AMIN-UD-DIN KHAN, J.- By this single judgment I intend to dispose of writ petition No. 1523, 1842, 250 of 2007 and writ petitions No. 444 and 458 of 2008 as common question of law and facts are involved in all these matters.
2. In this final round of litigation this phase started when the August Supreme Court of Pakistan vide order dated 17.4.1996 passed in CPLA No. 1276-L-1995 filed against the judgment dated 29.5.1995 passed in ICA No. 16 of 1995 titled Muhammad Ramzan and others v. The Member (Colonies) Board of Revenue, Punjab Lahore sent the matter to the respondents authority to carry out demarcation.
The operative part of the order is as under:- "It also appears that the demarcation relied upon by the counsel for Cholistan Development Authority was not carried out in the presence of the petitioners. In the circumstances, we dispose of this petition with the direction that respondent authorities shat carry out fresh demarcation of the land in dispute in the presence of the petitioners to find out whether it falls within the colony area or Cholistan area. Needless to observe that after the fresh demarcation the petitioner may apply to the relevant authorities for allotment/regularization of possession and their applications shall be decided in accordance with law".
3. The case of Muhammad Ramzan and others before the Board of Revenue was that they have made the land cultivable. They are also trespassers and unauthorized occupant since 1976. The real controversy between the parties was whether the land in dispute falls within the administration of Cholistan Development Authority or in the colony area governed by the Secretary (colonies)
Board of Revenue Punjab, Lahore. The august Supreme Court of Pakistan ordered the authority to resolve this issue. After the orders of august Supreme Court of Pakistan through the impugned decision by the full Board of Revenue on 15.4.2006 it was demarcated that whole of the land of Chak No. 140-A is colony area and falls under the control of Board of Revenue, whereas the stand of Cholistan Development Authority is that Chak No. 140-A has two parts, one is Chak No.140-A consisting of 1710 ares, whereas Chak No. 140- A northern consisting of 1610 acres. This 1610 acres land is in dispute. After the orders of august Supreme Court of Pakistan a detailed inquiry by the lower staff of the Board of Revenue after associating the parties was conducted. On the basis of inquiry report full Board has decided that whole the area fall within the territory of Chak No. 140-A.
The disputed land 1610 acres also falls in this Chak and is under the administration of Member (Colonies) Board of Revenue Punjab, Lahore. This determination and demarcation of land through order dated 15.4.2006 by the full Board of Revenue is under challenge in writ petition No. 1523 of 2007 filed by the Cholistan Development Authority against the full Board of Revenue and Jamal din etc against full Board of Revenue in writ petition No. 1842 of 2007. Whereas other three writ petitions No. 250 of 2007 and444 and 458 of 2008 have been filed by the petitioners with the prayer that respondents Nos. 1 to 3 of these wft petitions be directed to finalize the matter and grant proprietary rights to the petitioners. Whereas in other two writ petitions referred (supra) decision of the full Board of Revenue dated 15.4.2006 has been challenged and against the order dated 15.4.2006 one review was filed by the Cholistan Development Authority and other review was filed by Jamal etc, both the review petitions were dismissed by the Board of Revenue Punjab on 12.6.2007.
4. Learned counsel for the respondents have raised some preliminary objections that the Cholistan Development Authority has been established through the Cholistan Development authority Act No. XIV of 1976. This being subservient department of Board of Revenue has no authority to challenge the decision of the full Board of Revenue. Further that writ petitioners of writ petition No. 1842 of 2007 to whom the land has been allotted n the year 2002 and matter was sent to the full Board of Revenue by the august Supreme Court of Pakistan on 17.4.1996 therefore, they have no right to challenge the decision of full Board of Revenue. Another important feature to be noted here that during the pendency of writ petitions, in writ petition No. 1842 of 2007 on 14.5.2008 with the concurrence of the parties Local Commission was appointed District Judge Rahimyarkhan to submit report in this court. The order dated 14.5.2008 is re-produced for ready reference as under:- "14.5.2008 Mr.M. Sohail Iftikhar, Advocate.
Mr. Ahmad Awais, Advocate.
Sh. Masud Ashraf, Advocate.
Mr. Anmad Mansoor Chishti, Advocate.
Hafiz Muhammad Abdul Qayyum, Advocate.
Mr. Abdul Khaliq Sadozai, Mr. Naveed Chaudhary, AAG. With Muhammad Arshad Gopang DDO with Gayyur Abbas, Naib Tehsildar and Shabbir Ahmad Colony Clerk Liaqatpur.
