1988 PLP 372 (CLC)

Ch. Muhammad Yaqoob Sidhu for Petitioner. Ch. Ijaz Ahmad and Allah Wasaya Malik for Respondents. Dates of hearing: 28th October and 28th November, 1987. The petitioner, Muhammad Anwar, has moved this Constitutional petition praying therein that the impugned order dated 6‑11‑1986 passed by the learned Member (Colonies) Board of Revenue, Punjab, and all other orders in favour of the contesting‑respondents may be declared without lawful authority and of no legal consequence.

2. On 18‑7‑1987 a notice of the petition was issued to the respondents and in compliance thereof the said respondents are present and are represented through their learned counsel.

3. Briefly stated the facts of the case are that an entitlement certificate containing therein 5450 P.I.Us. was issued in favour of the contesting respondents by the Claims Authority and later on in satisfaction' of the above referred claim, the disputed land alongwith other land was allotted and confirmed to them. It may be noted that on subsequent verification, the M.R.V. certificate for 2295 PIUs was finally issued in favour of the respondents and as a consequence thereof the respondents surrendered a piece of land measuring 294 Kanals 11 Marlas under M.L.R. 89/91 in favour of the State. However, the respondents expressed their willingness to purchase the land. At the same time all the respondents protested against the surrender of the land on the ground that the Central Record Room Office has not correctly calculated their P.I.Us. and consequently the revised entitlement certificate to the extent of 2295 PIUs instead of 5450 PIUs, was .wrong. In the meantime the remaining land measuring 187 Kanals 13 Marlas surrendered under protest by the respondents was auctioned by the Government on 12‑11‑1966 through two lots. Lot No. ‑ 25 (86 Kanals 7 Marlas) was auctioned and was purchased by Mumtaz Ahmad and lot No. 26 (100 Kanals 6 Marlas) was auctioned in favour of Intizam‑ud‑Din and others. The auction‑purchasers deposited Rs.2,500 and Rs.2,800 respectively, as 1/4th of the auction price on the same day and the balance auction price was to be paid by means of instalments. However, the said auction‑purchasers did not deposit the balance amount of the auction‑price.

4. The Central Record Office after checking the relevant record and after due re-verification issued a revised entitlement certificate M.R.V. on 2‑4‑1976 for 3155 PIUs in favour of the respondents and consequently the original entitlement certificate of the respondents was raised to 5450 PIUs. Armed with the latest entitlement certificate issued by the Central Record Office, the respondents approached the Deputy Commissioner, Sheikhupura with a petition praying that their original surrendered land be restored to them and the learned Deputy Commissioner, Sheikhupura on 7‑2‑1981 restored the land to the respondents after resuming the same from Mumtaz Ahmad and Intizam ud‑Din etc. on the ground that they did not fulfil the terms and conditions of the auction inasmuch as they did not clear the balance auction‑price. The auction purchasers, Mumtaz Ahmad and Intizam‑ud Din etc. went in appeal before the learned Additional Commissioner (Revenue), who heard and dismissed the same on 31‑3‑1981. The said auction purchasers also challenged the aforesaid order of resumption of land from their name by means of a writ petition which too was dismissed in limine by the High Court vide order dated 27‑10‑1984. After the dismissal of the writ petition of Mumtaz Ahmad etc. the present contesting‑respondents, Iqbal Ahmad etc. moved the Deputy Commissioner/ Collector, Sheikhupura for implementation of his order dated 7‑2‑1981. The learned Deputy Commissioner, Sheikhupura, issued direction to the Assistant Commissioner/ Collector to restore the land to the respondents which was surrendered by them earlier. The land in question was resumed on 28‑1‑1986 under section 25 of the Colonization of Lands (Punjab) Act, 1912 and it was directed that possession be taken. The petitioner filed an appeal against the orders dated 7‑2‑1981 passed by the Deputy Commissioner/ Collector and the Assistant Commissioner/ Collector, Sheikhupura, dated 28‑1‑1986 on the ground that he has been in the cultivating possession of the disputed land in village Bhiki as tenant after the said land was surrendered by the contesting respondents under M.L.R. 89/91 and he took the plea that the Settlement Department was under legal obligation to have offered the land in question to him for sale. He further submitted that the orders of resumption of the land were without notice to him. He stated that the land in question could not be taken away from him and the same could not be re‑allotted to the respondents on the basis that P.I.Us. have been increased in favour of the respondents by the Central Record Office. The learned Additional Commissioner, after hearing the petitioner rejected his appeal and held that the land originally allotted to the respondents has been restored to them against their verified claims and as such, the petitioner had no case whatsoever on merits. The petitioner, as stated earlier, challenged the above referred order by filing a revision before the learned Member (Colonies) Board of Revenue, Punjab who heard and dismissed the same vide his order dated 6‑11‑1986.

