This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the orders passed by the learned Member (Colonies), Board of Revenue, Punjab, respondent No. 1 dated 24-7-1980 and 25-9-1980 as also the order passed by the learned Additional Commissioner (Revenue), Sargodha Division, Sargodha dated 26-4-1980, and the order passed by the learned Collector, Shorkot dated 14-11-1979.
2. The facts necessary for the purposes of this petition, briefly stated; are that Barkat Ali respondent No. 3 was p -)tied land measuring 104 acres 3 kanals 17 marlas situated in Chak No. 10/3-L, Tehsil Shorkot, District Jhang under Bara Scheme by the Collector, Jhang, by his order dated 29-7-1950, for a period of eight years commencing Kharif 1950 and ending Rabi 1958: The petitioners alleged that Barkat Ali had appointed Siraj Din respondent No. 2 since deceased as his general-attorney who sold the aforesaid land to the petitioners in January, 1973, in consideration of a sum of Rs.
81,600.00 which was paid in full to him and the possession of land was also given to the petitioners.
3. The petitioners had also instituted a suit against Barkat Ali respon--dent No. 3 who was sued through the said Siraj Din before the Senior Civil Judge, Jhang and obtained a consent decree to the effect that they were the owners in possession of the land in dispute. This decree war passed on 14-9-1976. It is worth notice that in the suit of the petitioners the Government was not made a party. The learned Collector, Shorkot held the petitioners to be trespassers on the land in dispute and ordered their ejectment by his order dated 14-11-1979.
4. Feeling aggrieved the petitioners preferred an appeal to the learned Additional Commissioner, Sargodha Division, Sargodha who dismissed the appeal by his order dated 26-4-1980.
5. Still dissatisfied the petitioners went up in revision to the learned Member (Colonies), Board of Revenue, Lahore who dismissed the revision by his order dated 24-7-1980.
6. The petitioners thereupon filed a writ petition in this Court (W. P. No. 9177/1980) which was dismissed by a learned Single Judge of this Court, by his order dated 31-8-1980. The order in writ petition was not further challenged and the petitioners instead filed a review petition before the learned Member (Colonies, Board. Of Revenue, Punjab against the order dated 24-7-1980 without disclosing that a writ petition against the said order of the Board of Revenue, Punjab had already been dismissed. The review petition was, however, dismissed by the learned Member (Colonies), Board of Revenue, Punjab, on 25-9-1980 and the petitioners have again come up to this Court through the present writ petition.
7. The learned counsel for the petitioners contended: firstly, that the Revenue Courts could not go against the decree passed in favour of the petitioners by the civil Court in view of the provisions of section 45(b) of the Land Revenue Act, 1967; secondly, that the petitioners have been evicted from the land in dispute by the Collector without notice to them and without affording them an opportunity of being heard; thirdly, that the learned Member (Colonies), Board of Revenue, Punjab and the hierarchy below did not consider the plea that the petitioners were entitled to be conferred with proprietary rights on the land in dispute by virtue of the Supreme . Court's judgment in Ghulam Muhammad alias Ghulamoon v. Mauls Dad and 6 others reported as 1980 SCMR 314 and the Board of Ravenue's judgment in Mst. Umat-ul-Wahab Zia v: Begum Bib! And others reported as PLD 1975 Rev. 62 as the petitioners had been declared as owners in possession of the land in dispute by virtue of a decree of the civil Court; lastly, that the Revenue Courts acted illegally in ordering eviction of the petitioners from the land in dispute inasmuch as Barkat Ali had sold the same to the petitioners . And having consented through his general-attorney to the decree passed in favour of the petitioners in 1976, could not open a second round of litigation against the petitioners in the Revenue Courts. Reliance in support of the above contention was placed on Abdul Majid and others v. Abdul Ghafoor Khan and others reported as PLD 1982 SC 146.
