This writ petition is directed against the orders dated 31.3.1976 passed by Respondents Nos, 2 & 3, order elated 7.6.1976 of Respondent No, 4 order dated 30.8.1968 of Respondent No, 2 and orders dated 9.5.1990 and 19.12.1993 passed by Respondent No, 1 whereby the petitioners were deprived of the lot sold to there by the original purchasers on the ground that the original purchasers had no right to sell the land.
2. The facts giving rise to the instant writ petition are that Lot No, 19 comprising rectangle No, 54/58 Killa Nos, 1 to 5, rectangle No, 57/61, rectangle No, 55/59 Killa No, 112, and rectangle No, 56/60, an area measuring about 184 kanals situated in Chak No, 495/ TDA, was originally purchased by Noor Muhammad and Karan: Din sons of Nikka under fixed price scheme framed under Section 30(2) of the Thal Development Act, 1949. The sale took place on 29.6.1960. Possession was also given on 29.6.1960.
3. According to the statement of conditions the Thal Development Authority undertook vide Condition No, 12, that the authority will supply source of water and level the land which was admittedly consisted of big sand dunes. Subsequently TDA resiled from its commitment and did not level the land, although it accepted a major portion of the amount with the result that practically it become beyond the reach of the purchasers to make payment of instalment. A protest from the public sector was lodged to the then Chairman, Thal Development Authority who issued administrative instruction and imposing new condition allowed rebate of Rs, 12/- per cent to the purchasers.
4. Instead of implementing those instructions and calling upon the purchasers, to make payment, Respondent No, 3 on 31.3.1976 passed as parte resumption order which was assailed in appeal by the original purchasers on 3.5.1976 before Respondent No, 4 who vide his order dated 27.7.1976 allowed the appeal directing that last instalment shall be paid by the purchaser by 15.1,1977. The entire payment of the land in dispute was paid. by the purchasers, ad detailed below:--
1. First instalment of Rs, 1437.08 was paid on 9.6.1969 vide Challan No, 196 in the Habib Bank limited, Bhakkar.
2. Second instalment of Rs, 2901.65 was paid on 9.6.1964 vide Challan No, 9664 in the Habib Bank Limited, Bhakkar.
3. Third instalment of Rs, 1391.72 was paid on 8.6.1965 in the Habib Bank Limited, Bhakkar vide Challan No, 2301.
4. Fourth instalment of Rs, 3000/- was paid on 7.7.1992 in the National Bank of Pakistan, Layyah.
5. Fifth instalment of Rs, 5000/--was paid on 10.8.1973 in the National Bank of Pakistan, Layyah.
6. Sixth instalment of Rs, 3000/- was paid on 16.7.1976 in the National Bank of Pakistan, Layyah.
7. Seventh instalment of Rs, 1582.01 was paid on 31.5.197 l in the National Bank of Pakistan, Layyah.
5. Since the land was banjar Qadeem, it became beyond the reach of the purchasers to make payment, in time. The last instalment was, however, paid on 31.5.1977. Respondent No, 4 had dealt with the case on executive side on 7.6.1976 and dismissed the appeal of the petitioners.
6. The original purchasers on 3.3.1983 moved an application before Respondent No, 2 seeking condonation of default of late deposit which was allowed. Respondent No, 2 on 12.4. 1983 addressed a Robcar in the name of EACO Layyah to rester& the lot in fa-tour of the purchasers. After depositing the entire sale price, in the treasury, conveyance deed.. in favour of the purchasers was issue which was registered with the Sub-Registrar on 10.10.1986. In .pursuance of conveyance deed, necessary Mutation No, 45 dated 22.6.1988 vas sanctioned in favour of the original purchasers who sold the land to the petitioners through a Mutation No, 89 dated 24.8.1986.
7. Respondent No, 2 sent a detailed list of the oases which included the case of the petitioners, seeking permission to review the orders passed by his predecessor Commissioner to the Board of Revenue, although during the pendency of exercise and lapse of time, the Member (Colonies)
Board of Revenue, on 4.12.1085 had issued administrative instructions to rectify the beach in such like cases including the case of the .petitioners. The Member. (Colonies) Board of Revenue vide his Memo No, 295-88/650/T dated 8.3.1938 allowed Respondent No, 2 to review the orders of his predecessor Commissioner on the analogy of Section 163 of the West Pakistan Land Revenue Act.
8. Respondent No, 2 vide his order dated 30.8.1998 reviewed the order dated 12.4.1983 of his predecessor holding it to be a fraudulent transaction Order dated. 30.8.1988 passed by Commissioner D.G. Khan Division was challenged through ROR No, 1737/1988 which was dismissed by Member Board of Revenue(C) on 9.5.1990 by placing the case of the petitioners id category RI.
