SYED HAMID ALI SHAH J.--This judgment shall dispose of Writ Petitions Nos.12092, 12093, 12110 and 12111 of 2005 as common questions of law and facts are involved in these petitions.
2. Ali Muhammad and Khushi Muhammad sons, of Pir Bakhsh (predecessors of the petitioners) were allotted land under "Grow More Food Scheme of 1956" under the Colonization of Government Lands (Punjab) Act, 1912, through order dated 27-11-1956 by the then District Collector, Lyllepur (now Faisalabad). The allottees developed the land according to terms of allotment under the Scheme, they are in it's possession since allotment. Another Scheme was announced by the Provincial Government, through memorandum dated 22-10-1962, to sell the land to the allottees of Grow More Food Scheme": The predecessors of the petitioners submitted an application for the sale of the land in their possession under the Scheme but the request was declined by functionaries of respondent No,1, on the plea that the land in question fell in prohibited zone, i,e, within five miles of the outer limit of Municipal Committee Faisalabad. The Provincial Government, however, issued memorandum dated 20-5-1971 to grant alternate land to those allottees of Grow More Food Scheme, whose lands fell within the prohibited zone. An application was filed for allotment/sale of alternate land. The Deputy Commissioner/Collector Faisalabad through order dated 15-11-1973, declared the predecessors of the petitioners, eligible for alternate land, resultantly, time was granted to the petitioners for submission of choice of alternate land. The petitioners, through application, submitted their choice of alternate land, along with Fard Jamabandi of Chak No,125- RB, Tehsil Chak Jhumra District Faisalabad. The Collector Faisalabad allotted the land in Chak No,125/R.B to the petitioners vide order dated 23-1-1988 but allotment could not be materialized in favour of the petitioners, firstly, as it had already been allotted and Commissioner Faisalabad Division vide order dated 27-12-1993 decided the appeal in favour of the allottees. Secondly, this land was also situated within prohibited zone. The land allotted to the petitioners and possessed by them in Chak No,208-RB, under the Grow More Food Scheme, in the meantime, was sold by Board of Revenue to Faisalabad Lawyers Housing Society Limited/respondent No,4, through a private treaty.
3. The petitioners, called in question the said sale, in Writ Petitions No,5101 to 5105 of 1991, whereby through order dated 16-11-1991, the respondents were restrained to dispossess the petitioners till such time they are accommodated elsewhere. Collector, Faisalabad subsequently proceeded for the eviction of the petitioners in ex parte proceedings, against which the petitioners once again approached this Court through Writ Petitions Nos.16800 to 16804 of 1997. The respondents in these petitions, were restrained vide order dated 22-7-1997 to take possession and deliver the same to respondent No,4 unless an alternate land of same quality is allotted to the petitioners and possession thereof is delivered to them. The respondents were directed to associate the petitioners in the proceedings for selection of alternate land for allotment. The above writ petitions were finally decided on 12-1-1998, wherein the direction to grant the alternate land to the petitioners within a period of eight weeks, was given. The petitioners pursuant to the orders, applied to Collector Faisalabad on 16-4-1999, for the allotment of vacant land attached with Irrigation Rest Houses in Tehsil Jaranwala in Chaks No,39-GB, 66-GB, 103-GB and 233-GB. The reports were called from concerned Revenue officials, who reported that the land, claimed by the petitioners for allotment, is surplus land and Irrigation Department has surrendered the same. The land was ready for allotment being outside the prohibited zone. It was also reported that the land has been included in the list sent to the Punjab Privatization Board for auction. D.O.R. Faisalabad allotment barren, un- reclaimable and un-irrigated land in Chaks Nos.148 and 154-RB Tehsil Chak Jhumra to the petitioners as alternate land, without associating the petitioners. While allotting the land the order of eviction of the petitioners was passed, so that the same be delivered to respondent No,4. The petitioners filed four revision petitions, before Board of Revenue under section 164 of the Punjab Land Revenue Act, 1967 read with section 7 of the Act of 1912. Senior Member, B.O.R. While entertaining the revision petitions, called fresh reports from district administration Faisalabad. It was reported to the Board of Revenue that the land in Chaks Nos.39, 66,103 and 233-GB is available and this land was never referred to the Punjab Privatization Board for auction. E.D.O.(R), Faisalabad categorically conveyed to Board that no other land in Faisalabad District is available for allotment to the petitioners, as alternate land having the same value. He in his report dated 16-9-2004, submitted that land in question, falls outside prohibited zone and is available for allotment.
