2002 PLP 732 (MLD)

6‑A. The inaction and indolence of Consolidation Authorities and the respondent No. 1 conversely created rights in petitioners that their garden would not be bifurcated/ fragmented into pieces through opening of the said path.

7. Extracts from order, dated 13‑6‑1990 passed by learned Additional Commissioner (Consolidation), Gujranwala Division, Gujranwala reflecting upon the spot realities are reproduced:-- "The site was also visited in the presence of the parties and the counsel for the respondents, where the parties were given lengthy hearing. The site inspection also supports the view points of the petitioners and I am of the considered view that Javaid Ahmad, etc., respondents are adamant to simply tease the petitioners by passing through the courtyard of his house on the eastern or by opening the abandoned path passing in between the garden. Apart from the damage to fruit plants and nursery, the Tractors and Trolleys cannot pass through the alleged path on the eastern side or the abandoned path because it has been amalgamated in the garden The best course for Javaid and other right holders is the alternate path on the western side of the garden which is 14 feet wide leaving aside the width of the adjoining watercourse. Mere legal technicality should not deprive the parties of their genuine rights. If Javaid, etc. respondents were serious about the actual path provided in consolidation they should not have slept over it for about 22 years and should have opened it up instantaneously. It transpires that they are disturbing the petitioners so that they may sell their land as has been pointed out by the petitioners as well. They want to just wreak vengeanace of their pre‑emption suit failure, in view of the aforesaid Notification of the Board of Revenue. Ahalian Deh including Ghulam Mustafa, Chairman, Union Council, Inayat Ullah, etc., and many other rightholders have submitted that alternate path on the western side of the garden is beneficial for 'Malkah Deh' and many landowners including Javaid Ahmad, etc., respondent whereas the abandoned path connects the Dera of Javaid, etc., only. In view of the evaluation of the arguments of the parties and Revenue Record and the prayer of the Ahalian Deh including petitioners and Inayat Ullah, etc., I am of the considered view that the western path is more facilitative than the abandoned path."

8. The learned Member (Consolidation), Board of Revenue while passing the impugned orders as revisional as well as reviewing authority failed to attend to the cogent reasoning advanced by the learned Additional Commissioner (Consolidation) in his abovesaid order. The learned Additional Commissioner through his impugned order only maintained‑ the spot realities/site position as adopted, maintained, implemented and continued by the residents of the village through consensus by use, to suit the requirements of the village landowners. Such a consensus is the basis of spirit of statutory intendment of Punjab Consolidation of Holdings Ordinance, 1960 and the Rules framed thereunder. Change of the disputed passage (as confirmed in consolidation Scheme of 1968) to the existing passage (carved and carried out by consensus of about 33 years) does not seem to have caused any prejudice or injury to the residents of the village including respondent No.

1. Contrarily, there is every likelihood that change from the existing route to the disputed route will create disharmony, disputes and bad blood between the landowners. Hence through acceptance of this case, neither would the spirit of law be countenanced nor would there be a departure from the law settled by the Hon'ble Supreme Court of Pakistan, refusing to grant a writ against "change of spot position" to accommodate "better claim" of a party (1988 SCMR 310). In fact, acceptance of the present Constitutional petition will only advance the principles of law laid down by the Hon'ble Supreme Court of Pakistan to reverse an "unjust order" for obviating the injustice likely to occur by change of spot realities. There can, thus be no better case than the present one to exercise judicial and equitable jurisdiction under Article 199.of the Constitution of Islamic Republic of Pakistan, 1973, to maintain the preponderance of existing facts and equities between the parties as against the abandoned conferment in Consolidation Scheme.

9. To benefit from indepth report of the Committee of Senior Advocates appointed as Commission through order, dated 12‑4‑1994 and rejecting technical objections of respondents for the reasons recorded above, the following passages from the said report are reproduced hereunder:‑‑ "After attending to the dispute in depth, keeping in view the situation at the site, and the statements made on the two sides, this Commission has reached the conclusion as under:‑‑ (1) Out of the lands of the village Papnakha, Tehsil and District Gujranwala only 2 acres (exclusively belonging to the petitioners) adjoin the main road. On either sides of these 2 acres lies the land of village Sainakey (shown.in grey) which too adjoins the main road, is also owned by the petitioners. (2) On the Western side of these 2 acres wherein the petitioners have planted a Fruit Garden, lies the 14 feet wide way (existing way) running along a Khala, leading straight to and hitting lands of respondent No.1 (shown in green) while also providing way to Inayat Ullah whose land (shown in yellow) falls in between those .of the petitioners (shown in red) and that of respondent No. 1. (3) The existing way is raised about 1 foot from the ground and more than 2 feet from the Khala and is at the level of the main road. It is considerably old (although its definite age cannot be given) and shows the signs of being well in use. (4) From the point where the aforementioned existing way hits the lands of respondent No. 1, he has himself made another path (Marked `D' and `D/1') leading to his Dera which is at least as Wide and as well used as the existing one (`A' & `A/1'). (5) If for reaching his Dera, respondent No. 1 uses the existing way, he has to travel a distance of 8‑1/2 acres, but at the same time if he uses any other path (including the disputed one) his travelling distance is in no way less than 6‑1/2 acres. (6) When comparing distance to be travelled while using the existing way, and the disputed path for reaching Dera of respondent No. 1 the difference is only that of one acre. (7) On the Eastern side of petitioners' land, there is a private way leading to their Dera, this has been previously used by respondent No. 1 with the permission of the petitioners prior to the litigation leading to estrangement of relations between both the parties, however, in the existing circumstances petitioners have been shown their inability to allow respondent No. 1 to pass through this private way . (8) The claim of respondent No. 1 for being given a way from Eastern side of the garden of the petitioners will result in the unnecessary splitting of their holding and reduction of its area alongwith an invasion on the privacy of the petitioners. (9) Respondent No. 1 failed to show any other way in his use for reaching Dera from main Road and actually there exists none. Since only the existing way (`A' & `A/1') provides access to his land, coupled with the fact that he has himself connected the same to his Dera, with another one (`D' & `D/1'). It can, therefore, be safely presumed that the existing way is and has been in the past used by respondent No.1 alongwith the other land holders of village quite willingly."

10. Examination of the impugned orders passed by the learned Member (Consolidation) shows that he did not take account of non implementation of Consolidation Scheme by the Consolidation Staff qua the disputed path. Such inaction cultivated in the petitioner at least a C sense of security, peaceability, comfort and complacency as land holder since‑ 1974. Upon threat of disturbance and bifurcation of his land through opening of disputed passage, petitioner had the cause, right and locus standi to challenge such invasion as transferee of the land covered by definition of landowner under section 2(J) of Punjab Consolidation of Land Holdings Ordinance, 1960. Further that the right to sue accrued to the petitioner upon threat and invasion of opening the disputed passage and knowledge of the confirmation of scheme. The impugned order, thus, cannot be termed as self‑explanatory and result of due appreciation of facts and law under circumstances of the case.

11. In view thereof, these petitions are accepted. The impugned r orders dated 5‑9‑1993 and 18‑9‑1993 passed by the learned Member, (Consolidation), Board of Revenue are held to be without lawful authority and of no legal effect. Resultantly, order, dated 13‑6‑1990 passed by the learned Additional Commissioner (Consolidation), Gujranwala Division, Gujranwala is upheld. In view of the peculiar circumstances of the case, parties are left to bear their own costs., S.A.K./M‑850/L Petition accepted.