' MAZHAR HUSSAIN MINHAS, J.--- This constitutional petition has been filed against the order, dated 31-1-2002 passed by Member, Board of Revenue, Punjab in the Revision Petition No,1523 of .2000 filed by respondent No,2 against the petitioner, whereby latter's allotment of 10 Marlas land in Ihata No,49 situated in Chak No,188/EB, Tehsil and District Vehari, has been cancelled and the case has been remanded to District Officer (Revenue), Vehari for fresh allotment of the disputed' land in accordance with the prescribed policy after inviting fresh applications.
2: Brief facts of the case are that the petitioner along with one Mst. Zubaida Bibi wife of Amanat Ali moved application to the A.C./Collector Sub-Division, Vehari for allotment of Ihata No,49 measuring 1 Kanal, 17 Marlas, 7 yards situated in Chak No,188/EB, Tehsil and District Vehari. After obtaining report from the concerned revenue staff, A.C./Collector vide his order, dated 31-5-2000 ordered the sale of 10 Marlas land out of said Ihata to the petitioner. He deposited the sale price to the tune of Rs,5,500 in the Government Exchequer upon which Mutation No,15, dated 10-8-2000 for transfer of proprietary rights in his favour was entered by the Patwari. In the meantime, respondent No,2 along with two others filed appeal before Additional Commissioner (Revenue), Multan Division, on the ground that they were in possession of land measuring 1 Kanal, 13 Marlas in Ihata No,49 and land measuring 3 Marlas in Ihata No,50 for the last sixteen years and had also constructed a "Kacha Kotha" and boundary wall therefore, they were entitled to the allotment of disputed land. Additional Commissioner (Revenue), Multan Division, vide his order, dated 17-7-2000 dismissed the appeal.
Aggrieved by the dismissal of his appeal, respondent No,2 filed the aforementioned revision before the Member (Judicial-IV), Board of Revenue, Punjab, who obtained report from the Halqa Patwari wherein it was submitted that Sakhawat Ali father of the present petitioner, was in occupation of about 8 Marlas land in Ihata No,72; besides his illegal occupation of about 10 Marlas land in Ihata No,73. It was further reported by the Patwari that the present petitioner was in illegal occupation of 7 Marlas land in Ihata No,76 where he had constructed two rooms and a shop besides boundary wall. It was further reported by the Patwari that respondent No,2 Qurban Ali was also in illegal occupation of about 3 Marlas land in Ihata No, No,50 and had also constructed five feet wall on a vacant portion of the disputed Ihata No,49. Keeping in view report of the Patwari, Member (Judicial- IV), Board of Revenue cancelled allotment of the disputed land in favour of the petitioner and ordered its fresh allotment after inviting applications. Hence the present writ petition.
3. Learned counsel for the petitioner has contended that the disputed property has been alienated to the petitioner after observing all the legal formalities; that the amount of Rs,5,500 assessed by the Revenue Department has been duly deposited in the treasury after which mutation has also been entered and that the possession at the relevant time was also with the petitioner, therefore, Member, Board of Revenue, was not competent to order the cancellation of petitioner's allotment.
In support of his contentions, learned counsel has placed reliance on Din Muhammad v. M.B.R. And others NLR 1992 Revenue 124. In this judgment it has been held by this Court that deposit of whole of price of land by allottee would make him its full owner for all purposes. Preparation and registration of final conveyance deed in such case would be a mere formality. Reliance in this judgment has been placed on Ilam Din v. Muhammad Din PLD 1964 SC 842. The learned counsel has relied upon Ghulam Hussain v. Fateh Muhammad and 9 others 1987 SCM R 1115 in which it has been held that if the allottee who deposited money but had not.Taken possession of land with permission of Collector, he would not be deemed to be tenant or to have any right or title in the said land which was allotted to him. The land in question, therefore, did not become evacuee property which could be allotted to displaced persons. However, this judgment is not relevant and is inapplicable in this case. Reference to a notification of the Government of the Punjab,Colonies Department bearing No,3040-2003/947-CL(I), dated 22-4-2004 has also been made by learned counsel whereby earlier notification bearing No . 3040-2003/1921-C L(I) , dated 1-9-2003 has been modified and has been decided that after the grantee has paid the first instalment towards the price of land he shall be granted proprietary rights and a deed of conveyance shall be executed in his favour.
