1994 PLP 372 (SCMR)

Date of hearing: 15th May, 1990. SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted in a consolidation matter to examine the jurisdiction of the Collector to reopen a Scheme of consolidation finalized in 1965 without seeking the permission of the Commissioner as is required under section 13(3) of the Consolidation of, Holdings Ordinance, 1960 (hereinafter referred to as the Ordinance).

2. The appellants' case as set out was that in the year 1965 the consolidation had been completed in village Daukey Khanyana, Tehsil Chunian, District Kasur. The position of the land‑owners, according to the consolidation had changed. The consolidation fee had been paid. They had worked and developed the land obtained in consolidation. The Collector without seeking the permission of the Commissioner under subsection (3) of section 13 of the Ordinance, on the assumption that the Scheme had not been sanctioned and duly approved by the competent officer, proceeded to revise it and substitute it by an altogether different Scheme in March, 1971, thereby undoing the entire consolidation earlier completed in the, District. In the process, the appellants were deprived of a part of the land which had been allowed to them in consolidation.

3. The original record of the consolidation proceedings in the village was called for, in order to settle the jurisdictional fact which led to the Scheme of March, 1971. From the record it appears that on the 29th of January, 1962, an advisory committee was formed and also the general principles governing the consolidation were approved. Thereafter, the consolidation proposals in respect of the appellants were confirmed by the Assistant Colonization Officer in a public gathering on 15‑6‑1965. This conclusion is also borne out by the final order of the Member, Board of Revenue passed on 21‑11‑1978, where the following observations were made:‑‑ "Brief facts of the case are that consolidation scheme of the village was prepared by the ACO on the basis of Jamabandi 1960‑

61. Khata No. 118 of the petitioners in the Register Scheme was confirmed by the ACO on 15‑6‑1965. But the Collector (Cons.) on examining the record found that the scheme was full of defects and that the Register Haqdaran was also not prepared correctly. He, therefore, through his order dated 1‑2‑1967 ordered fresh consolidation after preparing Register Haqdaran afresh. Thereafter, consolidation scheme was confirmed by the ACO on 31‑3‑1971." The Member, Board of Revenue, however, did not interfere with the revised scheme and did not restore the 1965 arrangement because of the reasons recorded by him as hereunder:‑‑ "The petitioners cannot claim that area which was allotted to them in 1965 as that confirmation was set aside and fresh consolidation was ordered by the Collector (Cons.). Moreover, the disputed land claimed by the petitioners did not belong to them before consolidation. The case of the petitioners was thoroughly gone into before the Courts below. The petitioners cannot claim others' land as a matter of right. I see no merits in the case:' 4.The Additional Commissioner in his order dated 25‑9‑1977 proceeded on the assumption as hereunder:‑‑ "The petitioners claimed that in 1965, the land had been consolidated for the first time and that whatever land had been given to them at that time should be restored to them. The impugned order of the learned ADC(C), clearly shows that no consolidation operations had been carried out in 1965 and that there was no record available in respect of it. The Patwari (Cons.), who is present before me also says the same thing. The demand of the petitioners, therefore, for land in accordance with the consolidation operations of 1965, cannot be accommodated:" Earlier, the Collector in his order dated 9‑12‑1975 proceeded on the following assumption:‑‑ "The Consolidation Patwari, on the other hand, has stated that his record is absolutely silent as to whether the consolidation scheme of this village was ever confirmed on 30‑6‑1965 as alleged by the counsel for the appellants. The respondents who have made their appearance have also denied that the consolidation scheme of this village was ipade on 30‑6‑1965. In the absence of any official record, it cannot be presumed that the consolidation scheme of this village was confirmed on 30‑6‑1965. The learned counsel for the appellants has also not been able to establish that the field Nos. now claimed by the appellants were allocated to them in the so‑called consolidation scheme of 1965."

5. It is clear from the finding of the Member, Board of Revenue, that in the circumstances and on the facts found by it for revision of the scheme and for disturbing the order of the Assistant Colonization Officer, the Collector required, under subsection (3) of section 13 of the Ordinance, permission of the Commissioner, which had not been obtained. Hence there was a jurisdictional defect in revising the Scheme or passing a fresh order.

6. The appeal is, therefore, accepted. The judgment of the High Court and the Member, Board of Revenue is set aside and the proceedings are remitted to the Board of Revenue for determining afresh whether it is a case where revision of the consolidation scheme of 1965 is necessary and called for and if it comes to the conclusion that interference is justified, it should proceed according to the law in doing so and not otherwise. No order is made as to costs. A. A. /I-178/ S Appeal accepted.