' The petitioners have filed this review petition against the order dated 25-4-2009, passed by the Full Board in ROR No,397 of 2006 whereby revision petition was dismissed and the case was remanded to learned District Officer (Revenue), T.T. Singh.
2. Learned counsel for the petitioners argued that the land in question was allotted to the predecessor-in-interest of the petitioners namely Muhammad Shah under the temporary cultivation scheme of Ghair . Allottees prior to year 1968 which was subsequently converted into Lambardari scheme vide order dated 17-11-1971 passed, by the Collector, Layllpur. Thereafter, in year 1976 scheme of grant of proprietary rights was introduced and predecessor of the petitioners applied for purchase of the said land on 26-7-1976. The learned District Officer (Revenue) on 16-8- 2004 allowed the petitioners to deposit price of the land in question. Then the petitioners became full owner of the land after deposit of entire amount. The respondent No,2 had no locus standi to challenge the rights of petitioners. But learned Executive District Officer (Revenue) set aside the valid order of learned District Collector on 14-2-2006. The petitioners filed a revision petition which was illegally dismissed by Hon'ble Full Board, BOR on 25-4-2009 and remanded the case to the learned District Officer (Revenue). The impugned order is the result of non-reading and non- appreciation of contention of the petitioners. The observation of the court made in the impugned order regarding entitlement of the petitioners is also incorrect and baseless. The petitioners are full owners of the land in question after deposit of entire price. But this vital aspect of the case was not kept in view by the court while passing the impugned order. While concluding the arguments, it was prayed that the review petition may be accepted.
3. Learned counsel for respondent No,2 contended that. Abdul Salam Khan was appointed Lambardar of Chak No,680/21-GB, which was upheld by the august Supreme Court of Pakistan vide order dated 17-3-2004. The petitioners are in illegal possession of the land in question, therefore, they have entangled respondent No,2 into this protracted litigation just to prolong their illegal possession. The impugned order dated 16-8-2004 passed by learned District Collector was passed in a hasty manners, which was rightly set aside by the higher authorities. However, while hearing the case after remand, learned District Officer (Revenue) decided the matter regarding Lambardari grant vide order dated 12-6-2012. The petitioners alleged that the land in question was allotted to their predecessor-in-interest, but throughout the litigation, they utterly -failed to produce any documentary evidence i,e, allotment order in their favour. Finally, it was prayed that the review petition may be dismissed.
4. We have carefully considered the arguments advanced by learned counsel for the parties, have gone through record of the case file including the impugned orders and written arguments submitted by the parties. Brief of the matter is that Muhammad Shafi, predecessor-ininterest of the petitioners Mst. Sughra Bibi etc. Was in possession of Killa Nos.11/1, 20, 21 of Sq. No,34 Killa Nos.6/2, 15, 16, 25 of Sq. No,35 Killa No,5 of Sq. No,36 Killa Nos.l, 10, 11/min of Sq.No,37 and Killa No,2, 9/1 of Sq.No, 40 measuring 100-kanals 6-marlas situated in Chak No,680/21 GB Tehsil Kamalia as per khasra girdawari for year 1968-69, as Dakheel Kar. It is pertinent to note here that no document/order of Competent Authority declaring the predecessor of petitioners as Dakheel Kar is available in record.
The learned District Collector. Lyallpur vide Order No,NIL dated 17-11-1971 allotted the said land to predecessor of petitioners under Lambardari grant and handed over the possession on 28-4-1972 vide Roznamcha Waqiati No,410/329. On 26-7-1976, Muhammad Shafi, the said Lambardar applied to the Collector for grant of proprietary rights of the said State land under Colonies Department letter No,3910,76/2686-CVV dated 13-7-1976. The learned AC/Collector, Toba Tek Singh on 10-5-1978 recommend that Muhammad Shafi is entitled for grant of proprietary rights of the said land and forwarded the case to the learned District Collector. The learned District Collector vide Endstt.
No,375-CCVI dated 3-6-1978 referred the case back to the learned Assistant.
