The petitioners, Muhammad Shafi and his sons Qasim Abbas, Aasim Shahzad and Muhammad Ali, through this Constitutional petition, have assailed the order dated 29-10-1995, passed by Member (Consolidation), Board of Revenue, Punjab, whereby the revision petition of respondents Nos. 2 to 8, calling in question the orders dated 5-10-1992 and 24-2-1993 respectively passed by Collector (Consolidation), Gujranwala, and Additional Commissioner(Consolidation), Gujranwala Division, Gujranwala of dismissal of appeal and revision of respondents Nos.2 to 8, was accepted. The learned Member (Consolidation) interfered in the schemes of the parties. Khasra No,2233-min (4 Kanals, 9 Marlas), 2253 (8 Kanals, 18 Marlas) and 2271-min (3 Kanals, 7 Marlas) total measuring 16 Kanals, 14 Marlas of Class-IV land, being the prior consolidation joint ownership of respondents Nos.2 to 8 was restored to them in their Consolidation Scheme No,146 and Khasra No,2219 measuring 4 Kanals, 9 Marlas of Class-I land, given to them in consolidation, in lieu of the above mentioned, was given to the petitioners Nos. 2 to 4 in their Consolidation Scheme No,121.
2. The relevant facts are that the consolidation scheme of village Pindi Bawray, Tehsil Hafizabad, District Gujranwala, was confirmed by the Consolidation Officer, under section 10(3) of the Consolidation of Holdings Ordinance, 1960, on 28-5-1990. The land in Hissadari possession of respondents Nos.2 to 8, measuring 16 Kanals, 14 Marlas, categorized as Class-IV land, which has now been restored to respondents Nos. 2 to 8, as detailed above, through the impugned order, was taken away from respondents Nos. 2- to 8 and was given to petitioner No,1, Muhammad Shafi, against Scheme No,121 and in lieu thereof, respondents Nos. 2 to 8 were given 4 Kanals, 9 Marlas of Class-I land, bearing Khasra No,2219, against their Scheme No,146. Respondents Nos. 2 to 8 assailed the order of confirmation of these schemes through an appeal, which was time-barred by 11 months and 8 days. The Collector (Consolidation), Gujranwala, dismissed the appeal on 5-10-1992, on. Merits. He did not go into the issue of limitation as his predecessor-in-office had dealt with the same on 29-7-1991. It was held that the Khata of the present respondents Nos.2 to 8 was joint with Muhammad Yousaf etc. And not with petitioners, that prior to the consolidation, the aforementioned land, measuring 16 Kanals, 14 Marlas, was in Hissadari possession of respondents Nos.2 to 8 but one of the appellants namely Wali Muhammad (now respondent No,5) had accepted the scheme and that respondents Nos. 2 to 8 had surrendered this area voluntarily and willingly and their demand for restoration of this area-was an afterthought, that the amendment in the consolidation schemes of the parties, as desired by the then appellants before him (now respondents Nos. 2 to 8) will result in the increase of one Chak (plot) each in both the schemes, which is against the principles of consolidation, whereas the petitioners had already been accommodated in four Chaks (plots) as against their pre-consolidation three plots. He, therefore, found that no injustice had been done to respondents Nos. 2 to 8.
3. Respondents Nos. 2 to 8, being aggrieved of the order dated 5-10-1992, passed by the Collector, instituted a revision petition, before Additional Commissioner (Consolidation), Gujranwala Division, Gujranwala, who vide order dated 24-2-1993, dismissed it. The case of respondents Nos. 2 to 8 was that their pre-consolidation, aforementioned,' owned and possessed land measuring 16 Kanals, 14 Marlas was illegally with drain from them in the consolidation proceedings -and was illegally given to petitioner No,1, Muhammad Shafi, who soon after had gifted the same to his sons i,e, petitioners Nos. 2 to 4, and that during consolidation proceedings, neither the signatures nor thumb- impressions of respondents Nos. 2 to 8 were obtained on the register scheme. The contentions were opposed from the petitioners' side and it was argued that the respondents Nos. 2 to 8, themselves, had given their consent/willingness on the register scheme and they had voluntarily and willingly surrendered their previous ownership and had obtained the land given to them in consolidation and the land, which the respondents wanted to surrender was not the land. Owned by the petitioners, prior to the consolidation and they have no connection with the same and the previous owners of the said land (Khasra No,2219. Measuring 4 Kanals, 9 Marlas) had not been impleaded as a party in the case and the respondents had been lawfully and properly accommodated, keeping in view the principles of consolidation The learned Additional Commissioner held that the revision petitioners/present respondents NOS. 2 to 8 wanted to surrender the land, which. Was not in the prior consolidation ownership of the petitioners and those owners, who were its prior consolidation owners, were not even a party to the appeal or the revision petition, that if the aforementioned land measuring 16 Kanals, 14 Marlas, detailed above, is restored to respondents Nos. 2 to 8, the same will result in the increase of the hakes (plots) of the lands of the parties, which is against the principles of consolidation, that even otherwise the revision petitioners (present respondents Nos.2 to 8) had been correctly account dated, in accordance with the principles of consolidation and in accordance with their previous ownership, that no injustice had been done to them and that there has already been an increase in the Chaks (plots) of the petitioners' holding as against the lesser number of their plots prior to the consolidation and further increase in their plots would be unwarranted and unjust.
