JAWAD HASSAN, J:- Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the " Constitution "), the relief sought by the Petitioners is as follows: "In the light of above narrate circumstances, it is humbly prayed that by accepting this writ petition orders 26.07.2016 passed by respondent No.1 / MBR II Judicial Board of Revenue Punjab Lahore may kindly be set aside and order dated 21.03.2014 passed by Additional Commissioner Consolidation Bahawalpur may kindly be restored."
A. Gist of the Issues before the Authorities
2. Brief facts tersely revealed from the petition are that in Mouza Dashti consolidation of land was confirmed on 29.06.1993 and in result thereof wanda No.228 was confirmed in respect of land belonging to the Petitioners No.1 to 11, wanda No.115 was confirmed in favour of the Petitioners No.12 to 18 and wanda No.227 was confirmed in favour of the Respondents No.2 to 5 namely Muhammad Makki, Mst. Faiz Ellahi, Muhammad Ismail and Mst. Sakina. Feeling aggrieved thereby the Respondents No.2 to 5 challenged the said consolidation proceedings through an Appeal before the Deputy District Officer, consolidation of land, Rahim Yar Khan who vide order dated 27.06.201 1 accepted the Appeal ex-parte and excluded khasra No.53/3- 17/0 K -15 M from wanda No.228 of the Petitioners and included in wanda No.227 of the Respondents No.2 to 5; similarly , Khasra No.33/16, 22 alif- 1K - 0M excluded from wanda No.115 belonging to the Petitioners No.12 to 18 and included in wanda No.227 belonging to the Respondents No.2 to 5. The present Petitioners assailed the said order by filing revision petition before the Additional Commissioner , Consolidation Bahawalpur who vide order dated 21.03.2014 accepted the same and set aside the order dated 27.06.201 1 and restored the wanda Nos.1 15 and 228 in their original position. Therefore, the Respondents No.2 to 5 assailed the order dated 21.03.2014 before the Respondent No.1 through ROR No.765/14 who after hearing both the parties allowed the same vide the impugned order (dated 26.07.2016) and set aside the order dated 21.03.2014 and restored the order dated 27.06.201 1. Hence, this petition.
3. On the demise of the Respondents No.6, 8 & 10, their legal heirs were impleaded in the array of the Respondents. None appeared on their behalf, hence they were proceeded against ex-parte on 06.03.2019.
B. Submissions of the Petitioners
4. Ch. Muhammad Shafi Meo, Advocate, learned counsel for the Petitioners inter alia submitted that the impugned order is against the law and facts; that the Appeal of the Respondents No.2 to 5 filed before the Deputy District Officer, Consolidation was badly time barred; that the Petitioners moved under Section 9 of the West Pakistan Consolidation of Holdings Ordinance, 1960 (the "Ordinance") read with the provision of the West Pakistan Consolidation of Holding Rules, 1960 (the "Rules") for preparation of scheme for consolidation of holdings, as such they were rightly held entitled during consolidation proceedings; that under Section 11 of the Ordinance the Appeal before the Collector, being aggrieved by the orders of the Consolidation Officer, was to be filed within sixty days from the date of the order but the Respondents filed the same after a considerable period of time, as such the same was badly time barred; that the impugned order has been passed without any legal justification; that the Petitioners are in possession of the disputed property since 1989-90 and they have raised construction over it, as such their valuable rights have not been taken into consideration while passing the impugned order; that the Respondent No.1 has misread and misinterpreted the mutation No.653 dated 17.01.1951 and as such the impugned order is based on surmises and conjectures. He further elaborated that the authorities acted under Section 6 and other provisions of the Ordinance and the Rules.
C. Submissions of the Respondents
5. On the contrary, Mr. Ahmad Mansoor Chishti, Advocate, learned counsel for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of the petition on the grounds that the impugned order has rightly been passed by the Respondent No.1; that according to the revenue record the Respondents were owner in possession of the disputed land and the present Petitioners had no concern whatsoever with the property; that the Petitioners got the disputed land through the consolidation proceedings in their absence; that as and when the said consolidation proceedings came into knowledge of the Respondents No.2 to 5 they forthwith resorted to the authority concerned by challenging the same, as such the issue of time barred does not come in the way; that the impugned order has been passed strictly in accordance with facts and circumstances as well as keeping in view the valuable rights of the Respondents No.2 to 5, therefore, does not need to be interfered by this Court.