Commissioner/Collector, Toba Tek Singh with some queries that whether the allottee has paid Government dues or otherwise. The case was resubmitted to the District Collector by the AC/Collector vide No,2373 dated 15-7-1978 stating that no Government dues are outstanding against the petitioners regarding said lot. The matter was pending, meanwhile, Muhammad Shafi, the predecessor of petitioners died in year 1993 and Lambardari became open Abdul Salam, the present respondent was appointed as Lambardar by learned Senior Member, Board of Revenue, Punjab, vide order dated 3-8-1998. The matter went, upto august Supreme Court of Pakistan and- the respondent was finally confirmed as Lambardar of Chak No,680/21/GB, Tehsil Kamalia, vide order of august Supreme Court of Pakistan dated 17-3-2004. By this order, not only Lambardari slipped away from the hands of petitioners rather it also endangered Lambardari grant (the impugned land), which they were holding since years and years. Then, after almost more than 25 years of the occupation of impugned land and after about twenty days of losing the case before Supreme Court, the petitioners. Mst. Sughra Bibi (widow of the Lambardar) etc. Filed ROR No,1167/2004 on 6-4-2004 before learned Member (Judicial-II), Board of Revenue, Punjab with the request that the directions be issued to the District Collectoi, Toba Tek Singh to accept the payment of land from them and grant proprietary rights in favour of the petitioners. The learned Member (Judicial-II), Board of Revenue, Punjab vide order dated 5-7-2004 disposed of the revision petition with the direction that they should first apply before learned District Collector, Toba Tek Singh in order to seek remedy.
5. The petitioners filed their request to the. District Officer (revenue), Toba Tek Singh on 12-7-2004 for the grant of proprietary rights. Newly-appointed Lambardar Abdus Salam, present respondent also agitated his claim as to be considered as party to the proceedings before learned District Officer (Revenue), but his request for impleading him party was declined vide order of learned District Officer (Revenue) dated 16-8-2004 and vide same order, Mst. Sughran Bibi (Widow of Late Lambardar) etc. Were granted proprietary rights of impugned land. The operative part is as under:- -- "Perusal of the record reveals that the deceased Lambardar namely Muhammad Shafi opted for proprietary rights of the said land as per Colonies Department letter No,3910-76/2686-CVV dated 13-7-1976 within the time period specified by the Board of Revenue, he was also declared eligible by the A.C/Collector, T.T. Singh for grant of proprietary rights at that time The District Collector, Faisalabad did not raise any objection regarding grant of proprietary rights in this case while referring back this case to the A.C./Collector, T.T. Singh for further scrutiny regarding any amount outstanding against the said Lambardar. Moreover, the A.C/Collector, T.T. Singh again referred the case to the District Collector with the observation that no such amount is outstanding as arrears against the said Lambardar. From that time the matter remained pending with various District Collectors of the District. It is evident from the record that as the said Lambardar opted for grant of proprietary rights within specified period of time and the same was forwarded by the A.C./Collector to the District Collector for approval, so as per recommendations the very right of getting proprietary rights in this case was created at that time and mere pendency of the case with various District Collectors of the District could not debar the deceased Lambardar from grant of such proprietary rights of the said land. Moreover, the said. Lambardar fulfilled, all terms and conditions as per policy at that time. As. His case after due recommendations was referred as a fit one for grant of proprietary rights and it remained pending with various District Collectors so at this later stage the said land could not be treated as Lambardari lot after a lapse of around 25 years.
Hence, the application of newly-appointed Lambardar namely Abdul Islam for becoming a necessary party to the case is hereby rejected as the deceased opted well in time for grant of proprietary rights of the said land and mere pendency of the case from 1971 to date could not dispossess the applicant from the exercise of his very right given by Board of Revenue as per policy.
' I, therefore, grant proprietary rights to Mst. Sughra Bibi (widow of said Lambardar) and etc. Of the said land as per policy of the Board of Revenue in this regard. The applications are hereby allowed to deposit cost of land etc. As, per directions of the Board of Revenue".
' This order was challenged before learned Executive District Officer (Revenue), Toba Tek Singh, who accepted the appeal of Abdul Salam respondent and set aside the order of learned District Officer (Revenue) vide order dated 14-2-2006. The operative part is as under:--- "I have given my anxious consideration to the arguments put forth at the bar and have also gone through the relevant record as well the relevant policy instructions of the Board of Revenue, Punjab with the help of the learned counsel for the parties. The main question for consideration before me is as to whether the DO(R) was competent for grant of proprietary rights to the respondents and got deposited the price of the land in question in terms of the Notification No,3910-76/2686-CV dated 13-7-1976 when they were not held the office of the Lambardar in the village in reaching to the conclusion, the relevant clauses of the said Notification are reproduced as under.