4. The Member (Consolidation), Board of Revenue, Punjab vide his impugned order dated 29-10- 1995 as mentioned above, restored the aforesaid land in dispute, measuring 16 Kanals, 14 Marlas to respondents Nos. 2 to 8 by way of accepting their revision petition, after setting aside the order passed by the Collector and Additional Commissioner and made the above mentioned changes in the consolidation schemes of the parties. The operating part of the impugned order (paras. 10 and 11), for the sake of convenience, is reproduced:-- "10. The land given to the petitioners as compensation for their pre-owned land is only 4 Kanals, 9 Marlas. Though in terms of Class 1 it may be treated to be at par that the land taken away from the petitioners yet the fact remains that in terms of area the entitlement of the petitioners had been grossly reduced. For the petitioners who have a very small holding this deficiency in 'their area has resulted in an unbearable loss and it would be highly unfair to say that no injustice has been caused to them.
11. The existence of thumb-mark of one of the petitioners on the register scheme cannot be given too much importance as an literate person cannot be supposed to fully comprehend the implications of the document he is made to thumb-mark. No precedent (prudent) person would willingly exchange the land held by him since the time of his forefather for only 1/4th of the land with which he had never any concern. One cannot also lose sight of the fact that respondent Muhammad Shafi was a member of the Advisory Committee and with the collusion of the Consolidation Staff he was in a position to grab the land of the petitioners however, undeserving this act may be. Justice therefore demands that the original land of the petitioners may be restored to them and the other piece of 4 Kanals, 9 Marlas Class-I land be given to the respondents who have by their own contention admitted that the allocation of this land is not an injustice. Even otherwise this land i,e, Khasra No,2219 is very close to the Dera of the respondents and they deserve to get this land better than the petitioners."
5. I have heard the learned counsel for the parties and have also seen the record.
6. It is submitted by the learned counsel for the petitioners that entire consolidation scheme was accepted by all the right holders, the Members of the Advisory Committee and the Lumberdar of the village. Respondent No,5 Wali Muhammad, being the elder and shareholder, had accepted the scheme and had put his signature on the register scheme, for himself and for his other shareholders, in token of acceptance and its correctness. The possession under the consolidation scheme had changed hands and even otherwise there was no justification for the Member (Consolidation), Board of Revenue, to interfere in the schemes, which did not suffer from any illegality. Even otherwise there was no justification to interfere in the findings of fact recorded by two Courts below. It has further been argued that in terms of classification/categorization of land, respondents were properly compensated and they had willingly accepted Khasra No,2219 measuring 4 Kanals, 9 Marlas of Class-1 and in lieuthereof willingly surrendered their Class-IV land measuring 16 Kanals, 14 Marlas, because Khasra No,2219 is adjacent to the village Abadi and their aforesaid Class-IV land measuring 16 Kalans, 14 Marlas is at a distant place and that Khasra No,2219 is adjacent to the plot, given to them in the consolidation and the subsequent agitation, through appeal and revision safe., was merely an afterthought. It has also been argued that the Member (Consolidation), in para. 10 of the impugned order, has admitted that in terms of Class-I land, the land measuring 4 Kanals, 9 Marlas given to the respondents Nos. 2 to 8, in lieu of their Class-IV land measuring 16 Kanals, 14 Marlas, is at par, in terms of entitlement but has interfered only on the ground that the area of the respondents has been reduced and any interference on this basis is illegal because under the Consolidation of Holdings Ordinance, 1960, it is the par value in terms of classification of land, which is relevant for redistribution. Of land and not the area. It has been submitted next that the Member (Consolidation) has misread the record by holding that the, existence of thumb-impressions of one of the respondents namely Wali Muhammad on the register scheme, cannot be given too much importance as an illiterate person cannot be supposed to fully comprehend the implication of the document. It escaped the notice of the Member that the register scheme has been signed by Wali Muhammad' and not thumb-marked, which shows that Wali Muhammad is literate person. Furthermore, the observations of the Member that no prudent person would willingly exchange theland held by him since the time of his forefathers for only 1/4th of the land with which he,had no concern, is merely conjectural and in most of the cases, the people would willingly surrender their larger area for a more valuable smaller area as happened in the present case because Khasra No,2219 is near the village Abadi, near the school and adjacent to the plot given to the respondents. The learned counsel has also placed his reliance on Allah Ditta through Legal Heirs and 5 others v. Hassan Din and 26 others 1994 CLC 1291 at page 1293; Hamand v. Member, Board of Revenue (Consolidation) and others 1993 MLD 267 at page 268; Khan Muhammad and others v. Member (Consolidation), Board of Revenue, Punjab and others 1997 SCMR 410 at page 412 and Brig. Sadaat All Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694 at page 699.
