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Petitioner: RAB NAWAZ AND 8 OTHERS VS Respondent: MEMBER (COLONIES) BOARD OF REVENUE, JUDGMENT
Court Name: Lahore High Court Judge(s): Malik Lehrasab Khan Title:RAB NAWAZ AND 8 OTHERS vs MEMBER (COLONIES) BOARD OF REVENUE,
JUDGMENT
Reported As: PLD 1984 Lahore 244 Result: Petitions allowed Judgment JUDGMENT ' This judgment shall dispose of (1) Writ Petition No, 1334 of 1978, Rab Nawaz etc. v. Member Board of Revenue etc.; (2)Writ Petition No, 1776 of 1978, Usman and others v. Member, Board of Revenue and others Writ and (3) Petition No, 1945 of 1978 Haq Nawaz etc. -Member; Board of Revenue, etc. ; as all these three Constitutional Petitions assail one and the same order passed by the learned Member, Board of Revenue (Colonies), on 22-12-1977 involving common questions of law and facts. 2. The land of 42 villages including villages of Silwan and Ghalughara of Mianwali District were acquired for construction of Chashma Barrage. In regard to village Silwan, notification under section 4 of the Land Acquisition Act, 1894 was issued on 18-6-1965 while in respect of village Ghalughara such notification was issued on 2-6.1965. 3. Lt.-Col. Muhammad Hanif son of Ahmad, viz. Respondent. No, 4 in Writ Petition No, 2945 of 1978 owned 1774 Kanals and 1 Marla of land in village Silwan and 295 Kanals of land in village Ghalughara. The said Muhammad Hanif through Mutation No, 5247 which was attested on 10-2- 1968 alienated by way of sale land measuring 243 Kanals and 10 Marlas situate in village Silwan in favour of Rab Nawaz etc., 9 vendees who are petitioners in Writ Petition No, 1334 of 1978. Similarly, he transferred his entire land i,e, land measuring 295 Kanals situate in village Ghalughara in favour of his relations including his wife, mother, sister, etc. Vide mutation No, 1922 dated 14-4-1969, by way of gift. 4. Owners of land of four villages namely Silwan, Band Sumble, Kundian Katcha, Katchi Aaheeranwali, were directed to be resettled immediately as these villages were expected to be inundated in the near future while the resettlement scheme for resettling the affectees of Chashma
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Barrage was not yet promulgated. Consequently, the Deputy Commissioner, Mianwali, prepared Special Jamabandi of village Silwan viz. Annexure 'G' to Writ Petition No, 1334 of 1978, incorporating all the qtested mutations therein. In the Special Jamabandi thus prepared. Mutation No, 5247 dated 10-2-1968 was also incorporated alongwith numerous other mutations which had been attested after the issuance of notification under section 4 of the Land Acquisition Act which was issued on 18-6-1965. 5. Subsequently, in September, 1968 a scheme for the resettlement of Chashma Barrage affectees was promulgated by the Colonies Department. According to the said Scheme, a person owning not less than 16 Kanals of Barani cultivable land was entitled to the allotment of land as a measure of resettlement. In case of Rab Nawaz etc. The petitioners in Writ Petition No, 1334/78 they became owners of land in village Silwan by virtue of Mutation No, 5247 to the extent of 27 Kanals and 1 Marla each but according to khasra girdawari entries, the cultivable land in each case was lass than 16 Kanals. They, however, moved an application before the Collector, Mianwali, for correction of khasra girdawari entries. The Collector, after obtaining the reports from the field staff, ultimately allowed the correction vide his order dated 18-1-1970 for the harvests of Kharif 1967 and Rabi 1968. As a result of this correction, Rab Nawaz etc. The petitioners became owners of cultivable land in village Silwan to the extent of more than 16 Kanals in each case. Consequently, they became entitled to the allotment of land under the resettlement scheme and the Resettlement Officer thereupon allotted land to them in Rakh Maikan, Tehsil Khushab on 4-8-1970. 6. The original owner viz, Lt.-Col. Muhammad Hanif had also obtained allotment of maximum permissible area of 50 Acres in Rakh Nikro Snaheed on 15-7.1968 in lieu of the land abandoned by him in village Silwan. 7. In October, 1970 Muhammad Hanif as also Rab Nawaz etc. Submitted an application before the Resettlement Officer/Collector for allotment of land to them in Rakh Dullewala in exchange for the land already allotted to them in Rakh Nikro Shaheed and Rakh Maikan contending that their other with and kips were resettled in Rakh Dullewala, and, therefore, they should be also re-settled over there. The Collector vide his order dated 29-10.1970 resumed the land already allotted to them in Rakh Nikro Shaheed and Rakh Maikan and by subsequent order dated 10-2-1971 allotted land to them in exercise of his powers under section 10 of the Colonization of 'Government (Lands) Act of 1912 in Rakh Dullewala. 