1983 PLP 425 (CLC)

Ch. Qadir Bakhsh and Muhammad Siddique Ch. for Respondents. Date of hearing : 30th May, 1982. This judgment will dispose of Writ Petitions Nos. 5495/81 and 5496 moved by the petitioners against two brothers Nasir and Khushi Muhammad, whose revision petitions were allowed by the Member, Board of Revenue on 28th October, 1981.

2. The facts of the case are that a scheme of consolidation was sanctioned in village Atawa on 30th April, 1971. The present petitioners challenged the orders in appeal on the ground that there has been a deficiency in the entitlement of the petitioners. The Collector accepted the appeal on 13th July, 1972 and remanded the case back to A. C. O. for fresh proposals with a direction to make an attempt to make an adjust ment between the parties. It was also directed that the A. C. O. may take into consideration the khatas of other owners if unavoidable. The A. C. O. made certain modifications in his proposals making up the deficiency in the entitlement of the petitioners and submitted the case for orders to the Collector. The Collector on 20th play, 1974 made the necessary modifications and also made up the deficiency in the khatas of the petitioners. The petitioners were still not satisfied with the orders of the Collector and they challenged it in appeal before the Additional Commissioner. It may be mentioned here that up to this stage Nisar and Khushi Muhammad respondents in the present writ petitions were not party to the proceedings. In appeal before the Additional Commissioner, however, the two respondents were impleaded as parties and it was prayed that the petitioners' deficiency made up out of the land confirmed in favour of the respondents in 1971. On 5th June, 1975 the Additional Commis sioner accepted the appeal, set aside the order of the Collector dated 20th May, 1975 and remanded the case to the Collector for fresh deter mination of the rights and privileges of the parties. The Collector in turn remanded the case to the Consolidation Officer on 26th September, 1977 who made further proposals which were sanctioned by the Collector on 31st March, 1980 The petitioners were accommodated out of the land confirmed in favour of the two respondents. The respondents at this stage challenged the order of the Collector dated 31st March, 1980 before the Additional Commissioner but their appeal was dis missed on 13th May, 1981. The respondents then went in revision in the Board of Revenue, which revision was allowed on 28th October, 1981 The learned Member observed that Nasir and Khushi Muhammad respondents were not party to the proceedings in the first round of litigation either before the Collector (Consolidation) or before the Additional Commissioner (Consolidation) nor was it specifically directed in the remand order that the case of the respondents be reopened. The learned Member set aside the order of the Collector dated 31st March, 1980 and of the Additional Commissioner dated 13th May, 1981 and directed that the respondents be given the land which was confirmed to them in the original scheme sanctioned on 30th April, 197). This order has been challenged in the writ petitions on the ground that the orders of the Member, Board of Revenue that the respondents were not parties before the Additional Commissioner or the Collector is against record.

3. It is an admitted position that the respondents were not parties to the proceedings before the Collector who remanded the case on lath July, 1972 and then made modifications of the khatas on 20th May, 1974. The respondents were impleaded as party to the proceedings for the first time before Additional Commissioner as is evident from the copy of the appeal at Annexure `C' and the order of the Additional Commissioner dated 5th June, 1975. The observations of the learned Member that the respondents were not party to the proceedings before the Additional Commissioner are, therefore, not in accordance with record although it is true that until that stage the respondents were not party to the proceedings before the Collector. This alone will, however, not justify the setting aside of the order of the learned Member, Board of Revenue.

4. The scheme itself was sanctioned on 30th April, 1971. The petitioners challenged the scheme and mentioned as many as 25 persons as respondents in their appeal before the Collector which ended in remand on 13th July, 1972. The present respondents were not impleaded as parties. It is obvious, therefore, that the petitioners had no grievance against the present respondents. In the order of remand dated 13th July, 19 .2 the Collector had directed that the A. C. O. should make an attempt to make an adjustment between the parties. This direction obviously refers to tree parties to the proceedings before the Collector and not the respondents who were not a party at that sage. It is true that he also left it to the Assistant Consolidation Officer to take into considera tion the khatas of other owners if unavoidable, but the fact remains that the A. C. O. in his modified proposals did not interfere with the khatas of the present respondents. When these proposals were finaly confirmed by the Collector on 20th May, 1974 the respondents were again not party to the proceedings. The Collector in his order of 20th May, 1974 has substantially removed the grievance of the petitioner; inasmuch as he made up the deficiency complained of by the petitioners. Tile petitioner, however, challenged this order before the Additional Com missioner and gave preference fur the land which had already been confirmed in favour of the respondents and stood Confirmed for more than three years without any challenge from the petitioners. This delay of more than three years is without any satisfactory explanation. The learned counsel has stated that this was because of the ignorance of the petitioners but I am afraid this explanation is not good enough. The petitioners had named as many as 25 person4,as respondents in their appeal before the Collector. The omission of the present two respondents was obviously deliberate and there is no justification to interfere with the khatas of the respondents when the petitioners had accepted the confirmation of the khatas in their favour for more than three years. The orders of the Collector dated 31st March,1980 on remand from the Additional Com missioner's order dated 5th June. 1975 and the subsequent orders of 13th May, 1981 dismissing the appeal of the respondents was, therefore, unjustified as it was an improper exercise of jurisdiction to the extent that it affected the rights of Nasir and Khushi Muhammad respondents and the order of the learned Member, Board of Revenue to this extent are unexceptionable.

5. A question has arisen as to whether the order of rue learned Member, Board of Revenue dated 28th October, 1981 also meets the grie vance of the petitioners inasmuch as it relates to the deficiency in their entitlement under the scheme sanctioned on 30th April, 1971. The learned Member has set aside the orders of the Collector and the Additional Commissioner dated 31st March, 1980 and 13th May, 1981. On the other hand he has directed that the land confirmed in favour of Nasir and Khushi Muhammad respondents be returned to them in accordance with the scheme sanctioned on 30th April, 1971. In between these two dates, how ever, an order was passed by the Collector on 20th May, 1974 making up the deficiency in the entitlement of the petitioners without interfering with the Khatas of respondents. This order itself was set aside by the Additional Commissioner on 5th June, 1975. The present order of the Member, Board of Revenue dated 28th October, 1981 cannot be interpreted to have restored the order of the Collector dated 20th May, 1974. On the other hand, it reverts the parties to the position as obtained on 30th April. 1971. While the order of the Member. Board of Revenue can be supported to the extent it relates to the respondents, it cannot be supported to the extant it relates to the petitioners because by reverting to the position of 30th April, 1971 the original grievance of the petitioners of deficiency in entitlement remains unattended to. On the other hand, the benefit given to them by the Collector on 20th May, 1974 has also been taken away from the petitioners even though there was no challenge to it. To this extent the order of the learned Member, Board of Revenue must, there fore, be set aside.

6. The result of the above discussion is that the order of the learned Member dated 28th October, 1981 to the extent it relates to the Khatas of respondents Nasir and Khushi Mohammad is maintained, but the case is remanded back to the learned Member, Board of Revenue for fresh decision with regard to the khatas of the petitioners particularly in view of their grievance that a deficiency has occurred in their entitle ment in the scheme sanctioned on 30th April, 1971. With these observa tions the writ petition is disposed of leaving the parties to bear their own costs. M.Y.H. Order accordingly.