AMIN-UD-DIN KHAN, J. --- Through this judgment I intend to decide both the above-captioned writ petitions.
2. Through writ petition No. 29461-2011, the order dated 29.10.2011 passed by respondent No. 3 (Assistant Commissioner/Collector, Tehsil 18 Hazari, District Jhang), whereby he reviewed his previous order dated 25.06.2011, has been challenged. Whereas, through writ petition No. 22884/2011, the notices dated 07.10.2011 issued by respondent No. 3 for initiating review proceedings, has been challenged.
3. According to the learned counsel for .The petitioners that in spite of the fact that this Court issued a stay order on 26.10.2011, respondent No. 3 reviewed the cases of all other, persons whose case was identical to the case of petitioners of writ petition No. 23894-2011. Therefore, they filed writ petition No. 29461-2011.
As according to the learned counsel for the petitioners that this round of litigation was started after the decision of Hon'ble Supreme Court dated 08.10.2007, whereby Civil Petitions No. 235 to 239 of 2007 filed by Abdul Malik, etc. Were decided. The claim of those petitioners before the Hon'ble Supreme Court was for allotment of land in pursuance of a newly introduced scheme in the year 2005 as they were holding a valid lease hold rights from the year 1979 to onwards and being in possession of the property, they claimed entitlement for further extension of lease in accordance with newly introduced scheme. The matter was, disposed of by the august Supreme Court with the following order:- "The Member Board of Revenue/Allotment Authority will examine the case of each petitioner independently and determine as to whether five years lease hold rights in 1979 was validly passed in his/their favour and if so whether he/they are entitled for his/their. Right of purchase in terms of newly scheme introduced in the year 2005. The Board of Revenue/Allotment Authority may determine this question after hearing both the sides and taken into consideration the record so made available, to substantiate his/their respective pleas and if he/they are found not entitled then the scheme of the respondents of Jangal Abad Kari shall be examined."
After that, the Member Board of Revenue vide order dated 05.08.2008 made the following observations:--- {{URDU TEXT}} Against this order, Rana Afzal Hussain, etc. Filed a contempt petition No. 26 of 2008 before the august Supreme Court, which was dismissed on 29.08.2008, the order is reproduced herein for ready 'reference:- "We have heard learned counsel for the petitioner. A photocopy of an order dated 05.08.2008 passed by Member Board of Revenue (Colonies) has been placed on record which shows that the cases of all the parties are being examined individually by the Member Board of Revenue. We feel that no case for contempt has prima facie been made out. The petition, therefore, being misconceived is dismissed. Member Board of Revenue is, however, directed to decide the cases of the petitioners within a period of six months."
Learned counsel for the petitioners states that the Government of Punjab issued two Notifications one for extension of. Lease hold rights and the other for offer to purchase the property in cultivating possession. Further, the Member Board of Revenue felt it proper to scrutinize the case of each and every applicant and vide order dated 15.03.2010 M.B.R. Sent the matter to the Collector (respondent No. 3) for processing the allotment of land, who vide orders dated 25.06.2011, 04.07.2011, 15.07.2011 and 30.07.2011 extended the lease of near about 900 persons including petitioners of both the writ petitions and all the lessees duly deposited the amount of rent demanded by him. The order of Member Board of Revenue dated 15.03.2010 was challenged by the persons claiming to be Jangal Abad Kar through writ petition No. 11379-2010 before this Court, which was allowed on 02.08.2010 and the petitioners filed I.C.A. No. 569-2010 before this Court, which was allowed on 28.02.2011, resultantly W.P. No. 11379-2010 stand dismissed. According to learned counsel for the petitioners, against the order of Division Bench of this Court dated 28.02.2011, "Jangal Abad Kars" (applicants of C.M. No. 4101-2011) have filed civil petition No. 638-2011 before the august Supreme Court of Pakistan, which has not yet been entertained. The Jangal Abad Kar also filed 13 writ petitions with the prayer that cases of petitioners fie reconsidered. They also filed Crl.Org. No. 1180-W-2011 in I.C.A.
