1998 PLP 2749 (SCMR)

CH. MUHAMMAD ARIF, J.

The background of this appeal by leave of the Court against judgment dated 28-4-1992, passed in W.P. No.6465 of 1990 by a learned Judge in Chambers of the Lahore High Court, Lahore, is that appellants' predecessor namely, Umer Din son of Hadi, was allotted State land comprising Killas Nos.9 to 17, 24 and 25, Square No.63 measuring 91 Kanals, 5 Marlas situated in Chak No. 133/RB, Tehsil and District Faisalabad, under the Grow More Food Scheme for period from Rabt 1957 to 1967, on 27-I 1-1956. The allottee breathed his last on 17-5-1957 and, in accordance with the revised policy of the Government, his son/appellant-Lal Din applied for alternate land. The then District Collector upheld the said appellant's request by declaring him as entitled thereto and, in compliance of the District Collector's such declaration, the then Assistant Commissioner, Faisalabad allotted State land comprising Killas Nos.6, 7, 23, 24 of Square No.50, Killas Nos.8, 9, 15 of Square No.63, Killas Nos.l9 to 22 of Square No.64 and Killas Nos.2, 4, 9 of Square No.65 total measuring 98-Kanals, 12 Marlas in the names of all the appellants be sons and daughters of Umar Din deceased, on 25-4-1976.

2. Order dated 25-4-1976 of Assistant Commissioner, Faisalabad was appealed against by respondent-Allah Ditta in the Court of Additional Commissioner (Consolidation), Sargodha Division, Sargodha alleging that Umer Din had died in the year 1957 and the entries regarding his name in the Revenue Record/Khasra Girdawaris were wrong in that he was in possession of the land as allottee thereof. The learned Additional Commissioner (Consolidation) remanded the case to .Assistant Commissioner/Collector, Faisalabad on 20-5-1976 with a direction to him to decide the same afresh after verification of the position on the spot in that regard. Thereafter, on 4-1-1979 the Assistant Commissioner/Collector rejected the plea of respondent-Allah Ditta.

3. Respondent-Allah Ditta challenged the order of AC/Collector, Sadar Sub-Division dated 4-1-1979 before the Additional Commissioner (Consolidation), Sargodha Division, Sargodha reiterating that he had been allotted land in Square No.63, comprising Killas Nos.9 to 17, 24 and 25 under the Grow More Food Scheme. He was shown to be in cultivating possession as also receiving Dhal Bechh in the year 1959 onwards. The directions issued to the AC/Collector by the learned Additional Commissioner (Consolidation), Sargohda Division, Sargodha on 20-5-1976, were not complied with and no inquiry on the spot was undertaken. After the death of their predecessor the appellants got one square. of land in their name, during the days when the Ejected Tenants Scheme was in vague and that they had obtained proprietor rights therein on account of fulfilment of the conditions under the said scheme. The learned Additional Commissioner (Consolidation) set aside the order of AC/Collector dated 4-1-1979 vide his judgment dated 15-1-1981 holding that there was no justification for allotment of any land to the heirs of the deceased Umer Din as they had not cultivated the land according to the Government instructions in that behalf. The matter was remanded to the AC/Collector, Faisalabad to see whether the appellant can be granted proprietary rights if he has fulfilled all the conditions..."

4. After remand as above, the then Deputy Commissioner/Collector, Faisalabad proceeded with considering the case of respondent-Allah bitta favourably and directed grant of proprietary rights of the land in question to him .... "subject to payment of sale price and clearance of any other related Government dues..." This happened on 30-3-1985.

5. Appellants challenged the order dated 30-5-1985 in appeal before the Commissioner, Faisalabad Division, Faisalabad which was accepted and the case was remanded to the District Collector, Faisalabad ".. for fresh decision after hearing both the parties and consulting the record as well as the past decisions to the case". This happened on 30-6-1986.

