' JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Through this single judgment, I intend to dispose of appeal No,2307/2004 brought by Mr. Muhammad Aslam Lakhwera, appeal No,2308 of 2004 by Muhammad Rafique Chaudhary and appeal No,2309/2004 by Mohsin Nazir Khan Burki, all Deputy District Officers (Revenue), as common questions of law and of fact arise and further the penalties imposed emanate from a single judgment.
2. All the appellants have brought in challenge order dated 16-9-2004 whereby the Chief Secretary, Punjab rejected the appeal of the appellants and maintained the major penalty of reduction to 5
(five) stages lower in the existing pay scale imposed by the Additional Chief Secretary, authority of the appellants, on 6-5-2003.
3. Appellants were proceeded against under the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1999. Muhammad Aslam Khan Lakhwera, former Colony Assistant, Sahiwal was served with the charge sheet, containing the following charges:-- "Now Therefore, You Mr. Muhammad Aslam Lakhwera, Ex-Colony Assistant, Sahiwal are hereby charged as under: ' That while posted as Colony Assistant, Sahiwal you committed the following irregularities:--
(a) You allotted 14 shop sites/ahatas of Charagah land, in different Chaks and of different sizes, without getting Izadi Lines sanctioned from the District Collector as required under the rules. Thus you have not only violated the Government instructions/policy in this behalf, but also acted beyond your jurisdiction.
(b) Furthermore the ahatas were allotted out of Charagah land without ascertaining the entitlement of each individual/allottee. Price of the ahatas had also not been rightly, assessed and charged as required under Notification No,857-85-11/551-CS dated 20-2-1985, memo. No, 4506- 85/2840-CLIV dated 8-10-1985 and memo. No,6879-87/7930/CLIV dated 8-12-1987. The detail of such ahatas allotted by you is enclosed as Annexure "A". This act of yours is likely to cause heavy loss to the Government exchequer".
' Appellant denied the charges stating that his action was fully covered by the instructions issued by the Board of Revenue, Punjab contained in letter No,1459-89/1643-H-II dated 29-11-1989 and letter No,2253- 91/2411-CL-IV dated 13-7-1991 and it was wrong to suggest that sanction of the Izadi line had not been undertaken or was required. It is stated that in all the cases of allotment, land was recorded as "Maqbooza Bashindgan-Deh" or "Ghair Mumkin Abadi" or "Abadi Deh" therefore the status of the state land being known, no further change in status or category is ever required by carving Izadi line. As regards the second charge, it was stated that it was within his right as Colony Assistant to grant the allotment of "Charagah" land and in such cases entitlement were ascertained by obtaining reports from the revenue field staff. The price was rightly assessed in accordance with letter dated 13-7-1991 issued by the Board of Revenue, Punjab. Since the encroachers had already made houses and constructions therefore in view of the instructions of the Board of Revenue, Punjab dated 29-11-1989 it was not necessary to obtain sanction of the Izadi line by the District Collector. Appellant stated that he acted to promote the instructions of the Chief Minister who desired the allotment to dwellers of various categories of encroachers to be undertaken forthwith on priority basis. It was also pleaded that two other Colony Assistants, of Sahiwal made similar 13 allotments in implementation of the orders for the regularization of encroachments by dwellers in different chaks but they have not been proceeded, therefore, a case of rank discrimination has been made to pick and choose violating their fundamental right of equality enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan 1973. Lastly it was stated that the allegations in the charge sheet do not remotely indicate any loss to the government or dishonestly committed by the appellant, therefore, imposition of major penalty was extremely harsh and not at all called for.
4. Muhammad Rafique Chaudhary, appellant received a charge sheet containing the following charges:-- "Now therefore, You Chaudhry Muhammad Rafique, EAC, Chichawatni are hereby charged as under:-- "That while posted as Colony Assistant, Sahiwal you committed the following irregularities:--
(a) You allotted 49 shop sites/ahatas of Charagah land, in different Chaks and of different sizes, without getting Izadi Lines sanctioned from the District Collector as required under the rules. Thus you have not only violated the Government instructions/policy in this behalf, but also acted beyond your jurisdiction.
(b) Furthermore the ahatas were allotted out of Charagah land without ascertaining the entitlement of each individual/allotee. Price of the ahatas had also not been rightly assessed and charged as required under Notification No,852-85-II/551-CS dated 20-2-1985, memo. No, 4506- 85/2840-CLIV dated 8-10-1985 and memo. No,6879-87/7930-CLIV dated 8-12-1987. The detail of such ahatas allotted by you is enclosed as Annexure "A". This act of yours is likely to cause heavy loss to the Government exchequer.
(c) You also issued conveyance deed to M/s. Rashid Anjum etc. Of Chak No,45/12-L whereas you were not competent to issue the same, as this fell within the jurisdiction of District Collector."
