CH. MUHAMMAD MASOOD JAHANGI R, J.--- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 called in question vires of the order dated 28.07.2010 passed by learned Member (Judicial-V1 1), Board of Revenue, Lahore, whereby he accepted RoR preferred by private contesting respondents while exercising his powers vested under section 13 of the Consolidation of Holdings Ordinance, 1960 against the consolidation of village Kot Sarwar , Tehsil Pindi Bhattian, District Hafizabad in consequence whereof, the entire consolidation scheme was annulled/quashed and pre-consolidation position of the revenue estate was maintained.
2. No doubt, this case has chequered history , however , leaving aside its inessential details, admittedly the consolidation scheme of aforenoted mouza had been initiated in 1984-85 and finally confirmed on 31.03.2003, followed by chain of litigation and ultimately learned Member (Consolidation)-while dealing with the scheme on judicial side maintained it vide order dated 20.10.2005, however , the avenue was provided to the individuals/right holders for agitating their personal grievances by preferring appeals before the appropriate forum under the provision of Consolidation of Holdings Ordinance, 1960. Although Writ Petitions No.2380/2006 and 2964/2006 were preferred by the individuals to call in question the last order of learned Member , but the former petition was dismissed in limine on 25.04.2006, wher eas the other was dismissed as withdrawn, however , different appeals were preferred by the right holders before the appropriate forum as per spirit of afore-noted order dated 20.10.2005, some of those stood disposed of, whereas the others were still pending when an application for setting aside of the confirmed consolidation scheme was tabled by Mian Shahid Hussain Bhatti, the then Member , Provincial Assembly of the concerned constituency before the Chief Executive of the province as well as some other high-ups, which was referred to the Senior Member , Board of Revenue on 21.02.2009, however till then RoR No.1345/2008 had also been preferred by the contesting respondents before the Board of Revenue on 04:12.2008 to render the impugned order , causing filing of this petition, which though initially was allowed on 07.05.2015, yet on 01.06.2016 was remanded by the august Supreme Court for its fresh decision while observing below: The primary basis of the impugned judgment which can be gathered there from appears to be that the dispute pertaining to the Consolidation Scheme has been settled and adjudicated upon and was a past and closed transaction and furthermore, the 3rd party may have interest in the land, subject matter of the consolidation. A perusal of the record reveals that in the previous round of litigation, the matter was heard by the Member , Board of Revenue, Punjab in ROR No. 646 of 2005, filed by the present petitioners, which no doubt, was dismissed. However , in the said order , it was clarified that the remedy against the Consolidation Scheme as sanctioned was available to such persons as were aggrieved thereby . In the circumstances, in law, the matter was neither , a past and closed transaction nor finally adjudicated upon, leaving all the remedies available to the aggrieved parties. It is in the light of the aforesaid observations that the present round of litigation was commenced by the petitioners which culminated in the order dated 28.07.2410 decided by the Member , Board of Revenue, Punjab, whereby ROR No.1345 of 2008, filed by the petitioners, was allowed. In the above circumstances, the Constitutional Petition filed by respondents No.1 to 3 against the said order could not be allowed, as is happened in the instant case, without adverting to the rival contentions of the parties 'emanating from order dated 28.07.201 0 by merely holding that the matter has already been decided. The said assumption that the disputes had been concluded and the nuttier has attained finality is not borne out from the record. In the circumstances, it (is) appears to be clear and obvious that the real matter in controversy has escaped adjudication by way of the impugned judgment dated 07.05.2015, which is based on an incorrect assumption that the matter has been concluded in the previous round of litigation. Consequently , the impugned judgment dated 07.05.2015 is not sustainable in law and is liable to be set aside and the matter needs to be remanded to the learned High Court for decision afresh.
In view of the above, this Civil Petition is converted into an appeal and allowed. The impugned judgment dated 07.05.2015 is set aside and the case is remanded to the learned Lahore high Court. The Writ Petition bearing No.512 of 2011, filed by present respondents No 1. to 3 shall deem to be pending, which shall be decided afresh after hearing the parties.
3. M/s Malik Noor Muhammad Awan, Ch. Muhammad Aslam and Saima Hanif, Advocates for the Writ Petitioners argued that learned Member had no jurisdiction to quash the entire scheme from its inception, which on judicial side had already been affirmed by his predecessor; that only individual grievanc es of the right holders could be ascertained and for it they had already preferred appeals, but with such observation the successor authority had no power to annul the complete scheme already affirmed after the litigation of eighteen years; that only under rule 52 of the Punjab Consolidation of Holding s Rules, 1998, confirmed scheme could be quashed for the reasons provided thereunder , but despite the fact that no such ground was available, even then due to the political pressure, the impugned order was passed when the right holders had not only already availed their efficacious remedy before the appellate court, rather some of those were still pending; that learned Member failed to appreciate that orders passed by his predecessor had also been congealed by this Court while dismissing Writ Petitions, as such he could not act as an appellate authority to this court.
