Through this writ petition, the impugned order dated 8.12.1996 passed by the Additional Commissioner (Consolidation), Multan Division has been assailed being based on mala fides and without lawful authority.
2. Briefly, stated the facts relevant for the disposal of the instant petition are that the petitioners and private Respondents No. 6 to 9 are land owners of Mauza Sahuka, Tehsil Burewala, District Vehari which came under consolidation on 19.7.1977 and the scheme was confirmed on 24.6.1981 by the Board of Revenue. Some land owners including the Respondents No. 6 to 9 challenged the approved scheme by initiating legal proceedings and the matter went up to the Hon'ble Supreme Court of Pakistan. The Respondent No. 6 failed up to the apex Court whereas the revision petition of the Respondents No. 6 to 9 before Respondent No. 1 was disposed of in accordance with the compromise effected by the parties but at the instance of the private respondents and some other persons, who either failed to avail the departmental remedy or their failure up to the Hon'ble Supreme Court of Pakistan against the orders alleged to be adverse to their interest or unsuccessfully complained to the consolidation hierarchy for redressal of their grievances. The Respondent No. 1 deputed the Consolidation Officer, Narowal to check the consolidation record of Mauza Sahuka, Tehsil Burewala, who inquired into the matter and as a result of his report, the then Additional Commissioner, Multan directed the Additional Commissioner (Consolidation), Sahiwal under Section 13(3) of Consolidation of Holdings Ordinance, 1960 to prepare tattima' of mauza Sahuka at which `tattima' was confirmed on 21.9.1994 by the then ADC, Sahiwal/ Vehari. The petitioner has placed on the record the copies of confirmation of scheme dated 24.6.1981, the order of Additional Commissioner dated 3.3.86, the order of Respondent No. 1 dated 9.3.1988, the order of the High Court in W.P. No. 1857/1988 dated 17.4.1988, the order of the Hon'ble Supreme Court of Pakistan dated 9.5.1990, the ROR No. 3405/1984 and order of Respondent No. 1 dated 18.11.1986. A few days before the filing of this writ petition it came to the notice of the petitioners that inspite of exhausting their remedy up to the Hon'ble Supreme Court of Pakistan on judicial side the private respondents succeeded in getting the impugned order dated 18.12,1996 passed by the then Additional Commissioner (Consolidation), Multan whereby he observed that the right holders of the mauza were not satisfied, so fresh consolidation may be started whereupon Respondent No. 1 did not approve the request for fresh consolidation.
3. The learned counsel contends that after confirmation of the consolidation scheme dated 24.6.1981 the possession was transferred and more than 500 persons have purchased the land while a major portion of the land has been constructed upon and has become a part of the 'Abadi'.
It has now assumed the character of residential as well as commercial property. The land owners have made a lot of development and have installed Tube-wells etc, so fresh consolidation was neither justified nor sustainable in the eye of law. By doing so, some land grabbers have attempted to deprive the petitioners of their valuable property developed by them. The learned counsel maintained that the impugned order is based on mala fides and the same being without lawful authority is liable to be set aside. Once the matter had been decided judicially by the highest forum of revenue i.e. Board of Revenue as well as the High Court and the Hon'ble Supreme Court of .Pakistan the Additional Commissioner (Consolidation) had no jurisdiction to review the consolidation scheme or carry out any operation afresh especially when the Member, Punjab Board of Revenue/Respondent No. 1 had categorically observed that it is not a fit case for second consolidation. The learned counsel argued that the impugned order is violative of the maxim `audi alteram partem' and has been passed in flagrant violation of the injunctions of Islam. After the confirmation of the consolidation scheme and after exhausting the statutory as well as constitutional remedies up the highest forum the confirmed scheme, which had attained finality after lapse of more than fifteen years, the Additional Commissioner (Consolidation), Multan had absolutely no jurisdiction to reopen the same. The learned counsel maintained that the purpose of consolidation of holding is not limited to plots of individuals -but extends to villages. The confirmation of scheme could be assailed before the competent forum within prescribed time and once it has attained finality it could not be re-opened. The review jurisdiction could not be exercised unless it was conferred by the statute. In the instant case the review was not provided by the statute, so the impugned order could not be passed. The learned counsel for the petitioner maintained that the impugned order dated 8.12.1996 is liable to be declared to have been passed with mala fides and without lawful authority. It has been prayed that respondents may be directed to stop the de novo consolidation proceedings in mauza Sahuka. In support of his arguments the learned counsel for the petitioner referred to NLR 1998 Revenue 120 (Muhammad Khan etc. versus Addl. Commissioner (Consolidation) etc.,) PLJ 1999 SC 2331 (Appellate Jurisdiction) Ardeshir Cowasjee and ten others versus Karachi Building Control Authority (KMC)), PLD 1970 Supreme Court 1 (Hussain Bakhsh versus Settlement Commissioner, Rawalpindi and others), PLD 1981 Rev. 8 (Punjab) (Muhammad Saleem versus Muhammad Din etc) and PLJ 2000 Lahore 832 (Abdul Sattar versus Secretary Colonies, Board of Revenue, Punjab Lahore and 2 others).
