Through this single judgment I intend to decide W.P. No, 4307/2004 and W.P. No, 1057/08.
2. The brief facts as narrated by the petitioner in the writ petition are that the land mentioned in the petition was allotted to the petitioner by the Assistant Commissioner, Kabirwala on 26,6.1971 under 15 years Temporary Cultivation Scheme. The Assistant Commissioner declared the petitioner eligible for the conferment of proprietary rights on 29.10.1980. As per the petitioner, the Deputy Commissioner concurred with the order of the Assistant Commissioner on 28.8.1986 and the price of the land was determined as Rs, 40900/, It is further asserted that the Assistant Commissioner cancelled the lot for non-payment of the price of the land vide order dated 27.11.1986, which was passed behind the back of the petitioner and it was not in the knowledge of the petitioner as no notice was given to the petitioner before passing the said order. Then the petitioner moved an application before the Assistant Commissioner/Collector for restoration of the lot in his name. The application was dismissed on 12.2.2001 by the Assistant Commissioner/Collector. The appeal was preferred before the Additional Commissioner (Revenue), which was also dismissed on 23.4.2001.
Revision petition bearing R.O.R No, 722/2001 was filed before the Member (Judicial-IV), Board of Revenue, Punjab, which was accepted on 28.8.2002 and the lot was restored in the name of the petitioner and finding that the non-payment was a rectifiable breach, imposed a fine of Rs, 5000/- on the petitioner.
3. The learned counsel states that when the petitioner moved an application before the Assistant Commissioner/Collector for deposit of the price he was informed that some more 'money is to be deposited as interest, therefore, he filed Review Petition No, 293/02 and prayed for payment of the price of the land in instalments whereupon vide order dated 23.7.2003, he was allowed to deposit the price of the land along with the amount of the penalty in three equal instalments. The Assistant Commissioner/Collector issued the Challan Form for the payment of Rs, 46657/-, which was deposited and the second challan Form was issued for the same amount, which was also paid.
Then the petitioner came to know that vide order dated 22.6.2004, passed by the District Officer (Revenue)/Collector, Khanewal, the suit land along with the other land total measuring 400 kanals has been allotted to Respondent No, 6/Maj. General (Retd.) Asad Mahamud Malik under the Army Welfare Scheme, whereupon the petitioner filed the writ petition in hand.
4. Learned counsel submits that the Deputy Commissioner in his comments has stated that at the time of allotment in favour of Respondent No, 6 the order of Member Board of Revenue was not in his knowledge. Learned counsel further states that on 22.6.2004 this land was not available for allotment, therefore, the allotment order passed by the District Officer/Collector, Khanewal is absolutely without jurisdiction.
5. In the other writ petition, an application was filed by the General Headquarters (W& R Directorate through Commander Military Families Rehabilitation Organization (MFRO), Multan under Section 12(2) of the C.P.C, before the Member, Board of Revenue Punjab, against the order dated 28.8.2002, passed by Mr. Muhammad Ayub Malik, Member Judicial-IV, Board of Revenue, Punjab in ROR No, 722/2001 titled "Hashim v. The State". This application was accepted on 11.2.2008 treating it to be a review petition. The said order has been challenged in the second writ petition (W.P.No, 1057/08).
With regard to this petition, the learned counsel states that the application under Section 12(2) of the C.P.C. does not lie before the Member Board of Revenue. Further states that the arguments were heard on application under Section 12(2) of the C.P.C. Submits that when Mr. Muhammad Ayub Malik, Member (Judicial-IV), Board of Revenue, Punjab, who passed the order under review, was available treating it to be a review and decision as such by Mr. Aftab Ahmed Manika, the other Member, Board. of Revenue Member, Punjab was against the law, Further that this review petition was barred by limitation as the same was filed after a period of six years. Further that no notice was issued on this review to the writ petitioner. He argues that under Section 8 of the Board of Revenue Act, 1957 a review can be filed within 90 days. He further argues that Section 5 of the Limitation Act, 1908 is not applicable in the proceedings before the Board of Revenue and the revenue hierarchy as special period of limitation is provided in the Board of Revenue Act, 1957.
6. On the other hand, learned counsel for Respondent No, 6 states that there is no fault on the part of Respondent No,
6. Submits that the land was allotted to him by the Collector and without fulfilling the conditions of the allotment the writ petitioner was not entitled for the conferment of the proprietary rights as he had not made the land cultivable and therefore, the orders passed by the revenue hierarchy for conferment of proprietary rights and for deposit of the price of the land are not sustainable under the law.
7. I have heard the learned counsel for the parties at full length and have also gone through the record.
8. This Court while exercising constitutional jurisdiction cannot go into the factual controversy between the parties. The argument of the learned counsel for Respondent No, 6 to attack the eligibility and right of conferment of proprietary right upon the writ petitioner relates to the factual controversy. This Court cannot afford to go into the factual controversy between the parties. Only the legal questions can be looked into by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. I have noticed that the order of conferment of proprietary rights dated 28.8.2002 in favour of the writ petitioner, in ROR No, 722/2001, was passed by the Member, Board of Revenue, Punjab while exercising jurisdiction conferred by law and there is no jurisdictional defect in the said order. When the proprietary rights were conferred through the order of the Member Board of Revenue on 28.8.2002 certainly on 22.6.2004 the land was not available for allotment before the Collector. It is sufficient to hold that the allotment by the District Collector in favour of Respondent No, 6, vide order dated 22.6.2004, when the order for restoration of lot in the name of the writ petitioner, passed by Member Board of Revenue in ROR No, 772/2001 on 2.8.2002 was in field, the order of the District B Collector was without jurisdiction. I have further noticed that it is not denied by any one of the parties that this lot at the time of initial allotment was available for Temporary Cultivation Scheme and in the record I have not seen any order for reservation of the said land for the Army Welfare Scheme.
9. Now I come to the order dated 11.8.2008, passed by the Member, Board of Revenue treating the application under Section 12(2) of the C.P.C. to be a review petition. A review is filed under Section 8 of the West Pakistan Board of Revenue Act, 1957 and in review petition certainly there is a limited scope. I have noticed that the order of review and the order which has been reviewed are almost two independent orders which are not permissible under the law as in review the Court exercising such jurisdiction has some limitations under Section 8 of the West Pakistan Board of Revenue Act, 1957. In the case in hand the powers of review have been used ignoring the statute giving the powers to review the order. Further no notice was given to the writ petitioner before converting the application under Section 12(2) of the C.P.C. into a review. Without notice to the writ petitioner exercise of review is without jurisdiction. Further the review petition was filed after a delay of six years from the passing of the original order. Section 5 of the Limitation Act, 1908 is not applicable in revenue proceedings, as the same are governed under the West Pakistan Board of Revenue Act, 1957, which is a special law and also provides a special period of limitation. Though the limitation can be condoned in the revenue proceedings but certainly it depends upon satisfying the Court exercising jurisdiction, with regard to the cause of delay. In this case even no prayer for condonation of delay has been made. Therefore, there is no question of condoning the delay.
10. In the above circumstances, both the writ petitions are allowed and the impugned orders/actions, to the extent of the suit land are declared to be without lawful authority.
11. Before parting with this judgment, I must observe that even there is no fault on the. part of the allottee/Respondent No, 6/Maj. Gen. (Retd.) Asad Mahmood Malik, therefore, the Collector may consider his case for alternate allotment as in all these proceedings I have seen no fault on the part of Respondent No, 6 rather it was the negligence of the revenue officials for which both the parties suffered a lot.