Member (Colonies) in compliance with orders passed by this Court, in various Writ Petitions, kept in view report of E.D.O.(R), Faisalabad, accepted revisions vide order dated 17-2-2003 and ordered that suit land be allotted to the petitioners. Member (Colonies) B.O.R. Subsequently passed detailed order dated 20-4-2005, whereby directed District Officer (Revenue), Faisalabad to process the case in the light of orders passed by this Court and decide the matter of allotment within one month. The Collector Faisalabad therefore, made the allotment to the petitioners through order dated 19-5-2005, D.O.(R) Faisalabad reported compliance to Member (Colonies) B.O.R., while D.D.O.
(Colonies) issued Dakhal warrants to the petitioners on 8-6-2005. The petitioners were delivered possession of the land. The petitioners when approached the concerned Revenue Authorities for recording the report of Dakhal in Rozanamcha, found that the allotment order in favour of the petitioners, has been withdrawn through order dated 9-6-2005, passed by respondent No,2 by exercising suo motu powers of review.
4. Suo motu power was exercised by respondent No,2, purportedly under section 21 of the General Clauses Act, 1897 (subsequently, amended as section 20 of the General Clauses Act, 1956) on the grounds; that the Governor of Punjab has rejected the claim on 26-2-2001; that the order of allotment was processed by the petitioners through fraud and misrepresentation; that allotted land has already been referred to Privatization Board for disposal and it was not available for allotment to the petitioners. Order dated 9-6-2005 passed in review by respondent No,2 has been called in question, through instant petitions.
5. Learned counsel for the petitioners has contended that the respondents were directed by this Court through orders dated 16-11-1991, 22-7-1997 and 12-1-1998 to refrain from dispossessing the petitioners from their lands unless an alternate land of the same value and quality is allotted to them. The Court directed that while allotting the alternate land the petitioners be associated. The petitioners were allotted land by Member B.O.R., after calling from D.C/Collector Faisalabad and other relevant authorities, the reports relevant-for the purposes of allotment. Once the allotment was made in favour of he petitioners and possession thereof was delivered to the petitioners through Dakhal, the land cannot be cancelled, legally. The power to recede does not vest with the respondent, after the allotment order and delivery of possession. Learned counsel has further submitted that respondent No,2 has taken suo motu action for cancellation of land to the petitioners, statedly on the ground that fraud has been committed, by concealing the fact that the land was referred to the Punjab Privatization Board. He added that the land was never referred to the Punjab Privatization Board for it's disposal, which fact is evident from the reply of the Board/respondent No,5, submitted in these proceedings. Learned counsel has contended that the District Administration might have proposed to refer the land to Punjab Privatization Board, regarding which the Patwari reported to Collector Faisalabad. The Punjab Privatization Board through letter dated 27-12-2002, addressed to Member B.O.R., has conveyed that as per it's record (Punjab Privatization Board,), B.O.R. Has never referred the land in question to Punjab Privatization Board. The land is not under consideration for sale by Punjab Privatization Board. Learned counsel has then submitted that the basis of the action against the petitioners was that the land has been handed over to Punjab Privatization Board for it's auction which fact has been denied by Punjab Privatization Board itself through their reply to these writ petitions. If the basis of an action are proved wrong or false, the, whole structure raised thereon is liable to fall down along with it's foundation.