6. On his turn, Jam Muhammad Afzal Gasoora, Assistant Advocate-General adopted the arguments of the learned counsel for the Respondents No.2 to 5 and supported the impugned judgment contending that the same has rightly been passed and does not call for any interference by this Court.
7. I have heard the arguments of both the sides and perused the record.
D. Nub of the matter i.) Whether the authorities below acted as per the Ordinance and the Rules ? ii) Whether the Appeal of the Respondents No.2 to 5 was time barred?
E. Determination
8. As the facts of the case have already been mentioned above, therefore, there is no need to reiterate the same.
There is no denial of the fact, even in the order dated 21.03.2014 passed in favour of the Petitioners that prior to consolidation proceedings the disputed land pertains to khata No.225 of the Register , record of the rights for the year 1989-90. Allegedly , the disputed land was pertaining to an independent khata of the Respondents No.2 to 5 and the present Petitioners were not co-sharers in that khata. It is also an admitted fact that at the time of consolidation proceedings the Respondents No.2 to 5 were out of country and all the consolidation proceedings of Mouza Dashti, Tehsil Liaqatpur were finalized in the year 1993 in their absence.
F. Relevant Sections of the Ordinance
9. To strengthen my findings, I would like to quote the relevant sections of the Ordinance which will provide help to clear the picture. i. The land owner has been defined under Section 2 (j) of the Ordinance which reads as under:
(j) "land-owner" does not include a tenant, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, for the recovery of arrears of land-revenue or of a sum recoverable as such arrears, and every other person not hereinbefore mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate; ii. The Section 4 of the Ordinance reads as under:
4. When an application for consolidation of holdings shall be deemed to be on behalf of all the land-owners.- (1)
Where an application for consolidation of holdings is made by or on behalf of all the land-owners of an estate or a sub division and the scheme of consolidation of holdings is confirmed, such scheme shall be binding on all the land-owners of the estate or the sub-division and on every person having a right or interest or who may subsequently become entitled to such right or interest in the area included in the scheme.
(2) The motion or the application, as the case may be, shall be deemed to be an application on behalf of all the land-owners in the estate or sub-division, if-
(a) the Board of Revenue or an officer authorised by it in this behalf moves the Consolidation Officer for the consolidation of the holdings in an estate or a sub-division;
(b) not less than fifty-one per cent of the land owners in an estate or a sub-division, holdings not less than fifty-one per cent of the cultivated area in the estate or the sub-division, make an application for consolidation of their holdings; or
(c) on inquiry into an application made under sub-section (2) of section 3, the Consolidation Officer is satisfied that not less than fifty-one per cent of the land-owners in the estate or sub division holding not less than fifty- one per cent of the cultivated area in the estate or sub-division, agree in writing to the consolidation of their holdings. iii. The Section 5 of the Ordinance is pertaining to the Application by some of the owners and its effect which is as follows:
5. Application by some of the owners and its effect.- Where an application for consolidation is not by or on behalf of all the land-owners, it shall be confined to the land owned by the applicants and by such other land- owners who have agreed to the consolidation of their holdings, and, if confirmed, it shall be binding on them and on every person having a right or interest or who may subsequently become entitled to such right or interest in the area included in the scheme. iv. The Sections 9 states as under:
9. Preparation of scheme for consolidation of holdings and appointment of Advisory Committee .- (1)
Where the land-owners making the application under sub-section (2) of section 3 submit an agreed scheme for consolidation of holdings, the Consolidation Officer shall proceed with the application in such manner as may be prescribed.
(2) If no agreed scheme is submitted with the application for consolidation, the Consolidation Officer shall prepare a scheme for consolidation of holdings in such manner as may be prescribed.
(3) Subject to any rules made under section 29, the Consolidation Officer may appoint an Advisory Committee or Panchayat to assist him in the preparation of a scheme for the consolidation of holdings.
9-A. Power to exclude from or include in consolidation any land.- Notwithstanding anything contained in this Ordinance, the Board of Revenue may, in the public interest, direct, by general or special order , that any land, holding or class thereof shall be excluded from or included in any scheme of consolidation before it is confirmed . v. Section 1 1 is with regard to the limitation of the filing an Appeal which states as under:
11. Appeals. - (1) Any person aggrieved by an order of the Consolidation Officer confirming the scheme may, within sixty days from the date of the order , prefer an appeal to the Collector .