With the concurrence of all the learned counsel the learned District judge Rahimyarkhan is appointed as a Local Commission to determine the following questions:-
(i) Whether Chak No. 140-A (Northern) Tehsil Liaqatpur fall under the colony area or it is situated within the area of Cholistan Development Authority;
(ii) Whether Chak No. 140-A (Abbasia) and Chak No. 140 (northern) are two different chaks or one of the same;
(iii) Whether area of Chak No. 140-A Northern measuring 1606 acre fall within the area of Cholistan Development Authority
(iv) Whether the area of Chak No. 140-A measuring 1706 acre fall within the limits of colony area.
2. The learned District Judge-Local Commission will also examine the revenue record as well as the record of Cholistan Development Authority and Irrigation Department with the help of their representatives as well as decision given by the Board of Revenue at different occasions in pursuance of the direction of Hon'ble Supreme Court. He is also authorized to examine the previous judgment passed by this court as well as the superior courts. Learned local commission will also record the evidence of the parties, If deem necessary for coming to definite conclusion. The revenue Department as well as Cholistan Development Authority is directed to extend him full cooperation.
3 The office is directed to send a copy of this writ petition alongwith all the annexures to the learned District Judge, Rahimyarkhan.
4. The fee of the local commission will be Rs.50,000/- to be paid by the private parties in equal shares through the Revenue Department as well as through Cholistan Development Authority within a period of two weeks. The report should be submitted within a period of two months of the receipt of this order.
Re-list of 9.9.2008"
5. Learned counsel for Cholistan Development Authority advanced very lengthy arguments. The main emphasize of his arguments is on the various reports submitted by the lower staff to the Board of Revenue. He has tried to make up his case on the basis of those reports wrote by the Patwari to the high officials of the district which were in various times submitted before the Board of Revenue. Further he has contended that the report of commission cannot be relied upon. Further he has referred some minutes of the meeting held on 15.6.1999 and prayed that in accordance with these minutes Chak No. 140-A (Northern falls under the administration of Cholistan Development Authority. Further contended that the report which has been referred by the full Board of Revenue has already lost its value.
6. Learned counsel appearing on behalf of Jamal etc has also challenged the decision of demarcation of full Board of Revenue and he stated that full inquiry was not conducted by the board before the determination. He further stated that he has not been given right to lead evidence and also no opportunity of cross-examination was given. In review he stated that board has not heard the petitioner on merits, therefore, the demarcation order passed by the full Board of Revenue is without jurisdiction. Further states that there is no fault on behalf of the petitioners. They have been allotted land by the department of the Govt. Further states that the report submitted by the Commission has no value as the commission never appeared before this court to prove his report. He has prayed that matter be remanded to the Board of Revenue for re-determination.
7. On the other hand, learned counsel for the respondents as well as Mr. Naveed Khalil Chaudhary, AAG appearing on behalf of Govt, of Punjab while adopting the preliminary objections further submitted that the petitioners have absolutely no right to challenge the determination of the full Board of Revenue. The learned AAG submits that the Cholistan Development Authority is subservient to the Board of Revenue; they cannot transfer the lands, of their own, to anyone. They can just make allotment and refer the matter for transfer of proprietary rights of final decision to the Colony Department Board of Revenue Punjab, Lahore. Board of Revenue is actual custodian of the property which is lying in the colony area or even in the Cholistan area. The transfer of rights can be granted only by the Colony Department of Board of Revenue. Further that during the pendency of the process of decision of character of land, the land has been dishonestly allotted by the Cholistan Development Authority to the petitioners of Writ Petition No. 1842 of 2007, therefore, they have no right to challenge the decision of the board.
8. I have heard the arguments of the learned counsel the parties at length and have perused the record.
9. I have noticed that the objections raised by the petitioners side are not even with regard to the roots of the case but the same are very frivolous in nature as the counsel for the petitioners who has challenged the full Board of Revenue decision wants that the decision be set aside on the basis of various contradictory reports made by the lower staff of the Revenue Department. No one has pointed out any illegality or material defect in the impugned decision of full Board of Revenue dated 15.4.2006. The reports of the lower staff cannot be termed as order. The contention of the learned counsel for Cholistan Development Authority that tin the presence of one report the other report cannot be relied upon which misconceived. It is not an order that after setting aside first order the second order be passed. These are just report of the lower staff which were made in various times. The Board of Revenue has relied the report and consulted the additional record before the Board of Revenue to reach to its conclusion. In this constitutional jurisdiction I am trying to refrain myself from indulging in the factual controversy, although the record of these two writ petitions is very voluminous and the arguments with regard to the factual controversy were also very long as full two days were consumed, I have heard the arguments of the learned counsel for the parties as they were inclined to argue each and every factual point before this court also.
