' GHULAM RABBANI, J.--- This civil appeal with leave of this Court is directed against the judgment dated 19-2-2003 passed by a single Judge of the Lahore High Court, Lahore in Writ Petition No,2113 of 2003.
2. The relevant facts for disposal of this appeal are that the appellant Ghulam Mustafa claimed to be lessee of an area of 37 Kanals, 15 Marlas comprising Khasra Nos.1068, 1129 to 1132 in Chak No,65, Tehsil Kasur. According to appellant the lease qua the above land commenced in 1968 and on renewal expired in the year 1977-78. On 15-6-1995, he made an application for grant of proprietary rights in respect of the aforementioned land and other 18 Kanals, 2 Marlas comprising Khasra Nos.1445 to 1447 in same Chak claiming the same to be in his cultivating possession. The Assistant Commissioner, Kasur dismissed the above application vide order dated 16-7-1995. Appellant challenged the order by way of appeal before Additional Commissioner, (Revenue), Lahore who vide his judgment dated 19-9-1995 retrospectively extended the lease from 1977-78 in respect of the land comprised in Khasra Nos.1129 to 1132 and for rest of land, he directed that illicit cultivation files be prepared and "Tawaan" be imposed at the rate of 20 time of land revenue and that after deposit of lease money and rent the appellant would be eligible to apply for grant of proprietary rights before the Assistant Commissioner/Collector, Kasur before 31-12-1995. Shujaat Hussain Hashmi, respondent No,5 was aggrieved by this order. He challenged the same before Board of Revenue by way of revision application which was registered as ROR No,3492 of 1995.
3. It may be stated that while the application of appellant for proprietary rights was pending before Assistant Collector/Collector, Kasur the disputed land stood transferred to respondent No,5 by Government of the Punjab. This transfer was by way of exchange with respondent No,5's land in Mianwali vide memorandum No,1015-95/852- CIV dated 9-7-1995 of the Secretary to Government of Punjab, Colonies Department. Appellant challenged the exchange through Writ Petition No,13742 of 1995 which he withdrew on the statement that the matter was pending adjudication before Member, Board of Revenue vide order, dated 27-10-1996 passed by a Single Judge of the Lahore High Court. Subsequently, appellant made before Member (Colonies) Board of Revenue a review application against the order, dated 9-7-1995 qua the exchange of the disputed land in favor of respondent No,5.
4. Since the revision application made by respondent No,5 and the review application filed by appellant involved identical questions, learned Member, Board of Revenue (Colonies), Punjab, took up the same together and by single order, dated 19-7-1997, he rejected the review application of appellant on the point of limitation; whereas, allowed revision application of respondent No,5, setting aside the order passed by Additional Commissioner (Revenue), Lahore. Appellant, therefore, made second review application which was rejected by Member (Judicial-V) Board of Revenue, Punjab vide judgment, dated 11-1-2003. Feeling aggrieved, appellant filed Writ Petition No,2113 of 2003, which was dismissed, in limine, by learned Single Judge, Lahore High Court vide order, dated 19-2-2003, impugned herein.
5. Leave to appeal was granted vide order dated 31-3-2003, to consider, inter alia, whether after conferment of proprietary rights in the land at Mianwali (belonging to respondent No,5), no exchange could be permitted by the Revenue Authorities and that land in dispute could not A be treated to be available till final decision was made in the judicial remedies available to the petitioner that he as allottee/Patadar of the said land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights.
6. We have given due attention to the oral submissions of Mr. Muhammad Munir Peracha, Advocate Supreme Court, learned counsel for the appellant and Mr. Gulzarin Kiani, Advocate Supreme Court, learned counsel for respondent No,5. None was present on behalf of official respondents.
7. As regards question of exchange of land of respondent No,5 in Mianwali with disputed land, it may be stated that this point was not pressed into service before Member (Colonies) Board of Revenue, Punjab as is evident from the order of learned Member (Judicial-V) Board of Revenue, Punjab who in his order dated 11-1-2003 stated categorically that "points mentioned today regarding validity of exchange were not pressed at the time pf hearing of revision petition". Perusal of the order dated 19-3-2003, impugned herein, also show that the said question was not taken before learned Single Judge, Lahore High Court, Lahore. Before us, however, Mr. Peracha, Advocate Supreme Court, learned counsel for appellant challenged the exchange in question, but could not refer to any provision of law that such exchange was barred.