Order dated 9.5.1990 was assailed in Review Petition No, 36-93 before Respondent No, 1. who vide his order dated 19,12.93 dismissed the petition with the observation that the original purchasers had no right to sell the land which was cancelled from their, names. Hence this writ petition.
9. It is contended by learned counsel for the petitioners that the impugned orders passed by Respondents Nos, 1 to 4 are uncalled for and unwarranted by law having been passed in an arbitrary and summary manner, that there is no provision either in the Thal Development Act, 1949 or in the Thal Development Authority (Colonization) (Appeal & Revision) Rules, 1973 framed under Section 50(1) (xix) of the Thal. Development Act, 1949, which empowers Respondent No, 2 or for that purpose the Member Board of Revenue to 'review the order passed by the predecessor officer. This point was specifically urged before Respondent No, 1 who neither adverted to this aspect of the case nor findings have been given thereon which renders the impugned orders to be clearly without jurisdiction and without lawful authority. Reliance in this behalf is placed on Muzaffar Ali vs. Muhammad Shaft (PLD 1981 SC 94), Province of Punjab through Collector, District Khushab and 2 others vs. Malik Ghulam Qasim (1993 CLC 589), Muhammad Hussain vs. Member, Board of Revenue (Colonies) Punjab, Lahore (2004 MLD 1685) and Mst. Bakhat Bibi etc. vs. MBR etc. (1984 Law Notes (Multan) 147; that Respondent No, 1 while passing the impugned order has gone by the only consideration that Noor Muhammad etc. the original purchasers could not possibly sell the land which was cancelled from their names. The sale-deed was executed by the Collector in favour of the original purchasers on 6.12.1986 and it was thereafter that the petitioners purchased the disputed lot and, therefore, there was no sale at all in favour of the petitioners before the conferment of proprietary rights; and Respondent No, 1 had no powers to rescind the sale-deed; that the Member Board of Revenue issued curative instructions to rectify the breach. After issuance of the administrative instructions, the finality of the Commissioner order if any stood destroyed and there was no justification available with Respondents Nos, 1 & 2 to 5e-open the past and closed transaction. Reliance in this behalf is placed on Commissioner of Sales Tax (West) Karachi vs. Messers Kruddsons Ltd. (PLD 1974 SC 180); that it was the Thal Development Authority itself who committed breach of condition by not levelling the land and supply the source of irrigation, as such the petitioners alone could not be blamed for making default which was rectifiable in nature and that the Member (Colonies), Board of Revenue vide his order dated 9.5.1990 recorded a non- speaking findings while preparing a summary of cases and placing the case of the petitioners in category No, III. The findings are general in nature. This, in fact, is a mechanical order passed on whims and conjectures by laying unwarranted emphasis on the conduct of the original purchases.
10.On the other hand, the learned Additional Advocate-General has supported the impugned orders and submitted that Noor Muhammad and Karam Din sons of Nikki were bona fide purchasers of land in dispute, which was resumed on 3.3.1976 and their appeal against the said order was allowed by the Commissioner Multan Division condition all on 27.7.1976 that purchase price was to be deposited on or before 15.1.1977. The appeal was presented again before the Commissioner, Multan Division as no proof of deposit of amount was given, so the appeal was dismissed and the land in dispute was resumed in favour of State on 7.6.1977. This order dated 7.6.1977 was never challenged by the allottees or petitioners. They in connivance with the field staff got the lost restored on 12.4.1983 while concealing order of resumption dated 7.6.1977. The order dated 12 4.1983 as well as the order of Proprietary rights were set aside by the Commissioner D.G.
Khan on 30.8.1988. This order of Commissioner was never challenged by bona fide purchasers Noor Muhammad and Karam Din but the same was challenged by the petitioners before the Member Board--of Revenue in Revision as well as in review. Their revision was dismissed on 9.5.1990 and their review petition was dismissed on 19.12.1993 by MBR against which present writ petition has been filed by the petitioners without having locus standi. It is further submitted that this writ petition is not maintainable as held in Mst. Shah Sultan vs. Chief Commissioner .etc. (2004 CLC 145 Lahore); that the order of restoration dated 12.8.1983 was procured by the petitioners through concealment of facts/concealment of original resumption order dated 7.6.1977, so the writ petition is not maintainable. Reliance in this behalf is placed on Dilawar Hussain etc. vs. DCO Okara (2004 CLC 324 LHR). It is also submitted that the revenue authorities i,e, Commissioner and MBR concurrently decided against the petitioners Vide orders dated 30.8.1988, 9.5.1990 and 19.12.1993 so the writ petition is liable to be dismissed as laid down in the following citations:
1. Faisal Afzal Sheikh vs. ADJ etc. (PLD 2004 LHR 668);
2. M. Munir vs. Hafiz M. Rafique (2004 SCMR 1551);
3. M. Shamim vs. Mrs. Raheed etc. (2004 CLC 1985)
4. Mina.Baig vs. Mst. Lubno Riaz (2004 CLC 1545); and
5. Malik Abdul Qadir vs. Atteeq Ahmad (PLD 2004 Karachi 555).
11. I have heard learned counsel for the petitioners as well as the learned Additional Advocate- General and gone through the record.
