2010 PLP 990 (CLC)

ABDUL SATTAR GORAYA, J.

By means of this constitutional petition, order dated 27-11-2004 passed by the Member (Judicial-I) Board of Revenue/Chief Settlement Commissioner, Punjab has been brought under impeachment.

2. Facts in brief are that one Fazal Muhammad was allotted land measuring 46 Kanals, 8 Marlas in Village Jhang Janubi, against his claim of agricultural land in 1968. Petitioner purchased land measuring 17 Kanals, 18 Marlas from the original allottee through sale-deed dated 2-5-1968. It appears that in course of time, allotment of Fazal Muhammad was cancelled. Petitioner feeling aggrieved of the order of cancellation instituted Writ Petition No.1058-R of 1970 which was dismissed but it was observed that the petitioner could make out a case under section 3 of the Repeal Act, 1975 and for that he can make an application before the Chief Settlement Commissioner for purchase of the land but his request was declined. Petitioner again challenged this order through Writ Petition No.707-R of 1981 which was accepted and the order of the Chief Settlement Commissioner was declared to be without lawful authority. It was directed that petitioner's case shall be decided afresh after giving him an opportunity of hearing. In faithful compliance of the order afore-noted passed in constitutional jurisdiction of this court, it appears that the matter was entrusted to the Notified Officer for disposal in accordance with law. Case was processed and again sent to the Secretary Settlement and Rehabilitation for disposal. Consequently, the land in dispute was sold to the petitioner @ Rs.100 per produce index unit. The Chief Settlement Commissioner vide order dated 22-6-2003 allowed the request of the petitioner to purchase the land as recommended by the Notified Officer. It appears that the issue cropped-up at the stage of implementation of the order and the Member Board of Revenue initiated the proceedings of review of his order dated 22-6-2003. Petitioner again challenged the initiation of proceedings fundamentally on the ground that power of review was not available. The Constitutional Petition No.158-R of 2004 was disposed of with the observation that the Chief Settlement Commissioner will attend to the question of jurisdiction while disposing of the main case in purported exercise of his power of review. The matter has been decided finally on 27-11-2004 by which the earlier order dated 22-6-2003 has been reviewed.

3. Learned counsel for the petitioner states that there is no power of review available after the repeal of Settlement Act. Further argued that even in the Displaced Persons (Land Settlement) Act, 1958 there was one provision namely section 21 ibid by which only arithmetical and clerical error could be corrected and not the main judgment.

4. Conversely, learned Assistant Advocate-General argued that section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 in terms provided that the land could only be sold to the person who was in cultivating possession for four harvest Kharif-1971.

5. I have given conscious thought to the arguments advanced by both the parties. File perused.

6. The question of sale of the land had arisen before the Member Board of Revenue in post-remand proceedings of this court. The matter was thoroughly examined by the Notified Officer at Jhang after recording the detailed reasons and on dissection of record, it was recommended that the petitioner was in possession and he is a bona fide purchaser for value and is not privy to any fraud. In the given situation, it was recommended that the land may be sold to the petitioner in order to regularize the longstanding possession of the petitioner over the land in dispute. The Chief Settlement Commissioner vide order dated 22-6-2003 concurred with the report and passed an order that petitioner be allowed to purchase the land @ Rs.100 per produce index unit, which ultimately had to be calculated by the District Collector. The main reason which weighed with the 'learned Member (Judicial-I)/Chief Settlement Commissioner is that the land being urban in nature was not available for sale to the petitioner and this fact escaped notice while passing the order dated 22-6-2003. Paragraph No.5 of the order dated 27-11-2004 reads:-- "I have heard the learned counsel for the parties and perused the record. I hereby recall my earlier order dated 22-6-2003 on the ground that the land being urban in nature was not available for sale to the petitioners at the rate of Rs.100 per PIU. On the point of jurisdiction my considered view is that in terms of section 21 of the General Clauses Act, an authority who is empowered to pass an order can always recall the same. As such, this court has the jurisdiction to recall its earlier order. As regards the status of the land, the counsel for the Department is of the view that it could be determined on the basis of its status of 1947 but under Notification issued by the CSC in 1973, declaring all urban lands as building site, which was upheld by the august Supreme Court in Ramzan case reported at 1997 SCMR 1635, the land is not available for allotment against units being a building site. The precedents quoted by the counsel for the respondent pertaining to the same village are not convincing because I am of the firm view that two wrongs cannot make one right."