5. Learned counsel for the petitioner submitted that it is established on record that the petitioner has been in the cultivating possession of the land in question since Kharif 1970 and as such he was entitled to purchase the same on the basis of his possession. Learned counsel stated that after repeal of the Evacuee Laws on the subject vide the Evacuee Laws (Repeal) Act, 1975, the Settlement Authorities have become functus officio in the matter and that they have no authority whatsoever to re-verify the claim of the respondents and thereafter to issue a fresh entitlement certificate enhancing their claim. Learned counsel stressed that since the land is in the occupation of the petitioner, as such, it cannot be held to be lying available for its retransfer to the contesting respondents. Learned counsel submitted that after the surrender of the land by the respondents, they are stopped under law to reclaim the same. Learned counsel urged that despite the fact that the land in question had been subjected to prolonged litigation but the fact remains that his entitlement qua the land in question was not discussed on merits by any Authority. Learned counsel appearing on behalf of the contesting respondents submitted that the impugned order was passed as back as 6‑11‑1986 by the learned Member (Colonies) Board of Revenue and the instant writ petition has been filed on 16‑7‑1987 and as such the same suffers from laches and delay and that no explanation whatsoever has been given by the petitioner for this inordinate delay in filing the writ petition in the High Court. Learned counsel contended forcefully that the claim of the respondents has been re-verified and that the entitlement certificate has been issued to them containing therein 5450 P.I. Us. He stated that on the basis of the re-verification of their claims, the land in question was rightly and correctly restored to them as commanded by the law on the subject. He maintained that the land in question was surrendered under protest. Learned counsel also took the plea that the petitioner has been acting as a Special Power‑of‑Attorney holder on behalf of the previous writ petitioner in the High Court, and therefore, he cannot be permitted under law to take a turn and to say at this stage that he may be offered the land in question for its purchase. Learned counsel stated that the earlier writ petition was dismissed by the High Court on the subject and that no fresh writ can be filed by the present petitioner on the same pleas. Learned counsel stated that material facts have been concealed by the writ petitioner from the High Court and, therefore, the petitioner has come with unclean hands and no relief tan be given to him under the discretionary remedy of the writ jurisdiction of the High Court.

