RAJA SAEED AKRAM KHAN, J.---- The captioned appeal by leave of the Court has been directed against the judgment of the High Court dated 05.12.2018, whereby the writ petition filed by the appellants, herein, has been dismissed.
After hearing the arguments in the captioned appeal this Court on 31.10.2019, passed the short order in the following terms:- "Arguments heard. The detailed reasons shall follow . As between the parties the litigation before the revenue Courts attained finality and the order of the Commissioner dated 30.01.2016, which has also been upheld by the Judicial Member Board of revenue, holds the field, therefore, while accepting this appeal it is directed that:-
1. All the concerned authorities shall proceed further in compliance of the decision of the Commissioner dated 30.01.2016.
2. The concerned revenue authorities are directed to strictly implement the order of the Commissioner and vacate the land reserved for graveyard and public purposes including the road, path etc. Eviction of any illegal occupant shall also be ensured. The eviction process shall be completed within a period of 15 days and thereafter the report shall be submitted to the Registrar of this Court.
3. Relating to the rest of the land, the concerned authority shall process the case of the claimants strictly according to the spirit of the enforced law relating to the subject-matter , irrespective of any previous order of the revenue authorities.
4. All the orders relating to the subject-matter , issued in the name of Monitoring Cell are declared ab-initio void, ineffective and inoperative and shall be deemed non-existent and no authority shall be bound of same."
The detailed reasons are as under:-
2. The brief facts of the case are that the appellants, herein, filed a writ petition in the High Court, alleging therein, that the Crown land comprising survey No.27min (old) survey Nos.1035, 1036 and 1011/1 (new), measuring 11 Kanal , situate at Gulshan Peer Alla-ud-Din, was allotted to one, Gulla and Sher Ahmed under Council order No. 282/57. The ancestors of private respond ents purchased the aforementioned landed property form the allottees, however , litigation against allotment of the land in favour of Gulla and Sher Ahmed ended in cancellation of allotment, so, sale-deed in favour of ancestors of the private-respondents became ineffective automatically . It was alleged that the private-respondents as well as their ancestors kept themselves silent from the years 1967 to 2010 and also kept the disputed land under possession without any lawful justification. The private respondents tiled an application before Monitoring Cell of the Supreme Court in the year 2010, and obtained a favourable order for allotment of the property and attestation of mutation in their favour . The appellants, herein, were of the view that the Monitoring Cell was not authorized to issue such order , therefore, the orders passed by the Monitoring Cell may be held ineffective. It was further contended that at the time of attestation of mutation in favour of the respondents, law relating to the Crown land was changed and the Crown land could be granted to an individual only under Tehzamini Rules. It was further alleged that even approval of Tehzamini could be ordered to the extent of 01 kanal for residential purpose. The Collector of District allotted the disputed land to the respondents including the land reserved for graveyard as well as approach road. The learned High Court after necessary proceedings dismissed the writ petition, hence, this appeal by leave of the Court.
3. Mr. Tahir Aziz Khan, Advocate, the learned counsel for the appellants argued that the impugned judgment is against law and the facts of the case. He contended that the learned High Court has not attended to the real controversy involved in the matter and passed the impugned judgment beyond the pleadings. He added that the learned High Court erred in law while not taking into account that the orders pass ed by the Monitoring Cell dated 07.08.2008 and 10.09.2009, are illegal and nullity in the eye of law and on the strength of the said orders no right can be claimed. He further contended that the learned High Court also failed to take into consideration that the order of the Commissioner dated 30.01.2016 which was upheld by the Member Board of Revenue has attained finality and the respondents tried to re-open the matter while moving the application before the Senior Member Board of Revenue. He contended that the learned High Court has dilated upon such matter which was not relevant in the case in hand. He maintained that the findings of the learned High Court regarding the issuance of certificate under the provisions of section 92, C.P .C. are also against the record.
4. On the other hand, Ch. Choukat Aziz, Advocate, the learned counsel for the private-respondents strongly controverted the arguments advanced by the learned counsel for the appellants. He contended that the land in question was sanctioned in favour of one, Gulla and Sher Ahmed under Council order No.282/57 and the ancestors of the private respondents purchased the land from them, however , later on, sanction granted in favour of Gulla and Sher Ahmed was cancelled. Along with the ancestors of the private respondents, two other persons also purchased the land from Gulla but after cancellation of sanction they had got sanctioned the land in their favour but the case of the ancestors of the private respondents remained pending for approval. The Revenue authorities also approved Tehzamini in their favour but the sanction was not accorded as the Revenue authorities did not finalize the matter , whereupon, an application was filed before the Hon'ble Chief Justice of Azad Jammu and Kashmir , of the time, and on the direction of the Hon'ble Chief Justice the matter was resolved and mutation was sanctioned in favour of the private respondents. He contended that the matter remained 'pending for 40 years and on the application of the private respondents the Hon'ble Chief Justice of the time only issued the direction for decision of the matter according to law, therefore, no illegal favour from Monitoring Cell was extended to the respondents. He prayed for dismissal of appeal.