12. The disputed land was originally purchased by Noor Muhammad and Karam Din sons of Nikka.
As the Thal Development Authority resiled from its commitment and did not level the land, they did not make payment of instalment. On 31.3.1976 Respondent No, 3 Extra Assistant Colonization Officer, Layyah, passed resumption order, which was assailed by the original purchasers in 'appeal before Respondent No, 4, Commissioner Multan Division Multan who vide order dated 27.7.1976 allowed the appeal on the condition that last instalment be paid by 15.1.1977. As the last instalment was paid on 31.5.1977 instead of 15.1.1977, Respondent No, 4 Commissioner Multan Division Multan, dismissed the appeal of the original purchasers vide his order dated 7.6.1977. On 3.3.1983 the original purchasers moved an application before Respondent No, 2 Commissioners D.G. Khan Division D.G. Khan seeking condonation of default of late deposit. Respondent No, 2 allowed the said application and issued a Robkar on 12.4.1983 in the name of EACO Layyah/Respondent No, 3 to restore the lot in favour of the original purchasers. After the restoration of the lot the petitioners purchased the land is dispute from the original purchase with the permission of the District Collector Layyah dated 15.7.1986. Mutation No, 39 was sanctioned in favour of petitioners on 24.8.1986. Conveyance deed in favour of petitioners was thereafter also executed by the TDA on 6.12.1986 and they became full owners of the land in dispute.
13. Respondent No, 2 sent a detailed list of the case which included the case of the petitioners, seeking permission to review the orders passed by his predecessor Commissioner, to the Board of Revenue and he Member (Colonies) Board of Revenue vide his memo No, 295-88/650 dated 8.3.1988 allowed Respondent No, 2 to review the orders of his predecessor Commissioner on the analogy of Section 163 of West Pakistan Land Revenue Act. Respondent No, 2 vide his order dated 30.8.1988 reviewed the order dated 12.4.1983 of his predecessor officer, holding it to be a fraudulent transaction. Against the said order, the petitioners, filed ROR No, 1787-88, which was dismissed by the Member (Colonies) Board of Revenue, Lahore vide order dated 9.5.1990 by placing the case of the petitioners in category No, III. Order dated 9.5.1990 was assailed in Review Petition No, 3 -93 before Respondent No, 1 who vide his order dated 19.12.1993 dismissed the petition with the observation that the original purchasers had no right to sL11 the land which was cancelled from their names.
14. There is no provision either in the Thal Development Act, 194E or in the Thal Development Authority (Colonies) (Appeal & Revision) Rules, 1973 framed under Section 50(1) (xix) of the Thal Development Act, 1949, which empowers Respondent No, 2 or for that purpose the Member Board of Revenue to review the order passed by the predecessor officer. In support of this proposition, reliance is placed on Muhammad Hussain vs. Member, Board of Revenue (Colonies) Punjab, Lahore (2004 MLD 1685). So Respondent No, 2 had no authority to review the order of his predecessor dated 12.4.1983. Respondent No, 2 allowed the application of the original purchasers and condoned the default of late deposit vide his order dated 12.4.1983. He also issued a robkar in the name of EACO Layyah to restore the lot in their favour. The learned Member Board of Revenue issued administrative instructions to Respondent No, 2 to review the said order passed by his predecessor officer. Respondent No, 2 reviewed the same. After the issuance of the administrative instructions, the finality of the Commissioner's order stood destroyed as Respondents Nos, 1 .& 2 had no jurisdiction to re-open the past and closed transaction. In this respect Reliance is placed on Commissioner of Sales Tax (West) Karachi vs. Messers Kruddsons Ltd. (PLD 1974 SC 180). The appeal before Respondent No, 4 was filed by the original purchasers and application to condone the fat was 1 also filed by them before the Commissioner D.G. Khan who directed Respondent No, 3 to confer proprietary rights which were conferred upon the original purchasers and it was thereafter that the sale had taken place in favour of the petitioners. Therefore, the petitioners are bona fide purchasers and Respondent No, 1 had no jurisdiction to direct Respondent No, 2 to rescind the sale- deed. Even otherwise Respondent No, 3 passed an ex parte order while making resumption of the land as the original purchasers were neither heard nor served. After the restoration of the 1ot in dispute, the proprietary rights were conferred upon the petitioners and as they had become full owners of the land in dispute, so they had challenged the order dated 30.8.1988 passed by the Commissioner D.G. Khan because the actual aggrieved party were the petitioners and not the original purchasers.
15. For the foregoing reasons, this writ petition is accepted and the impugned orders are set aside.
Parties are left to bear their own costs.