8. The learned counsel for respondent No. 1, in reply, made the 1oliow--ing submissions,:
(i) that the Government being not a party to the suit in which the consent decree was allegedly passed was not bound by the said decree and as the land in dispute till date vests in the Government there was no impediment in the way of the Collector to dispossess the petitioners from the land in dispute in exercise of the powers conferred upon it by virtue of section 32 of the Colonization of Government; Lands Act, 1912, as the petitioners were trespassers on the land in dispute and could be evicted therefrom forthwith. Elaborating his contention the learned counsel for respondent No. 1 submitted that Barkat Ali respondent No. 3 himself was not possessed of any title in 1973 when the alleged agreement between his alleged attorney and the petitioners for sale of the land in dispute in favour of the petitioners was entered into; the land having been resumed from him by order. Passed by the Collector, Jhang dated 20-8-1966, which was re-affirmed on 9-8-1973. The said Barkat Ali, the learned counsel submitted, could therefore pass on no title to the petitioners in any case as he himself had none. He further submitted that it was only on 30-1-1975 that the Board of Revenue, Punjab restored the allotment of Barkat Ali respondent. Referring to para. 3 of the writ petition the learned counsel also submitted that the petitioners have mis-stated the fact that proprietary rights had been conferred on Barkat Ali respondent inasmuch as the said rights have not been conferred on him till date;
(ii) that section 45 of the Land Revenue Act, .1967, is no bar to the action taken by the Collector, Jhang under the Colonization of Government Lands Act, 1912, inasmuch as section 7 of the latter Act overrides the provisions of any other law and the provisions of other laws have been subjected to the provisions of the Colonization of Government Lands Act, 191.2;
(iii) that section 10 of the Colonization of Government Lands Act empowers the Provincial Government to prescribe the statement of conditions on which the Government lands could be allotted. Referring to condition No. 19 of the statement of conditions dated 20-9-1946 issued for the purpose3 of the land under Bara Scheme the learned counsel submitted that no alienation of any kind what--soever. Could be made about the land in dispute by the tenant without permission in writing of the Government and the alleged purchase of the land by the petitioners being admittedly without permission of the authority concerned is of no consequence;
(iv) that section 15 of the Colonization of Government Lands Act lays down that an allottee remains a tenant until full amount with interest etc. Has been paid to the Government. This condition having not been fulfilled the Government remains the owner of the land in dispute;
(v) that the conjunctive effect of sections 18 and 36 of the Colonization of Government Lands (Punjab) Act, 1912, is that neither the civil Court had the jurisdiction to pass any decree in relation to the land in dispute nor the decree could take effect against Barkat Ali even who was no better than a tenant on the land in dispute;
(vi) that section 19 of the Colonization of Government Lands Act renders transfers in violation of the provision of the Act XX as void which would equally apply to the alleged purchase of the land by the petitioners as also to the decree obtained stealthily pertaining thereto;
(vii) that section 2 of the Government Grants Act, 1895, bars the application of the Transfer of Property Act to the grant of the land in dispute;
(viii) that the present writ petition is bit by the principles of res judlcata inasmuch as the petitioners in the earlier writ petition had also impugned the same orders of the hierarchy below which was dismissed and the mere filing of a review petition and having rejection thereof would not entitle the petitioners to file a fresh writ petition which essentially challenges the earlier orders only.
In support of the above contentions reliance was placed on Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg (1), Mirza Muhammad Ahmad v. Mirza Amjad Beg (2) and Abdul Aziz etc. v. Deputy Commissioner/Collector, Rahimyarkhan and others (3).
The learned counsel for respondent No. 1 also argued that the principles of res judicata are applicable 'to the proceedings before this Court in its constitutional jurisdiction in the same manner as these would apply to other proceedings of civil nature and that the application of these principles could not be circumvented by merely filing a review petition and then coming up to this Court again to challenge the same orders, especially when the decision in the earlier writ petition (W. P. No. 9177/1980) has not been questioned till date.
The learned counsel for respondent No. 1 also distinguished the Supreme Court judgment cited by the learned counsel for the petitioners and reported as 1980 SCMR 314 on the ground that the Government was a party in the proceedings in which the Supreme Court judgment was delivered and that, in that case, the Government had conceded that the price of the land had been deposited by the respondent therein, whilst in the case in hand, the learned Collector, Jhang has held the petitioners to be trespassers which is a finding of fact and has been concurred with .By the learned Additional Commissioner (Revenue), Sargodha Division, Sargodha and the learned Member (Colonies), Board of Revenue, Punjab. This finding, be submitted; is therefore, not open to question in the constitutional jurisdiction otherwise also.
9. Mr. Noor Elahi, learned counsel for respondent No. 3 submitted that the petitioners have riot come to this Court with clean hands. He pointed out the following facts in this regard:
(i) that the petitioners did not disclose before.. The learned Member (Colonies), Board of Revenue, Punjab in their review petition that their writ petition against the order of the learned Member (Colonies), Punjab sought to be reviswed had already been dismissed;
(ii) that the petitioners did not make Barkat Ali, respondent No. 3 a party in the present writ petition although they knew full well the interest of Barkat Ali respondent in the land in dispute and had made him a party in the earlier writ petition (W. P. No. 9177/1980) as well. He submitted. That this was an intentional device of the petitioners so that they could obtain an order from this Court by concealing material facts and they might have succeeded but for respondent No. 3 having come to know of the present writ petition and getting himself impleaded as a party to the proceedings in this writ petition;
(iii) that no power-of-attorney allegedly executed by Barkat Ali respon--dent in favour of Siraj Din deceased has been produced before any forum till date despite the fact that respondent No. 3 has all along denied the execution of any such power-of-attorney in favour of Siraj Din deceased.
