' means Thal Development Authority created under section 3 of the Thal Development Act, 1949. (b) 'Board of Revenue' means the Board of Revenue established under the West Pakistan Board of Revenue Act, 1957. " Section 4 of the same is reproduced below:‑‑ "

4. An appeal shall lie from an original or appellate order‑‑ (a) to the Collector when the order is made by an officer exercising the powers of Assistant Collector of either grade or Secretary, Thal Development Authority or Estate Officer or Land Control Officer or Land Acquisition Officer; (b) to the Commissioner when the order is made by the Collector or Colonization Officer, Thal Project Colony; (c) to the Board of Revenue only on a point of law when the order is made by the Administrator or the Commissioner either as. a delegatee or otherwise or Chairman, Thal Development Authority; (i) when an original order is confirmed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final."

8. The precise arguments advanced by the learned counsel for the petitioners are that the Additional Commissioner has got no jurisdiction to deal with the matter. The provisions in the Thal Development (Colonization) (Appeal and Revision) Rules, 1973 is not very different from section 161 of the Land Revenue Act" which is rather reconstruction with the slight difference. "A Commissioner may delegate its authority to Additional Commissioner in Revenue hierarchy." The impugned order is passed by the Additional Commissioner who also enjoys administrative powers which is not assailed before the Board of Revenue although the learned counsel has raised a point of law in the Constitutional jurisdiction regarding the jurisdiction of the Additional Commissioner. The prayer part of the Constitutional petition shows that the same request has been made in the civil suit which was dismissed and the appeal against the same is pending before the District Court who is competent to decide the factual controversy of facts and properly adjudicated upon the matter in question.

9. It is an admitted fact that the adjustment order passed by the E.A.C.O. was not implemented in the Revenue papers throughout, the Thai Development Authority was shown as owner in Khana Malkiat. In the year 1985 Mutation No.189 was entered on 3‑1‑1985 in favour of Housing and Physical Planning Department, Government of Punjab to the effect that the land comprising 12334 Kanals and 9 Marlas falling in Chak Mandi Town was transferred to the Department vide Notification, dated 3‑2‑1971. In lieu of a mutation was attested on 3‑1‑1985 in favour of Housing and Physical Planning Department, Government of Punjab. I am not convinced by the argument advanced by the learned counsel for the petitioner that under rule 3 of Thal Development (Colonization) (Appeal and Revision) Rules, 1973, a tenant or any person who has acquired proprietary rights in the land as allotted to him, may if aggrieved, by an order passed by the Authority or by the Administrator, Thal Development Authority or by a delegatee or an Officer of Authority file an appeal in accordance with these rules.

10. It is admitted fact that one of the petitioner Sultan Ahmad from whom the petitioners Nos.2, 3 and 4 claimed to have acquired rights in the disputed land, has given an application to the Revenue Officer that his area at Pattal Munda be cancelled and the same was cancelled. Appeal against the impugned judgment filed by Fazal Muhammad etc. petitioners was rejected as time‑barred. They have challenged the same in revision petition which is pending adjudication before the Board of Revenue. The proceedings in the Board of Revenue stood stayed sine die in view of the status quo order passed in the instant Constitutional writ petition. How, in the instant writ petition the learned counsel for the petitioner submit that appeal and revision under sections 3 and 4 of Thal Development Act (Appeal and Revision) Rules, 1973 are not competent.

11. A cursory glance over the adjustment matter of the petitioner by the E.A.C.O. shows that the public functionary while adjusting this land in lieu of return has not consulted the Jamabandi. Had the E.A.C.O. made a thorough probe in the matter. He could have known that the land stood requisitioned by the Housing and Physical Planning Department on the basis of Notification, dated 3‑2‑1971 which up to this time stands intact. Even a bare perusal of the Revenue Record could disclose to him, that in Khana Malkiat, Thal Development was the owner while Housing and Physical Planning Development Department had already paid the price of the land in the year 1976 and they being necessary parties had a right of hearing at the time of adjustment of this land to an evacuee owner. The learned Civil Court while refusing injunction to the petitioner has observed that the order of confirmation in favour of the petitioner regarding the adjustment of the land vide order of the E.A.C.O., dated 30‑4‑1979 is not only irregular but illegal as he was not allowed to pass trashy and transgressive and violative order. The land acquired for the Housing Department could not be adjusted to petitioner without any justification and legal excuse. Same is the view of the Additional Commissioner in the impugned judgment where the Additional Commissioner has observed that instead of challenging Mutation No. 189, dated 3‑1‑1985 the matter was challenged in a civil litigation and it seems that the petitioner has been trying to side‑track the issue in civil litigation. Although the backside of the adjustment order, dated 30‑4‑1979, has a mention of location of the land outside Mandi Town. It is a calculated mischief played by the staff of E.A.C.O. giving incorrect and misleading information of exact location of the land in question. Therefore, the challenge of the jurisdictional power of the Additional Commissioner in the instant writ petition are without 'any legal force. The powers of the Additional Commissioner under the T.D.A. Act is similar to that of the Land Revenue Act where Commissioner may delegate his power to Additional Commissioner in certain matter. Even otherwise under the Thal Development Authority the Additional Commissioner enjoys the administrative authority, therefore, the ground taken by the learned counsel for the petitioner is without force. The second point of limitation raised by him is also without substance. The order was passed by the E.A.C.O. without even consultation of the Revenue Record and Goshwara and even without any inquiry and a probe in the matter. Had he done same he could have known that in the Jamabandi respondent existed in the column of ownership. The impugned order was passed at their back and the delay was rightly condoned by the Additional Commissioner in the interest of justice. 11‑A. It is held in Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96 that no one can be permitted to reap the benefit of wrongful gain and High Court in exercise of its discretionary jurisdiction is not bound to interfere in all the circumstances exercise of its discretion would be proper if the Court had trot interfered with the order of Authority even if it is felt that said order whereby the Authority rendered order of its subordinate Authority as null and void, was not strictly legal if it is in line with the law "Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari" PLD 1997 SC

351. It is held in Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 that if the order cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. The object of Constitutional jurisdiction is to foster a justice and not to perpetuate illegality and Constitutional jurisdiction must be exercised in aid of justice, Munjri Khan and others v. Faridoon and 5 others 1995 SCMR 678.

12. It is still not clear that how much disputed land is within Mandi Town and how much disputed land is outside Mandi Town. The factual controversy is to be determined by the Court of general jurisdiction and the matter is impugned in appeal before the appellate forum which is the continuation of the original jurisdiction. The matter is also pending adjudication before the learned Member, Board of Revenue and these are the proper forums to determine the factual controversy as well as the legal entitlement of the parties. Constitutional jurisdiction is exercised only in the aid of justice.

13. The argument of the learned counsel for the petitioners that through subsequent purchase the rest of the petitioners have gained valuable rights. Since they have stepped into the shoes of the original allottee and they have to face the result of the transaction of, allotment as well as the subsequent adjustment.

14. In view of what I have discussed above I am not inclined to interfere in the order passed by the Additional Commissioner. The writ petition is dismissed. No order as to cost. Q.M.H./M.A.K./S-240/L Petition dismissed