7. Right of review is creature of the Statute and if not available, the power of recalling with ultimate object of review cannot be invoked either. Reference may be made to Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) and Khan Muhammad v. Member Board of Revenue and 6 others (PLD 2006 Lah. 615). From the perusal of the above noted order in the concluding paragraph, the position which springs out is that in view of reiteration in Ramzan's case (1997 SCMR 1635), the Board of Revenue enjoys jurisdiction to rescind the order or to review the same. The said judgment by the apex court fundamentally was given in respect of which C the question of fraud was available whereas there is no plea in the case in hand either put forward by the Department or some one else. Therefore, the view taken in the said case is not applicable to the case in hand. During the course of arguments before the learned Member Board of Revenue, a specific plea was taken that in similar case and in the same area and vicinity, the land has been sold to certain other persons which fact stands projected from letter No.40-2003/65 Reader SC Pb., dated 26-6-2003 which reads:

"A copy of application dated 20-7-2002 filed by Muhammad Hanif etc., resident of 530, Chambeli Market Jhang Saddar alongwith copes of annexures is sent herewith. The matter has been examined in the light of judgment of Hon'ble High Court and the precedents related to sale of land situated in the same village and the Member Board of Revenue/Chief Settlement Commissioner, Punjab has been pleased to allow the petitioners Muhammad Hanif etc., to purchase the land measuring 17 Kanals, 18 Marlas comprising of Khasra Nos.3090, 634/1, 643, 816, 817 and 818/I situated in village Jhang Chak Janubi Tehsil and District Jhang at the rate of Rs.100 per produce Index Unit (P.I.U.) based on the classification of Rabi 1974 as provided in the Scheme relating to sale of land to the occupants, framed under section 3 of Repealing Act, 14 XV of 1975. You are, therefore, requested to take further action in the matter accordingly and the sale price may be got deposited in lump sum from the petitioners within one month from the receipt of the order, under intimation to this office." The proposition of law is too settled to admit any debate that Articles 4 and 25 are anchor sheet of the Constitution. Discrimination in law is not permissible. If certain other persons have been sold out land on the basis of same terms and conditions and on the same criteria in the same village, petitioner cannot be made to suffer and he cannot be dealt with discriminately. This question was mooted and argued before the learned Member Board of Revenue who repelled the argument saying that one illegality will not cure the other. This is not the case here. Learned Member Board of Revenue in the case in hand altogether set-up a new case to the advantage of the Department which his not spelled from the record either. If other persons placed in similar position have been allowed the benefit of the sale, petitioner cannot be made target of victimization. It is not understandable as to why the petitioner has only been chosen for the purpose of reviewing the order whereas the other persons placed in similar position, are enjoying the benefit of the Scheme.

8. The power of review was not available with the Board of Revenue. While passing the impugned order, the learned Chief Settlement Commissioner has out-stepped the limit of his jurisdiction. I am fortified in my view by Mst. Bashiran Bibi v. Town Committee, Eminabad through Vice-Chancellor, Tehsil and District Gujranwala and others (PLD 2003 SC 573); Basai v. Qaim Ali and 8 others (PLD 2003 SC 825); Khan Muhammad and others v. Member, Board of Revenue and others (PLD 2006 Lah. 615); Mst. Wazir Begum and others v. Member, B.O.R./Chief Settlement Commissioner and others (2000 SCMR 989) and Fateh Muhammad through Legal Heirs v. Mst. Hajra and others (1999 CLC 143).

9. There is yet another aspect of the matter which will surely steal the eminence that the petitioner is a vendee from the original owner and is occupying this land right from 2-5-1968. He has improved the land by spending hard manual labour and huge expenses. In Islamic State, this is fundamental duty of the State to provide bread and butter to its subjects. If the land becomes available after reviewing the order made in his favour, it shall surely be allotted to someone else or the Board of Revenue will dispose of the land in dispute in any other Scheme and no useful purpose will be served in upsetting the petitioner/purchaser. I am fortified in my view by Muhammad Hussain v. Member Board of Revenue (Colonies), Punjab, Lahore (2004 MLD 1685).

10. For whatever it has been stated above, I have come to the inescapable conclusion that [lie order passed by the Chief Settlement Commissioner dated 27-11-2004 is totally without jurisdiction not only for the one reasons that the relevant power is not available with him but also on the ground of discrimination, which the petitioner meted out. Resultantly, this petition is accepted and the impugned order dated 27-11-2004 is declared to be without lawful authority and of no legal effect. The respondents are directed to calculate the amount as directed by the Board of Revenue in its order dated 22-6-2003 and after getting the same deposited, conveyance deed shall be issued in his favour. However, in facts and circumstances of the case, there shall be no order as to costs. S.A.K./M-424/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.