8. The other question involved in this appeal is, in essence, availability or otherwise of the disputed land with rights of appellants, if any as allottee/Patadar of the land under the Temporary Cultivation Scheme entitling him to conferment of proprietary rights. In this, the contentions of Mr. Peracha emphasizing existence of such right inhering in the appellant and Mr. Gul Zarin Kiani's denial require consideration on available record to, be seen in the light of their oral submissions.
9. In this behalf, it may be stated that in support of the claim of appellant that he was previous lessee of a portion of disputed land and was enjoying the same as a whole being in cultivating possession, Mr. Peracha put his reliance on order, dated 19-9-1975 of Additional Commissioner Revenue, Lahore and other available record. Whereas, Mr. Kiani, contended that appellant was neither lessee of any portion of disputed land from 1968 nor it was extended for further period of time upto 1976-77. He stressed that the Revenue Record was manipulated by appellant to get a favorable decision by Additional Commissioner, Lahore. Mr. Kiani, next submitted that the order of Additional Commissioner (Revenue), Lahore was not sustainable at law, even otherwise, since the same was passed without notice to and hearing the other party viz. The State through Assistant Commissioner/Collector, Kasur. In his view, the said order was illegal and void for another reason, such as, the disputed land was not available at material time for extension of lease or to hold the appellant, in any way, eligible for conferring the proprietary rights.
10. On examination of the available record, it appears that learned Member (Judicial-V), Board of Revenue, dealt with the question of manipulation of record and discussing the issue, as such, he observed in his order, dated 11-12-2003 as follows:- "In Writ Petition No,8082 of 1998 the matter of entitlement of the petitioner (appellant herein) was referred to the Deputy Commissioner, Kasur for ascertainment by the agreement of parties on 30- 10-1998. He heard the parties and perused the record and submitted that report to the High Court vide letter No,339, dated 1-12-1998. It was reported that petitioner had no entitlement against said land and entries in record were based on fraud. Petitioner never disputed this report."
11. Perusal of order, dated 19-9-1975 of Additional Commissioner (Revenue), Lahore shows that he embarked to decide the appeal in favor of the appellant without issuing any notice or hearing the respondent before him i,e, the Estate through Assistant Commissioner/ Collector. Also, he extended the lease of disputed land measuring 37 Kanals and 17 Marlas comprising Khasra Nos.1129 to 1132 with retrospective effect i,e, from 1977-78 and directed further that the files of illicit cultivation by appellant over 18 Kanals and 2 Marlas comprising Khasra Nos.1145 to 1147, be prepared and "Tawaan" be imposed at the rate of 20 times of Land Revenue to be recovered from appellant holding him eligible for grant of proprietary rights. In this behalf it will be beneficial to refer to relevant observation of learned Member (Colonies) Board of Revenue in his order, dated 19-7-1997 wherein he stated that there was no such policy where the lease could be regularized after a period of about 18 years. This fact could not be denied.
12. Be that as it may, it is quite evident that the disputed land stood transferred in the name of respondent No,5 by way of exchange allowed by Government of the Punjab, vide memo. No,1015- 95/852-CIV dated 9-7-1995 of Secretary of the Government of Punjab (Colonies) Department, learned Additional Commissioner, therefore, could not sit over the order of Government and decide the fate of the land; more so, by extending lease of appellant with retrospective effect after a lapse of 17/18 years even if the appellant was lessee of land or happened to be in possession of some portion thereof viz. Khasra Nos.1445 to 1447 measuring 18 Kanals and 2 Marlas.
13. Lastly, it may be stated that Mr. Peracha emphasized in his oral submissions that the appellant was wrongly non-suited by learned Member (Judicial-V) Board of ' Revenue by treating appellant's application as a second review application though it was filed by him against, the order passed on revision application of respondent No,5 hence the same being first one against that order was competent under section 8 of the West Pakistan Board of. Revenue Act, 1957. This question, if decided affirmatively in favor of appellant, may call for remand of the case; but in our view this exercise will not serve any useful purpose as the appellant, seen in the light of above facts and circumstances, does not have any case on merits.
14. In the circumstances, without going into the question whether the review application filed by appellant was competent or not, we findlt no substance in this appeal and dismiss it with no order as to costs.