6. Learned counsel for the petitioners has emphasized that the power to review vests with the Member B.O.R. Under section 8 of the West Pakistan Board of Revenue Act, 1957. The power of review can be exercised according to section 8, on discovery of new information, secondly on the application of an aggrieved person, thirdly, after giving notice to the parties and after hearing them. Learned counsel has further submitted that all the three requirements of section 8 of the Act were not met. The information that the property was included in the list of properties referred to Punjab Privatization Board was already available before Senior Member B.O.R., when he passed the original order. The order was reviewed without any notice to the petitioners and the power was exercised suo motu without any application from the aggrieved party. The suo motu action was taken after the lapse of the period of 90 days from the date of the decree/order. The order is not sustainable on this ground alone. Learned counsel has then argued that the original order was passed by Senior Member B.O.R. While exercising the judicial power, which was subsequently reviewed through an administrative order. He has referred to the cases of "Muhammad Ibrahim and 3 others v. Municipal Committee, Chiniot through its Chairman" (1990 ALD 655) "Chuttan and another v. Sufaid Khan and another" (1987 SCMR 503) and "Commissioner of Income Tax, East Pakistan v. Fazlur Rahman" (PLD 1964 S.C. 410) to contend that the order passed on judicial side, cannot be set at naught through administrative order. It was contended that the concept of suo motu review is alien to the provisions of section 8 of the Act. Learned counsel has further submitted that power to review is substantive relief and is always a creation of the statute alone. It cannot be exercised unless it is expressly provided. Learned counsel in support of this contention has placed reliance on the cases of "Muzaffar Ali v. Muhammad Shafi" (PLD 1981 S.C. 94), "Riaz Hussain and others v. Board of Revenue and others" (1991 SCMR 2307), "Jiwan Das v. Rakhmat Din and another"
(AIR 1941 Lahore 212), "Muhammad Yaqub v. Saeed Shah" (PLD 1961 (W.P) Karachi 1956), "Umar Din and others v. Member (Colonies). Board of Revenue and others" (1984 CLC 17) and "Hameed Akhtar v. Member (Colonies), Board of Revenue, Punjab Lahore and another" (2005 YLR 298). Learned counsel while referring to section 10(4) of the Colony Act, 1912 and the case of "Muhammad Zaman and 8 others v. The Minister for Consolidation and3 others" (PLD 1988 Lahore 416) has contended that power to allot and give possession of the Government land vests only in the Collector of the District and the allotment by Collector is not required under the law to be re-opened or set at naught by the Member. Learned counsel has been submitted that successive orders of the High Court were not implemented. Such act was condemned by Hon'ble Supreme Court in the case of "District Officer Revenue, Kasur v. Abdul Rehmat Shaukat" (PLD 2006 SC 188).
7. Learned counsel for respondent No,4 has adopted the arguments of learned counsel for the petitioners and has submitted that due to red tapism and vanity of respondent No,2, the petitioners as well as respondent No,4 are deprived of their lawful rights. Hundreds of applicants are deprived of allotment of their plots in Lawyers Cooperative Housing Society, due to fanciful order of respondent No,2.
8. Learned counsel for respondent No,5 in his arguments, stood behind the parawise comments submitted in the writ petitions. He has stated that neither any proper reference is pending nor any matter with regard to sale through auction of the disputed land, is under consideration before Punjab Privatization Board.
9. Learned counsel for respondents Nos.1 to 3, on the other hand, has submitted that the matter against the petitioners was re-opened on the application of one Mian Muhammad Iqbal, erstwhile President of District Bar Association, Faisalabad, who made a complaint that the property which was reserved for auction is being allotted to the petitioners, in gross neglect of the legal provisions.