(2) A second appeal from the order of the Collector passed on an appeal under sub-section (1) shall lie to the Commissioner within sixty days from the date of the order: provided that when the order of the Consolidation Officer is confirmed on appeal by the Collector, no second appeal shall lie.
(3) Any person aggrieved by an order of the Collector made under sub-section (4) of section 10 confirming, rejecting or modifying a scheme of consolidation submitted to him by the Consolidation Officer may, within sixty days from the date of the order , prefer an appeal to the Commissioner .
(4) In questions of the admission of, and the computation of the period for, an appeal from the order under this Ordinance, the limitation therefore shall be governed by the Limitation Act, 1908."
10. In Ground No.iv of the petition, the Petitioners have claimed that they are in possession of the disputed land since 1989-90 whereas on the other hand the Respondents No.2 to 5 have averred that they are owners in possession of the said land before 19s and later on they have purchased the said property from the Government from the sole Khata of Dolatmadar; they have also appended relevant record in support of their version. Hence, they are land owners as per Section 2(j) of the Ordinance. Admittedly , the consolidation proceedings were finalized on 29.06.1993 and according to the principles of consolidation, the owned and possessed land was to be confirmed in favour of every right holder under the Ordinance and the Rules. The Petitioners have also not specifically denied the possession and ownership of the Respondents No.2 to 5 over the disputed land prior to their claim of possession. Consequently , I am satisfied with the findings of the Respondent No.1 who in the impugned order specifically observed and held that the Respondents No.2 to 5 were out of country and that's why they were not aware about the whole proceedings and due to which the Petitioners got advantage of their absence. He further observed that the record shows that the consolidation officer, without hearing the Respondents No.2 to 5 and in their absence confirmed the wanda No.227 vide order dated 29.06.1993 and the said order is against the norms of natural justice as provided in the Ordinance as well as Article 4 of the Constitution. The possessed and owned land was given to the Petitioners wandajat during finalization of consolidation proceedings.
11. The disputed land was in separate independent khatoni of the Respondents No.2 to 5 to which they purchased from the Government in the name of Molvi Khair Muhammad (father of the Respondents No.2 to 5) and in this regard they have also produced copy of the said agreement dated 14.04.1940 consisting of four pages alongwith a stamp paper of worth 2 rupees and record of the rights which duly support their version. It was also held in the impugned order that according to khata No.225 khatoni No.105 as per the register record of the rights for the year 1989-90 the disputed land was pertaining to independent khata of the Responden ts No.2 to 5 and the Petitioners were not co-sharers in that khata. Furthermore, the order dated 21.03.2014 was passed in favour of the Petitioners mainly on the ground that at the spot the possession of the disputed land rests with the Petitioners who had spent a lot of money by raising construction of different types and their ownerships proved from the receipts of electricity meters. It is interesting to note that as the consolidation proceedings were finalized in absence of the Respondents No.2 to 5, therefore, in their absence there is every possibility to manage the inclusion of disputed land and change of possession in favour of the Petitioners, therefore, this grounds cannot be tenable and made basis to allow the revision petition in favour of the Petitioners. Mere possession and construction over the disputed land which is included in the wandas of the Petitioners in the above said crucial circumstances, do not create any vested right or title in favour of the Petitioners. As such, the impugned order has rightly been passed by the Respondent No.1.
12. Under Section 2 (j) of the Ordinance the Respondents No.2 to 5 were falling in the definition of land owners and under Sections 3 & 4 of the Ordinance only application on behalf of the land owners of estate can be made for consolidation of holdings and then it is confirmed, as such the Respondent No.1 has rightly held in the impugned order that the Petitioners were not the land owners of the disputed property/estate rather the Respondents No.2 to 5 of which the order for consolidation was passed. Furthermore, the contention of the learned counsel for the Petitioners regarding Section 9 of the Ordinance is not instructive because it also applicable only to the extent of land owners of the estate (disputed land) and both authorities have confirmed that the Petitioners are not the land owners of the said estate.
13. In view of the above facts, circumstan ces as well as the law, the Respondents No.2 to 5 being the land owners were entitled to have the right over the estate/disputed land qua the Petitioners which has been establishe d by the two above referred hierarchies as the consolidation proceedings were carried out in absence of the Respondents No.2 to 5.
