1997 PLP 1217 (CLC)

Through this Constitutional petition the petitioner has challenged the order dated 12‑12‑1979, passed by the Member, Board of Revenue, who while accepting respondent NoWs revision petition set aside the order dated 16‑8‑1972, passed by the Additional Commissioner (Colonies) whereby respondent No.4's.appeal against the allotment of Mueen Ahata in favour of the petitioner was dismissed. .

2. Petitioner was allotted Mueen Ahata by the Assistant Commissioner/Collector on 15‑10‑1970. This order of allotment was challenged before the Additional Commissioner (C) vide the afore‑referred order dismissed the same on the ground that the Collector, had rightly held the petitioner Mst. Karamat Bibi 's right superior to that of Taj Muhammad and respondent No.4 can apply for some other available Ahata in the Chak in question. This order was challenged before the Member, Board of Revenue, in revision which was accepted and the learned Member (Colonies), Board of Revenue, held " respondent Karamat Bibi petitioner is land owner while the petitioner (respondent in this petition) is Mueen Abadkari. The Patwari states that there are still eight Ahatas Abadkari available for allotment. A Mueen Ahata, therefore, cannot be allotted to a landowner when Abadkari Ahata are available. The learned counsel for the petitioner has made following submissions in support of this petition, (i) That the learned Member, Board of Revenue sitting in revisional jurisdiction could only adjudicate upon the law point and could not set aside concurrent findings of tribunals of competent jurisdiction on question of facts. (ii) That there is no law prohibiting allotment of Mueen Ahata to non Mueen. (iii) That the respondent No.4 had filed time‑barred appeal which had rightly been dismissed and in view of the findings arrived at a valuable right had accrued in favour of the petitioner.

4. The learned counsel for the respondent No.4 submits that the allotment order is not sustainable in law as Ahata reserved for mueen could not have been allotted to non‑mueen. He further submits that such Ahata which is earmarked can only be allotted to non‑Mueen tenant if its classification/category is changed and that can only be done by the Collector. He further submitted that the petitioner was a landowner and her heirs are allotees of state land in the same Chak.

5. Mr. Yawar Ali, Additional Advocate‑General, has supported the impugned order by referring Memo. No. 1055‑70/1177 CL,IV, dated the 18th April, 1970, to contend that vacant Mueen site/Ahata can be allotted to non Mueen tenant only in case no baqia site for allotment to tenant is available. According to him the impugned order shows that the other Ahatas were available for allotment and the ahata which was meant for Mueen could not have been allotted to the petitioner.' 5‑A. I have heard learned counsel for both the parties, and have also heard learned Additional Advocate‑General, Punjab. The letter dated 10‑4‑1970, issued by the Board of Revenue, to which reference has been made by the learned Law Officer reads as under:‑‑ According to existing instructions contained in Government Memorandum No.3396‑G, the 14th December, 1913, vacant Mueen sites can be allotted to tenants and proprietors in case there are no baqya/sites available for allotment in the blocks reserved for tenants and proprietors but there are sites available _in Mueen's blocks which are above the actual requirement of the Mueens. Government has given further consideration to this problem and is pleased to empower the Collector, to change the category of any Ahata. (i) Provided that no such change shall be allowed without consultation by the Revenue Officer, Halqa with the persons whose category is to be effected by such a change; and (ii) Provided further that the particular category which stands to gain by such a change should have exhausted its existing allocation before such a change could be made."

6. It is, therefore, apparent that petitioner could not have been allotted a Ahata which was meant for Mueen only. Mueens are non‑proprietors and the, A Government has earmarked certain ahatas for them. Moreover when other Ahatas were available the same could have been allotted to the petitioner.' Coming to the point raised by the learned counsel that the Member, Board of Revenue, could only decide a question of law in a revision petition, I am of the view that this argument is devoid of force in the facts of this case. Because the instruction issued by the Board of Revenue from time to time assume the ...... status of statutory instructions and it was. so held by the august Supreme Court, in Muhammad Asghar v. Safia Begum (PLD 1976 SC 435). It was observed at page 436 as under‑ (c) "Colonization of Government Lands(Punjab) Act (V of 1912)‑ Ss.10(2),(3) & 11 and Government Grants Act(XV of 1895), Ss. 2 & 3 Grant of tenancy according to "statement of conditions issued under Act V of 1912‑‑Deemed to be transfer of land within meanings of Act XV of 1895 and governed by provisions of such act‑‑‑Provincial Government issuing "statement of conditions" under the Act such "statements", held, constitute statutory instructions having force of law." Thus, when an order of a Revenue Officer, was challenged on the ground that the same was violative of standing instruction issued by the Board of Revenue, it g was a question of law which the Board of Revenue had to adjudicate upon.

7. Learned Member, Board of Revenue had rightly observed that when Abadkari Ahatas were available for allotment a Mueen Ahata could not have been allotted to the petitioner. So for as the question that the respondent No.4 had filed time‑barred appeal is concerned I notice that the appeal filed by the respondent No. 4 was condoned by the Additional Commissioner (C), vide his order, dated 16‑8‑1972, but he dismissed the same on merits.

8. For what has been discussed above the impugned order passed by Member, Board of Revenue, does not disclose any jurisdictional defect to 1c; warrant interference in the Constitutional jurisdiction of this Court. There is no merits in this petition, which is hereby dismissed. A.A./K‑209/ L Petition dismissed.