' He denied the charges, stating that the allotment of 49 shop sites/ahatas of Charagah land was in accordance with the instructions of the Board of Revenue, Punjab dated 29-11-1989 which provides regularization of the encroachment on State land. The land was allotted after getting full reports from the subordinates and finds support from the entries of register "Haqdaran Zamin". The notion of sanction of Izadi line was only relevant in case of which is unoccupied or where unoccupied State land requires to be converted to residential use. Since the encroachers had already erected their dwelling units on the State land their occupation was regularized in the light of the instructions of the Board of Revenue, Punjab. As regards the second charge, it was denied that Charagh land was allotted without ascertainment of the entitlement of each individual/allottee and further the prices have been charged in accordance with the instructions of the Board of Revenue, Punjab conveyed through letter dated 13-7-1991 and that no loss has been caused to the government exchequer.
5. Mohsin Nazir Khan Burki, appellant was served with the charge sheet containing the following charges:-- "NOW. THEREFORE, You Mr. Mohsin Nazir Barki, EAC/GAR, Bhakkar are hereby charged as under:-- ' That while posted as Colony Assistant, Sahiwal you committed the following irregularities:--
(a) You allotted 25 shop sites/ahatas of Charagah land, in different Chaks and of different sizes, without getting Izadi Lines sanctioned from the District Collector as required under the rules. Thus you have not only violated the Government instructions/policy in this behalf, but also acted beyond your jurisdiction.
(b) Furthermore the ahatas were allotted out of Charagah land without ascertaining the entitlement of each individual/allotee, Price of the ahatas had also not been rightly assessed and charged as required under Notification No,852-85-II/551-CS dated 20-2-1985, memo. No, 4506- 85/2840-CLIV dated 8-10-1985 and memo. No,6879-87/7930-CLIV dated 8-12-1987. The detail of such ahatas allotted by you is enclosed as Annexure "A". This act of yours is likely to cause heavy loss to the Government exchequer.
(c) You also issued 12 conveyance deeds to the different persons whereas you were not competent to issue the same, as this fell within the jurisdiction of District Collector."
' Appellant denied the charges stating that the allotments were made strictly in accordance with the competence vested in him as Colony Assistant vide notification of the Board of Revenue, Punjab dated 14-1-1987 read with instructions dated 13-7-1991.
6. The inquiry officer who happened to be Deputy Commissioner, Khanewal examined Shaukat Ali, Ahata Clerk, Tehsil Chichawatni, District Sahiwal and Rana Muhammad Arshad, HC (Colony)
Sahiwal by recording their statements. The inquiry commenced on the complaint of one Muhammad Nazir s/o Fateh Muhammad, who complained that illegal/bogus allotment of Ahata sites was made by the appellants. A report was called from the Assistant Commissioner, Chichawatni, after which a brief note was added by HVC and submitted to D.C. Sahiwal, in which it is stated that Mohsin Nazir Barki, Colony Assistant, Sahiwal allotted Ahata sites measuring 2 Kanals to M/s. Abrur Rashid, Abdul Waheed and Ali Muhammad sons of Sher Muhammad and Nisar Ahmed s/. Atta Muhammad without getting Izadi line sanctioned from the District Collector Sahiwal. Upon this complaint the District Collector vide his order dated 20-10-1999 directed to trace out/collect all old files in which Ahata sites were allotted without sanction of Izadi line and in consequence a reference was made to the Commissioner, Multan Division, Multan to allow the revision of 100 cases. Sanction to review the allotment orders were accorded by the Commissioner, Multan Division, Multan who vide circular dated 17-12-1999 allowed review and thereafter sanction of Ahata sites were cancelled by the District Collector, Sahiwal after hearing the parties and action under sections 32/34 of the Colonization of Government Lands Punjab Act, 1912 was initiated against the occupants. The main ground of cancellation of the allotments were that no sanction of Izadi line was obtained from District Collector, Sahiwal. It was admitted by the two witnesses that 13 allotments were made by Chaudhary Riasat Ali and Malik Hameed-udDin, former Colony Assistants, Sahiwal but no reference was made against them. The two witnesses examined admitted in cross-examination that the allotment orders were issued after obtaining reports from the filed staff according to which the allottees were illegal occupants. It was further admitted that the Ahata sites were not allowed free of cost. However, the witnesses denied the knowledge of establishment of Azadi line on vacant land. Power of the Colony Assistant to sanction conveyance deed upto the value of Rs,5000 was also admitted. Again it was not denied that -any appeal was filed by the allottees against the cancellation of their allotment, rather the allotments were made after getting repprts from the field staff and advertisement was made through beat of drums. No instructions prohibiting the signing of conveyance deed upto the value of Rs,5000 received prior to the action taken by the appellant and the practice was that Colony Assistant used to sign the conveyance deeds themselves. It was lastly admitted that the occupants whose occupation was regularized were in possession of the land which was described in the revenue record as "Maqbooza Bashindgan Deh". Appellants reiterated their stance taken in reply to the charge sheet.