(1) PLD 1978 Lab. 421 (2). PLD 1979 Lab. 865
(3) PLD 1991 Lab. 457
(iv) that Salabat Petitioner No. 3 is the real brother of Siraj Din deceased the alleged attorney which fact alone establishes the collusive nature of the entire transaction culminating in obtaining of the decree by the petitioners from the civil Court; and
(v) that it has been all along shown by the petitioners as is apparent from para. 3 of the present writ petition that Barkat Ali respondent No.- 3 had been conferred with proprietary rights on the land in dispute and could therefore alienate the same although, as established from the record, Barkat Ali respondent had no title in the property even as allottee in 1973, when the alleged sale was made in favour of the petitioners as. The land in dispute had been resumed from him. Lie also was not in possession thereof and as such could pass none to the petitioners, the possession having been restored to him only on 14-11-1979 after his dispossession in 1966, when the land wasresumed from him.
He submitted that, in fact, the petitioners clandestinely obtained possession of the land in dispute after dispossession of respondent No. 3 and manipulated the decree so as to perpetuate their illegal possession over the land in dispute. Continuing his arguments the learned counsel submitted that there was, thus, no infirmity in the order of the learned Collector, -Jhang whereby he evicted the petitioners from the disputed land in exercise of the powers conferred on him under section 32 of the Colonization of Government Lands (Punjab) Act, 1912, which obviously empowered hire to enter on the land in dispute forthwith in case it was in possession of a trespasser. There was, thus, no question of issuing any notice to the petitioners before the dispossessing them.
The learned counsel argued that in any case the defect' if any for want of issue of notice stood cured as the petitioners were heard by the learned Additional Commissioner (Revenue), Sargodha Division, Sargodha and the learned Member (Colonies), Board of Revenue, Punjab twice over.
As regards the decree of the Civil Court pressed into service by the petitioners, the learned counsel for respondent No.. 3 submitted that the impugned decree does not confer any right on the petitioners and is of no consequence as it has been passed at the back of the Government which was a necessary party and thus the same in no manner binds the Government. The learned counsel relied in this regard on Muhammad Shaft and 14 others v. Hayat Khan and S others PLD 1978 Lab. 1228 The learned counsel for respondent No. 3 lastly contended that the present writ petition is not maintainable as the earlier writ petition of the petitioners on the same subject, namely W. P. No. 9177/1980 stands dismissed and the order of dismissal has not been further questioned by the petitioners. Continuing his arguments the learned counsel contended that merely by filing a review petition and obtaining an order thereon would not confer any right on the petitioners to institute a second writ petition, especially when the second writ petition for all practical purposes challenges the orders of the hierarchy below which were upheld in the earlier writ petition (W. P. No. 9177/1980).
He argued that the filing of the review petition by the peti--tioners before the learned Member (Colonies), Board of Revenue, Punjab, is also mala fide inasmuch as no review was competent before him, in the, attendant circumstances of the case. Reliance was placed on Nasim Ahmad Kharal and 4 others v. Board of Revenue, Sind and 2 others (1).
In support of the contention that the principles of Res Judicata are applicable to the case in hand, the learned counsel for respondent No. 3 placed reliance on Mirza Muhammad Yaqub v. The Chief Settlement Com--missioner, Lahore and another (2), Government of Pakistan v. Syed Akhlaque Hussain and W. P. Province (3) and Muhammad Shafi and another v. Muhammad Bakhsh and another (4 ).
10. In reply, -the learned counsel for the petitioners contended that section 19 of the Colonization of Government Lands Act, 1912 does not bar an agreement. Reference was made to Allah Ditta v.
Jhanda and others (5).
The learned counsel also submitted that no doubt the principles of Res Judicata apply to the proceedings in the constitutional jurisdiction of this Court--- but, in the attendant circumstances of the case that, in the present writ petition, the order of the learned Member (Colonies), Board of Revenue, Punjab, passed in review has been challenged, which was not assailed in the earlier writ petition (W. P. No. 9177/1980), the principles of Res Judicata would not apply to the case in hand.
