This Constitutional petition is directed against an order of the Member, Board of Revenue affirming the order of the Additional Commissioner, dismissing the appeal of the petitioner.
2. The ground on which such was the result before the Member, Board of Revenue was that the appeal before the Additional Commissioner was time barred by more than five years and there was no reason to condone the delay. The facts of the case have not so far been viewed by the depart- _ mental authorities in their totality. They had an unfortunate bearing on the families involved in this litigation. The predecessor-in-interest of the petitioners, Roshan Din by name, was owner of agricultural land in village Rohillanwali, District Muzaffargarh. Sharif was owner in village Khakhi Sumali. They agreed to exchange their holding and two mutations of exchange were for that purpose effected. One was number 1133 attested on 29-9-1959 whereby the land of Roshan Din in Rohillanwali was transferred in the records in the name of Muhammad Sharif. Another l Mutation No. 2505 mss attested on 28-9-1959, whereby Sharif's land in village Lohaki Shummi was transferred in the records in the name of Roshan Din. Cosnolidation of the holding thereafter followed. It war long after that the Assistant Collector took the view that Roshan Din could not at all enter into exchange for to begin with the land was a joint Khata of Muslim owners which had not been partitioned and the transaction wasalso violative of the Land Reforms Regulation. Getting the permission for review, Mutation No. 72 was attested in village Rohillanwali on 11-3-1971 undoing the exchange. Similarly effect was given in Khakhi Sumali by Mutation No. 2996 on 20-8-1971. Sharif appealed to the Collector against the upsetting of the exchange but directed his attack against the mutation by which the exchange was undone and which was attested first, viz. No. 72 attested on 11-3-1971,. The Collector allowed the appeal kept intact the exchange evidenced by mutation No. 1133 attested on 29-9-1959. Consequential action was not taken to restore the exchange in respect of the village Khakhi Sumali. The result of this order of the Collector was that in the revenue records Sharif became the owner of the land which he had given in exchange as well as of the land which he had received in exchange and Roshan Din lost both, the one he had given in exchange and also the one he had received in exchange. This, I am told, led to the murder of Roahan Din and the imprisonment of Sharif and a large number of his relatives who are undergoing life imprisonment.
The successors of Roshan Din challenged the order of the Collector by instituting a civil suit on 15- 7-1971 which failed on 23-11-1976 which failed on 29-11-19'6 when they were told that the civil Courts had no jurisdiction in the matter. It was on the 13th December, 1976 that appeal was filed before the Additional Commissioner which was entertained by the Additional Commissioner who on merits and for a number of reasons given upheld the order of the Collector maintaining exchange in respect of Rohillanwali property of the petitioners. A revision against that order was dismissed in the circumstances already indicated.
3. The learned counsel for the petitioners has taken a legal objection that the competent authority i.e., the Additional Commissioner was fully aware of the reasons for the delay and under section 14 of the Limitation Act he had the authority to entertain the appeal which he did. The revisional authority without adverting to that aspect of the case or the efforts made by the petitioners during the intervening years refused to examine the merits at all. This according to the learned counsel.
Would be a case of failure to exercise jurisdiction possessed.
4. There is another equitable and more proper angle of looking at the whole question. The transaction was of exchange. If it had been in respect of the praperty in the same village only one mutation would have served the purpose and whether a part of the exchange violated the law or the whole, it would have been either upheld or set aside in its entirety. It was jus a chance in consequential nature that property happened to be locate in two villages which necessitated two mutations of exchange. If the exchange transaction in respect of one village stood the test of the law but of the other village did not, the whole exchange as such covered by both the mutations had to go, putting the parties back to their original position The legality or the illegality of it could not be examined in parts. The departmental authorities at the higher level have actually attempted the impossible by maintaining the legality of the mutation of Rohillanwali while subscribing indirectly to the undoing of the exchange in the other, the transaction being one and the same. The result of the inequity would obvious to anyone who finds that by this exercise of authority Shari respondent has been made on paper the owner of both the lands, the one that belonged to him and the one that he was to obtain in exchange of the land which belonged to him. On the ground, it is said, the position is very different. It may be so but this inequity has already caused the life of on of the parties to the exchange and the life imprisonment to the other. If thedditional Commissioner's orders were to be affirmed at all the consequential relief of it would be to direct the revision of the cancellation of the mutation in the village Khakhi Sumali.
5. As regards the legal objection on which this petition must succeed, undoubtedly, the appeal before the Additional Commissioner was preferred After five years of the original order. There was an explanation for it, The matter had been taken to the civil Court where it remained pending from 15-7-1971 to 23-11-1976 and if this period is excluded then the appeal before the Additional Commissioner was within 30 days of the order under appeal. If such an objection had been contained or dealt with in the order of the Additional Commissioner, the revisional authority would have got full disclosure of the background in which the concession was claimed. Having remained unaware of such pendency, the circumstances in which the delay was condoned and whether it should at all be condoned were not before the learned Member Board of Revenue.
6. The result is that this Constitutional petition is allowed. The order of the Member Board of Revenue is declared to be without lawful authority and of no legal effect. The result thereof would be that the revision would be deemed to be pending decision afresh by the learned Member Board of Revenue.
7. This petition was fixed today for hearing of an application with regard to interim relief. However, as the points of law urged followed from admitted facts, with the consent of the parties the hearing of the Constitutional petition itself was taken up instead of limiting the order to the application for interim relief. No order is made as to costs in the circumstances of the case.