8. Usman etc. The close relations of Lt.-Col. Muhammad Hanif i,e, petitioners in Writ Petition No, 1776/78 to whom Muhammad Hanif had gifted his entire land measuring 295 Kanals in village Ghalughara vide Mutation No, 1922 dated 14.4-1969 obtained allotment of land at the rate of 15 acres each in lieu of the land thus gifted in their favour and subsequently they also by way of exchange obtained land in Rakh Dullewala. A few other relatives of Muhammad Hanif namely Sher Ahmad, Umar Hayat and Muhammad Ramzar who had obtained allotment of land in Rakh Nikro Shaheed in their own rights also obtained allotment in Rakh Dullewala by way of exchange. 9. Haq Nawaz etc. The contesting respondents, in Writ Petitions No, 1334/78 and 1776/78 and petitioners in Writ Petition No, 2945/78 filed appeals before the Commissioner, Sargodha Division, Sargodha, challenging allotment of land to the aforementioned Muhammad Hanif and Rab Nawaz etc. In Rakh Dullewala, on the grounds that the land in Rakh Dullewala could not be allotted to Muhammad Hanif and others by way of exchange after they bad already obtained allotment in Rakh Nikro Shaheed and Rakh Maikan ; land in Rakh Dullewala was exclusively reserved for affectees from village Ghalughara and thus could not be allotted to Muhammad Hanif and Rab Nawaz etc. Who were affectees from village Silwan and allotment of land to Muhammad Hanif and others in Rakh Dullewala was made in the Chak reserved for Sarwar Khails of village Ghalughara whereas Muhammad Hanif etc. Who were Awans could not be allotted land in that Chak. They, if at
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all, were to be accommodated in Rakh Dullewala, could be allotted land in the Chak reserved for Warhi Awans. 10. The appeals of Haq Nawaz etc. Were heard by the learned Additional Commissioner (Revenue), Sargodha, and were rejected on 26-10-1971 on the grounds of limitation as also on merits. Haq Nawaz etc. Thereupon filed Revision Petitions viz. R. O. R. No, 558 to 561/71-72 before the Board of Revenue, calling in question the order dated 26-10-1971 passed by the learned Additional Commissioner (Revenue), Sargodha. Haq Nawaz etc. Had also impugned the order of the Deputy Commissioner/Collector, Mianwali, dated 16-1-1970 regarding the correction of khasra girdawari entries before the Commissioner but the Additional Commissioner, Sargodha, vide his order dated 18-1-1973 declined to interfere with the Collector's order. Consequently, they filed a Revision Petition Bearing No, R. 0. R. 780/72-73, before the Board of Revenue, impugning the order of the Additional Commissioner dated 18-1-1973. 11. They had also simultaneously submitted an application before the learned Adviser to the Governor alleging that Lt.-Col. Muhammad Hanif had fraudulently obtained multiple allotments of State land under the Resettlement of Chashma Barrage Displaced Persons Scheme, 1968 and that an enquiry should be held into the matter. 12. The Commissioner, Sargodha Division, was asked to hold an enquiry. After enquiry, he submitted report on 19-4-1975 whereby he held that Muhammad Hanif had transferred his excess land in villages Sdwan and Ghalughara to his near relatives through Mutations No, 5247, dated 10-2-1968 and 1922 dated 14-4-1969 after these lands had been acquired under the Land. Acquisition Act for the construction of Chashma Barrage and that on the basis of these mutations he got multiple allotments of State land in his own name as well as in the name of his relatives and further that subsequently he got the allotted land exchanged improperly with lands of Rakh Dullewala. Thereupon, Board of Revenue in exercise of its revisional powers under section 164 of the Land Revenue Act accorded permission for the review of Mutations No, 5247 and 1922 afore-mentioned. The Assistant Commissioner, thus cancelled both the mutations. 13. Rab Nawaz and Osman etc. Questioned the legality and propriety of these orders before this Court vide Constitutional Petition No, 8 of 1976 inter alia on the ground that the impugned orders were passed at their back without affording an opportunity of being heard to them. After obtaining comments from the Board of Revenue, status quo was ordered to be maintained and the writ petition was kept pending to await the decision of the Board of Revenue, as some proceedings between the parties were pending the Member, Board of Revenue. It was also observed that the matter should be decided judicially by the Board of Revenue after hearing all concerned. Consequently, Board of Revenue, in exercise of its suo motu revisional jurisdiction under section 164 of the Land Revenue Act issued notices to all, who were affected by the order dated 9-12-1975 of the Board of Revenue, according permission to review