Charge No,0 in the case of Muhammad Rafique Chaudhary and in the case of Mohsin Nazir Khan Burki was not proved. The deposition of the witnesses that the land consisting of Charagah was occupied by encroachers was endorsed. In these circumstances. Azadi line which i5 required to be carved after obtaining sanction from the District Collector, Sahiwal in case of vacant lands to be delineated for residential purposes was not required. The inquiry officer held the appellants guilty mainly on two grounds first that they failed to obtain sanction from the Collector for carving out different Azadi line and secondly that the D appellants regularized the possession of illegal encroachers by granting them proprietary rights which were to be awarded to the dwellers of Katchi Abdi of State land after getting Katchi Abadi approved from the competent authority and that letter dated 13-7-1991 only pertains to prices of Ahata sites which is not relevant in case of Katchi Abadi. The inquiry officer went on to hold that in cases of regularization of possession of encroachers on State land/Katchi Abadi they were to be issued 'Sanads' as per Katchi Abadi Act as highlighted in Para No,5 of the instructions of the Board of Revenue, Punjab dated 29-11-1989 Summing up the inquiry the officer held that the appellants allotted Ahata sites without getting Azadi line approved from the District Collector, E Sahiwal thus they violated government instructions and also acted beyond their jurisdiction, as such paras (a) and (b) of the charge sheet stood proved against the appellants. He recommended imposition of major penalty. The inquiry officer who was the Deputy Commissioner, Khanewal after submitting inquiry report was transferred where-after the inquiry proceedings were entrusted to Secretary Agriculture, who did nothing fresh or being any thing and after recording the statement of the appellants supported the inquiry report of his predecessor. The authority after hearing the appellants imposed the penalty now impugned.
7. Learned counsel for the appellants raised same contentions which the appellants in their defence controverted the charges as such for the sake of brevity there is no need to reproduce them. Learned District Attorney could not refute or controvert the assertions of the counsel for the appellants for the reason that the Departmental representative present with record made certain concessions after going through the record.
8. District Attorney after seeking instructions from the Departmental representative admitted that the land allotted by the appellants was encroached land or Charagah and were not Katchi Abadi and further there was no requirement under the law to get sanction from the Collector for carving Azadi line as that was only required in cases of vacant land.
9. I have gone through the important instructions issued by the Board of Revenue, Punjab in their circular dated 29-11-1989 which has five components. Firstly State land of residuary evacuee land, secondly settlement of encroachers on state land, thirdly encroachers of ahatas of Colony Chaks and finally grant of allotment rights to the dwellers of Katchi Abadis. All these components are independent of each other and cannot be intermingled. The Departmental representative before me in reply to the query of the Tribunal admitted that the land allotted by the appellants was of the category titled "Encroachers of State land." It was further admitted before me that the appellants in their capacity as Colony Assistants were authorized to make the allotment under section 3 of the Colonization of Government Lands Punjab Act, 1912, to be precise under section 10(3) of the said Act, which empowered them to make allotments of land/village sites. Appellants charged the latest price which the government had directed them to do so in their circular dated 13-7-1991 which is according to market rate + 50% penalty for unauthorized occupation + 10% surcharge for sale by private treaty. I wonder when two witnesses who appeared before the inquiry officer made huge concession in favour of the appellants which were repeated today before me by the Departmental representative, how the inquiry officer and thereafter the authority proceeded to impose major penalty upon the appellants. The inquiry officer totally confused himself by intermingling the encroached land/Charagah land with Katchi Abadi. Allotment of these two different categories of land have different rules and implications. Furthermore, all allotments made by the appellants were cancelled and the occupants were proceeded against. If the appellants added something to the government exchequer it was the price which had been indicated above by getting the same from the allottees, therefore, no loss was caused to the government. The argument of the learned counsel for the appellants that Chaudhary Riasi Ali and Malik Hameed ud Din, former Colony Assistants who made 13 similar allotments were not proceeded against, therefore a method of pick and choose was adopted, thereby creating rank discrimination which is abhorred by the fundamental rights guaranteed to the appellants, under the circumstances, is also full of force.
Appellant has specifically taken this plea in para 7(i) of his memorandum of appeal and to which the respondents have replied as under:-- ' Each case has to be dealt with according to its own merits and circumstances."
' Probably the respondents had no reply but to resort to an evasive response. To top it all the inquiry officers did not even examine the complainant Muhammad Nazir s/o Fateh Muhammad on whose complaint the disciplinary proceedings were launched, not only committing a grave irregularity but depriving the appellants of a chance of cross-examine him.
10. The sum and substance of the discussion leads me to the conclusion that the impugned orders are not based on any solid foundation, therefore, no alternative is left for me but to quash the orders. Resultantly, the order dated 16-9-2004 passed by the respondent No,1 and order dated 6-5- 2003 by respondent No,2 are set aside by accepting the appeals leaving the parties to bear their own costs.