4. Conversely, learned counsel for respondent No,2 has submitted that the impugned order passed by Member, Board of Revenue is an interim order, therefore, it is not open to exception through writ petition. In support of his contention learned counsel has relied upon judgment, dated 1-2-2007 passed by the Honourable Division Bench of this Court in I.C.A. No,58 of 2006 titled Hafiz Mian Muhammad Riaz and others v. Election Tribunal and others. It has been further contended that since the petitioner is already in possession of land in Ihata No,76, therefore, he is not entitled to allotment of the disputed Ihata and his allotment has rightly been cancelled by the Member, Board of Revenue.
5. I have given anxious thought to the arguments of learned counsel for the parties and have carefully examined the record available on the file. On the application of the petitioner and Mst.
Zubaida Bibi wife of Amanat Ali, the report from the field revenue staff was called for, which was accordingly submitted that the applicants were not in possession in of any Ihata in Chak No,188/EB, District Vehari and Ihata No,49 lying vacant was available for allotment. It was also reported that Mst. Zubaida Bibi did not own any agricultural land in the Chak. In view of this report, on the recommendation of Tehsildar, Vehari, Assistant Commissioner/Collector Sub-Division, Vehari ordered the land measuring 10 Marlas in Ihata No,49 to be allotted to the present petitioner subject to payment of Rs,500 per Marla price plus 10 per cent surcharge in accordance with the instructions of the Board of Revenue, Punjab. However, the application of Mst. Zubaida Bibi was disallowed as she was a non-proprietor. The petitioner accordingly deposited requisite amount of Rs,5,500 in the treasury on 10-8-2000 upon which Mutation No,15 was entered in his favour.
However, the same could not be sanctioned due to the stay order, dated 19-10-2000 issued by the Board of Revenue. Thus, in view of the dictum laid down in Din Muhammad v. M.B.R. And other 1992 ALD 582(1) the petitioner became absolute owner of the disputed land on 10-8-2000, notwithstanding the non-sanctioning of mutation in his favour. Possession of the disputed land is also with the petitioner as is evident from the statement of counsel for respondent No,2 and two others recorded on 26-6-2000 in suit for declaration filed by the petitioner that petitioner will not be dispossessed through illegal means. Certified copy of the statement as well as that of order passed by the learned Civil Court that defendants i.e. Respondent No,2, etc. Will not cause illegal interference into the possession of plaintiff i.e. Petitioner is placed on the record.
6. As regards the objection to the maintainability of the writ petition, raised by learned counsel for respondent No,2, judgment of the Honourable Division Bench relied upon by the learned counsel for respondent No,2 is not applicable to the present case. It has been rendered in an election matter whereby it was observed that the interim/interlocutory order passed by the Election Tribunal could not be challenged in the constitutional petition. In the present case, matter has been finally decided and allotment of the petitioner has been cancelled. Therefore, the impugned order is a final order and not an interim/interlocutory order. Therefore, the writ petition is competent.
7. The allotment in favour of the petitioner was made by the Assistant Commissioner/Collector, Vehari on the basis of factual position reported by the Patwari duly confirmed by the Tehsildar. The petitioner was required to deposit the price of the land at the rate notified by the Board of Revenue, Lahore, therefore, the transfer of the land in his favour stood completed. Hence, Member, Board of Revenue, Punjab was not competent to revise or review the allotment in favour of the petitioner on the basis of any subsequent report obtained from the Halqa Patwari.
8. As a result of above discussion, the petition is allowed and the impugned order passed by Member, Board of Revenue, Punjab is set aside being not sustainable in law.