1985 PLP 1500 (SCMR)

NASIM HASAN SHAH, J.‑‑The facts of the case, according to the learned counsel for the petitioners, are as follows:‑‑ The petitioners are land owners of village Daukey, Tehsil Chunian, District Kasur. Their holdings on the commencement of the Consolidation Operation, in the Estate was classified thus:‑‑ K M Class‑I land. 72 10 Class‑II land. 22 2 Total 94 2 The land when converted into class‑I, was reckoned at 99 Kanals 8 Marlas. On 15‑6‑1965 the Scheme of Consolidation relating to the petitioners was confirmed, and the petitioners were allotted the following Khasra Numbers: 996 (1028 ‑ 1028/1), 999 (1027, 1000 (956), 995 (955), 994/1 (954), 991 (950), 990 (949), 998 (948), 984 (944), 985 (945), 986 (946), 981 (941), 982 (942), 983 (943), 978 (938), 979 (939), 980 (940), 977 (936), 976 (937), 974 (900), 378 (992), 376 (881), 385 (880 ‑ 879), 384 (878 ‑ 877), 383 (885), 948 (892), 949 (895), 352 (424 ‑ 423 ‑ 422), 364 (413), 397 (411), 388 (407), 471 (398), 373 (399)." Major part of the above land (184 Kanals 18 Marlas), according to the petitioners, was of Class‑‑ IV. Besides the petitioners were allotted 40 Kanals 11 Marlas Class ‑ I and 24 Kanals Class‑III. The case of the petitioners is that none of the land owners of the village questioned the allotment so made to the petitioners, and that the petitioners were delivered possession of the same simultaneously. After about two years thereafter, the Additional Deputy Commissioner (Consolidation)/ Collector, Lahore, himself took up the case in the purported exercise of powers under section 13(2) of the West Pakistan Consolidation of Holdings Ordinance, 1960 and by order, dated 1‑2‑1967, he set aside the Scheme of Consolidation, and remanded the case to the Consolidation Officer, for initiating proceedings afresh. In the order he took note of some alleged irregularities and gave certain instructions to be followed by the Consolidation Staff while implementing his order. These, inter alia, were to the effect that the previous possession of the owners should not be disturbed; no drastic changes be made in the scheme already sanctioned, and that the new Scheme be prepared with care and caution. Persuant to the order of the Collector, the Assistant Consolidation Officer, Chunian, took up the matter and sanctioned a new scheme on 27‑3‑1971. He took away Khasra Nos. 940, 945, 948, 949, 950, 954, 955, 956, 1027, 1028 and 1028/1, from the land allotted to the petitioners during the Scheme of 1965 and the petitioners by the aforesaid order were allotted land measuring 171 Kanals 4 Marlas. Aggrieved by the order of the Assistant Consolidation Officer, dated 27‑3‑1971, the petitioners preferred an appeal before the Collector, Lahore. This appeal was allowed on 16‑8‑1972, and the case again remanded to the Assistant Consolidation Officer. The operative part of the order reads thus:‑‑ "Keeping in view the classification of land the appellants and the respondents should be given land in dispute in such a way that nobody should gain more than his previous entitlement. The case is remanded to the Assistant Consolidation Officer with the directions that keeping in view the previous entitlement and previous classification of the land he should be satisfied and then the remaining land should go to the respondents". On remand, the Assistant Consolidation Officer, took up the case on 1‑3‑1974. He, however, on the short ground that the petitioners were not prepared to accept his offer restored to them their pre -consolidation holdings except Khasra No. 1702 with the result that the petitioners were, thus, practically deprived of all the area allotted to them under the 1965‑Scheme and the 1971‑Scheme. The petitioners thereupon filed an appeal against the above mentioned order, dated 1‑3‑1974. The same was, however, dismissed by order of the Collector (Consolidation), dated 9‑12‑1975. The revision before the Additional Commissioner (Consolidation), Lahore, was similarly dismissed by order, dated 25‑9‑1977.Against the revisional order, dismissed by order, dated 25‑9‑1977. Against the revisional order, dated 25‑9‑1977, the further revision was also dismissed by the Board of Revenue (Member Consolidation), by order, dated 27‑11‑1978. The petitioners thereafter called in question the various orders of the Consolidation Authorities in the Lahore High Court, Lahore, through a Constitutional Petition (Writ Petition No. 5865 of 1978). The same was, however, dismissed by the impugned order of the Lahore High Court, Lahore, dated 11‑5‑1981. Hence this petition for leave to appeal. The main contention raised in support of this petition is that the 1965‑Scheme, which was confirmed on 15‑6‑1965, was set aside by the Collector, by order, dated 1‑2‑1967. This order was passed in the exercise of the Revisional Powers under section 13(2) of the West Pakistan Consolidation of Holdings Ordinance, 1960 which empowers a Commissioner or Collector to call for the record of any case under the Ordinance pending before, or disposed of by any Revenue Officer of Consolidation Officer under his control. However, under subsection (3) of section 13 if in any case in which a Collector has called for the record under subsection (2), he is of the opinion that the proceedings taken or order made should be modified or reversed he must report the case with his opinion thereon for the orders of the Commissioner. In the instant case the final order was passed by the Collector himself on 1‑2‑1967 and the case was not forwarded to the Commissioner with his report for final orders. Therefore, the order, dated 1‑2‑1967 was a nullity in law, being ultra vires of the powers of the Collector. All further orders pursuant to this order are void and of no legal effect, as held by this Court in Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104, Mansab Ali v. Amir and others P L D 1971 S C 124 and Khuda Bakhsh v. Khushi Muhammad and others PLD 1976 SC

208. The result, according to the learned counsel, is that in law the land allotted to the petitioners vide order, dated 15‑6‑1965 is still intact and all the orders made thereafter are without lawful authority and of no legal effect. This contention, inter alia requires further consideration. Leave is, accordingly, granted. Security to be furnished in the sum of Rs.2,

000. The appeal shall be made ready on the present record, with liberty to the parties to add further documents, if any. Status quo as to possession shall be maintained and the appeal will be heard on an early date at Rawalpindi. M.I. Leave granted