2004 PLP 1960 (CLC)

2. Instead of granting the proprietary rights to the petitioners, the land was allotted to the evictees of the Atomic Energy Scheme and their entitlement certificate were verified by the Deputy Commissioner Mianwali, vide order dated 11-3-1996. Aggrieved of the above, the petitioners preferred appeal, against the order, dated 11-3-1996 before the Commissioner, Sargodha, which was rejected mainly on the ground that the petitioners were lessees under temporary cultivation scheme. The petitioners further challenged the matter before the BOR, who vide order, dated 4-4-2000, remanded the matter to the Commissioner by identifying the following points, which were to be kept in view by the Commissioner while disposing of the matter:-- (a) Were the respondents owner of the required amount of land in the concerned Mauzas at the time of acquisition of land for Atomic Energy Scheme and were they entitled for alternate allotment under the Government Policy Instructions? (b) Whether the Entitlement Certificate, were genuinely and correctly issued as per requirement of the law/Government instructions? (c) Was area included in the Atomic Energy Schedule before the grant of lease to the petitioners under the Temporary Cultivation Scheme? (d) Should the area have been excluded from the schedule if it was included in the schedule as per Board of Revenue's instructions from time to time when the ban was lifted on the allotment under the Atomic Energy Scheme? (e) Are the petitioners eligible for proprietary rights under 19-3-1995, Notification? The private respondents challenged this order before this Court through W.P. No.10171 of 2000, which was accepted vide judgment, dated 8-5-2002 and the operative part of the judgment is as follows:-- "All these issues could have been adjudged by the Board of Revenue, itself and there was no justification for the remand of the case."

3. On the remand, the Board of Revenue through the impugned order, dated 16-6-2004, has dismissed the revision of the petitioners on the following reason:-- "Generally speaking land allotted under temporary cultivation scheme is liable to be resumed for allotment to persons under permanent scheme whenever the need arise. Atomic Energy Commission Scheme is a permanent scheme and land leased out under temporary cultivation could be utilized for allotment under permanent scheme."

4. Learned counsel for the petitioners contends that the Member, Board of Revenue has failed to determine the points, which were formulated in the earlier order, dated 4-4-2000 passed by the Board of Revenue and for the determination whereof, the matter was remanded by this Court to the Board of Revenue.

5. I have heard learned counsel for the parties and find that the impugned order is illegal for the very reason that it does not follow the remand order passed by this Court. According to the operative part of this Court's order reproduced above, it was affirmed that the issues involved in the matter are the one, indicated by the Board of Revenue in the order, dated 4-4-2000 and therefore, it was on those points that the Board was required to render its decision. But, as mentioned earlier this has not been done. Even there is no reference in the order, if such issues in view of the reasoning, now adopted by the Board, have become redundant. Moreover, the Board without making any reference to any relevant rules, the policy or the precedent, has based its decision on the notion of "generally speaking" But I failed to understand, if the term "generally speaking" is self-assumption of the Member or it is founded upon any material or data before him. If it is subjective, obviously the order cannot be sustained, because the rights of the parties are required to be determined not on the basis of whim or the caprice of any officer, rather in accordance with law. The present order suffers from the vice of subjectivity. Resultantly, these petitions are allowed, the impugned orders are set aside with the direction to the Board of Revenue to re-decide the matters after hearing the parties in the light of the earlier order of the Board dated 4-4-2000, as upheld by this Court in the W.P. No. 10171 of 2000 on 8-5-2002. M.I./K-62/L Petition accepted.