6. Order dated 30-6-1986 passed by the Commissioner, Faisalabad Division, Faisalabad, was challenged by Allah Ditta-respondent before the Member (Colonies), Board of Revenue, Punjab, Lahore in ROR-1986, para. 8 of the judgment dated 29-4-1987 of Member (Colonies), Board of Revenue, Punjab, reads thus: "

8. I have considered the arguments and perused the record of the case. It is evident from the order dated 15-1-1981 of the Additional Commissioner (Consolidation), Sargohda that Lai Din and other three ads R6ia sons of Umar Din had been allotted one square of land under Ejected Tenant Scheme and acquired its proprietary rights at the time when the Grow More Food Scheme was in operation. Umer Din died in 1957 and thus they could not continue possession of land under another scheme i.e. Grow More Food Scheme. The Additional Commissioner had set aside the order of A.C./Collector and held that there was no justification to allot any land to the respondents when they had not cultivated the land according to the Government instructions. The respondents never challenged the order and it had attained finality. The Commissioner, was, therefore, wrong in passing the impugned order. The revision petition is accepted and the impugned order is set aside. However, as regards the case of entitlement of the petitioner about the disputed land this has to be decided. separately, on merits by the D.C./Collector, as observed by the Additional Commissioner."

7. Order dated 29-4-1987 of the Member (Colonies), Board of Revenue, Punjab was challenged by the appellants through Writ Petition No.3460 of 1988 which was dismissed by a learned Judge in Chambers of the Lahore High Court, Lahroe in limine on 5-7-1988.

8. On 25-5-1988, Colony Assistant/Collector, Faislabad agreed with the report of his Assistant dated 23-5-1988 which reads thus:

9. The appellants challenged the order of the ICA/Collector dated 25-5-1988 before the Additional Commissioner who, vide his order dated 8-8-1988, rejected the same on the ground that as decision has already been made in favour of respondent-Allah Ditta, therefore, no inquiry can be conducted or record perused.

10. Appellants took the matter before the Member (Colonies), Board of Revenue, Punjab, Lahore through R.O.R. No.1799 of 1988 and the learned Member (Colonies) allowed the same, set aside orders dated 25-5-1988 and 8-8-1988 and remanded the case with the following direction:-- ....The possession of the land be taken over by the State and fresh order after giving opportunity to the parties be passed as directed in this Court's order dated 29-4-1987." This happened on 5-10-1989. 11.Respondent-Allah Ditta questioned the vires of order dated 5-10-1989 through Writ Petition No.6465 of 1990 in the Lahroe High Court, Lahore. The learned Judge in Chambers allowed the writ petition on 28-4-1992 with the following observations:

6. It was argued by the learned counsel for the petitioner that the revision petition was not maintainable on behalf of respondents Nos.1 as in the previous round of litigation it was held through order dated 15-1-1981 that they had no right to claim conferment of proprietary fights-in the land in dispute which order was upheld and through order dated 29-4-1987 in which the learned Member, Board of Revenue held that their case could not be re-opened and it was only the case of the petitioner for conferment of proprietary rights which was sent back to the Collector against which Writ Petition No.3460 of 1980 filed by respondents Nos. l to 6 was dismissed through judgment dated 5-7-1988.

7. The argument has force. The revision petition filed by respondents Nos. l to 6 was not maintainable as such, the learned Member, Board of Revenue could not assume jurisdiction on this revision petition having been filed by the persons who stood debarred from agitating the matter and to contest the rights of the petitioner. This aspect of the case has been overlooked bill the learned Member, Board of Revenue while passing the impugned order which has resulted in exercise of jurisdiction not vested in it under the law and the order for taking over of possession of the land by the State and remand of the case for disposal afresh after hearing the parties means granting another opportunity to respondents Nos.1 to 6 to re-open which could not be done.

8. The petitioner had been continuously held to be entitled to conferment of proprietary rights in view of overwhelming material as discussed above, therefore, there was no legal justification for re opening the matter on the incompetent revision petition filed by respondents Nos. h to 6 who had no right and locus standi to take the matter to the Board of Revenue. '

9. The order dated 5-10-1989 passed by the learned Member, Board of Revenue is not sustainable. This writ petition is accepted. The said order is declared to have been passed without lawful authority and of no legal effect and quashed. There will be no order as to costs."

12. Leave Grant Order dated 19-7-1993, reads thus: "Leave to appeal is granted to examine whether the entries in the Khasra Girdawari showing the cultivation of Umar Din the predecessor-in-interest of the petitioners in spite of his being deceased would not be of avail to the petitioners for claiming a right in the allotted land and whether Allah Ditta (respondent No. 1) could be given preference over the petitioners. The fault, if any, was not of Umar Din or of the petitioners but the Patwari who made the entries in the Khasra Girdawari with regard to cultivation by a deceased person."

