1988 PLP 599 (CLC)

Ch. Muhammad Rafique Waraich for Respondents Nos. 8 to

12. The petitioners have moved this constitutional petition praying therein that the impugned orders dated 26‑5‑1987, 28‑8‑1986, 28‑6‑1986 and 30‑6‑1976 respectively passed by the learned Member Board of Revenue, Additional Commissioner (Consolidation), Lahore, Additional Deputy Commissioner (Consolidation), Kasur and the Assistant Consolidation Officer, may be declared without lawful authority and of no legal consequence.

2. On 15‑9‑1987 notices were sent to the respondents and in obedience to the order of the Court, the said respondents are present and are represented through their learned counsel.

3. Briefly stated, the facts of the case are that the predecessor -in‑interest of the ‑petitioners, namely, late Barkat Ali was owner of a piece of land measuring 75 Kanals and 8 Marlas in the Revenue Estate of village Majoke, Tehsil Chunian, District Kasur. Apart from the above land, Barkat Ali aforementioned, was also owner of a piece of land measuring 31 Kanals and 11 Marlas, and thereby the total bolding of the petitioners will come to 92 Kanals an 13 Marlas vide Annexures 'A' and 'A‑1'. The learned Assistant Consolidation Officer, Chunian, vide his order dated 30‑6‑1976 passed as order of consolidation and thereby the petitioners were allotted Kham Khasras Nos. 5217 and 5218 (Pukhta Khasra Nos.7186 and 7187) which is an area measuring 9 Kanals 13 Marlas and 3 Kanals 6 Marlas respectively. This land was situated in the neighbourhood of the other land of the petitioners. It may be noted that this consolidation operation started in the year 1962 and continued uptil 30‑6‑1976 on which date the learned Assistant Consolidation Officer finally confirmed the scheme vide his order dated 30‑6‑1976. As stated earlier, the new piece of land given to the petitioners was accepted by their predecessor. However, on the same day after passing the order the learned Assistant Consolidation Officer introduced a footnote withdrawing the land comprising Khasra Nos.5217 and 5218 and instead thereof Khasras Nos.6372 and 6375 were allowed to the petitioners' predecessor of course with his alleged consent. According to the version of the petitioners this footnote was prepared behind their back and without affording any opportunity of hearing to them. This fraud came to earth in the month of October, 1983 whereupon the predecessor‑in‑interest of the petitioners filed an appeal against the order as well as the footnote dated 30‑6‑1976 vide Annexure 'B' before the Additional Deputy Commissioner (Consolidation) Kasur on 29‑10‑1983. The learned Additional Deputy Commissioner (Consoli dation), Kasur, condoned the delay in filing the appeal but maintained the order of the Consoldiation Officer dated 30‑6‑1976. The petitioners challenged the aforesaid order of the Additional Deputy Commissioner before the Additional Commissioner (Consolidation), Lahore who dismissed the revision vide his order dated 22‑11‑1984. Similarly, further revision petition by the petitioners was also dismissed by the learned Member (Consolidation) Board of Revenue vide his order dated 4‑2‑1985. The petitioner challenged the above‑referred orders by filing a Writ Petition No.2336 of 1985 before the High Court and a learned Judge of this Court was pleased to accept the writ petition and remanded the case to the Consolidation authority for its decision afresh on merits of the case. It would be relevant to reproduce the relevant portion of the judgment of the High Court which is as follows : ‑ "The subsequent note added by the Assistant Consolidation Officer on the register scheme allegedly at the instance of Barkat Ali does not appeal to reason, particularly because, Barkat Ali would not agree to the exclusion of that land from his compact block, for land situated at a far‑off distance from the rest of his land. The allegation of fraud leavelled by Barkat Ali, deceased, was not inquired into by respondents Nos. l to

3. The impugned orders on this ground alone are legally untenable and are, therefore, declared to be of no legal effect." On remand the learned Additional Deputy Commissioner (Consolidation) re‑decided the appeal and proceeded to dismiss the same on 28‑6‑1986. The petitioners challenged the aforesaid decision by filing a revision petition under section 13 of the Consolidation of Holdings Ordinance, 1960 which revision petition was heard and dismissed by the learned Additional Commissioner vide his order dated 28‑8‑1986 vide Annexure 'G'. The learned Member Board of Revenue proceeded to dismiss the revision of the petitioners vide his order dated 26‑5‑1987 Annexure 'I'. As observed earlier, the petitioners have challenged the above referred order by filing this writ petition.

