These are 9 inter-connected revision petitions, S. Nos, 3 to 8 against the orders dated 20-6-1969 and S. No, 9 against the order dated 19-11-1968, of the Additional Commissioner (Cons.). Sargodha Division, whereby he rejected the petitioners' appeals against the order dated 20-6-1968 of the Additional Deputy Commissioner (Cons.), Mianwali, confirming the Consolidation Scheme of Mauza Daggar i ohtas Sharqi, Tehsil Bhakkar, District Mianwali, S. Nos, 1 and 2 are not against any particular order but were made against the consolidation proceedings of the Mauza in general S. No, 1 against the re-commencement of the consolidation proceedings of the Mauza and S. No, 2 against the recovery of consolidation fee from the land-owners of the Mauza S. No, 10 is a Suo Moto revision admitted in respect of the consolidation of the Mauza.
2. The facts of the cases are that the consolidation operations of the Mauza were first commenced with effect from 1-3-1961 under the Collector (Cons.), Thal Colony, Jauharabad but the consolidation operations were stopped by the Governor of West Pakistan, vide Memorandum No, 936-63-1718-FS(C), dated the 7th July 1963, from the Secretary to the Government of West Pakistan, Land Reforms and Rehabilitation Department. Subsequently the consolidation operations of the Mauza were re-started, vide order dated 18-4-1968 of the Additional Deputy Commissioner (Cons.), Mianwali. The petitioners Ghulam Muhammad etc. filed a revision petition (S. No, 1 above) on 20-5- 1968 to the Board of Revenue against the re-commencement of the consolidation proceedings of the Mauza. In the meanwhile, the consolidation scheme of the Mauza was confirmed by the Additional Deputy Commissioner (Cons.), Mianwali, on 20-6-1968, under section 10(4) of the West Pakistan Consolidation of Holdings Ordinance, 1960. The petition (S. No, 1) against the consolidation proceedings wds, therefore, adjourned sine die by the then Member, Board of Revenue, vide his order dated 8-10-1968, till the revisions of the Mauza came up. The petitioners filed another revision petition, (S. No, 2 above), on 14-10-1968, against the recovery of consolidation fee from them. The case was admitted for hearing and report was called for from the Additional Deputy Commissioner (Cons.), Mianwali. The appeals of the petitioners against the consolidation scheme of the Mauza were dismissed by the Additional Commissioner (Cons.) Sargodha, vide his orders dated 20-6- 1969 and 19-11-1968 and seven separate revision petitions (S. Nos, 3 to 9) were also filed in the Board of Revenue against those orders of the Additional Commissioner (Cons), Sargodha, (S. Nos, 3 to 8 against the orders dated 20-6- 969 and S. No, 9 against the order dated 19-11-1969). S. Nos, 1 to 9 were heard together on 16-10-1968 and a suo moto revision case (S. No, 10) in respect of consolidation of the Mauza was admitted for hearing, vide my order of the date.
3. The cases were heard at length on 3-1-1970 and 11-4-1970. The counsels for both the parties also wanted to put in written arguments, which were submitted by them. According to the arrangement agreed to by both the parties, the counsels had to exchange the arguments between themselves and to submit supplementary arguments, if any, but the written arguments were not exchanged by the counsels and as such a further hearing of the case was fixed on 11-6-1970, with a view to affording one more chance to the counsels if they wanted to supplement their previous arguments in view of the written arguments of the other party or if they wanted to urge any other point in support of their cases.
4. On 11-6-1970 the record was further examined in presence of both parties the counsels of which gave me the fullest assistance in my trying to understand the relevant fact and circumstances properly.
5. The cases of the parties are contained in their written arguments and are briefly as follows :-
(a) Petitioners against the consolidation of the Mauza: (i)No record-of-rights of Daggar Rohtas Sharqi was in existence. Consolidation could not have been taken up without such record.
(ii)The respondents had no individual holdings in the Mauza. The possession of the petitioners in Shainlat was to the exclusion of the respondents who were, therefore, not landowners holding any land. Their consent to consolidation operations was not a valid consent within the meaning of section 4(2) of the West Pakistan Consolidation of Holdings Ordinance, 1960.
(iii) Consolidation was barred by the order of the Governor of West Pakistan conveyed in Land Reform and Rehabilitation Department Memorandum dated 17-7-1963.
(b) Respondents--in favour of the consolidation operations:
(i) The last jamabandi of 1946-47 was the relevant record-of-rights.