Mutations No, 5239 and 1922. The aforementioned Revision petitions filed by Haq Nawaz etc. Were also taken up for hearing alongwith the suo motu revision under section 164 of the Land Revenue Act. 14. After considering the contentions of both the parties and the material placed on record, the learned Member, Board of Revenue, found that the following questions required determination for the disposal of the aforementioned revision petitions as also the suo motu revision ;- "(1) Whether the petitioners had a locus standi to challenge the allotments made to the respondents by way of exchange ; (2) Whether the appeals before the Additional Commissioner were barred by limitation, and if so, whether they could be decided on merits without getting over the bar of limitation ; (3) Whether the Board of Revenue was competent to allow the review of impugned mutations and interfere with allotments obtained without entitlement in exercise of its revisional jurisdiction under
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section 164 of the Land Revenue Act, 1967 ; (4) Whether the transfer of land in village Silwan through Mutation No, 5247 after the publication of notification under section 4 of the Land Acquisition Act, 1894 was valid ; (5) Whether it was competent for the Collector to allow corrections in the entries of Register girdawari which continued to be incorporated in the last jamabandis, on the plea of clerical errors ; (6) Whether the allotment of alternate lands in favour of Lt.-Col. Muhammad Hanif and his 9 transferees and its subsequent exchange with the lands in Rakh Dullewala was valid and according to law and Government instructions ; (7) Whether the transfer of land by gift in village Ghalughara on 14-4-1969 vide Mutation No, 1922 was valid and whether the donees were entitled to get alternate allotments after the donor had already takers maximum allotment of 50 acres against his total ownership authorized under the 1968 Scheme ; (8) Whether it was lawful for the Collector to allow exchange of lands sold by private treaties without the express sanction of the Government and whether the procedure adopted by him in so doing was warranted by law ; and (9) Whether the respondents were entitled to the benefit of section 16 of the Colonization of Government Lands Act, 1912 in view of their continued possession of the land for more than 3 years." 15. In regard to question No, 1 pertaining to locus standi the learned Member, Board of Revenue, through the impugned order came to the conclusion that Haq Nawaz etc. Had the locus standi to challenge the allotments of land to Muhammad Hanif, Rab Nawaz etc. Usman etc. And Umar Hayat etc. By way of exchange in Rakh Dullewala. He has based his findings on the question of locus standi on the following grounds :- (a) Land in Rakh Dullewala was ear-marked for evictees of village Ghalughara according to the minutes of the Meeting of the Board of Revenue held on 39-4-1968 ; (b) Four Abadis were carved out and reserved for each tribe of Ghalughara ; (c) Lt.-Col. Muhammad Hanif and his relatives were allotted land in the area reserved for Sarwar Khel tribe of Haq Nawaz etc. Jeoperdising Sarwar Khel's rights. (d) Large number of Sarwar Khel tribe has still not been allotted any land." 16. A copy of the Minutes of the meetings held on 29th April, 1960 in the room of the Member, Board of Revenue (Colonization) relating to the re-settlement of the displaced land owners of Chashma Barrage is available as Annexure 'E' (pages 55-63 in Writ Petition No, 1334/78). A careful persual of the contents of these minutes leads to the conclusion that the area of Rakh Dullewala was reserved for resettlement of the displaced land owners of Chashma Barrage. The land of this village was not reserved exclusively for evictees from village Ghallughara alone. It was, however, observed that the land in Rakh Dullewala and such like other rakhs was available in compact blocks and, therefore, the desire of the affectees to settle villagewise and tribewise could be satisfied to a great extent. As per these minutes, no chakbandi of agricultural land of Rakh Dullewala for any particulars tribe was ever drawn. The Deputy Commissioner, Mianwali, vide his Letter No, 42081/SG, dated 25-7-1974 (Annexure 0/11 at page 121 in Writ Petition No, 1334/78), informed Commissioner, Sargodha Division, Sargodha, that there was no force in the cbjection of Haq Nawaz regarding chakbandi as land was reserved in Rakh Dullewala for the oustees of Chashma Barrage irrespective of their tribal labels. In the above circumstances, there are no basis for the conclusion that Muhammad Hanif and Rab Nawaz etc. Were allotted land in Rakh Dullewala in the area reserved for Sarwar Khels. These persons were allotted available Government land in Rakh Dullewala by the Collector/Resettlement Officer who was empowered to allow allotment by way of exchange to them. 17. It transpires from the records that in fact Sarwar Khela had been allotted land in Rakh Dullewala prior to the allotments made to the petitioners and it further appears from the contents of letter dated 18-4.1972 sent by the Deputy Commissioner, Mianwali, to the Deputy Secretary, Board of