The Governor initiated inquiry and a summary dated 23-2-2003 was prepared and sent to the Governor whereby it was conveyed that the land has since been referred to Punjab Privatization Board for disposal, therefore, it is not available for further allotment. Learned counsel has further submitted that on approval of summary by the Governor, the earlier order of he Senior Member B.O.R. Was reviewed through the impugned order . He has referred the list which was prepared regarding the Nazool land in the province and has stated that land under reference is mentioned at serial Nos.280, 281 and 282 in the said list, which sufficiently negates the claim of the petitioners that the land under reference has not been referred to Punjab Privatization Board. Learned Counsel while referring to Article 129 of the Constitution of Islamic Republic of Pakistan, submitted that executive authority of the province vests in the Governor and the allotment was cancelled by the Governor, who in terms of Article 129 of the Constitution of Islamic Republic of Pakistan has competently exercised his authority. Learned counsel has further argued that the petitioners got allotted the disputed land through fraud which fact is evident from the impugned order passed in review by respondent No,2. He has added that the petitioners maneuvered the allotment, despite the fact that the land was already referred to Punjab Privatization Board. He has placed reliance on case of Mst. Sardar Begum and others v. Bashir Ahmad and other 1993 MLD 2454 to contend that the acts and omissions of a person are the determining factors to ascertain his intention as to fraud and misrepresentation. Learned counsel has contended that the petitioners have pleaded mala fide on the part of respondent No,2 but the mala fide has to be established through cogent proof. Presumption of regularity is attached to official acts. Learned counsel in this respect has found support from the case of The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151. It was argued that allotment order is based on fraud and forgery, it can competently be set aside in review by respondent No,2. No discre tionary jurisdiction in the writ jurisdiction can be exercised to allow the party to perpetuate fraud. The cases of Muhammad Baran and others v. Member (Settlement and Rehabilitation),Board of Revenue, Punjab and others PLD 1991 SC 691 and Mst.
Azam Jahan Ara Begum and 4 others v. Commissioner, Sargodha Division, Sargodha and 2 others 2004 MLD 1053 were referred in support of this contention. He has contended that scope of writ jurisdiction is limited, the discretionary jurisdiction cannot be exercised where grant of relief would amount to retention of ill-gotten gains. Learned counsel while referring to the cases of Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 has contended that the Court must not interfere in it's writ jurisdiction where it leads to injustice or aids to injustice.
10. I have heard the learned counsel for the parties and perused the material available on the record.
11. As far as the facts and background of these cases is concerned, the parties are not at variance.
Assertions made in the petition in paras. 1 to 17, have been admitted in parawise comments/reply of the respondents. It reflects from the perusal of the parawise comments and also through the arguments of the learned counsel for respondent Nos.1 to 3 that the order of allotment dated 24-4- 2003 was reviewed by respondent No,2 through the impugned order on three scores; firstly, that disputed property has already been referred to Punjab Privatization Board; secondly, the Governor has already rejected the allotment. Thirdly, the petitioners have committed fraud and concealed material fact of reference of the property to Punjab Privatization Board for it's sale through auction.
12. It will be appropriate, before proceeding further, to refer 'to the orders/directions of this Court, regarding allotment of alternate land to the petitioners. Following orders have been passed earlier by this Court:-- Writ Petitions Nos.Date Order 5102 to 5105 of 199116-11-1991 by Mr.Justice Zia Mahmood MirzaThat the respondents should taken necessary, steps to deliver possession of the alternate lands allotted to the petitioners in Chak No.125/RB and if for any reasons, possession thereof cannot be delivered to them within a reasonable time, they should be accommodate delse where and allotted some other alternate lands. It may also be pertinently observed that it would be just and proper not to dispossess the petitioners from the lands in dispute of which they claim to be in possession since 1956 till such time that they are accommodated elsewhere either by giving them physical possession of lands allotted to them in Chak No.125/RB or making fresh allotments of some other lands.
