2022 PLP 1129 (MLD)

SAFDAR SALEEM SHAHID, J.

Through instant constitutional petition, petitioners have assailed the order dated 19.10.2016 passed by Member (Judl-II) Board of Revenue, Punjab, Lahore/respondent No.1 in review petition No. 227/2008 in ROR No. 856/1980 titled as 'Muhammad Ismail v. The Province of Punjab and others' with the contention that the aforesaid order be set aside being illegal, against the law, without jurisdiction and lawful authority.

2. Brief facts necessary for disposal of instant writ petition are that land measuring 26-Acres 5-Kanals and 10-Marlas, Lot No.3, situated in Chak No.4/Fordwah Tehsil Chishtian District Bahawalnagar, was allotted to one Muhammad Ismail son of Faqir Muhammad the predecessor of present petitioners under the Tube Well Sinking Scheme by the order of District Collector, Bahawalnagar on 26.11.1961. The said land was resumed in favour of the State vide order dated 25.03.1968 by the Deputy Commissioner/Collector. Feeling aggrieved, petitioner filed an appeal before Additional Commissioner, Bahawalpur, against the aforesaid resumption order which was dismissed on 26.09.1968. The petitioner challenged the orders dated 25.03.1968 and 26.09.1968 through a revision petition before Member (Colonies) Board of Revenue Punjab, which was also dismissed vide order dated 02.12.1968. Thereafter, petitioners filed writ petition before this Court and the same was accepted vide order dated 26.01.1976 and impugned resumption orders of land were declared without authority. Afterwards, District Collector, Bahawalnagar, again resumed the aforesaid land in favour of the State vide order dated 02.07.1979. In 2nd round of litigation allottees preferred an appeal against the resumption of land before Additional Commissioner, Bahawalpur, which was dismissed vide order dated 20.02.1980. The allottee Muhammad Ismail preferred ROR Nos. 856 of 1980 before Member (Colonies) Board of Revenue, Punjab, which was accepted vide order dated 26.03.1981 with the following observations: 'That the area lying outside the Municipal Committee limits should be restored and the request of allottee for allotment of alternative land shall be considered in the light of the policy of Government on the subject.' Being dissatisfied with the aforesaid direction, allottee filed writ petition before this Court which was disposed of with the direction to allottee to approach the District Collector who shall consider the case of allotment of alternative land in lieu of land resumed earlier according to law of the allotment policy of the Government warranted. The said allottee in compliance of direction of this Court approached the District Collector who 3rd time resumed the land in favour of the State vide order dated 16.04.2002 on the ground that the land/area was situated within the prohibited zone and its proprietary rights could not be granted. The District Officer (Revenue) directed the allottee to apply for allotment of alternative land to the Board of Revenue, Punjab, Lahore. The allottee filed an application before Member (Colonies) Board of Revenue, Punjab, Lahore, for the implementation of order dated 26.03.1981 passed by Member (Colonies) in ROR No. 856/1980 filed by the petitioners upon which Board of Revenue called for a report from District Collector, Bahawalnagar. The said application filed by the allottee was accepted vide order dated 29.01.2008 by Member (Judl-II) Board of Revenue, Punjab, Lahore, with the direction to DOR Bahawalnagar and the DDOR Chishtian to implement the order dated 26.03.1981 passed by Member (Colonies) Board of Revenue in ROR No. 856/1980. The State through District Collector Bahawalnagar filed a time barred review petition in ROR No. 856/1989 before Member (Judicial-II) Board of Revenue Punjab which was accepted vide order dated 19.10.2016. Hence, this petition.

3. Notices were issued to the respondents and learned Assistant Advocate General appeared on behalf of Province of Punjab and contested the writ petition.

4. Learned counsel for the petitioners contended that the review petition was time barred and order passed by Member (Judicial-II) Board of Revenue, Punjab, in the review petition was totally against the law and facts of the case. The date of allotment was crucial date which was to be kept in view while deciding the question of resumption of land to an allottee. The date of allotment was to be considered by the authority for approval or rejection of the prayer. While deciding the miscellaneous application in ROR No.856/1980, Member Judicial (Judl-II) Board of Revenue, Punjab, specifically mentioned that the petitioner's right to enjoy the leased land under the law has been guaranteed under Article 23 of the Constitution of the Islamic Republic of Pakistan. The resumption has been declared to be without lawful authority and cannot be re-opened except any fresh ground is available which is not existed in the record. As per Article 201 of the Constitution of the Islamic Republic of Pakistan 1973, the decision of this Court are binding on all the Courts, Tribunals, Board of Revenue and the public functionaries. At the time of allotment, the land in question was not falling within the prohibited zone. Prays for acceptance of instant writ petition.