6. I have heard the learned counsel for the parties at considerable length and have perused the record very minutely. I am of the view that the land in question has rightly and correctly been restored to the respondents against their verified claim. The writ petitioner has no right whatsoever to claim the land in question on the ground that the land in question was not at all available for its transfer to him on the basis that he was in possession of the same. It may be observed here that the present petitioner has been litigating before the various forums on behalf of the auction‑purchasers, namely, Mumtaz Ahmad and Intizam‑ud‑Din etc and, therefore, under law, he cannot be allowed to re‑agitate the matter again and again on various pleas. In the earlier round of litigation the petitioner acted as Special Attorney on behalf of Mumtaz Ahmad etc. and he filed appeal against the original order passed by the Additional Commissioner which was rejected by him on 31‑3‑1981. He then went in Writ Petition No. 2946 of 1981 before the High Court which was later on withdrawn on 4‑5‑1984. It is clear from the narration of these facts that after losing the litigation the petitioner invented another plea that he was in the cultivating possession of the land in question and, therefore, under the provisions contained in section 3 of the Displaced Persons Evacuee Laws (Repeal) Act, 1975, he was entitled to purchase the said land. In view of the chequed history of the case, I am of the view that the petitioner is not at all entitled to claim the land in question on the basis of his possession. It may be noted that the claim of the petitioner that he was in possession of the disputed land is seriously disputed by the Settlement Department. In parawise comments submitted by the Deputy Commissioner/ District Collector, respondent No. 3, it is stated in reply to para 6 of the writ petition that the petitioner got his name entered in the revenue record with the connivance of the field staff. It is further reported that even after the first entry in register of Khasra Girdawari in Rabi 1971, the land in question remained Banjar Qadeem in the subsequent entries. The reporting authority concluded that all this has been done by the petitioner by commission of fraud and in fact he was not in the cultivating possession of the land in question. I am convinced that the petitioner has not come to this Court with clean hands inasmuch as he is not in possession of the land in question as required by law. Additionally, the writ petition suffers from laches and delay. The petitioner has not at all been able to explain this inordinate delay in filing the writ petition in the High Court. The last impugned order in the case was passed by the learned Member (Colonies), Board of Revenue on 6‑11‑1986 and certified copy thereof was issued to the petitioner on 22‑12‑1986. However, the writ petition has been filed in the High Court on 16‑7‑1987. Thus, the writ petition suffers from laches and delay by more than seven months. The petitioner has failed to provide any explanation, whatsoever, in the body of the writ petition, so far as this inordinate delay is concerned. The Constitutional jurisdiction of the High Court is a discretionary remedy and certainly it cannot be exercised in favour of a person who is indolent and not diligent. If at all the petitioner was an aggrieved person, within the meaning of Article 199 of the Constitution, it was his duty to have challenged the impugned order immediately after obtaining the certified copies of the impugned orders. Thus, the mere fact that institution of the writ petition is delayed will disentitle the petitioner to claim the discretionary relief from this Court. Even otherwise the petitioner has no case on merits. He is not found to have been in the cultivating possession of the land in question in his own rights. He has not been able to prove his possession by the production of some authentic reveoue record. His entry as tenant in the Khasra Girdawari has been seriously disputed by the Revenue Authorities and it has been observed by the learned Deputy Commissioner, while submitting his comments that the entry of the petitioner in the revenue record is based on fraud. The conduct of the writ petitioner is also not above board. Firstly, he has been acting as Special Attorney of Mumtaz Ahmad and Intizam‑ud‑Din etc and he lost their case in various forums including the High Court. He of course cannot be allowed under law to restart the litigation and to claim that the land in question be sold in his favour under section 3 of the Evacuee Laws (Repeal) Act, 1975, on the basis of his so called possession. I am of the view that the above referred provision cannot be pressed into service in favour of a person like the petitioner who is not found to be in possession of the land in question and further that the land was not at all available for sale to him at any stage of the litigation. It is clear from the record that originally the land in question was allotted to the contesting respondents against their verified claim and then the verified claim of the respondents was reduced and later on the same was revised by the competent authority in favour of the respondents and their whole claim was reverified and fresh entitlement certificate in its entirety was restored to them. Thus, the contesting respondents were justified in law in claiming the restoration of their originally allotted land, in their favour.

7. The upshot of the above discussion is that the impugned orders have been passed by the Revenue Authorities with their lawful authority. The petitioner has not been able to point out any legal infirmity much less the jurisdictional defects in the impugned orders passed by the respondents. In the light of the above discussion, this petition fails and is dismissed with costs. A . A . /M‑498/L Petition dismissed.