A declaratory suit with consequential relief of injunction initiated by the petitioners that they were owners in possession of the land in dispute and that the order passed by the Board of Revenue on 30.8.1994 was ineffective qua them was decreed by the trial Court vide, its judgment dated 18.3.1998 where against the appeal filed by the Province of Punjab was accepted by the learned District Judge Toba Tek Singh on 11.5.2000. This is revision petition by the plaintiffs qua the same.
2. It is contended by the learned counsel that while passing order dated 30.8.1994, the learned Member Board of Revenue had acted illegally and without jurisdiction inasmuch as the basis of his order was the report/inquiry conducted by the Secretary (Colonies) Board of Revenue whereas under the law he was obliged and bound to make inquiry himself and record his findings.
Reference in this context has been made to Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha vs. Muhammad Akram (PLD 1993 Lahore 114) and Muhammad Liaquat and 5 others vs. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953). It is thus contended that while reversing the judgment of the trial Court, the learned District Judge, Toba Tek Singh has acted illegally and with material irregularity.
The learned Additional Advocate General Punjab supports the judgment of the learned District Judge which according to him is fully justified by the facts, circumstances and the evidence on the record. It is pointed out by him that even the trial Court had returned finding against the petitioners qua the order of the Board of Revenue dated 30.8.1994 which had become subject-matter of controversy under Issue No,
2. It is contended by the learned Law Officer that the Board of Revenue while passing order dated 30.8.1994 applied his own mind independent of the report of the Secretary (Colonies) Board of Revenue whose reasoning were fully borne out by the record.
3. From the material brought on record, it is evident that initially Safdar Ali Respondent No, 4 herein, (who was impleaded as defendant in the suit) had been granted a temporary lease through auction for one year in the year 1977 in Chak No, 322 G.B. Toba Tek Singh. He thereafter applied for allotment of alternate land in Chak No, 344 G.B. which was granted on 26.3.1990 by the Colony Assistant/Collector. He was granted proprietary rights thereof and conveyance deed was executed in his favour on 15.5.1990. The mutation was also attested the same date. On the very next day, i,e, 16.5.1990 Akbar Ali, his attorney, proceeded to sell the land in favour of the petitioners-plaintiffs. The matter appeared to have come to the notice of the Board of Revenue and Secretary (Colonies)
Board of Revenue put up a note dated 15.3.1993 to the Member (Colonies) on which the learned Member (Colonies) Board of Revenue proceeded to take cognizance of the matter under Section 30(2) of the Colonization of Government Lands Act, 1912. The petitioners were represented before the learned Member whereas Safdar Ali despite initially having entered appearance disappeared thereafter and was proceeded exparte. It was found by the learned Board, of Revenue that the grant of alternate land to Safdar Ali was "ab-initio", void and of no legal consequences." He, therefore, proceeded to set aside conveyance deed dated 15.5.1990 and rescinded the same. As mentioned above, this order prompted the petitioners to institute the suit. The suit was contested by the Province and the official respondents, in which issues reflecting the controversy emerging from the pleadings of the parties were framed. The issues due, to their relevance and importance, are reproduced here:-- "(1) Whether the plaintiffs are owners in possession of the suit property vide Mutation No, 223 dated 16.5.1990? OPP
(2) Whether the order of Defendant No, 2 dated 30.8.1994 is against the facts and law and without authority and liable to be cancelled? OPD
(3) Whether the plaintiffs are entitled to a declaratory decree as prayed for? OPP
(4) Whether the plaintiffs have go no cause of action? OPD
(5) Whether this Court has no jurisdiction to try this suit? OPD
(6) Relief.
Following two additional issues were framed on 4.3.1998:-- (5-A) Whether the suit is under valued for the purposes of Court fee and jurisdiction? OPD 1 to 3.
(5-B) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD 1 to 3."