4. Learned counsel concisely argued that the decision given by the Consolidation authorities in the case will run counter to the observation made by the High Court in the earlier round of litigation vide the order dated 8‑3‑1986. Learned counsel stressed that the direction of the High Court was that the Consolidation authority has to find out whether or not fraud in the case has been committed in the preparation of the footnote introduced in the first order passed by the Assistant Consolidation Officer on 30‑6‑1976. Learned counsel submitted that it was the duty of the Consolidation authority to have referred the thumb‑impression of the predecessor‑in‑interest of the petitioners to the Finger Prints Expert in order to find out whether the predecessor‑in‑interest of the petitioners was a party to the preparation of the footnote in the first order having been passed by the Consolidation authority. Learned counsel urged that precisely for this purpose the case was sent back to the Consolidation authority by the High Court. Learned counsel maintained that the Consolidation authorities were bound under law to strictly follow the directions given by the High Court in the above‑referred order dated 8‑3‑1986.

5. While replying to the contentions of the learned counsel for the petitioner, learned counsel for the contesting respondents submitted that concurrent finding of fact has been arrived at by all the Consolidation authorities in the case, and as such this finding of fact cannot be successfully challenged in the exercise of writ jurisdiction of the High Court. Learned counsel stated that the thumb‑impression of the predecessor‑in‑interest of the petitioners placed by him on Passport and the National Identity Card were compared by the Consolidation authority with the thumb‑impression placed by him on the footnote of the order dated 30‑6‑1976. Thus, according to the learned counsel, the direction issued by the High Court was followed by the Consolidation authority in letter and spirit.

6. I have heard the learned counsel for the parties at some length and have perused the record very minutely. Learned counsel for the petitioners has submitted that on the face of it the observation of the Consolidation authority is that the thumb‑impressions of the deceased Barkat Ali have been compared with a cursory view and it has been found that the thumb‑impression on the footnote match with those of the National Identity Card and the Passport. Learned counsel stated that this was not sufficient to detect the fraud committed in the case. The requirement of law was that the case should have been referred to the Finger Prints Bureau for finding out whether the deceased had in fact placed his thumb‑impressions on the footnote of the earlier order passed by the Consolidation authority. There is considerable force in the arguments of the learned counsel for the petitioner that in order to find out the truth in the case, it was essential for the Consolidation authority to have sent the papers containing the thumb‑impressions to the Finger Print Expert for his opinion whether the petitioners' predecessor‑in‑interest had in facts placed his thumb‑impression on the footnote to the earlier order or not. Of course, the learned first Consolidation authority is not at all the Finger Prints Expert and, therefore, his opinion did not hold any sanctity in law. Additionally, on the face of it, the observation of the Consolidation Officer shows that with a cursory view he has matched the thumb‑impression on the footnote with those on the Passport and National Identity Card of late Barkat Ali. Thus for al practical purposes, it appears from the record that the direction issued by the High Court vide the order dated 8‑3‑1986 has not been followed by the Consolidation authority in letter and spirit. The Consolidation authorities were bound under law to have strictly obeyed the order of the High Court and should have proceeded in the case in accordance with the directions given to them therein. Their failure to do so will make their order coram non judice in the eye of law. Learned counsel for the respondents has not been able to answer the weighty arguments of the learned counsel for the petitioners in that behalf. Learned counsel for the contesting respondents submitted that there is a concurrent finding of fact given by all the Consolidation authorities. I do not find any substance in the arguments of the learned counsel for the simple reason that it is apparent on the record that all the Consolidation authorities have failed to apply their judicial mind to the facts and circumstances of the instant case and they have no been able to follow the spirit of the order passed in the case by the High Court. If they had acted in accordance with the observation made by the High Court, they would have definitely conducted intensive and thorough investigation in the case, in order to find out the fraud, if any, committed in the case. In my considered opinion the Consolidation authorities are guilty of the non‑obedience of the orders passed by the High Court.

7. The upshot of the above discussion is that the direction issued by the High Court has not been followed by the Consolidation authorities in the case and as such I have no hesitation whatsoever in setting aside the impugned orders passed by all the Consolidation authorities. Resultantly, the case of the petitioners shall be deemed to be pending before the concerned Consolidation authority. The learned Member (Consolidation) Board of Revenue is directed to take-up the case and to decide the same in the light of the observation made by the High Court vide the judgment dated 8‑3‑1986. He is further directed to dispose of the case within one month and compliance report thereof shall be sent by him to this Court through the Registrar. Consequently this writ petition succeeds and is accordingly allowed with costs. M.Y.H./H‑43/L Case remanded.