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Revenue, Punjab. Lahore, (Annexure 'F' at page 65 in Writ Petition No, 1334/ 78) that majority of the Sarwar Khel tribe later on got the land allotted in Chaks No, 80/ML and 80/A ML by way of exchange. The respondents Haq Nawaz etc. Themselves were also allotted land in Rakh Dullawala and on 25-2-1971 they got their allotment cancelled from Rakh Dullewala. It is indicated in the Deputy Commissioner's letter referred to above that the respondents and other Sarwar Khels wanted to be accommodated in Rakh Majgarh but the local tenants had obtained a stay order from the High Court. Again they tried to get land in chaks near Kaloorkot but the same were under agricultural farm of the A. D. C. According to the Deputy Commissioner, the problem could be solved by allotting land of their choice to them in the chaks/rakhs reserved for Chashma Barrage affectees. It is thus evident that the findings of the learned Member, Board of Revenue, in regard to the question of locus standi are not supported by the records. In Ch. Muhammad Younis v. Islamic Republic of Pukistan (I), it was held that a Constitutional petition should be maintained only by an 'aggrieved person' and that an 'aggrieved person' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. Similarly, in Ghulam Mohyud Din v. Government of Pakistan (2), it was ruled that where a petitioner was not in possession of a property in question, he had no entitlement to the said property and consequently no locus standi to challenge the order of the Central Government transferring the property to the respondents. In the circumstances of the under-consideration case also, the respondents were not in possession of the land allotted to the petitioners. They were not even lawful claimants for allotment before any authority. The land was not exclusively reserved for them. In the circumstances, they had no locus standi to challenge the validity of allotment of that land to the petitioners. It is, however, observed that in the circumstances of the under consideration Constitutional petitions the question of locus standi is not of much consequence because the Board of Revenue in exercise of its powers under section 164 of the Land Revenu Act, 1967 could competently exercise its powers of suo motu revision and call for the record of any case pending before or disposed of by any subordinate Revenue Officer and pass such orders as the Board thought fit. This power has been exercised by the Board of Revenue in the present case as well and while passing the impugned order the suo motu revision under section 16 of the Land Revenue Act, 1967 was under consideration of the learned Member, Board of Revenue. He could, therefore, irrespective of the locu standi of the respondents (Haq Nawaz etc.) competently decide as to whethe allotments made to the petitioners in Rakh Dullewala were valid or otherwise. 18. On the question of limitation, the learned Member, Board of Revenue, has held through the impugned order that as there was an element of concealment of facts about the whole proceedings of the transfer of land and manner in which the subsequent allotments were obtained through exchanges in Rakh Dullewala, the period of limitation would start from the date of knowledge. It is true that Haq Nawaz etc. Were not party to the sale and gift mutations. They were also not party to the order whereby Khasra Girdawari entries were directed to be corrected. They also were not before the Collector/Resettlement Officer as rival claimants while he allotted lands to the petitioners by way of exchange in Rakh Dullewala. In these circumstances; no exception can be taken to the conclusion arrived at by the (1) PLD 1972 Lah; 847 (2) 1971 SCMR 747 learned Member, Board of Revenue, that the period of limitation to challenge the aforementioned proceedings in case of Haq Nawaz etc. Would start from the date of their knowledge. It is, however, observed that on the question of locus standi it has already been found that Haq Nawaz etc. Had no locus standi to challenge the validity of allotment made to the petitioners and Ramzan etc. In Rakh Dullewala. Therefore, it is nothing but futile exercise to determine as to whether their appeals before the Additional Commissioner were within time or not. For the purpose of suo mot revision under section 164 Land Revenue Act, 1967 no period of limitation is dscribed.