7. In Allah Ditta through Legal Heirs and 5 others v. Hassan Din and 26 others (supra), it was held by a Division Bench of this Court that arrangement entered into between the parties as set out in the Resolutions of Consolidation Scheme, could not be interfered with unless the same Was contrary to any principle or rule of consolidation. In Hamand v. Member Board of Revenue (Consolidation) and others (supra), the parties discussed various proposals before Collector (Consolidation) and finally agreed on one. It was held that when an order is jointly proposed to be passed and is accordingly passed by an Authority, neither party is entitled to turn around and challenge it. In Khan Muhammad and others v. Member (Consolidation), Board of Revenue, Punjab and others (supra)the petitioners assailed the consolidation proceedings before the Collector, Additional Commissioner, Board of Revenue, through Constitutional petition before the High Court and then before the Hon'ble Supreme Court, alleging that they had been deprived of 27 Kanals of their land.
The Hon'ble Supreme Court dismissed the appeal holding that in consolidation proceedings one is not expected to get his own land otherwise, the very purpose of the law would be defeated and that categorizing the land and while allotting superior quality of land to a land-owner, adjustment is made in accordance with the scheme prepared by allotting less area than the ,inferior quality of land, previously held by him and as the petitioner had been accommodated by allotting him much more area than his entitlement in terms of Class-1 and Class-2 land, therefore, the allotment of 18 Kanals in lieu of 27 Kanals of which the petitioner felt aggrieved, was rightly made in the consolidation proceedings and the Consolidation Authority, therefore, rightly did not interfere with the consolidation proceedings. In Brig. Sadaat Ali Shah v. Muhammad Hanif and 3 others (supra), a Division Bench of this' Court held that it is established legal proposition that the orders passed by the Consolidation Authorities are not liable to be interfered with in exercise of the Constitutional jurisdiction of this Court, unless and until if is a case of decrease of entitlement of a party. In the case in hand.The dispute being, relatable to the situation of the land, which had been allocated to the parties respectively in accordance with the provisions of Ordinance, 1960, read with scheme made thereunder, the order impugned in writ petition having . Been passed in exercise of the exclusive jurisdiction of the Consolidation Authority could not have been interfered with-.
8. Learned counsel for the petitioners has also argued that the perusal of the impugned order passed by the learned. Member shows that he has not decided the case in accordance with the law and merely on humanitarian grounds, presuming that he has the discretion to do whatever he likes, irrespective of the law, forgetting that the discretion is regulated by law. Reliance in this regard has been placed on M.M. Lspahani Ltd. v. Haji Muhammad Sultan deceased through his Heirs, and Legal Representatives Arif. Sultan and others PLD 1961 SC 76 at page 86; Muhammad Hussain Munir and others v. Sikandar and others PLD. 1974 SC 139 at page 144 and Federation of Pakistan through Secretary, Finance, Islamabad and 4 others v. Messrs Ibrahim Textile Mills Ltd. And others 1992 SCMR 1898 at page 1901.
9. In M.M. Ispahani Ltd. v. Haji Muhammad Sultan deceased through his Heirs and Legal Representatives Arif Sultan and others (supra), the Rent Controller held that the appellant required the premises for its own use. The respondents' revision petition to the Chief Judge of Small Causes Court was accepted. The Chief Judge was of the opinion that on the strict legal aspect, the landlord had a strong case but from a purely humanitarian point of view the ejectment of the tenant, who was a refugee, was not proper as. The ejectment would spell ruin for the tenant. .TheHon'ble Supreme Court held that in so doing, the Chief Judge travelled beyond his jurisdiction, which was a very limited one. The order of the Chief Judge was declared to be without jurisdiction and the order of Rent Controller was restored. In Muhammad Husain Munir and others v. Sikandar and others (supra), the Hon'ble Supreme Court held that it must be remembered that what is administered in Court is justice in accordance with law and consideration of what may appear as fair play and equity however, important they may be, must yield to the provisions of law, or its well- recognized principles. In Federation' of Pakistan through Secretary, Finance, Islamabad and 4 others v. Messrs Ibrahim Textile Mills Ltd. And others (supra), it was held by the Hon'ble Supreme Court that the discretion is not desire of the Judge but regulated by law and discretion comes into play to choose one of the two or more alternatives, all of which are lawful and it is not proper exercise of discretion to refuse relief to a party to which it is entitled under law.