Clause No,1 ' The land cultivated continuously for five years or more by tenants, first offer of sale shall be made to such tenants.
Clause No . 6 ' The price per acre so worked out and the area under Lambardari grant in every village or Chak should be sent to the Board of Revenue for approval.
Clause No,16.
' A statement shall be prepared giving the details. Of square and khasra number allotted to the Lambardar/tenant who has paid the full price should be forwarded to the Board of Revenue Punjab, for the confirmation of sale by private treaty.
' It is evident that the following statements of conditions were mandatory for acquisition of proprietary rights of the Lambardari grant in term of the Notification ibid.
(a) That the grantee/tenant should have cultivated the land continuously for five years or more.
(b) That price of the land so worked out as per acre and the land in Lambardari grant situated in the each village/chak had to be approved by the Board of Revenue Punjab.
(c) That on the payment of full price of the land, the case should have forwarded to the Board of Revenue for confirmation of sale by private treaty.
' Perusal of the impugned order shows that neither the DO(R) got approved the price of the land in question or necessary confirmation for its sale by private treaty was sought from the Board of Revenue and he vide impugned order dated 16-8-2004 confirmed the proprietor) rights to the appellants of the impugned Lambardari grant and got deposited the full price of the land against the above mandatory provisions of law.
' In the light of foregoing discussion, I conclude that DO(R) has passed the impugned order dated 16-8-2004 without lawful authority and is of no legal effect, consequently, the same is set aside.
However, the applications of both the parties with regards to the impugned Lambardari grant will be treated as still pending before the DO(R) who shall dispose of the same afresh after taking into consideration all the provision of law on the subject and hearing both the parties. A copy of the order be sent to DO(R) for implementation and record of the court be consigned accordingly".
' Mst. Sughran Bibi etc. Present petitioners filed revision in Board of Revenue, on 27-3-2006 against the said order. The case was entrusted to learned Member (Colonies) on 28-3-2006. Afterwards, on the transfer application of Abdul Salam, the present respondent, learned Senior Member, Board of Revenue, transferred/entrusted the case to full Board consisting of Member (Consolidation) and Member (Judicial-II) on 3-7-2006.
6. Revision petition was dismissed by the learned Full Board vide order 25-4-2009 and the case was remanded to learned District Officer (Revenue), Toba Tek Singh to decide the matter afresh after detailed scrutiny of record. The operative para is as under:--- "Arguments heard and record perused. It is evident from the record that Assistant Commissioner on 10-5-1978 declared the petitioners' predecessor entitled for the proprietary right but no order on the question of grant of proprietary right was passed there and then by competent authority. The scrutiny of recommendations were made against the condition of Notification of Board of Revenue dated 12-7-1976 which prescribed the minimum limit of 5 years of continuous cultivation possession of the grant to become eligible for grant of proprietary rights. It is established that the deceased lambardar was given possession of land on 28-4-1972. Upto issuance of notification dated 12-7-1976, his continuous possession comes to 4 years 2 months and 14 days only. Therefore, the condition of 5 years continuous possession is not fulfilled and as such he was not entitled for grant of proprietary rights. But how did the A.C. Held him entitled for grant of proprietary rights on 10-5-1978 needs thorough probe. Further, there is no mention that what happened to his request after 1978 and why the petitioner remained silent over the issue for such a long time. Such a long delay on this matter has made it is case of detailed scrutiny of record by District Revenue Office.
The aforementioned Notification of 1976 clearly manifests that case would be referred to Board of Revenue who will approve the price. No such approval is on record. With above mentioned findings this case becomes a fit case for remand. Order of DO(R) dated 16-8-2004 has rightly been set aside by the EDO(R). Present Revision is dismissed and the case is remanded to DO(R). T.T. Singh to decide the matter afresh after detailed scrutiny of the record and hearing the parties, and to proceed in accordance with law and prescribed policy on such matter."
7. Being aggrieved from the order, the present petitioners filed instant review petition which was adjourned, sine die, on 2-1-2010 due to pendency of a case CRP No,21-L of 2008 in CP No,39-L of 2008 iri the august Supreme Court of Pakistan, which was filed by learned Member (Colonies), Board of Revenue, Punjab, against the order of Hon'ble Lahore High Court. The august Supreme Court decided the case vide order dated 27-9-2011.
