2009 PLP 1247 (CLC)

ABDUL SATTAR GORAYA, J.

By means of this Constitutional petition the order dated 20 2-2008 passed by the respondent No.1 has been brought under impeachment.

2. The facts as stated in the Constitutional petition are that Sheru Khan is evictee of Mangla Dam and he has eligibility certificate for the purpose of alternate allotment. The land measuring 100 Kanal was allotted to the said Sheru Khan respondent No.3 and similarly certain other persons who were oustee from Mangla Dam were accommodated in a similar manner but the land which was allotted to the Sheru Khan, respondent No.3 in Chak No.450/JB, Tehsil and District Jhang was not included in the schedule of Mangla Dam evictees. Vide official communication No.131-97/6254-C1 dated 30-10-1997 of the Board of Revenue it appears in due course of time had regularized not only the allotment of Sheru Khan respondent No.3 but also other persons placed in similar position. Sheru Khan also obtained a conveyance deed after depositing the whole price in the treasury. In the afore-noted letter, it was directed that the officers responsible for the said irregularity may be pointed out. The Board of Revenue had considered the matter on 28-5-2005. The possession of respondent No.3 coupled with the allotment was regularized in the process of review. Petitioner feeling aggrieved of the said arrangement made an application seeking second review in terms of section 8 of the Board of Revenue Act for annulment of the order dated 13-12-2007 but the same never found favour with the Member Board of Revenue and consequently vide order dated 20-2-2008, rejected the application of the petitioner.

3. Learned counsel for the petitioner argued that the order dated 20-2-2008 passed by the Member Board of Revenue was non-speaking and terse order on its face value inasmuch as the factual controversy and the legal issues, raised in the petition were not dealt with in accordance with law.

4. Conversely the learned counsel for the respondent No.3 argued that the Board of Revenue in his discretion had rectified the wrong done and in the whole affairs, respondent No.3 is not party and had no contributory role.

5. I have heard the learned counsel for the parties and perused the record. The order sought to be reviewed was passed by the Member Board of Revenue in his jurisdiction under section 8 of the Board of Revenue Act. The order of cancellation of allotment which fundamentally was passed for conspicuous reasons that land was not included in the schedule. The proposition of law remains that the second review is not competent before the Board of Revenue. As far the decision taken by the Board of Revenue to rectify the wrong done in case of the respondent No.3, the Board of Revenue enjoining, sufficient jurisdiction in exercise of its power under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 which in terms provides that the Board of Revenue may grant land to any person on any term and condition in his discretion, it thinks fit. The curative decision was taken by the Board of Revenue and for that there is fetter on its favour. Respondent No.3 was not a party and has no role in getting the allotment in respect of land in Chak No.450/JB.The allotment was made by the District Collector in view of his eligibility certificate. The whole price calculated by the District Price Assessment Committee was deposited in the treasury where after the conveyance deed was issued. After the proprietary rights have been conferred upon the allottee, he is not bound by the terms and condition and becomes absolute owner in respect of the land originally allotted to him by the Collector. Even on the strength of subsection (2) of section 30 of the Colonization of Government Lands (Punjab) Amended Ordinance, 1978, the Board of Revenue cannot cancel the allotment in respect of which the proprietary rights have been acquired and the Board of Revenue can go behind the allotment order only. If there is any allegation of fraud and misrepresentation against the allottee, the authority can go before the Civil Court. I am fortified in my view by Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD

441. The relevant portion of the judgment reads as under:

"Petitioner No.2 no doubt could proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under sections 16 and 30(2) of the Punjab Colonization of Government Lands Act, 1912, but not with regard to land permanently settled on the allottees. These provisions only related to tenancy/lessee rights, which were not involved in the case in hand. The respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land and in such an eventuality their allotment could not have been cancelled. In the case of Malik Harbhagwan's case (supra) it was held that transfers; once made in favour of the respondent could not be cancelled. Similar view was taken in a case decided by this ' Court, relying on the judgment of Malik Harbhagwan, (1940 PLR 529), and it was held that Collector could see. payment of purchase money and the fulfilment of conditions of sale, before executing sale-deed in favour of the allottee but thereafter he ceases with any authority to intervene after conferment of proprietary rights even though there has been breach of some condition of sale deed. It goes without saying that proviso to section 16 of the Act, 1912, which existed on the text book earlier to 1978 conferring jurisdiction of petitioner No.2 to scrutinize tenancy/lessee rights under the Punjab Colonization of Government Lands Act, 1912, stood removed w.e.f. 3-3-1948 through Ordinance, XII of 1978. Case of the respondents, as observed above, did not relate to tenancy rights, thus, petitioner No.2 was not equipped with any authority to cancel allotment in favour of Sana Ullah, after receipt of price and execution of sale-deed." In support of the said view Rehmat Ali and others v. Member (Colonies) Board of Revenue Lahore and 2 others 2002 YLR 2310 is also quoted with advantage. Nobody can sit as a Judge in his own cause.

6. The schemes under the Act V of 1912 are framed for the benefit of landless persons. Petitioner in any manner has no locus-standi to bring the cause of action before the Board of Revenue. He is simply ill wisher of the petitioner and running after him like anything. Host of applications have been made against the respondent No.3 for the same reasons and I believe that respondent No.3 has fallen victim of the complain vilifications. Appropriate writ cannot be issued in the aid of injustice and to the advantage of the acrimonious feeling of the writ petitioner.

7. The impugned order passed by the Member Board of Revenue is based on sound judicial consideration. The petition has no merits and the same is dismissed, with costs. H.B.T. /H-20/L Petition dismissed.