10. The learned counsel for respondents Nos.2 to 8, while vehemently opposing the petition, has submitted that the impugned order passed by the learned Member, Board of Revenue, is just and proper, that petitioner No,1,. Who was a member of the advisory committee and due to his influence as such, over the Consolidation Staff and with their collusion, obtained on his Register Scheme No,121, their pre-consolidation owned and possessed land measuring 16 Kanals and 14 Marlas and in lieu thereof, they were given only 4 Kanals and 9 Marlas, which has drastically reduced their land holding, who even otherwise are sma ll landowners and this reduction will deprive them of their livelihood, that the consent of one of the respondents namely Wali Muhammad (respondent No,5), on the register scheme, was obtained by the Consolidation Staff in collusion with petitioner No,1, through misrepresentation as he had been assured that he and other respondents of Register Scheme No,146 would remain on their previous holding and as the petitioner No,1 has not come to the Court with clean hands, he and his sons (petitioners Nos. 2 to 4), who are merely donees from petitioner No,1, are not entitled to any relief from this Court in the exercise of its Constitutional jurisdiction and the writ petition is liable to be dismissed.
11. The learned counsel for the petitioners has laid too much stress on the consent given by respondent No,5, Wali Muhammad, on Register Scheme No,146. The consent given by Wali Muhammad (respondent No,5) cannot be considered as consent of all the private respondents. He did not possess any power of attorney on behalf of other respondents. Consequently, the scheme in question cannot be said to have been confirmed with consent of all the private respondents.
Even otherwise, as held by a Division Bench of this Court in Brig. Sadaat Ali Shah v. Muhammad Hanif and 3 others (supra), (judgment referred by the learned counsel for the petitioners, to the extent quoted above). "It is a matter of common knowledge that in consolidation cases, usually the signatures/thumb-impressions of the right holders are taken by the Consolidation Staff on their register even prior to making of entries therein. Initially Khathuni Khana is issued and on the basis thereof entries are made in the register scheme wherein the order of confirmation of the scheme is passed subsequently". I respectfully agree with the observations of the learned Division Bench on the practice adopted by the Consolidation Staff. The landowners only on the finalization of the consolidation and in most of the cases, much latter, come to know of the actual changes made by the Consolidation Staff during the consolidation operation. Furthermore, in Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16, it was held by the Hon'ble Supreme Court that if the consolidation scheme is found to be offensive to requirements of law and prima facie appears to be unjust and unfair, the Consolidation Authorities are under a duty to reject such scheme even though it be based on compromise or undertaking among parties. It is, therefore, held that merely the consent given by Wali Muhammad (respondent No,5), to the changes made in the consolidation, on Register Scheme No,146, is not fatal to the case of respondents Nos. 2 to 8. The Consolidation Authorities are bound to check whether the Consolidation Scheme meets the requirements of law and is just and fair, as held by the Hon'ble Supreme Court in Najabat Ali v.
Bashir Ahmad and others (supra). The matter, however, does not end here. The learned Member (Consolidation), Board of Revenue, Punjab, Lahore, while accepting the revision petition of respondents Nos. 2 to 8 and while restoring the land in dispute measuring 16 Kanals, 14 Marlas (detailed above) to respondents Nos. 2 to 8, as being their pre-consolidation ownership, has thruster and imposed upon the petitioners, Khasra No,2219 measuring 4 Kanals, 9 Marlas, with which the petitioners have no connection. It is not their previous ownership. They have nothing to do with the same. It has been given to the petitioners only on the ground that the petitioners have been resisting the claim of respondents Nos. 2 to 8 by alleging that the 'allocation of this land to respondents Nos. 2 to 8 was not unjust. In my opinion, this manner of imposing upon the petitioners, aforesaid Khasra No,2219, is unjust and improper. In such a situation, the learned Member, Board of Revenue, ought to have remanded back the case to the Consolidation Officer with a direction to him to pass fresh order in accordance with law after calling for all the concerned parties. In the instant case, the pre-consolidation owners of aforesaid Khasra No,2219, which has been given to the petitioners now by the learned Member, Board of Revenue, are not party to these proceedings and they were never associated as such by any of the forums below.
12. In view of the above mentioned, the writ petition is accepted with the above observations, the impugned order dated 29-10-1995, passed by Member (Consolidation), Board of Revenue, Punjab, is set aside and the matter is remanded back to the Consolidation Officer to confirm the Consolidation Scheme of the parties afresh, in accordance with law, after granting an opportunity of being heard to both the parties and while doing so, he shall keep in view the above observations made by this Court. There is; however, no order as to costs.