2004 PLP 650 (YLR)

Ch. Muhammad Sharif's case 1975 SCMR 259 and Abdur Rehman Saithi's case 2000 SCMR 1197 ref. (c) Constitution of Pakistan (1973)

Arts. 189 & 190

Judgment of Supreme Court is binding on each and every organ of the State. (d) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)

S. 10

Limitation Act (IX of 1908), S.5

Constitution of Pakistan (1973), Art. 199

Constitutional petition Consolidation scheme

Time-barred appeal

Petitioner assailed the scheme 12 years after its implementation

Collector condoned the delay and allowed the appeal

Order of the Collector was set aside by the Appellate Authority on the ground that the delay was condoned in violation of law laid down by Supreme Court

Order of the Appellate Authority was maintained by the Board of Revenue-- Validity

Both the forums below had rightly set aside the order passed by the Collector

Petition was dismissed in circumstances. Ch. Muhammad Munir Badr for Petitioner. Brief facts out of which present writ petition arises are that the consolidation, scheme was initiated in the village in question. The Consolidation Officer approved the scheme of consolidations vide order dated 9-2-1988. The petitioner filed time-barred appeal before the Collector, Gujrat alongwith an application for condonation of delay under section 5 of the Limitation Act on 2-10-2002. The Collector accepted the appeal of the petitioner vide order dated 8-5-2001 and the respondents being aggrieved filed an appeal before the Executive District Officer on 2-6-2001, who accepted the same vide order dated 19-8-2002. The petitioner being aggrieved filed revision petition before the Member, Judicial Board of Revenue, who dismissed the same vide order dated 10-12-2002. Thereafter, the petitioner filed review petition before the Member, Board of Revenue, who also dismissed the same vide order dated 25-4-2003. Hence, the present writ petition.

2. The learned counsel of the petitioner submits tat the Collector was justified to condone the delay as the petitioner had filed appeal before the Collector after, the knowledge of aforesaid order dated 9-2-1988. He further submits that the land of the petitioner was superior; whereas Consolidation Officer had granted inferior land to the petitioner, therefore, Collector was justified to accept the appeal of the petitioner on merit. He further submits that E.D.O. and Member, Board of Revenue were erred in law to reverse the order of Collector. He further submits that orders of E.D.O. and the Member, Board of Revenue are without lawful authority and are not in accordance with law. He further submits that Collector had exercised his discretion while condoning of delay with reasons; whereas the E.D.O. and Member, Board of Revenue reversed the same without any justification.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

4. It is admitted fact that the petitioner filed time-barred appeal after 11 years, 5 months and 11 days. The Collector was convinced by the contents of the application, wherein the petitioner had taken stand that "Parchi-Ishtimal" was not issued, demarcation was also not carried out and the consolidation proceedings were kept secret, which was reversed by the higher authority after perusing the original record and ground realities which reveals that the petitioner is also resident of the said village, therefore the petitioner could not have remained unaware of his allotment for over 12 years, a long period. Coupled with the facts that the petitioner was complained to deprive of his pre- consolidation purchased land and the allotment of Rivera-in land in lieu thereof. Such a major injustice could not have remained hidden from the petitioner for so long. On merits both the Courts below have given concurrent findings of fact against the petitioner after perusing the original record and Square No.72/3 was his purchased land Which is evident from the record that Square No.72/3 was, in fact, not the pre -consolidation ownership of either party. The Collector had allotted the land in question to the petitioner, which was not his pre-consolidation land and is also located far away from his other consolidation blocks. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below while exercising powers under Article 199 of the Constitution as per principle laid down by the D.B. of this Court in "Musaddaq Naseem's case" PLD 1973 Lahore 600 and by the Honourable Supreme Court in "Syed Azmat Ali's case" PLD 1964 SC

260. It is also settled principle of law that it is the duty and obligation of the petitioner to explain the delay of each day. The Appellate Authority has lawful authority to examine the case qua condonation of delay granted by the Collector while exercising power under the law. In case, the Collector has condoned the delay without applying its independent mind, then higher authority is well within his right to reverse the order. It is settled principle of law that in order to entitle for the condonation of delay, within parameter of law, each day's delay has to explain by the party, who is seeking condonation of delay as held by the Honourable Supreme Court in "Ch. Muhammad Sharif's case" 1975 SCMR 259 and "Abdur Rehman Saithi's case" 2000 SCMR 1197. It is also settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The Collector has condoned the delay in violation of law laid down by the Honourable Supreme Court in the aforesaid judgments. The Executive District Officer as well as Member, Board of Revenue was justified to set aside the order of the Collector, who had passed the order without applying its independent mind in violation of dictum laid down by the superior Courts. In view of what has been discussed above, this writ petition has no merit and the same is dismissed. M.H./S-762/L Petition dismissed.