11. Having given consideration to the controversy involved I find that the present writ petition is liable to be dismissed on the short ground that an earlier writ petition essentially on the same subject (W. P. No. 9177/1980) has already been dismissed by this Court by its order dated 31-8-1980.
It is the admitted position that in the present writ petition, excepting the order of the , learned Member (Colonies), Board of Revenue, Punjab dated 25-9-198 passed on the review petition all the other impugned orders had been challenged in the earlier writ - petition which was dismissed after due consideration of the matter. In the earlier writ petition, it has been specifically held that since the Government was not a party to the petitioners' civil suit the Revenue authorities were not bound by the Civil Court's decree and as such the petitioners could not assert any right in the said land which the Government had not allotted to them. It has also been held that the peti--tioners being trespassers were liable to be ejected forthwith under section 32 of the Colonization of Government Lands (Punjab) Act, 1912 and that after the allotment of the land in dispute to Barkat Ali respondent (respondent No. 1 in the earlier Writ Petition No. 9177/1980) the learned Collector, Jhang had to put him in possession after dispossessing the petitioners who were trespassers and that there was no force in- the contention of the petitioners that. The matter was between Barkat Ali respondent and the petitioners as tenants and sub-tenants. It was further held that the petitioners had never set up the case that they were sub-tenants and that their case had all along been that they were the owners of the land in dispute ; which position the petitioners have again asserted in the present writ petition as well. The point decided in the earlier writ petition also was that Barkat Ali respondent could not have sold away the Government land to the petitioners even if he wanted to do so. The application of section 41 of the Transfer of Property Act to the facts of the case vis-a-vis the powers of the Collector under sec--tion 32 of the Colonization of Government Lands (Punjab) Act was also discussed and it was held that the former provision did not affect the powers of the Collector under the latter provision. This being the position, all points at issue in the present writ petition which is between the same parties had been decided in the earlier writ petition and could not therefore be legitimately allowed to be raised afresh being hit by the principles of Res Judicata.
(1) 1979 CLC 609 (2) PLD 1965 SC 254
(3) PLD 1965 SC 527 !4) PLD 1971 Lab. 148
(5) PLD 1949 Lab. 158 There ought not to be any cavil with the proposition that the principle of Res Judicata should apply to all proceedings of civil nature as it is a matter of public policy that litigation between the same parties on controversies which were in issue in previous litigation between them should conclude and there is finality imparted to such adjudication. It may also be observed that it is the conceded position as well that the principles of Res Judicata apply to the cases arising under the constitutional jurisdiction of this Court. An attempt has, however, been made to draw distinction in the present case on the ground that the order passed by the learned Member (Colonies), Board of Revenue, Punjab on the review petition was not challenged in the earlier writ petition and therefore the present petition will not be hit by Res Judicata. I am afraid this attempt to draw a distinction does not in any manner support the case of the petitioners. The basic reason for this is that the order in review in no manner alters the earlier position, and further that the challenge in the present writ petition is not only essentially against the earlier orders of the hierarchy below which were impugned in the previous writ petition but the attack against them is also on the same grounds which were duly considered and disposed of. Yet another reason is that the review before the learned Member (Colonies), Board of Revenue, Punjab was instituted without disclosing the fact of the dismissal of the earlier writ petition, and further that the grounds taken in the review were not such as could give a cause for the filing of the review petition as envisaged by the Land Revenue Act. The ground taken for review was that the decision of the Board of Revenue reported as PLD 1975 Rev. 62 was in conflict with the decision sought to be reviewed. This is no manner affords a ground for review inasmuch as the decision of a single Member, Board of Revenue, was not binding on and required to be followed by another learned single Member of the Board while deciding a petition, especially when the later case proceeds on absolutely different facts. In any case the decision made in 1975 by the Board of Revenue was in existence at the time the order sought to be reviewed was passed and having not been. Cited by the petitioners at the time of hearing of the revision, a review could not be allowed of the order merely on the ground that a case was not cited.
A review maybe per--missible in case in the intervening period some change in law takes place but it would obviously be not permissible only on the ground that an earlier decision was not taken into consideration. If such a ground is allowed to b taken for the purpose of review of orders there will be no certainty and finality attached to the orders of the Board of Revenue which could be got re-opened by merely pressing into service some decision which the unsuccess--ful litigant comes across subsequently.
