1993 PLP 1358 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances.

1. The appellant was leased Lot No.18 under the 15 years' Lease Scheme by drawing of lots in the year‑1971. This was unfit of cultivation being Sem and Thur. The appellant applied to the Assistant Commissioner/Collector, Sargodha for its exchange with the land in dispute comprising Square No.29, Killa Nos. 1 to 10, 14, 15 measuring 98 Kanals 15 Marlas. The application was rejected by the Collector on 27‑6‑1972. The appellant filed an appeal. The exchange was allowed by the learned Additional Commissioner, Sargodha Division on 6‑10‑1972 with the following observations:‑‑ "I have heard the arguments of the learned counsel for both the parties and have seen the connected record as well. The learned counsel for ,appellant has contended that the area allotted to the appellant under 15 years' lease Scheme in Sem‑Thur affected and is uncultivatable which is of no use. The appellant is a prisoner of war in East Pakistan and the State land applied for exchange is available and is on tender with his father, who is ready to transfer the possession and has no objection to the exchange of land with the lot of his son. Wali Muhammad son of Lal, who was allowed to become a party to this case has no case whatsoever. Under the circumstances I accept the appeal and set aside the impugned order. Accordingly the exchange of land allotted to the appellant, is allowed with that of the land which is in the possession of his father in Square No. 29 Chak No. 188/NB, Tehsil and District Sargodha". The order was challenged by Wali Muhammad in revision but it was dismissed by the learned Member. Board of Revenue on 19‑10‑1972. Wali Muhammad filed a Writ Petition No.1905 of 1975 in the Lahore High Court which was allowed and case remanded to the Board of Revenue, Punjab for fresh decision: In pursuance thereof, the learned Member (Colonies), Board of Revenue reheard the matter and rejected the revision petition filed by Wali Muhammad on 13‑5‑1982 and upheld the exchange in favour of the appellant.

2. On issuance of notification dated 3‑9‑1979 the appellant applied for conferment of proprietary rights on 18‑12‑1979. On office noting that the land was Charagah, the learned Collector rejected the application, vide order dated 11‑8‑1982. The appellant's appeal was dismissed by the learned Commissioner, Sargodha Division on 26‑12‑1982 and his revision petition by the learned Member, Board of Revenue on 1‑3‑1983. The appellant challenged the order through Writ Petition No.2662 of 1984 which was dismissed by a learned Judge on 1‑10‑1989. Leave to appeal was granted to the appellant on 25‑6‑1990.

3. Contention of the learned counsel for the appellant is that the learned Member, Board of Revenue fell in error in his impugned order dated 1‑3‑1985 in assuming that the initial allotment of the appellant was irregular. It is submitted that it was not so. The allotment had been made by the Commissioner, which was upheld by the learned Member (Colonies), Board of Revenue and also after the remand by the High Court, it was, again, upheld by the learned Member, Board of Revenue. Consequently it co0d not be said that the allotment was irregular. He had next contended that the proprietary rights have not been conferred on the ground that the land was Charagah. The learned counsel submitted that in numerous cases conferment of proprietary rights on area exceeding 39 acres was allowed by the authorities. In this case the Charagah area was 70 acres. Discriminatory treatment of the appellant is contrary to the principle that all are equal before law.

4. Learned counsel for the respondents‑has supported the impugned order.

5. After hearing the learned counsel for the parties, since the impugned order of the learned Member, Board of Revenue had proceeded on a misunderstanding of the allotment, we allow the appeal and remand the case for fresh decision in accordance with law and precedents. In the circumstances, the parties are left to bear their own costs. H.B.T./M‑1756/S Case remanded.