"The Collector had noted that Muhammad Saleem fulfilled all the conditions required for grant of proprietary rights. The view was endorsed by the Commissioner and there was nothing left except for a formal order to be made for the grant by the Member (Colonies). Muhammad Saleem had thus acquired a vested right for conferment of the grant much before the issuance of the Notification of 17-1-2006. Any change in the Rules or the instructions would not affect the fulfilment of such right. Additionally this change in the Rule was brought about after Muhammad Saleem had moved the High Court had rightly held that there was no legal justification for denial of, the grant of proprietary right to Muhammad Saleem. Since the respondent, Nadeem Akhtar, can only base his claim to the property as a legal heirs of Muhammad Saleem, the Member (Colonies) Board of Revenue shall determine the entitlement of the legal heirs of Muhammad Saleem in the property in view of the argument of the learned counsel for the appellants that he was survived by six daughters, one of whom was mother of Nadeem Akhtar. With these observations, the appeal is dismissed".
' C.M.A. 796 of 2011.
' As the main appeal has been dismissed. This application became infructuous and dismissed accordingly.'"
8. Meanwhile the respondents filed a Writ Petition No,725 of 2011 in the Lahore High Court. The Hon'ble Lahore High Court vide judgment dated 17-1-2012 directed the learned District Officer (Revenue) to decide the case after hearing the parties. The operative para is as under:--- "As both the parties admit that matter has been finalized by the Hon'ble Supreme Court of Pakistan, the respondent No,2 is directed to proceed with the matter pending before him in accordance with raw after examining the judgment of Hon'ble Supreme Court of Pakistan. The parties are directed to submit a certified copy of the judgment dated 27-9-2011 passed -in Civil Appeal No,304-L of 2009, before respondent No,2.
' M it is an old matter, the respondent No,2 will decide the same within three months on receipt of certified copy of the judgment of Hon'ble Supreme Court of Pakistan, referred to above.
' In view of above, the instant petition stands disposed of."
9. The petitioners fled a C.M. No,1 of 2012 for correction of the order with the submission that the review petition of the petitioners is pending adjudication before the Board of Revenue, Punjab. The Hon'ble High Court through judgment dated 26-9-2012 disposed of the application of the petitioners with the following observations:--- "The petitioner, if so advised, may approach the Full Board by filing application for revival of the review petition in accordance with law".
10. The petitioners filed an application before the learned Full Board and review petition was restored vide order dated 25-10-2012. During proceedings, it surfaced that the petitioners have filed another Writ Petition No,11539 of 2012, which was decided vide judgment dated 7-5-2012. The operative para is as under:- "Learned counsel for petitioners submits that restraining order, has already been passed by the competent authority on 8-8-2009 whereby the D.O.(R) T.T.Singh has been permitted to proceed with the inquiry but he will not pass final order. Learned counsel submits that said order is still intact and has not been withdrawn. The apprehension of petitioners is that in spite of restraining order the D.O(R), T.T. Singh is intended to pass final order. If the order dated 8-8-2009 has not been expired, the DO(R) T.T. Singh if will pass final order he will face the consequences according to law.
This petition has no force and is disposed of accordingly."
11. Meanwhile, another order was passed by Hon'ble Lahore High Court in Criminal Original No,1270-)y of 2012, which was filed by the present respondents on 11-6-2012. The operative part is as under:--- ' Haroon Rasheed, Additional District Collector present in Court states that proceedings are fixed for hearing tomorrow i,e, 12-6-2012 and he will decide the proceedings according to law after hearing the parties. The respondent present in Court states that he has obtained restraining order from Full Board. The respondent is directed to appear before Additional District Collector will decide the proceedings on 12-6-2012 strictly in accordance with law after hearing all the parties concerned.
12. During pendency of the review petition before Full Board, Collector, T.T. Singh decided the remand case vide order dated 12-6-2012. The operative para is as under:--- "After hearing the history of the whole case and perusing the relevant record I. Have come to the conclusion that the petition of legal heirs of Mr. Muhammad Shafi (Late) Lambardar for grant of proprietary rights of Lambardari Grant is baseless and without any legal force and the same merits dismissal. The impugned State land henceforth be transferred in the name of Mr. Abdul Salam Lambardar of Chak No,680/21 GB, Tehsil Kamalia District T.T. Singh under Lambardari Grant in the light of Government of the Punjab Colonies Department Notification No,81-2006/50-C(V), dated 17- 1-2006. The Additional District Collector is directed to proceed further in the matter as per law/policy."
