1987 PLP 503 (SCMR)

Subject: Reconstruction of consolidation record of village Rai, Tehsil and District Lahore. Reference: Correspondence resting with your memorandum No. ADC(C)‑77/632, dated 31st March, 1977 on the subject noted above. Mr. H. Aslam Awais, Member (Consolidation) Board of Revenue Punjab. The Board of Revenue has examined the record of village Rai, Tehsil and District Lahore and has observed that it will not be proper to proceed further on the basis of record of dubious and unreliable nature as it will create problems and prolonged litigation among the landlords, so it has accordingly been decided that consolidation operations should be started afresh in this village. (Sd.) Secretary (Consolidation) for Member (Consolidation), Board of Revenue Punjab. No.1010‑77/250 CHPI A copy is forwarded to the Additional Commissioner (Consolidation) Lahore Division, Lahore, for information and necessary action, with reference to the Additional Deputy Commissioner (Consolidation) Lahore's endorsement No. ADC(C)‑77/633, dated 31st March, 1977 to his address. Sd/‑Secretary (Consolidation) for Member (Consolidation) Board of Revenue Punjab." The above letter was followed by another letter dated 12‑7‑1977 directing that consolidation work should be finalised within six months. Consolidation record, as directed, had in the meantime been reconstructed. Aggrieved from the order dated 6‑6‑1977, Sufaid Khan and others filed a constitutional petition in the High Court challenging the powers of the Board of Revenue exercised on the executive side to pass the order of consolidation afresh. This writ petition was allowed by a learned Single Judge vide his order dated 29‑3‑1982.

3. Learned counsel for the parties heard and the orders passed in this case by the various functionaries have been perused, The learned counsel for the appellants vehemently disputed the finding of the High Court and his contentions were that the learned Single Judge in allowing the writ petition has totally ignored the fact that the reconstructed record has been found to be unsatisfactory, the basis of the record was dubious, unreliable and the consolidation staff could not prepare the field map of the village on the basis of the one prepared at the time of confirmation of the scheme, for which reason the field staff had failed to demarcate and identify the position of the area given to the right‑holders at the time of confirmation of the scheme in 1962. He further contended that the Board of Revenue is also the controlling authority and is bound under section 40(1) of the Land Revenue Act read with section 5(1) of the West Pakistan Board of Revenue Act of 195; to prepare proper record of the last Settlement in the estate. He also submitted that the Board of Revenue has got a plenary power even in the case of disagreement of the land owners to direct consolidation of holdings which is an economic reform to which no exception can be taken by virtue of the powers conferred on the Board of Revenue by section 3(1) read with the provision of section 4(2)(al of the Ordinance VI of 1960 and the rules framed thereunder.

4. We have carefully considered the submissions made by the learned' counsel for the appellants and we are of the view that the same have no force. The perusal of the record shows that the plea of the right‑holders for fresh consolidation of the whole village had been turned down on judicial side on three occasions. The first order in this respect was passed by the Member, Board of Revenue, while exercising his revisional jurisdiction, on 11‑6‑1963, the second by another Member on 3‑8‑1967 and the third by yet another Member of the Board of Revenue while dismissing the review petition on 29‑4‑1972. None of these orders had been challenged by the aggrieved persons through further judicial proceedings. The learned Single Judge while disposing of the writ petition had taken note of the plea of reconstruction of the record and repelled the same in the following words: "As far as the question of reconstruction of the record is concerned, the learned counsel has shown a report of the Consolidation Officer of 3‑2‑1980 to the effect that the record has been reconstructed. It was presumably reconstructed a long ago because in the course of Writ Petition No. 1480 of 1969 it had been submitted by Ch. Muhammad Sadiq, Advocate on 14‑1‑1972 that the record had been reconstructed. Even the impugned order of 6‑6‑1977 gives an indication that the record has been prepared although it was not considered proper to proceed further on the basis of that record as it was of a dubious and unreliable nature. There is no doubt, therefore, that the record has been reconstructed. How good it is, however, is a different matter and by itself cannot be a justification for ordering a fresh consolidation. Regarding the record yet another report submitted by the Consolidation Officer in August, 1980 to the Board of Revenue has been shown by the learned counsel for the State. According to this report while the Consolidation Officer is not entirely happy with the reconstructed record yet he feels that it can be improved upon to the satisfaction of all concerned after the decision of the present writ petition. It is therefore. not correct that the reconstructed record cannot be the proper basis for proceeding further with the consolidation proceedings which had been concluded in 1962."

5. As for the second contention of the learned counsel for the appellants qua the powers of the Board of Revenue for ordering fresh consolidation, this too has received the consideration of the learned Single Judge who came to the conclusion that the Board of Revenue have no powers on the administrative side to nullify the effect of judicial orders and by so holding he observed: "The question of powers of the Board of Revenue of ordering a fresh consolidation came up for considerable discussion. It is true that the Board of Revenue acts in a dual capacity. On the administrative side, it controls the consolidation proceedings and on the judicial side it deals with the matter arising out of it. But once a matter has been decided on the judicial side, the exercise of executive authority to nullify the effect of judicial decisions will be an improper exercise of authority. Nullifying the effect of judicial decisions even by legislative process has never received a universal backing, although it is not unknown to our system of law and examples of this can be found in our legislative history but revoking of a judicial decision by an administrative process is certainly something new and cannot be approved of." We are inclined to agree with the observations reproduced above. In this case, admittedly the Board of Revenue exercising their powers on the judicial side thrice rejected the plea of consolidation, afresh, it has, therefore, no powers on the administrative side to set at naught the judicial orders, more so when they had attained finality. Reliance in this respect is placed on Commissioner of Income‑tax East Pakistan v Fazlur Rahman P L D 1964 S C 410, wherein it has been held: "Having regard to the nature of jurisdiction that is conferred by section 33‑A it is not quite easy to appreciate how an order under this section could be an administrative order. Admittedly the order with which the Commissioner of Income‑tax interferes with when exercising jurisdiction under section 33‑A that is, the order of assessment by the Income‑tax officer or the appellate order of the Appellate Assistant Commissioner, is a judicial order. That a judicial order should be set aside by means of an administrative order is a concept as yet unknown to our system of jurisprudence. Administrative orders may be set aside by judicial orders, but no provision of any law has been cited of a reverse case. The Commissioner of Income‑tax while dealing with an application under section 33‑A has to base his decision on conclusions of fact or law which conclusions (when they interfere with the order of the subordinate authority) override similar conclusions reached by the Income‑tax Officer or the Appellate Assistant Commissioner and it is not easy to contend that a conclusion of law or fact not reached in a judicial manner can supersede by one reached in a judicial manner." 6 In view of the above we find no merit in this appeal and dismiss the same with costs. S.Q./4438/S Appeal dismissed.