In contra, Mr. Shezada Mazhar , Advocate for the contesting private respondents maintained that under section 13 of the Consolidation of Holdings Ordinance, 1960, Board of Revenue was conferred ample jurisdiction to revisit the scheme; that while confirming the scheme, not only incurable irregularities committed by the Consolidation Officer and his Staff were disregarded. rather entitlement of the majority of the land owners was decreased, whereas few were given extraordinary benefits by allotting them double area, compelling the authority to cause its failure as such it was a fit case for initiation of fresh proceedings.
4. Arguments heard. Record perused with the able assistance of learned counsel for the parties.
5. There-is no ambiguity that Board of Revenue is vested with jurisdiction whether invoked by aggrieved person through a petition or suo Motu to go into the consolidation proceedings/scheme for its affirmation or otherwise, but the scheme itself cannot be abrogated without taking the action provided under rule 52 of the Punjab Consolidation of Holdings Rules, .1998, which, being- relevant is reproduced hereunder:-
52. Collection of Data. (1) Subject to the provisions and procedure laid down under Section 13 of the Ordinance, if the Board of Revenue or the Commissioner on their own motion or on a petition hr an aggrieved person, is seized of the issue, of annulment of the entire consolidation scheme of the estate, or its sub-division, action shall be taken as under:- a) Total number of khatas, land owners and cultivable land of the estate shall be noted b) All the pending litigation with- the Collector , Commissioner and the Board of Revenue shall be tabulated. c) The number of khatas/Scheme. numbers, land owners, area of cultivable land challenged/involved in appeals, revision petitions and applications shall be tabulated and compared to the total numbers as in (a) above. d) The issues and points of dispute omissions and irregularities shall he listed giving specific facts. e) The issues will he checked/got checked froth the record and if necessary on the ground. The aggrieved persons shall be heard.
Mr. Shezada on having been faced with the said rule when asked whether any of the acts was adopted before passing the impugned order , he impliedly admitted that it was not followed, which otherwise is proved that the actions provided thereunder were not adhered to. The next calamitous feature of the impugned order was that remedial actions as provided by the following rule 53 were also not adopted, hence even if there were some reasons to upset the concluded scheme, it could not be done, in manner as espoused in this case.
6. Undisputedly , the respondents in earlier round had lost upto the level of Board of Revenue on judicial side. The learned Member , second time, while exercising his powers ignored the material aspect that the said order had also been merged into the orders passed by this court when two different writ petitions were dismissed. Moreover , the scheme might have been implemented/acted upon not only in the record, but also at spot. It seems that the matter remained dormant for , years, then the respondents despite all the above legal developments and physical changes firstly through their political representative and subsequently by filing RoR/petition under section 13 of the Ordinance approached the learned Member , who without considering that order-dated 20.10.2005 of his predecessor for all intents and purposes had become final, erred in law 16 review it especially when such power was not provided in the Ordinance of 1960. Prima facie there was substance in the contention of learned counsel for the petitioners that when the earlier order had attained finality , no de novo proce edings could directly be initiated by the landowners or through their any such representative. It. appears that learned Member to avoid the earlier decisions rendered by the superior courts in series of cases, whereby the jurisdiction exercised by the Consolidation authorities on the move of political/executive personnel had been quashed, purposely neither referred the petition so received by his office from the Secretariat of Chief Minister of Punjab nor decided it independently and while keeping it aside, decided the designed petition of the respondents, as such exercise of by the learned Member was colourful and without lawful authority .
7. It cannot be denied that process of consolidation is not an easy job, which after being started in 1984-85, the scheme Was finally confirmed in 2003 and thereafter was maintained on 20.10.2005, thus question of commission of some irregularities or allocation of more or less land last its significance, but even then vide earlier order dated 20.10.2005 an avenue was provided to the right holders to agitate their individual grievances by means of appeals before appropriate forum. Thereafter dozens, of appeals were preferred out of which some were disposed of while the others still in pipe line, the learned Member at this stage was not within jurisdiction to bulldoze- the entire scheme. The accentuation of learned counsel for the respondents that earlier order of the Board of Revenue being void was rightly revisited was fallacious if it is Considered to be so even then subsequent RoR preferred after years' was barred by time and the learned counsel botched to vindicate that how second petition was competent when earlier one was judicially culminated and further congealed. The other grounds assailing the scheme at the most related to the individuals grievances, which could be cured by the appropriate forum while exercising its jurisdiction and additional reasons agitated by Mr. Shezada Mazhar had no prope r foundation to proceed further with the consolidation proceedings already finalized in 2003. Once the matter was decided on judicial side; the exercise of executive or judicial authority thereafter to nullify the effect of earlier judicial decision will be an improper exercise of the authority , which is alien to our system of law and cannot be perpetuated. Reliance can be placed upon case reported as Chuttan and others vs. Sufidd Khan and other (NLR 1987 Revenue 122).
8. In view of the above discussion, this Writ Petition is allowed, the impugned order dated 28.07.2010 passed by the learned Member (Judicial-VII), Board of Revenue, Punjab, Lahore being void P and nullity in the eye of law is quashed/set aside and the consolidation scheme already confirmed on 31.03.2003 will deem to be intact.
9. Before parting with this judgment, it is held that as per mandate of order dated 20.10.2005, if some appeals or any other proceedings are still sub judice or having been declared redundant through the impugned order , those must be revived for its decision on merit.