16800 to 16804 of 199722-7-1997 by Mr. Justice Munir ASheikhIn the meantime, possession of the petitioners over the land in dispute shall neither be disturbed nor the same shall be delivered to respondent No.4 unless an alternate land of the same quality is allotted to the petitioners and possession of the same delivered to them. In the proceedings for selection of alternate land for allotment to the petitioners, the petitioners shall also be joined so that there may not subsequently be a dispute about the nature and quality of the land.
16800 to 16804 of 199712-1-1998 by Mr. Justice Karamat Nazir BhandariRather than deciding the controversy on merits in this Court at the first instance,it does seem proper to direct respondent No.2 to do so within a time frame so that the matter is not needlessly lingered on.While disposing of these petitions finally, it is directed that respondent No.2 will proceed to decide the question of grant of alternative land to petitioners pending with him not than eight weeks from today. In the later the circumstances, the parties are left to bear their own costs.
13. I will now take up the first ground of review that land has already been referred to the Punjab Privatization Board. Member, B.O.R. When allotted land to the petitioners, called a report from District Collector, Faisalabad.The concerned Patwari in para. 4 of his report dated 8-5-1999, pointed out that out of 110 Kanals, 13 Marlas, land measuring 16 Kanals, 13 Marlas comprised of construction and roads, while 94 Kanals of land has been referred to Punjab Privatization Board. Similar report was forwarded to the Deputy Commissioner, who ultimately conveyed it to the Member (Colonies)
B.O.R., who on receipt of report, required from Secretary Punjab Privatization Board to indicate whether the land in question is still available or disposed of by Punjab Privatization Board. The report of the Punjab Privatization Board was placed on the file. It is evident from the order of Member, B.O.R. Dated 6-1-2003 that letter from Punjab Privatization Board dated 27-12-2002 was received wherein it was conveyed that the B.O.R. Had never referred Khasras Nos.87, 70, 143 and 127 located in Chaks Nos.39/GB, 66/GB, 103/GB and 233/GB respectively to Punjab Privatization Board for auction. Punjab; Privatization Board/respondent No,5 submitted report/comments in this Court, on 8-11-2005 through Khalid Bashir, Advocate, affirming therein that land in question, has never been referred to it for sale through open auction. Respondents Nos. 1 to 3, have not produced any evidence that the Punjab Privatization Board has taken the delivery of land consequent upon it's reference by B.O.R. Punjab. The only evidence, by respondents Nos.1 to 3, was list of Nazool land prepared by B.O.R. Punjab for Punjab Privatization Board, in which the property in question is mentioned at serial Nos.280 to 282. There is no proof that any reference was made to Punjab Privatization Board, rather the evidence to the effect that the land in question was never formally referred to Punjab Privatization Board, is available on record. Punjab Privatization Board has acknowledged that the land in question is not under consideration for it's sale through auction.
Perusal of letter dated 27-12-2002 by Punjab Privatization Board, parawise comments filed by Punjab Privatization Board in these petitions and order dated 6-1-2003 of the Member B.O.R., reveal that land was never referred to Punjab Privatization Board. Respondent No,1 has proceeded to review the order on this ground without any substance or proof.
14. Coming to the second ground that the order was reviewed as the Governor has rejected the claim of the petitioners. The summary sent to the Governor was not formally approved. Nothings in the summary show that the Governor has seen the summary but no direction was passed. Perusal of summary reveals that orders of this Court passed in favour of the petitioners, were suppressed.
Letter of respondent No,5 that land in question has not been taken over by the Punjab Privatization Board, was not referred anywhere in the summary. The summary is silent as to the fact that no other land of same quality is available in District Faisalabad for allotment to the petitioners, according to the orders of this Court. The material information was suppressed, which makes the summary defective. The review on the basis of such defective summary is thus exceptionable. The order was thirdly reviewed by the Member B.O.R. On the ground that the petitioners have committed fraud and misrepresentation. No specific instance in this respect has been mentioned.