13.. From the above discussion, if appeared that following issues needs consideration:-
(i) Determination of date/scheme under which the impugned land was originally allotted to the predecessor-in-interest of the present petitioners.
(ii) Determination of eligibility of the, predecessor-in-interest of the petitioners for grant of proprietary rights of impugned land in the light of Notification No,3910-76/2686-CV, dated 13-7- 1976.
(iii) Determination of category of impugned land whether it can fall in Lambardari grant or not?
' Claim of respondent upon impugned land being freshly appointed Lambardar
(i) Determination of date/scheme under which the impugned land was originally allotted to the predecessor-in-interest of the present petitioners.
' The present petitioners are contending that they are primarily allottee of the impugned land under Dhakeel Kar scheme. In support of their version, they are referring khasra girdawari for year 1968-69, wherein it has been mentioned that possession of the impugned land is with the predecessor-in-interest of the petitioners as Dhakeel Kar. But, the present petitioners could not produce any order of competent ,authority for such allotment. However, allotment order under Lambardari scheme dated 17-11-1971 is available, which shows that the impugned land was allotted to predecessor of petitioners and possession was handed over on 28-4-1972.
(ii) Determination of eligibility of the predecessor-in-interest of the petitioners for grant of proprietary rights of impugned land in the light of Notification No,3910-76/2686-CV. Dated 13-7- 1976.
' The certain for such allotment have been envisaged in Notification No,3910-76/2686-CV, dated 13- 7-1976. Further, explanation of such conditions/eligibilities was subsequently circulated vide Notification No,4218-79/413-CV, dated 30-1-1980. The perusal o all the earlier orders of various forums shows that instructions contained in the latest notification were never taken into consideration while determining the eligibility of the petitioners. So the same needs to be looked into wholistically.
Determination of category of impugned land where it can fal in Lambardari grant or not?
' The impugned land was in possession of the predecessor-in-interest o the petitioners since 1968 and subsequently was converted into Lambardari grant in 1971 meaning thereby that the impugned land wa placed in schedule as Lambardari grant at least about 45 years ago an there is strong probability that this land must have- fallen within the prohibited zone. So, this aspect also needs to be looked into that whether the impugned land can continue to be part of Lambardari grant or not, because as per the latest instruction of Board of Revenue Punjab, circulated vide Notification No,1115-2010/636-CV, dated 4-6-2010 under clause 11, sub-clause (d) the land falling within the prohibite zone cannot be placed into Lambardari grant. If the impugned land ha fallen within prohibited zone, the same should be excluded from the Lambardari grant and some other piece of land be proposed fo Lambardari grant.
(iv) Claim of respondent upon impugned land being freshly appointed Lambardar.
' As the appointment of respondent as Lambardar of Chak No,680/21/GB, Tehsil Kamalia, has been finalized by the orders of august Supreme Court of Pakistan, so the respondent qualifies for allotment of "Lambardari Grant" and his request should be considered, accordingly, in the light of latest instructions of Board of Revenue, Punjab.
14. In the light of above discussion, it appears that very vital aspects of the case have not been thrashed out in the earlier orders and the same has been held in impugned order of this court dated 25-4-2009, which is quite lawful and needs no interference. Hence, the review petition is dismissed. The orders passed by learned Executive District Officer (Revenue), Toba Tek Singh dated 14-9-2006 and order of learned District Collector, Toba Tek Singh dated 16-8-2004 are set aside.
The rder of learned District Collector, Toba Tek Singh, dated 12-6-2012, is so set aside, as the same has been passed during the restraint orders assed by this court, in the absence of the present petitioners and without rashing the matter in accordance with the relevant policies. The earlier rder of this court dated 25-4-2009 is reiterated with the further direction o learned District Collector, Toba Tek Singh to pass a fresh order in the right of observations made by this court and after affording an pportunity of hearing to the concerned parties.
15. This order was reserved on 26-12-2013 and is announced today .e. 4-2-2014. The parties be informed.