14. It is also worth mentioning here that admittedly the Respondents No.2 to 5 were not heard by the Consolidation Officer before passing the Consolidation Order dated 29.06.1993 in favour of the Petitioners which was rightly rectified subsequently by the Appellate Authority. Importantly, when an application for consolidation proceedings under Section 3(2) of the Ordinance is filed it is to be read with the Rules and it is the duty of the Consolidation Officer under Rule 8 of the Rules to enquire from such land owners or other applicants whether they wish to join in the application or whether they have any objection and then make such other enquiry from the land owners present as he may deem fit. Thereafter, the Consolidation Officer has to recover all the objections/ representations made at that stage. But in the instant case the Petitioners have failed to show that before the Authority, whether the procedure provided under the Ordinance and its Rules, were duly followed before the Consolidation Order was passed. The Article 4 of the Constitution clearly depicts the right of individuals to be dealt with in accordance with law, etc.; according to which to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. The above situation clearly reflects that no proper procedure at the time of consolidation proceedings was followed, hence the Respondents had not been treated in accordance with law, consequently the impugned order by the Respondent No.1 has rightly been passed in favour of the Respondents No.2 to 5 and against the Petitioners.
G. Limitation of Appeal
15. So far as the objection of the Petitioners regarding the Appeal of the Respondents No.2 to 5 being time barred is concerned, in this regard it is stated that admittedly the Respondents No.2 to 5 were out of country at the time of consolidation proceedings, therefore, their plea/stance that as and when they came to Pakistan and know about the consolidation proceedings, forthwith resorted to the competent authority for redressal of their grievance, has much wait and can be relied upon and accepted by the authority concerned by exercising its discretionary powers.
Moreover , the Respondents No.2 to 5 alongwith their Appeal have also filed application for condonation of delay duly supporting their affidavits. In this regard reliance can be placed on the case titled Qadir Bakhsh v. Mst.
Mumtaz Batool Biluch. (1985 MLD 1279 ) in which the Appeal before the Authority under Section 11 of the Ordinance was filed after a delay of about 8 months and the learned counsel for the Petitioners vehemently agitated the issue of limitation but it has been held in the case that the Appeal before Authority filed after limitation and the Authority condoning the delay , as such the order of Authority condoning such delay was justified in law .
16. Moreover , guidance can also be sought from the principle enunciated by the then Hon'ble Mr. Justice Jawad S. Khawaja in case titled Jamal Din v. Muhammad Aziz and others (2001 CLC 1726 ) which states that Courts below had concurrently decided that order passed by the Consolidation Officer in absence of respondent, was void and that all subsequent orders passed by the Revenue Forums were also void because original order had been passed without affording opportunity of hearing to the Respondent. Deficiency in original order on account of the fact that Respondent was not heard, had stood rectified by subsequent proceedings where Respondent was afforded an opportunity of being heard."
17. As the Section 11(4) of the Ordinance states that in questions of the admission of, and the computation of the period for, an Appeal from the order under this Ordinance, the limitation therefore shall be governed by the Limitation Act, 1908, (the "Act"). Therefore, the Hon'ble Supreme Court of Pakistan in case tilted Mst. Farah Naz v. Judge Family Court etc. (PLD 2006 Supreme Court 457) has very elaborately held that in computing period of limitation prescribed for any suit, by reason of Section 13 of the Act, time during which defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government would be excluded. Even if period of limitation for such suit would be three years, in view of absence of husband from Pakistan, period of his absence from Pakistan would be excluded for reckoning the period of limitation. Suit filed by wife was not barred by limitation.
18. As the Respondents No.2 to 5 immediately filed an Appeal under Section 11 of the Ordinance alongwith application for condonation of delay suppo rting with affidavits when they came to Pakistan. In view of the same, the objection of the Petitioners regarding the Appeal of the Respondents No.2 to 5 being time barred is turned down.
H. Corollary
19. On the touchstone of the above discu ssion, suffice it to say that the impugned order has been passed by the Respondent No.1 strictly in consonance with the spirit of law, facts and circumstances, as such does not call for any interference by this Court. Consequently , the petition in hand is without any force, therefore, dismissed accordingly .