13. Mr. Gul Zarin Kiani, learned A.S.C. has criticised the impugned judgment dated 28-4-1992 on the twin-ground that the order passed by the learned Member (Colonies), Board of Revenue, Punjab, Lahore in R.O.R. No.1799 of 1988 could not be interfered with as it had advanced the cause of justice by setting aside the order of the CA/Collector dated 25-5-1988 having been passed without hearing the parties and that the Constitutional jurisdiction of the High Court in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan does not extend to substituting its own findings for that of the Courts/Tribunals concerned. According to him, the direction for taking possession of the land in question by the State and for making a fresh order after providing an opportunity of hearing to the parties, was rightly linked by the learned Member (Colonies), Board of Revenue, Punjab, Lahore, in his order dated 5-10-1989 in R.O.R. No. 1799 of 1988, with his earlier order dated 29-4-1987 but judgment dated 28-4-1992 of the High Court has resulted in making respondent-Allah Ditta the winner at the cost of the appellants. Support has been sought from Bishamber and another v. Illrd Additional District Judge, Azamgarh and others (AIR 1992 Allahabad 178) in this behalf.

14. Contrarily, Mr. Ch. Muhammad Aslam Chattha, learned AOR appearing for respondent-Allah Ditta, has supported the judgment with the submission that as all the forums in the hierarchy of the Revenue Courts had found his client entitled to retain his allotment of the disputed land, located in Square No.63 comprising Killas Nos.9 to 17, 24 and 25, therefore, no interference is called for in the judgment under appeal.

15. It appears that success of private parties has been oscillating in the past, as is evidenced by couple of remand-orders of the Revenue Courts aimed at finding out the authenticity or otherwise of the respective claims of the appellants as heirs of Umer Din-deceased and respondent-Allah Ditta regarding possession over the disputed parcel of land. It is common ground between the private-parties herein that a direction for taking over the possession of the land in question by the State from the appellants as also for holding an inquiry into the entitlement of respondent-Allah Ditta to retain the land, had been issued in the past. We find that the case of the appellants was resolved agaisnt them way back in the year 1981 by the Additional Commissioner and, in regard to the case of respondent-Allah Ditta, it was remanded to the District Collector only to consider his entitlement for the grant of proprietary rights if he had fulfilled all the conditions of the scheme. Order dated 15-1-1981 was not impugned further by the appellants. They staged a come back in the field only after the District Collector found respondent-Allah Ditta as entitled for the conferment of the proprietary rights in terms of his order dated 30-3-1985. Appellants succeeded before the Divisional Commissioner, who set aside the order of the Collector dated 30-3-1985 on 30-6-1986 and remanded the case to District Collector for fresh decision and respondent-Allah Ditta succeeded in his revision petition against the order dated 30-6-1986 of the Divisional Commissioner before the learned Member (Colonies), Board of Revenue who, on 29-4-1987, held that the appellants had no case as it had been held in order dated 15-1-1981 that they were not entitled to the allotment of the land in dispute. Viewed in this perspective, the learned Judge in Chambers is quite right in non-suiting the appellants.

16. However, the matter does not end here. A perusal of the material on the record clearly brings it to the fore that in relation to respondent-Allah Ditta the requisite inquiry, to precede the resolution of the question of his entitlement for the conferment of proprietary rights, has not been gone ahead. We are inclined L to the view that the judgment under appeal, to the extent of holding respondent Allah Ditta as entitled for the conferment of proprietary rights on him, cannot be maintained. 17 The above are the reasons for our short order of even date, which reads thus: "For the reasons to be recorded later on, the appeal is allowed and the judgment dated 28-4-1992 of the Lahore High Court is set aside with the observation that the order of the Member, Board of Revenue, dated 5-10-1989 directing taking over possession of the land from the appellants be complied with. The possession of the same land may not be handed over to. any one till the entitlement of respondent No. l is determined in terms of the order dated 29-4-1987." 18 Parties shall bear their respective costs A.A./A-94/S Appeal dismissed.