The petitioners were held entitled to allotment of alternate land on 15-11-1973. Their entitlement is not in dispute. They moved from pillar to post for the allotment of land and despite clear directions of this Court, alternate land of the same value and quality which the petitioners possessed under Grow More Food Scheme, has not been .Allotted to them. The land allotted to them is neither under consideration nor referred to Punjab Privatization Board. No one has denied or disputed the entitlement of the petitioners for allotment of land. Bald allegations of commission of acts of fraud or misrepresentation with any proof thereof in getting land allotted, is no ground to justify review.
All the material, in this respect, was available upon which order of allotment was passed in favour of the petitioners.
15. Respondent No,2 has passed the impugned order by exercising the suo motu power of review.
Was such power or authority available to him? To resolve this issue, a reference to section 8 of the Act is essential, which is reproduced below:-- "8. (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record (or for any other sufficient reasons) desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree order under subsection (1) shall be made within ninety days from the date of that decree or order."
The above provision clearly stipulates that power to review is available only; on discovery of new and important matter which was not within the knowledge at the time when the order was passed; the aggrieved party has applied for the review; notice to the pasty, effected thereby is given and the parties are heard. None of the above conditions in the instant case has been complied with.
The order was reviewed without notice to the petitioners, without any application on behalf of the aggrieved person. No new or important matter was discovered to justify review and opportunity of being heard was denied. The impugned order was passed in violation of the provisions of section 8 of the Act, 1957. Order dated 17-2-2003, was passed in the revisions bearing No,RORs,No,1511/2002 to 1514/2002, was reviewed after the lapse of the period of 90 days. No review after the stipulated period of limitation competent. The power by virtue of amendment in section 10(1)(2) of the Colony Act, 1912 to grant any land or review such allotment. The Provincial Government or the Governor had this power till 14-12-1961 before the said amendment. The revisional power under section 4(2) of the Punjab Board of Revenue Act, 1957, vests with Board of Revenue. The review proceedings were initiated on the administrative side in respect of an order which was passed on the judicial side. There is no cavil with the proposition that a judicial order is not liable to be set aside through an administrative order. There is plethora of judgments in this respect. Hon'ble Supreme Court of Pakistan in the case of "Chuttan and another v. Sufaid Khan and another 1987 SCMR 503 (referred above) has also laid down that power exercised on the judicial side cannot be set at naught through exercising the power on the administrative side, more so, when the order on the judicial side had attained finality.
16. As a consequences of above discussion, I have found that the impugned order suffers from various legal defects; it contravenes provision of section 8 (ibid); judicial order has been reviewed through an administrative order, it contravenes the orders passed in favour of the petitioners in different writ petitions; that power of review was exercised after the lapse of prescribed period of limitation, no power of suo Motu review was available. Order was passed without any notice to the petitioners. Respondent No,2 while passing the impugned order has ignored that the petitioners are in possession of land under a valid allotment order, under a valid scheme of the Government; their entitlement has not been denied at any stage; the petitioners have been granted relief by this Court through three different orders and grounds which were made the basis of the impugned order were factually incorrect. Respondent No,2 failed to take into consideration the communication addressed by E.D.0.(R) Faisalabad that no landing Faisalabad District of same value is available for allotment, and also the information available on record that land in question has not been referred to Punjab Privatization Board and it's sale is not under consideration with Punjab Privatization Board. The impugned order being illegal, passed by respondent No,2 in excess of his authority, as such the same is not legally tenable and is set aside.
17. For the foregoing these petitions are allowed, the orders passed in review dated 9-6-2005 and 11-6-2005 are declared to have been passed without any lawful authority and with no legal effect.
Resultantly, orders dated 17-2-2003, 20-4-2005 and 19-5-2005 stand restored. The District Collector is directed to give effect to allotment which has been made to implement order passed in earlier petitions (W.Ps.No,16800 to 16804 of 1997) and make up the deficiency, if any, without fail. No order as to costs.