12. I am also persuaded to dismiss this writ petition on the ground that the petitioners have neither had clean hands in the litigation before the hierarcy below nor did they come to this Court with clean hands. In addition. To various facts pointed out by the learned counsel for respondent No. 3 t establish the mala fides of the petitioners and the collusive .Nature of whole of the transaction which is being pressed into service by them. I also fine that they had taken inconsistent pleas in the present writ petition and. The writ petition earlier filed by them (W. P. No. 9177/1980). In para. 2 o the present writ petition the petitioners have set up the case that respondent No. 2, namely Siraj Din deceased had appointed Barkat Ali respondent No. 3 as his general attorney who sold the above land to the petitioners, whilst in the earlier writ petition (W. P. No. 9177/1980) the case set up was that Siraj Din deceased was the attorney of Barkat Ali.
13. A perusal of the record of the present writ petition also shows that the petitioners placed on record an amended writ petition wherein they showed Barkat Ali as respondent No. 2 although he was impleaded as respon--dent No. 3 by order dated 3-11-1981. It is again worth notice that this amended writ petition is shown as having been tiled on 14-6-1981 and Barkat Ali has been shown as respondent No. 2 therein although he was directed to be impleaded much later by order dated 3- 11-1981. Not only that, in this amended writ petition, changes have been made in para. 2 of the writ petition to bring it in line with the contents of the earlier writ petition (W. P. No. 9177/1980) and this change has been made without obtaining any orders for amending the writ petition. This obviously reflects the uncleanli--ness of the petitioners conduct. 1 am therefore not inclined to exercise the discretionary jurisdiction conferred on this Court under the Constitution in favour of the petitioners.
14. Apart altogether from the above position the petitioners do not have any case on merits either.
It has been laid down by the Supreme Court of Pakistan in Ghulam Rasul and others v. Muhammad An war and others (1) and consistently followed by this Court (Refer PLD 1978 Lah. 421, PLD 1979 Lah. 865 and PLD 1981 Lah. 457) that a transfer prohibited by sec--tion 19 of the Colonization of Government Lands (Punjab) Act, 1912 is void even between the parties to the transaction in the absence of consent in writing of the Government and that in the absence of such consent in writing of the Government no specific performance of an agreement for sale could have been ordered.
That being so, the alleged purchase of the land by the petitioners which admittedly was without the consent of the Government and in violation of section. 19 as also violative of the statement of conditions under which the land was allotted to respondent No. 3 could confer no title on the petitioners qua the land in dispute and they have rightly been held to be trespassers. It may also be added here that assuming that the petitioners had purchased the land in question from respondent No. 3 in 1973, :no title could be conferred on them by virtue of the said sale, firstly, for the reason that, at that point of time, the land had already been resumed from respondent No. 3 who was, thus, left with no title therein and therefore could pass none to others ; and, secondly, because there was no previous sanction obtained regarding the transaction in question from the authorities concerned. I am .Fortified in my above view by Abdul Aziz and 2 others v. Sadiq Muhammad and 9 others (2). The petitioners having been held to be trespassers there was no impediment in the way of the Collector to dispossess them from the land in dispute in exercise of the powers conferred on him by section 32 of the Colonization of Government Lands (Punjab) Act, 1912. In the attendant circumstances of the case the petitioners in my view were not entitled to any notice. Even if it be taken that in pursuance of the principles of natural justice they should have been given an opportunity of being heard before their eviction, the defect if any in this regard, at the initial stage, stood cured by the subsequent opportunities of hearings afforded to the petitioners by the hierarchy above the Collector.
(1) 1969 SCMR 254(2) 1970 SCMR 569 The Supreme Court judgment cited by the learned counsel for the petitioners, viz. 1980 SCMR 314 to me also appears to be distinguishable on facts. It has been rightly pointed out that the premises on which the Supreme Court authority proceeded was that, in that case, the Government was a party to the proceedings and the payment of the price by respondent No. 2 was also admitted by the Government, whilst in the case in hand, it is the admitted position that the Government was not made a party to the suit in which the consent decree was obtained by the petitioners on the basis of consent given by the alleged general attorney of Barkat Ali respondent No. 3 whose status as such has been challenged by the said respondent and nothing has been placed on record by the petitioners to show that he in fact was the attorney of respondent No. 3: It was rightly held in the order of this Court passed in Writ Petition No. 9177 of 1980 filed by the petitioners earlier that the Government being not a party to the decree in question was not bound by it and could proceed to take action in pursuance of the provisions of the Colonization of Government Lands (Punjab) Act, 1912 notwithstanding the said decree and I do not see any reason to differ with the said finding.
15. In view of the foregoing discussion I find no merit in' this writ petition which is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.