5. We have heard the arguments and gone through the record made available along with the impugned judgment.
The controversy involved in the matter pertains to the allotment of Crown land. The perusal of the record shows that the land in question was allotted to the private respondents in pursuance of the orders of Monitoring Cell dated 07.08.2008 and 10.02.2009. The appellants, herein, challenged the allotment and the entries made in the revenue record before the Additional Commissioner Muzaf farabad by filing appeal/application. The learned Additional Commissioner vide judgment/order dated 30.01.2016, while partly accepting the appeal/application passed the following order:- {{URDU TEXT}} However , the learned Additional Commissioner in its judgment/order shown reluct ance to cancel the order issued by the Collector dated 21.02.2009, on the ground that in presence of the order of the Supreme Court Monitoring Cell the order of the Collector issued in pursuance thereof, cannot be cancelled. The judgment/order of the Additional Commissioner was challenged through a revision petition before the Member Board of Revenue but the same was dismissed vide order dated 16.11.2016. Thereafter the appellants, herein, filed writ a petition before the High Court and prayed for setting aside the orders passed by the Monitoring Cell and all the process initiated in the light of the same. The impugned judgment shows that the learned High Court has not attended to the main grievance of the appellants and while dismissing the writ petition also recorded such findings which are against the record. It is an admitted position that the private respondents have not challenged the order of the Additional Commissioner dated 30.01.2016, wherein , direction was issued to the Collector that the Collector after excluding the land reserved for graveyard and the land utilized for road, shall issue fresh allotment order in respect of the land in question. Thus, to this extent the order of the Commissioner has attained finality and in the light of the said order the authorities should have got vacated the land reserved for graveyard and public purposes but it appears from the record that the concerned authorities failed to discharge their legal duty and the learned High Court also overlooked this aspect of the case.
6. So far as, the process initiated in the light of the orders of the Monitoring Cell is concerned, it may be stated that the Monitoring Cell was declared unlaw ful by the Supreme Judicial Council vide its finding dated 12.04.2010; reported as The President of Azad Jammu and Kashmir v. Mr. Justice Muhammad Riaz Akhtar Chaudhry Chief Justice of Azad Jammu and Kashmir [2017 SCR 759 (SJC)]. The relevant findings are reproduced herein which read as under:- "7. The establishment of so called 'Monitoring Cell' within Supreme Court by illegal assumption of power under the pretext of Section 42-A of the Interim Constitution Act, 1974 is not only un-constitu tional but also against the whole legal framework of the laws enforced in Azad Jammu and Kashmir . The Supreme Court or its Chief Justice is not authorized by the Constitution or any other law to constitute a parallel body of so-called 'Monitoring Cell' to exercise judicial or administrative powers through an arbitrary discretion. The so called 'Monitoring Cell' is a mysterious limitless body and no one knows that type of matters fall within its competence. Any person adversely affected by the order of so called 'monitoring Cell' manned by the Chief Justice is left without any remedy under the sky and he will have simply to say {{URDU TEXT}} The so-called Monitoring Cell finally met its fate by the order of the Chief Justic e of Azad Jammu and Kashmir dated 04.05.2010, which reads as follows: - "All the applications etc. filed and pending in the so-called unconstitutional Monitoring Cell stand consigned to record for being without lawful authority . The parties to the application may seek appropriate remedy from the appropriate forum under law of the land. Those affected by any order of the Cell, whether in writing or verbal, can seek appropriate remedy from the approp riate Court or forum, and the relevant forum is competent to ignore/treat it as non-existent not binding on anybody as held in the case titled Azad Jammu and Kashmir University and others v. Muhammad Mushtaq and others [Civil PLA No.199/2009 decided on 17.10.2009] , wherein, it was observed as follows:--
7. As far the argument that the Monitoring Cell has ordered that "registration/af filiation fee is to be recovered from the concerned college", I am sorry to give heed to any such thing, as there is no such authority in the name of Monitoring Cell under the Constitution of Azad Jammu and Kashmir or any law enforce in Azad Jammu and Kashmir , hence any such order is ab initio non-entity under the scheme of the Constitution and no person or authority is bound to follow or act upon or to comply with any such order , irrespective of the fact whether it is issued in the name of any Court or Judge of the High Court or Supreme Court, as the jurisdiction of the Courts is regulated by Section 46(4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, not by the personal whims of the Judges or Courts. Any act, howsoever , noble it may be if done without lawful authority , is as bad and mala fide, as an ignoble or illegal act done decently or clemently . It stands on the same footing as is being done by miscreants in the name of Allah and Islam in Malakand and W azirustan by taking law in their own hands.
8. The Supreme Court of Azad Jammu and Kashmir possesses no other jurisdiction than appellate or advisory jurisdiction under sections 42 and 46-A of the Constitution and other sections of the Constitution i.e. sections 42-A and 42-B are in aid of section 42, not in addition or beyond thereto. The Supre me Court does not posses any jurisdiction like Article 184(3) of the Constitution of Islamic Republic of Pakistan. So-called order of the Monitoring Cell is just a waste paper and to be ignored. Any civil servant, who submits to this jurisdiction is equally guilty of subverting the Constitutional and legal system.
9. The authority of law on the point is settled by the Supreme Court of Azad Jammu and Kashmir as reported above and is binding on all executive authorities of Azad Jammu and Kashmir including the University .'
The executive authorities are bound to follow the above verdict of the law, not the orders of so-called Monitoring Cell."
After going through the findings supra, it can safely be said that the establishment of the Monitoring Cell was unconstitutional and any order passed or any process initiated in the light of the orders of the Monitoring Cell is nullity in the eye of law which has no legal backing. So, in the instant case the orders issued on the directive of Monitoring Cell are declared ab-initio void. The learned High Court in the impugned judgment has also discussed the entitlement of the claimants; however , it is the job of the Revenue authorities to determine the entitlement of the claimants in accordance with law. In this regard, we have already held in the short order that the concerned authority shall process the case of the claimants strictly in accordance with the spirit of the enforced law relating to the subject-matter .
The aforesaid are the reasons on the basis of which the appeal was accepted and impugned judgment of the High Court was set aside through short order dated 31.10.2019, in the terms indicated therein. No order as to costs.