5. Learned law officer on the other hand contended that since the land in question falls within the prohibited zone, therefore, it cannot be allotted to the petitioner under the scheme. It was further contended by learned law officer that at the time of earlier allotment to the predecessor in interest of the petitioners, it was not pointed out that whether this land falls within the prohibited zone or outside, so this matter relates to the inquiry. Prays that instant writ petition be dismissed.

6. Arguments heard. Record perused.

7. It has been noticed that on 26.11.1961 land measuring 26-Acres 5-Kanals and 10-Marlas, Lot No.3, situated in Chak No.4/ Fordwah Tehsil Chishtian District Bahawalnagar, was allotted to one Muhammad Ismail son of Faqir Muhammad the predecessor of present petitioners under the Tube Well Sinking Scheme by the order of District Collector, Bahawalnagar, which was resumed in favour of the State vide order dated 25.03.1968 by the Deputy Commissioner/Collector. Appeal and revision petition filed against resumption order were also dismissed. Writ petition filed by the petitioner before this Court was accepted vide order dated 20.01.1976 and impugned resumption orders of land were declared without authority. Again District Collector, Bahawalnagar, resumed the aforesaid land in favour of the State vide order dated 02.07.1979. In 2nd round of litigation appeal filed by the allottees against the resumption of land was also dismissed. The allottee Muhammad Ismail preferred ROR No. 856 of 1980 before Member (Colonies) Board of Revenue, Punjab, which was accepted vide order dated 26.03.1981 with the aforesaid direction. Feeling aggrieved with the aforesaid direction, allottee filed writ petition before this Court which was disposed of with the direction to allottee to approach the District Collector who was directed to consider the case of allotment of alternative land in lieu of land resumed earlier according to law of the allotment policy of the Government warranted. In compliance of direction of this Court allottee approached the District Collector who resumed the land in favour of the State vide order dated 16.04.2002 on the ground that the land/area was situated within the prohibited zone and its proprietary rights could not be granted. The District Officer (Revenue) directed the allottee to apply for allotment of alternative land to the Board of Revenue, Punjab, Lahore. The allottee filed an application before Member (colonies) Board of Revenue, Punjab, Lahore, for the implementation of order dated 26.03.1981 passed by Member (Colonies) in ROR No. 856/1980 filed by the petitioners upon which Board of Revenue called for a report from District Collector, Bahawalnagar. The said application filed by the allottee was accepted vide order dated 29.01.2008 by Member (Judl-II) Board of Revenue, Punjab, with the direction to DOR Bahawalnagar and the DDOR Chishtian to implement the order dated 26.03.1981 passed by Member (Colonies) Board of Revenue in ROR No. 856/1980. The State through District Collector Bahawalnagar filed a review petition in ROR No. 856/1989 before Member (Judicial-II) Board of Revenue Punjab which was accepted vide order dated 19.10.2016. The review application has been allowed on the ground that as the land in question is situated within the prohibited zone, therefore, propriety rights cannot be granted to the petitioners. As regards the prohibited zone, the instructions were that the distance should be measured as required when the allotment was made and not as when the proprietary rights are conferred. The date of allotment was the crucial one, which was to be kept in view while deciding the propriety rights of the land to an allottee. The District Officer (Revenue) and Board of Revenue had to consider this date for the approval or rejection of the prayer. The stance taken by the learned law officer was not logical that since the land in question falls within the prohibited zone, therefore, it cannot be allotted to the petitioner under the scheme. It was further contended by learned law officer that at the time of earlier allotment to the predecessor in interest of the petitioners, it was not pointed out that whether this land falls within the prohibited zone or outside, so this matter relates to the inquiry. The said contentions of learned law officer are not logical. Prior to this no one has pointed out this fact before any forum. The petitioners and state functionaries are contesting the matter in third round of litigation before different forums. At the time of allotment of the land in question to the predecessor in interest of the petitioners, the same was not falling within the prohibited zone. Reliance is placed in this regard on the case of "Province of Punjab through District Collector Vehari v. Ghulam Muhammad" (1994 SCMR 975).

8. In view of what has been discussed above, instant writ petition is accepted and impugned order dated 19.10.2016 passed by Member (Judicial-II) Board of Revenue, Punjab Lahore, is set aside. ZH/M-75/L Petition allowed.