No. 569-2010, which was disposed of vide order dated 31.10.2011. Learned counsel states that through all these proceedings the case of official respondents was that lease has rightly been extended in favour of each lease holder. Then writ petition No. 18118-2011 was filed by Aman-Ullah, etc. Which was disposed of in terms of order dated 10.10.2011, the operative part of which is as follows:--- "2. After arguing the case at some length, the parties have arrived at a consensus that both the Notifications dated 13.01.2010 issued by the Colonies Department, Government of the Punjab are mutually exclusive. Notification No. 223-2010/118-C.L (I) deals with grant of extension of lease to the existing lessees, of available state agricultural land while Notification No. 224-2010/1 19-C.L (I), inter alM, provides right of first refusal to illicit cultivators of state agricultural land outside prohibited zone for temporary cultivation.
3. According to the Member (Colonies), Board of Revenue, Government of Punjab, Lahore both the Notifications are mutually exclusive and, therefore, it is not likely that the disposal of applications under the respective Notification by the claimants/applicants will result in double or overlapping allotment of the same state agricultural land.
4. In this view of the matter, Member (Colonies) submits that the applications received by the Board of Revenue under the aforementioned Notifications will be decided strictly in accordance with law by granting a hearing to the applicants/petitioners and by passing speaking orders within a period of two months from the date of this order.
5. Disposed of accordingly.
6. It is also clarified that the" earlier round of litigation by some ex-lessees culminating in order dated 08.10.2007 passed in Civil Petitions No. 235 to 239 of 2007 by the august Supreme Court of Pakistan is not inconsistent with the above arrangement and does not affect the rights of the petitioners who have to be independently dealt under Notification No 224- 2010/119-C.L(I), dated 13.01.2010."
When respondent NO. 3 issued notice dated 07.10.2011 for review of the proceedings of extension of lease in favour of petitioners, they filed writ petition No. 23894-2011 before this Court and despite granting stay order by this Court, except of the petitioners of above-said writ petition, lease extension order was reviewed by respondent No. 3. Hence, these writ petitions.
4. Learned counsel for the petitioners states that the order passed by respondent No. 3 for review of previous order with regard to the extension of . Lease in favour of all the petitioners, is in clear violation of order passed by the august Supreme Court of Pakistan; that even Rana Muhammad Hussain etc., filed Crl.Org. No. 107- 2009 and Crl. Misc. No. 550-2009 in Civil Petition No. 235-2007, which was disposed of with the following order:- "Neither the petitioners nor their learned counsel has entered appearance to prosecute this petition. Respondent No. 1 is present in person and we have gone through the report dated 02.03.2012 submitted by him. A perusal of the report shows that the grievance of the petitioners has been addressed and redressed and the outstanding issues have been resolved through appropriate proceedings. This could be the reason for the petitioners' absence from this Court today. It appears that this petition has already borne fruit and the same is, therefore, disposed of. "
Learned counsel States that before the Member Board of Revenue during the proceedings in remand case through writ petition No. 18118-2011, case of Jangal Abad Kar was dealt in Para 5 of the judgment of Member Board of Revenue dated 02.03.2012, which is as follows:--- "5.
Learned counsel for the petitioners has stated that they have filed 313 applications from time to time in this Court in pursuance of the order of Hon'ble Lahore High Court dated 10.10.2011 passed in Writ Petition No. 18118/2011. The learned counsel for the petitioners in the petition has prayed that in view of the order Of the Hon'ble High Court dated 10.10.2011 the petitioner may kindly be granted lease for 5 years as the petitioners fulfill the terms and conditions of Notification No. 224-2010/119- C.L(1), dated 13.01.2010."
Learned counsel states that case of Jangal Abad Kar was not against the petitioners but they were claiming independent rights at that time; that now the order passed by respondent No. 3 is in clear violation of law laid down by the august Supreme Court of Pakistan reported as "2009 SCM R 1 (Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v.