4. The learned counsel for the private respondents have not seriously resisted the petition. The learned Law Officer, however, vehemently opposed the petition and argued that due to the injunction of this Court the proceedings of fresh consolidation were struck up. The learned Law Officer maintained that the writ petition had been filed after lapse of several years and it was hit by latches. The learned Law Officer further contends that the adequate remedy was available to the petitioners by moving the Board of Revenue against the impugned order and the same could not be assailed in the writ petition. He defended the impugned order and prayed for dismissal of the writ petition.
5. I have considered the arguments advanced from both the sides and have perused the record minutely.
6. It is established on the record that the consolidation scheme of mauza Sahuka was confirmed on 24.6.1981. The respondent, Muhammad Sharif filed an appeal against Mahmood Hussain before the Additional Commissioner (Consolidation), Multan Division against the order dated 11.10.1985 passed by the Collector (Consolidation), Vehari/ Sahiwal whereby he dismissed his appeal. This appeal was converted into revision petition and was disposed of on 3.3.1986 by amending the Vandas' of the parties as a result of compromise between them. The respondent, Muhammad Sharif filed a revision petition before the Member (Consolidation), Board of Revenue against the order dated 3.3.1986 but the revision petition was dismissed on 9.3.1988. Thereafter a writ petition was filed by the said Muhammad Sharif, which was dismissed by this Court vide order dated 17.4.1988. A petition for special leave to appeal was filed before the Hon'ble Supreme Court of Pakistan against the order of this Court but the Supreme Court of Pakistan vide order dated 9.5.1990 refused to grant leave to appeal, so the matter attained finality. Some other parties also filed revision petition 'under Section 13 of the Consolidation of Holdings Ordinance against the order of Additional Commissioner (Consolidation), Multan dated 7.10.1984 passed in Appeal No. 93/Consplidation of 1984 before Member, Board of Revenue (Consolidation). This revision petition titled Waryam and three others versus Allah Yar and 81 others was disposed of in terms of compromise between the parties vide order dated 18.11.1986, so this order also attained finality. The impugned order was passed on 8.12.1996 whereby review of consolidation scheme of mauza Sahuka was ordered and consolidation operation was ordered to be started afresh by preparing a new consolidation scheme on the ground that some irregularities were found in the earlier scheme which had been confirmed. The question arises as to whether the Additional Commissioner (Consolidation), Multan was saddled with the powers of review by the statute. The answer is in negative. As observed in PLD 1981 Rev. 8 (Muhammad Saleem versus Muhammad Din etc) there was no provision of review in the Consolidation of Holdings Ordinance, 1960. As regards the power conferred under Section 163 of Land Revenue Act. 1967 the same could not be invoked in view of the restriction imposed by Section 14 of the Ordinance, so the Additional Commissioner (Consolidation), Multan had absolutely no jurisdiction to review the consolidation scheme of mauza Sahuka, which had attained finality. The powers of review could be conferred only by the statute and when the Consolidation of Holdings Ordinance, 1960 had no provision empowering the Additional Commissioner (Consolidation) to review the A consolidation operation the order passed by him was without jurisdiction and was not sustainable in the eye of law. The power of review was not available unless specifically provided by the statute.