While recording finding on Issue No, 2, which had close nexus with Issue No, 1, the learned trial Court came to the conclusion that "the impugned order dated 30.8.1994 is not against fact and law but it is ineffective against the rights of the plaintiffs because they are bona fide purchaser and that their title has not been challenged by the Province of Punjab in any Court of competent jurisdiction." The learned District Judge was also of the same view qua order dated 30.8.1994 who after quite close scrutiny of the evidence on the record observed that "on the face of above evidence it appears that the learned trial Court rightly appreciated all the facts and declared that the cancellation of land by the MBR was with a valid Order u/S. 30(2) of the Colonization of Government Lands Act which provides that the Board of. Revenue if satisfied that any person had acquired under this Act tenancy right in respect of any land by means of fraud and misrepresentation or was riot eligible to have such rights for any reason whatsoever, notwithstanding the question of proprietary rights by such person, may after giving such person reasonable opportunity of showing pass an order resuming the land in respect., of which proprietary rights have been acquired." Thus insofar as the validity or otherwise of the order passed by Board of Revenue on 30.8.1994 is concerned, there is a concurrent view taken by both the Courts below that the said order was not contrary to law. The reliance of the learned counsel for the petitioners upon Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha vs. Muhammad Akram (PLD 1993 Lahore 114) is inapt inasmuch as facts and circumstances of the precedent case were materially distinct from the background of the present case. In that case it was found that no inquiry had been held by the Member Board of Revenue and he should not have relied upon oral statement of the Colony Clerk.
The perusal, however, of order dated 30.8.1994 passed by the learned Member Board of Revenue in the instant case shows that after a note had been placed by the Secretary (Colonies) Board of Revenue, the record was examined by the learned Member Board of Revenue himself who recorded his own finding that:--
(i) Safdar Ali had got 119 Kanals 4 Marlas land in Chak No, 322 G.B. Tehsil T.T. Singh on temporary lease for one year Kharif 1977 to Rabi 1978 which lease was never extended in his favour and he remained in unauthorized cultivation thereafter;
(ii) In view of order passed on 17.5.1985, by the Collector he was found ineligible for grant of proprietary rights. The land was then included in the schedule of temporary cultivation scheme;
(iii) By virtue of policy decision dated 20.2.1986 proprietary rights could not be granted to Safdar Ali nor the alternate allotment to him. He did not held even a temporary lease of any state land on 20.2.1986 and thus was not entitled to claim lease of alternate land.
It was after appreciation and consideration of the record with due application of his independent mind to the essential aspects of the matter, that the learned Merriber Board of Revenue came to the conclusion that grant of alternate land measuring 99 Kanals 19 Marlas in Chak No, 344 G.B. was void, ab-initio and was of no legal consequence. The precedents thus cited by the learned counsel are of no avail to him.
4. Insofar as the stance of the petitioners that they were bonafide purchaser who had daveloped the land by putting in hard labour, suffice is observe that they had full opportunity of representation and hearing by the learned Member Board of Revenue. They had even produced evidence before the trial Court but were unable to prove that exercise of jurisdiction by the learned Member Board of Revenue was unwarranted or illegal. Referring to an appeal filed by Safdar Ali against the refusal of extension in the lease qua order dated 13.11.1980 passed by the Additional Commissioner (Revenue) Sargodha Division the learned counsel sought to contend that the said order was not noticed by the learned Member Board of Revenue. When asked as to whether the same was produced before the learned Member, no satisfactory response has been made. The learned Additional Advocate General who is accompanied by a departmental official alongwith the relevant record has stated that Safdar Ali never appeared before the A.C./Collector pursuant to the order passed by the Additional Commissioner (Revenue) Sargodha although he was specifically directed the appear before the E.A.C/Collector on 25.11.1980. The perusal of the order passed by the Additional Commissioner (Revenue) makes it abundantly clear that the matter was remanded by him to A.C/Collector with a direction that he should see if now the entire land has been brought under cultivation. If so, then at fresh order be passed keeping in view the circumstances and the hardships referred above. If the land is still uncultivated no leniency be shown to the appellant and the land be resumed from him." It was thus a conditional order dependant upon the appearance of Safdar Ali before the A.C./Collector and to show that the land had been brought under cultivation. By not appearing before the A.C/Collector he lost whatever was gained by him by order of the Additional Commissioner dated 13.11.1980.
It may be observed that the petitioners who had acquired interest from Safdar Ali cannot claim a better right or interest than Safdar Ali and from have to sink or sail with him.
Suffice it to observe that the question of jurisdiction of the Civil Court was eminently linked with the validity of the order passed by Board of Revenue on 30.8A994. Since as observed above, the finding concurrently arrived at by the Courts below as to order dated 30.8.1994 are that the same was legal the exclusion of justified in the light of the evidence on the record and the legal position obtaining in the matter to non suit the petitioners] plaintiffs and their suit was rightly dismissed by him. In view of the above, his revision petition is Without merit, which is [dismissed accordingly with no order as to costs.