Sameena Parveen and others), PLD 2010 Supreme Court 878 (Saddaqat A.I Khan through LRs. And others v. Collector Land Acquisition and others) and 1996 SCM R 1'185 (Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others)" by holding that rights can only be granted to the persons who were petitioners before the august Supreme Court; that when Member Board of Revenue in its order dated 05.08.2008 has held that all the lessees whose rights are synonymous as compared to the persons who were petitioners before the apex Court, can be processed on the same principles; that through the impugned order respondent No. 3 has even set aside the order passed by the Member Board of Revenue; that order reviewed by respondent No. 3 was appealable and exercise of powers of review is not vested with respondent No. 3.
5. On the other hand, learned Additional Advocate General Punjab states that the right of appeal was available with the petitioners under Section 161 of the West Pakistan Land Revenue Act, 1967, therefore, writ petition was not competent and respondent No. 3 has rightly exercised powers of review.
6. Hafiz Khalil Ahmad, Advocate has moved an application under Order I, Rule 10 of the CPC (C.M.No. 4101-2011 in W.P.No. 238942011) on behalf of 10 persons claiming to be illicit cultivators (Jangal Abad Kars) to implead them as respondents in the writ petition. According to the learned counsel that the rights of these applicants are involved in this petition. Further states that the powers by respondent No. 3 were rightly exercised and further that against the notices when no adverse order was passed, therefore, writ petition was not competent.
7. As the "matter has already been scrutinized through various round of litigation. Therefore, in the interest of justice passing of a formal order on this application is not necessary when learned counsel for the applicants has argued the case on merits at full length and this Court heard the arguments of learned counsel on merits of case also.
8. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
9. I have noticed the point that lessees who were not petitioners before the august Supreme Court of Pakistan are not entitled to take benefit of order of said apex Court, as held by respondent No. 3 is not only against the law settled by the august Supreme Court referred supra but also against the decisions of this Court as well as of the august Supreme Court rendered at various stages of lis in hand, the same is therefore, incorrect. As after passing of order by the august Supreme Court for determination of rights of the parties after hearing them and the persons claiming to be Jangal Abad Kar filed Crl.Org. No. 20 of 2008, which was dismissed on 29.08.2008, and further, during the pendency of Constitutional petition and appeal before this Court, case of official respondents before this Court was that they have rightly processed the rights of petitioners and rightly extended their lease and even the matter was many a time reiterated by the Member Board of Revenue as is evident from report as well as comments filed in the instant writ petition. Therefore, in these circumstances while exercising the powers by respondent No. 3 by reviewing his previous order as he himself extended the lease of near about 900 persons including the petitioners, was absolutely without any lawful justification as well as in clear violation of order of this Court as well as of the august Supreme Court, therefore not sustainable under the law.
I have also noticed that this is the same officer who extended lease of petitioners and others and then reviewed his order, which seems that he was sightless at the time of extension of lease and he was just to thumb mark the papers presented before him without even application of his mind.
10. So far as the objection raised by the learned Additional Advocate General Punjab with regard to maintainability of this writ petition, on the basis of availability of right of appeal is concerned. In my view, because of rich history this case where true compliance of order of august Supreme Court is required, the objection of learned Addl. A.G. Is not sustainable.
11. In view of the above discussion, both the Writ Petitions are allowed. The impugned order dated 29.10.2011 passed by respondent No. 3 is set aside The issuance of notices dated 07.10.2011 for review of order challenged iii writ petition No. 23894-2011 is also declared illegal and without lawful justification.
12. Before parting with this order, as infirmity and illegality has been committed by respondent No. 3, therefore, I feel it necessary that a copy of this order be transmitted to the Senior Member Board of Revenue for necessary action against Mr. Kashif Raza Awan, the then Assistant Commissioner/Collector, Tehsil 18 Hazari, District Jhang. .