Though I have heard the arguments of the learned counsel for the parties on factual point also but there is no need to discuss all the points as they are not required to be discussed in issuance or otherwise of writ of mandamus by this court. The arguments of the learned counsel for the petitioners in writ petition No. 1842 of 2007 with regard to the recording of evidence or giving opportunity for cross-examination and for non-hearing of the review filed before the Board of Revenue on merit which were also maintainable. Before coming to the legal position, I have noticed that after the orders of this court the learned District Judge, Rahimyarkhan for preparing the report with regard to the four questions referred to him, I have noticed that all the contesting parties have appeared before him and also filed documents in their respective claim, which are not less than 500 in numbers. They have also submitted written submission in detail before the Local Commission. As per finding of the Local Commission and his report dated 30.3.2008, the Local Commission on question No.2 reported in para No. 18 of his report which is as under:- "In view of the above facts and discussion, I am of the considered view that there is only one Chak No. 140-A (Abbasia) which consists upon the total land measuring 3316 acres which includes the undisputed land 1706 acres and disputed land of 1606 acres. There is no chak under the name of 140-A (Northern) Sadiqia Canal System as it existed on 1.1.1950 and outside the irrigation boundary of the Chaks in the attached schedule."
10. I am not going to critically examine on the touch stone of the objections of the counsel for the petitioners and scrutinize the . Report of the Local Commission. In my view the reference of the matter to the Local commission was not necessary. Now the learned Local Commission has put his full labour in preparing the report and the learned counsel for the parties have joined him and report is in accordance with the existing reality at the spot and this report also strengthened the findings of the full Board of Revenue's decision dated 15.4.2006. After submission of report the Lobal Commission was transferred to Rawalpindi from Rahimyarkhan and twice came to this court his statement could not be recorded. Even otherwise there was no necessity in the eventuality of the above referred circumstances to record his statement. There is no denial that this report has not been submitted by the Local Commission appointed by this court. The labour put by the Local Commission is appreciable. Only Jamal etc have filed objection to the report, no other person has filed objection on the report.
11. Now I come to the legal points. The Cholistn Development Authority was created under Cholistan Development Authority Act No. XIV of 1976. The purpose of this Act has been given in the Preamble.
The purpose is only speedy development and better administration of Cholistan Area of Bahawalpur Division, In accordance with Subsection (2) of Section 1 of Cholistan Development Authority Act, 1976 (Act No. XVI of 1976), It shall extend to such area as may be notified as Cholistan area by the Govt. The notification of the boundary of Cholistan is available as Annexure-B on the file. It is very strange that the notification for the boundaries of Cholistan Area was prepared on 14.11.1977 but was published vide No. 7339-77/3730-CII on 3.3.1988. Admittedly Chak No. 140-A does not. Fall within the area notified as Cholistan area. -The ingredient which was required by the Cholistan Development Authority to prove that this impugned area has been notified as Cholistan Area, the Cholistan Development Authority failed to prove. The objection raised by the learned counsel for the respondents that Cholistan Development Authority cannot file the writ petition against the decision of full Board of Revenue in accordance with the provision of Clause (i) of Sub- Section 1 of Section 16 of Cholistan Development Authority Act No.XIV of, 1976 as under:- With approval of the Government grant land to any person on any condition it thinks fit and for this purpose issue a statement or statement of conditions on which the authority is willing to grant land;
12. As only the authority has just a right to initially allot the land and the final determination is with the Govt, through the Member (Colonies) Board of Revenue Punjab, Lahore. In this way Cholistan Development Authority in the matters of development and allotment of land is subservient to the Board of Revenue, Lahore. When full Board of Revenue is the custodian of the land owned by the Govt, of Punjab, after full deliberation and consultation of the record has determined that the land in dispute falls in the area of colony area under administration of the colony department of the Board of Revenue Punjab Lahore. Learned counsel for the petitioners has failed to point out any jurisdictional error or defect in determination of Board of Revenue.
In the light of what has been discussed above, I am not inclined to exercise my extraordinary constitutional jurisdiction in favour of the petitioner of writ petitions No. 1523 of 2007 and 1842 of 2007, therefore both these writ petitions stands dismissed.
In writ petition No. 250 of 2007, writ petition No. 444 of 2008 and writ petition No. 458 of 2008 the prayer of the petitioners is that respondent No. 1 be directed to finalize the matter of grant of proprietary rights of the petitioners when two writ petitions (Supra) have been dismissed, the writ petitions No. 250 of 2007, writ petition No. 444 of 2008 and writ petition No. 458 of 2008 are disposed of with the directions to respondents No.1 to 3 to process the matter for finalization of proprietary rights in favour of the petitioners.
As the writ petitioners of writ petition No. 1842 of 2007 claim allotment from the Cholistan Development Authority, the Board of Revenue Punjab, Lahore may also consider their cases purely on merits and if Cholistan Development Authority has already allotted the land to them on merits then their cases must be considered by the Board of Revenue.