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19. On the question of competency of the Board of Revenue to allow review of the impugned mutations viz. Mutation No, 5247, dated 10-12-1968 of village Silwan and Mutation No, 1922, dated 14- 4-1969 of village Ghallughara, the learned Member, Board of Revenue, in the impugned order has found that the Board of Revenue could interfere in exercise of its suo motu revisional powers to set the wrong right and these powers of the Board were unfettered and could be freely invoked whenever there had been a material irregularity and also material injustice. While dealing with the question of locus standi, it has already been observed that in exercise of its powers under section 164 of the Land Revenue Act, 1967, Board of Revenue could competently exercise revisional jurisdiction whereby the record could be called and appropriate order could be passed. 20. Regarding the question of validity of Mutation No, 5247 of village Silwan, the learned Member, Board of Revenue, in his impugned order has held that the said mutation was liable to cancellation for the following reasons :- (a) Mutation could not be sanctioned in view of the letter of the Land Acquisition Collector dated 19-8-1967. (b) The mutation was not permissible under section 24 (clause seventhly) of the Land Acquisition Act, 1894. (c) The mutation having been sanctioned after the date of issuance of notification under section 4 of the Land Acquisition Act without the sanction of the Collector, was not permissible. (d) The WAPDA had been given physical possession of the land in village Silwan on 8-2.1968 i,e, prior to the sanctioning of the Mutation NO. 5247. (e) There is nothing in the revenue record to suggest that the possession of the land covered by Mutation No, 5247 was ever delivered to the vendees. (f) The mutation was kept hidden even from the Land Acquisition Collector who announced and declared in the award on 31-12-1968 that no transaction of any land had taken place in village Silwan during the past five years. (g) That the transaction was not motivated by any business principle but was effected with a view to creating more eligibilities to obtain alternate land under the Resettlement Scheme. 21. The letter of Land Acquisition Collector referred to in (a) above is available as Annexure JJ in Writ Petition No, 1334/78. According to the contents of this letter the Land Acquisition Collector invited the attention of the Deputy Commissioner, Mianwali, to the provisions of section 24, clause seventhly of the Land Acquisition Act and has observed that any change effected in the record after the publication of the notification under section 4 could result in wrong payment of compensation. It was further desired in this letter that in order to avoid wrong, payment, the Deputy Commissioner could instruct his Revenue Officers not to sanction the mutations or allow any transaction of land after the date of publication of notification under section 4. It thus appears that the letter dated 19-84967 of the 'Land Acquisition Collector is based on section 24, clause seventhly of the Land Acquisition Act. 1894 which provides that any layout or improvements on or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under section 4 of the Land Acquisition Act shall not be taken into consideration while determining the compensation. Thus, it is evident that the disposal of the land affected by acquisition proceedings after the publication of notification under section 4 of the Land Acquisition Act, is not prohibited under section 24, clause seventhly supra. It is simply provided that disposal of such land, after the publication of the notification under section 4 shall not be taken into consideration while determining compensation. Thus section 24, clause seventhly of the Land Acquisition Act does not serve as a bar to the sale of land after the publication of notification under section 4. The Land Acquisition Collector, in his award dated 31-12-1968 (Annexure 'B' at page 31 of Writ Petition No, 1334/78) has observed that numerous mutations of sale
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were entered and sanctioned after the publication of notification under section 4 of the Land Acquisition Act. Similarly, the Deputy Commissioner, Mianwali, in his letter dated 18-4-1972 addressed to the Deputy Secretary, Board of Revenue (Annexure 'F' at page 65 of Writ Petition No, 1334/78) has mentioned that numerous mutations were sanctioned in the area by the Revenue Officers after the publication of notification under section 4 of the 'Land Acquisition Act. The Land Acquisition Collector had incorporated all such mutations in the award for payment of compensation to the new right holders. It also appears from the contents afford bachh (Annexure page 85 of Writ Petition No, 1334/78) that vendees of mutations which were sanctioned after the notification under section 4 were paid cash compensation as land owners by the land Acquisition Collector. 22. In view of the above, it may be concluded that letter dated 19-8-1967 addressed by the Land Acquisition Collector, to the Deputy Commissioner, Mianwali, and the provisions of section 24, clause seventhly of the Land Acquisition Act, 1894 did not serve as a legal bar to the sale of land after the publication of the notification under section 4 'of the Land Acquisition Act and as a matter of fact numerous mutations of sales sanctioned after notification under section 4 were given effect for purposes of payment of compensation by the Land Acquisition. Collector. The judicial precedent referred to as PLD 1964 Azad 1 & K 21 in the impugned order deals with mode of computing compensation and not prohibition of alienation. 23. The learned Member, Board of Revenue, in his impugned order has also observed that WAPDA had been given…
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