' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of the order dated 23-6-2005 passed by the Senior Member, Board of Revenue, Punjab, whereby he asked the Member (Colonies), Board of Revenue, for an action under section 12(2), C.P.C. Regarding his order dated 7- 4-2004, through which he had dismissed the application moved by one Muhammad Siddique against the petitioner and filed the proceedings under section 30(2) of Colonization of Govt. Lands Act, 1917. The petitioner has contended that the land measuring 98 Kanals was allotted to him under Grow More Food Scheme in the year 1960 vide order dated 1-11-1960. The possession was delivered to him and he brought the land under cultivation, which was 'Banjar Qadeem', and barren. The Provincial Government decided to grant proprietary rights to allottees of Grow More Food Scheme. The petitioner submitted an application to the District Collector, which was accepted on 14-6-1987. He deposited entire price and the sale-deed was registered in his favour. It is alleged that one Muhammad Siddique a retired Patwari forged a false agreement to sell and filed a suit for specific performance of contract, which was dismissed. Thereafter he moved an application before Deputy Commissioner, Jhang on 28-4-1998 with the contention that the land was not situated outside the prohibited zone and such allotment was made due to fraud on part of the allottee. This application was dismissed on 30-4-1998. Muhammad Siddique, then moved an application before the Governor of Punjab, on 23-12-1999 and the matter was referred to the District Collector, Jhang vide letter dated 28-12-1999. The District Collector, Jhang, vide letter dated 27-3-2000, reported that application of Muhammad Siddique was baseless. Thereafter Muhammad Siddique, submitted another application before the Member (Colonies) Board of Revenue, Punjab with the same allegations which was disposed of on 31-5-2002 with the direction to the District Collector to decide the matter expeditiously and the application was dismissed by the District Collector on 13- 6-2002. Inspite of these decisions wherein his complaints were rejected, he moved fresh application before the Member, Board of Revenue, with the same allegations and an ex parte notice under section 30(2) of the Colonization of Govt. Lands (Punjab) Act, 1912 was issued but subsequently complaint was dismissed on 7-4-2004. However, the Senior Member, Board of Revenue again referred the matter to the Member (Colonies) to initiate action under section 12(2), C.P.C.
2. It is contended that the impugned order of the Senior Member, Board of Revenue is illegal, without jurisdiction and without lawful authority and same is of no legal effect as the allegation that the land was, within prohibited zone has been thrashed more than once and found to be B baseless by different authorities and that after the grant of proprietary rights proceedings under section 30(2) of the Colonization of Govt. Lands (Punjab) Act, 1912 could not have been initiated. It is further contended that Senior Member, Board of Revenue was not an appellate authority of the Member, (Colonies) and had no jurisdiction to pass an order for re-opening the matter on his own.
3. Learned counsel for the petitioner while reiterating the above contentions had relied upon the case-laws reported as 2001 CLC 564, 1996 M LD 258 and 1994 SCM R 975.
4. Learned Assistant Advocate-General, has vehemently opposed the petition. It is contended that the Senior Member, Board of Revenue, is Incharge of the Administration of the board and as such could have asked' the Member (Colonies) to initiate action under section 12(2), C.P.C. as the order dated 7-4-2004 was fraudulently obtained. It is urged that after the orders of the Senior Member, Board of Revenue, now the matter is pending in the Board, and has yet not been finalized so this Court cannot assume the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
5. It is an admitted fact that the land was allotted to the petitioner on 1-11-1960 and after completion of codal formalities, the proprietary rights were granted to the petitioner under the orders of District Collector and sale-deed was duly executed in his favour on payment of full fee.
The first complaint moved by Muhammad Siddique was entrusted to District Collector, Jhang for expeditious disposal but this application was dismissed on 13-6-2002 due to non appearance of the complainant. It appears that thereafter he submitted an application before the Governor of the Punjab, with the same allegation. The District Collector, Jhang, vide letter No, 48/CD-III dated 7-3- 2000, categorically reported that the disputed land was situated outside the limits of Municipal Committee, Jhang and limits of Municipal Committee were extended subsequently so the subsequent change did not render the allotment illegal. Thereafter Muhammad Siddique filed a complaint before the Board of Revenue, which was dismissed by the Member (Colonies) Board of Revenue, on 7-4-2004 for non appearance. Thereafter the impugned order of the Senior Member, Board of Revenue was passed whereby the Member, Board of Revenue (Colonies) was asked to initiate action under section 12 (2), C.P.C. As the allegation of fraud was levelled.
6. The learned A.A.-G. When asked, stated that the only fraud allegedly committed was the concealment of the fact that the land was within limits of Municipal Committee i.e, prohibited zone and as such was not available for allotment but the petitioner maneuvered it illegally. The letter No, 48/CD-111 dated 7-3-2000 clearly shows that the land was out of prohibited zone when allotted. The subsequent expasion of totvn or extension of limits would not render the allotment as illegal. In this regard reliance is placed on case-law reported as Province of Punjab through District Collector, Vehari v. Ghulam Muhammad, 1994 SCM R 975. Admittedly the propriety rights were granted to the petitioner vide order dated 14-6-1987 and sale-deed was executed in his favour on payment of full price. This being so the Board of Revenue, could not reopen the matter on the complaint of a person who had been litigating against the petitioner on the basis of alleged agreement to sell. In this regard reliance is placed on 1996 M LD 258. The matter was probed into more than once and it was held that the land was out of prohibited zone at the time of its allotment. Muhammad Siddique, complainant did not appear and his complaint was filed for non-prosecution. He could have move an application for restoration if so desired but the Senior Member, Board of Revenue could have not termed the said order of dismissal to be result of fraud. It is not proved that any fraud was committed in obtaining the original allotment or in the execution of the sale-deed. After elapse of more than 50 years of allotment and 23 years of registration of sale-deed and repeated inquiries at the instance of Muhammad Siddique, under the orders of Board of Revenue and Governor of the Punjab, in which it was held that the allegation levelled by Muhammad Siddique were baseless, no ground was available to reopen the complaint filed by Muhammad Siddique, which was dismissed due to his non appearance. The contention of the learned A.A.-G. That in consequence of impugned order fresh proceedings have been initiated and same are pending therefore, this Court has no jurisdiction is without substance because fresh proceedings were initiated in result of an illegal and unjustified order.
7. For the reasons supra, the writ petition is accepted and I impugned order is hereby set aside.