1984 PLP 454 (MLD)

The auction-purchasers challenged the aforementioned order of the learned Member, Board of Revenue, by means of three suits which were decreed on 20-6-1966 by the learned Senior Civil Judge, Montgomery (now Sahiwal). The Provincial Government through the Collector challenged the decrees in appeal but the same were dismissed on 30-5-1967 by the learned Additional District Judge, Sahiwal. Some of the petitioners also challenged the impugned decrees by means of filing suit on 25-7-1966 which was, however, dismissed on 16-10-1967 by the civil Court, The petitioners then filed miscellaneous application before the Board of Revenue for restoration of the land but the same was also rejected on 22-3-1978. They filed another application on 31-10-1978 before the learned Member, Board of Revenue which was kept pending to await the result of this petition.

3. In the meantime on 5-10-1966 the auction-purchasers took posses sion of the land in dispute; raised construction over a portion of it and planted garden ever another portion thereof. They applied to the canal authorities for supply of water which was sanctioned by the Divisional Canal Officer on 26-2-1,974 in presence of the villagers. It is claimed that they continued in possession of the disputed land since then.

4. Learned counsel for the petitioners contended that the land in dispute being situated around the village was reserved for extension of 'Abadi' and could not have been sold to the respondents by the Provincial Government detrimental to the interest of the villagers. It was argued that 39 Acres of land around the village are generally reserved for public purposes. No land, therefrom could be allotted or sole away to a private party. It was also stated that the learned Member, Board of Revenue set aside the sale of land in dispute vide his order dated 18-9-1964 and the learned Civil Court erroneously declared the afore mentioned order illegal. It was also argued that the petitioners were not impleaded as defendants in the suit, therefore, the impugned decrees dated 20-6-1966 were not binding on them being jurisdictional nullities, It was argued that the petitioners had been prosecuting their remedies against the impugned orders and decrees before the Civil Court as well as before the Board of Revenue, therefore, the delay in filing this petition was condonable. It was lastly contended that the sale of the land made in favour of the contesting respondents was collusive; the impugned decrees and orders were obtained by mis representation and fraud and could be declared as of no legal effect by this Court.

5. Learned counsel for the contesting-respondents on the other hand, submitted that the land in dispute formed part of Chak No.33/1-AL, Tehsil Okara, District Sahiwal. The lands of this Chak were alienated to the evacuee owners through public open auction at the time of colonization in 1928. An area measuring 24 Acres, however, remained Baqaia Sarkar. It could not be disposed of through auction at that time. This area could not be reserved as Charagah. Charagah area is only reserved in Peasant Chaks and not in Auction Chaks. After partition the land in dispute had been leased out to various persons on temporary cultivation. In the year 1963 the Provincial Government proposed to sell such like State lands throughout the Province. Accordingly it was included in the schedule of auction. Out of the land in dispute 8 Acres of land was excluded from the auction list, which was reserved for school, graveyard, village pond and Eidgah while remaining 16 Acres of land being available was sold through open public auction. Some of the petitioners also participated in the auction. The contesting-respondents being the Highest bidders were sold land as per terms of the auction. The respondents did not violate the terms of the sale but it was erroneously revoked by the learned Member, Board of Revenue in ignorance of the nature of land; the terms of the sale and reviewing the order of the Board of Revenue. It was contended that the order was rightly set aside by the civil Court vide impugned decrees dated 20-6-1966. It was stated that the writ petitioners were not impleaded as respondents in the suits because they had no locus standi in the matter. They had no title in the suit land. It was also contended that the writ petition was filed after lapse of over a decade from the date of the decrees and the impugned orders, despite knowledge and this petition suffered from laches. It was also submitted that the suits filed by the petitioners challenging the impugned orders and decrees had been dismissed under Order IX, rule 8, C.P.C. This petition was hit by the principle of res judicata. It was next argued that according to the petitioners' own showing they had moved application to the learned Member, Board of Revenue for restoration of the land in dispute and annulment of the sale in favour of the contesting-respondents which was pending decision; without exhausting that remedy which was more appropriate, they could not maintain this petition. It was lastly contended that the petitioners pleaded collusion, misrepresentation and fraud on the part of the respondents in obtaining the impugned decrees and orders from various authorities and such allegations were not determinable in writ jurisdiction.

6. I have considered the contentions raised by learned counsel for the parties and have gone through the documents on the file with their assistance. Undoubtedly the petitioners by means of this Constitutional petition have challenged the decrees dated 20-6-1966 passed by the civil Court after lapse of over a decade when they had knowledge of the same and in fact at one time challenged the same through civil suits. No reasonable explanation has been given by them in approaching this Court after a lapse of such a long period, this petition suffers from gross laches and merits dismissal on this score. It is correct that the land in dispute being State land -was disposed of through open public auction. It was not reserved as 'Charagah' land because the lands forming part of Auction Chaks, were sold in auction. The relevant provisions of para. 321 of the Colony Manual reproduced hereunder would show that the 'Charagah' land could be reserved only in Peasants Chaks and not in Auction Chaks. "(1) A distinction should be definitely drawn between Charagah and Baqaia. Charagah should be held to mean 'land reserved for common purposes'; Baqaia is land remaining unallotted, which may be further classified as a allotable, unallotable (in quality) or uncommanded. (2) Charagah should consist of a strip of land, 3 squares or rectangles in extent, all round the village Abadi; this will give a clear space of about 500 feet width between the outer houses and the nearest cultivation. If it is not possible to make the reservation all round the site, it should be in compact squares adjoining. The full extent of Charagah should be reserved only in Peasant Chaks; no Charagah should be reserved in auction chaks. Order of the learned member, Board of Revenue was rightly set aside by ' the civil Court being in ignorance of relevant instructions and also in excess of the jurisdiction vested in him under section 16 of the Punjab. Land Revenue Act, 1967 read with section 7 of the Colonization of Government Land (Punjab) Act, 1912. He could reverse or modify orders passed by his subordinates and not those passed by the Board of Revenue; which being revisable or reviewable by the Board itself. The order was, therefore, nullity at law. None of the petitioners were allotted or sold land in dispute, they were, therefore, not necessary parties in the suits. ' In addition to what has been observed hereinbefore this petition merits dismissal for the following reasons:

(i) The petitioners did not challenge, in appeal or revision, the dismissal of their suits against the impugned decrees and orders; (ii) The petitioners' learned counsel, pleaded collusion, misrepresenta tion and fraud on the' part of the contesting-respondents in obtaining the decrees and impugned orders; determination whereof exclusively rests with the Court of plenary jurisdiction and could not be sought in writ jurisdiction; and (iii) The petitioners' application 6eeking restoration of the land being pending adjudication before the learned Member, Board of Revenue, this petition in the circumstances of this case is not entertainable.

7. For the foregoing reasons this petition is, dismissed for laches and on merits, with costs. M.I. Petition dismissed.