7. As referred to above it was observed in NLR 1998 Rev. 120 (Muhammad Khan etc versus Additional Commissioner (Consolidation etc) by this Court that where the consolidation operation commenced in the village was finally confirmed under Section 10(3) of West Pakistan Consolidation of Holdings Ordinance, 1960 and the respondents aggrieved with approved scheme initiated legal proceedings by filing appeal/revision but failed up to the level-of revenue and the respondent on failing on judicial side approached the Provincial Minister (Consolidation) and succeeded in setting in motion the process of re-opening of the scheme of consolidation finalized long ago. The Additional Commissioner (Consolidation) finding some irregularities/flaws directed the cancellation thereof and preparation of fresh scheme. It was held that the consolidation scheme already finalized and having been upheld in judicial proceedings, could not be set aside on executive direction of the Minister.
8. In the present case also the scheme of consolidation had been confirmed in 1981 and it had been implemented and acted upon. The possessions had been transferred according to the confirmed consolidation scheme. New transferees had developed their respective lands and more than 500 persons had purchased lands and made development on their respective property. The matter between some lhatadars' were finalized up to the Board of Revenue as well as up to the Supreme Court of Pakistan, so there was absolutely no justification for the Additional Commissioner (Consolidation), Multan to order the review of the consolidation scheme especially when he had no jurisdiction to review it. The law leans in favour of finality of legal proceedings otherwise a `pandora's box' would be opened and unending rounds of litigation may commence causing great hardship and endless misery to the litigants/khatadars. The matters, which had attained finality in consequence of judicial proceedings could not be re-opened through executive authority, as it would irreparably erode the confidence of public-at-large in the concept of rule of law as enshrined in the Constitution besides leading to unending and painful complications for the parties to the lis, so the order of cancellation of consolidation scheme passed by Additional Commissioner (Consolidation) is illegal in the circumstances. The review of the scheme would definitely re-open a past and closed chapter giving rise to the multiplicity of proceedings and causing endless misery to the parties/land owners. Rather new generations would also be not in a position to get rid of the litigation.
9. As regards the point of delay raised by the learned Law Officer representing the Respondents No. 1 to 5, I would refer to PLJ 1999 SC 2331 (Appellate Jurisdiction) (Ardeshir Cowasjee and ten others versus Karachi Building Control Authority (KMC)) wherein it was held as under: In our view, laches per se is not a bar to a Constitutional Petition. There is a marked distinction between delay in filing of a legal proceeding within the period specified in an Article of the Schedule to the Limitation Act and the delay in filing of a Constitutional petition for which no statutory period is provided for. In the former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay under Section 5 of the Limitation Act in filing of a legal proceeding after the expiry of the statutory period. Whereas, in the latter case, the delay or the question of laches is to be examined on equitable principles for the reason that grant of constitutional relief is a discretionary relief and the Court may decline to press into service its Constitutional jurisdiction if it would be inequitable keeping in view the conduct of a petitioner. The question of delay or laches is to be considered with reference to the facts of each case. Delay/laches of several years can be overlooked in a Constitutional petition if the facts of the case and dictates of justice so warrant. "
10. In the present case the scheme was finalized on 24.6.1981 whereas the Additional Commissioner (Consolidation) passed the impugned order of review after lapse of more than 15 years. The petitioners have specifically mentioned in the instant writ petition that they came to know of this order a few days before the filing of the writ petition. Since the impugned order had been passed without jurisdiction and without hearing the petitioners, so the delay in challenging the same would not be fatal and the petition is not hit by laches keeping in view the peculiar facts and circumstances of the case. The matter went up to the Supreme Court of Pakistan between some of the parties, which attained finality in 1990. Strictly speaking there is no limitation for a constitutional petition and in exercise of constitutional jurisdiction this Court is competent to grant discretionary relief to the petitioners. .Keeping in view the facts and circumstances of the present case it is held that the instant writ petition is not hit by laches.
11. In the light of the above discussion the impugned order dated 8.12.1996 passed by the Additional Commissioner (Consolidation), Multan is declared to be unlawful and without jurisdiction.
Resultantly, neither any consolidation scheme can be prepared nor de novo consolidation proceedings can take place. In these circumstances the writ petition is hereby accepted and the impugned order is set aside being without lawful authority.