P L D 1973 Lahore 543 (PLP)

Petitioner, Faiz Muhammad Khan, along with certain other land‑owners of village "Bate Wasava Khanwala South", Tehsil Leiah, District Muzaffargarh, on 29‑1‑1942, filed an application under section 3 of the Punjab Consolidation of Holdings Act IV,. 1936, for consolidation of the land of the aforesaid village. The consolidation proceedings thereafter started, and the Consolida tion Scheme was approved on 22‑8‑1960, and was finalized on 12‑9‑1961 when the record was attested.

2. The point, in the present case, is about the assessment and realization of the consolidation fee to be charged from the: land‑owners of the village.

3. Mr. Imam Bakhsh, Assistant Consolidation Officer is present with record along with Elahi Bakhsh Patwari. After verifying the record he has submitted that the actual cost which the Government had to incur on the consolidation was Rs. 23,240.00. However, the liability of the land‑owners was fixed at the rate of Rs. 5 per cultivable acre, and Re. 1 for each uncultivable acre. In this way, the total cost which was to be recovered from the village was only Rs. 21,548,00 as against the real expenditure of Rs. 23,240.00. The short fall he submits, has to be borne and subsidized, if necessary, by the Government. The A. C. O. further states that this rate has been fixed in accordance with rule 26 of the West Pakistan Consolidation of Holdings Rules, 1960 framed under section 20 of the West Pakistan Consolidation of Holdings Ordinance VI of 1960, according to which, if the actual expenses incurred are more than the one worked out at the rates hereinbefore mentioned, then the lesser amount is to be charged. In this way, the amount which was to be paid by Faiz Muhammad Khan, petitioner, came to be Rs. 3,241.00 out of which the A. C. O. tentatively states (subject to verification of account) that he has paid only Rs. 550.00 leaving a balance of Rs. 2,691.00. ‑

4. The petition is couched in a general form and the relief claimed is as follows :‑ It is, therefore, respectfully prayed that a writ of mandamus be very kindly issued restraining the Government from implementation of their order of costs of consolidation at the new rates after quashing it by another writ of certiorari. It is further prayed that the order of cost of consolidation at the agreed rate be restored with the grant of any other writ suitable in the circumstances of the case with costs."

5. Learned counsel for the petitioner has argued that since the consolidation, in the instant case, took place under the Punjab Consolidation of Holdings Act IV, of 1936, therefore its cost should have been worked out on the basis of that Statute read with the rules framed thereunder via the Punjab Consolidation of Holdings Rules, 1937. Rule 26 of the Rules of 1937 reads as follows :‑ "

26. Cost of proceedings.‑The cost of consolidation proceedings shall be assessed by the Collector either‑ (a) by levying an acreage rate on the area consolidated, which may vary with the nature of the land, or (b) by distributing it proportionately on each holding effected by the Scheme on the basis of the land Revenue assessed, the assessment is fluctuating on the average of the last 3 years' Land Revenue on such a holding.",

6. The counsel further submits that in the instant case, the rate of consolidation was contained in the Tariqa‑e‑Taqseem (i.e. Consolidation Scheme) framed on 2‑2‑1950, and approved by the Collector on 11‑2‑1950. A copy of the Tariqa‑e‑Taqseem (i.e. Consolidation Scheme) has been filed in the form of Annex 9 'B' to this writ petition. The relevant portion In the said document reads as follows :‑ Learned counsel submits that the cost of consolidation approved by the Collector within the terms of rule 26 ibid was annas 8 per acre, and fn that view of the matter, the assessment ‑of cost on the impugned rates is without lawful authority.

7. The contention raised above seems to have force. Consolidation proceedings in the instant case started in the year 1942 when application for this purpose was moved by the petitioner (and others) and continued thereafter. Fee of consolidation, in these circumstances, should have been levied according to section 15 of Punjab Act IV, 1936 and the Rules framed in 1937. According to the said Statute and Rule, the cost was to be assessed and approved by the Collector. In the instant case, the Collector, while approving the Tariqa‑e‑Taqseem (i.e. Consolidation Scheme), assessed the costs at the rate of annas 8 only per cultivable acre. The approval of the Collector was operative and was not set aside by any competent authority in accordance with law either in any appeal or in revision (this aspect of the case was conceded to by the counsel for the respondents and the A. C. O.). In this view of the matter, demand of fee at any higher rate on the part of the authorities concerned, is clearly without lawful authority.

8. When confronted with this situation, the learned counsel for the respondents argued that on 10‑3‑1960 was promulgated the West Pakistan Consolidation of Holdings Ordinance VI of 1960, and since final touches to the consolidation were given after the aforesaid date, and, in other words, since the Scheme was finalized on 22‑8‑1960, and the record was attested on 12‑9‑1961, therefore the fee could be assessed under the new law which in the meantime had come into force, and which authorized fixation of fee and the rates involved in this case. Reliance was placed on section 20 of the West Pakistan Consolidation of Holdings Ordinance VI of 1960, and rule 26 of the West Pakistan Consolidation of Holdings Rules, 1960. The contention has no force. Punjab Act IV of 1936, was repealed and replaced by the West Pakistan Consolidation of Holdings Ordinance, 1960, only with effect from 10‑3‑1960, and was not retrospective in operation. Section 30 of the West Pakistan Act VI of 1960 reads as follows :

30. Repeal.‑The Punjab Consolidation of Holdings Act, 1936, and the North‑West Frontier Province Consolidation of Holdings Act, 1946, are hereby repealed. It is a settled law as laid down in section 4 of the West Pakistan General Clauses Act VI of 1955, that repeal is not to affect pending proceedings under the repealed law which can continue as if the rep.‑sling Act had not been passed. Section 4 reads as follows :‑ "

4. Effect of repeal.‑(i) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired,, accrued or incurred under any enactment so repealed, or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investiga tion, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. (2) The provisions of subsection (I) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act." It was held in Akhtar v. The State (P L D 1961 Lah. 1049), that pending proceedings can continue under the old law. Since the proposition does not admit of any doubt I need not multiply further case‑law on the subject. Another thing to be noticed is that neither the West Pakistan Consolidation of Holdings Ordinance VI of 1960 nor the rules framed thereunder were retrospective and as such could not cover proceedings undertaken under the old law which had to be completed under the said law with all its incidents, rights, obligations and liabilities,

9. The upshot of the above discussion is that the demand of consolidation fee from the petitioner at the impugned rates is without lawful authority and is of no legal consequence against him. The respondent is restrained to demand the fee at that rate, and is directed to demand it only at the rate agreed to in the Tariqa‑e‑Taqseem (i.e. Consolidation Scheme) and approved by the Collector under the Punjab Consolidation of Holdings Act IV of 1936, and the Rules of (1937) framed thereunder. There shall be no order as to costs. S.Q.