(ii) The possession of petitioners and of some of the respondents in the shamlat, being possession by co-sharers, was possession on behalf of all the co-sharers. No plea of adverse possession could be raised before consolidation authorities as it was a matter which could only be adjudicated upon by the civil Courts.
(iii)The consolidation operations were conducted on the basis of subsequent application of more than the requisite number of land-owners holding more than the requisite area of land and was not barred by the order of the Governor of West Pakistan, nor had the Governor or the Provincial Government any power to issue such an order.
6. I have examined the relevant records and given careful consideration to the arguments of the counsels for the parties. My findings on the main points involved are as follows :-
(i) As no record-of-rights of Daggar Rohtas Sharqi was prepared, the Consolidation Department was justified in preparing Khatuni Ishtemal on the basis of the last jamabandi of111 1946-47.
(ii)The jamabandi of 1946.47 does not support the case of the petitioners.
(iii)The fact that the respondents have no other individual holdings of their own in Mauza Daggar Rohtas Sharqi is not a B legal objection against the Consolidation. This view is supported by the ruling in PLD 1964 W P (Rev.) 113.
(iv)Memorandum No, 936.63/1718-FS (C), dated 17-7-1963 from the Secretary to Government of West Pakistan, Land Reform and Rehabilitation Department, addressed to the Deputy Commissioner, Mianwali, was a bar to the taking up of Consolidation operations as discussed in the following paragraphs.
7. The case of consolidation of holdings of Mauza Daggar Rohtas has a long history. By their Endorsement No, 525526/62/264-FS (C) dated 17-12-1962, the Board of Revenue, West Pakistan, issued directions to the Additional Deputy Commissioner (Consolidation), Mianwali, that since the owners were in favour of Consolidation, the proceedings might continue as desired by the Minister for Revenue and Rehabilitation, West Pakistan. By Endorsement No, 575-63/946-FS (C), dated 22-3- 1963 the Board of Revenue sent an application of Haji Qadir Bux and others, objecting to the consolidation of the Mauza, to the Deputy Commissioner, Mianwali, for immediate enquiry and report as ordered by the Minister for Revenue and Rehabilitation, West Pakistan. The report of the Deputy Commissioner Mianwali, was received vide his Memorandum No, 5157/ADC, dated 13-5- 1963. Mr. I. U. Khan, who was Secretary to Government of West Pakistan, Land Reform and Rehabilitation Department, and who was also the concerned Member, Board of Revenue, issued directions to the Deputy Commissioner, Mianwali, vide his memorandum No, 936-63/1718-FS (C), dated 17-7-1963, that in view of the position explained by the Deputy Commissioner, Mianwali, in his Memorandum dated 13-5-1963, referred to above, the Governor of West Pakistan was pleased to decide that Consolidation operations in the village of Daggar Rohtas, Tehsil Bhakkar, District Mianwali, be stopped. This order did not place any time limit on the stoppage of consolidation operations. Consolidation work could not, therefore, have been undertaken in the village until this order was vacated.
8. According to Article 80 of the Constitution of the Islamic Republic of Pakistan, 1962 which was in force at that time, the executive authority of a Province is vested in the Governor of the Province and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, the law and the directions of the President. According to sub-para. (2) of section 4 of the West Pakistan Board of Revenue Act, 1957, the Board shall be subject to the control of the Government and in all matters, other than those in which the Board exercise appellate and revisional jurisdiction, the Government shall have the power to issue such directions to the Board as may be considered necessary or expedient and the Board shall carry out those directions. The omission in the Memorandum dated the 7th July 1963, referred to above, of the additional designation of Mr. I. U. Khan, as Member, Board of Revenue, does not make any difference to the fact that the directions were by the Provincial Government and were issued by the officer holding the posts of both Secretary to Government and Member, Board of Revenue. In the circumstances, I hold that Memorandum dated the 7th July 1963 was binding and could not have been disregarded either by the Board of Revenue or by any subordinate authority. It is clear from section 7 of the West Pakistan Consolidation of Holdings Ordinance, 1960, that land-owners have no vested right to have consolidation made. No right has, therefore, been taken away by the issue of the Memorandum dated the 7th July 1963, which was issued on the executive side and was binding on the executive authorities.
9. Reference was received from local authorities regarding realization of consolidation fee. The Board of Revenue by their memorandum No, I172/64-176-FS(C), dated 8-1-1965, asked for certain information from the Additional Deputy Commissioner (Consolidation), Mianwali. The information was supplied by him. The Board of Revenue then, in their Memorandum No, 336/65/ 1330-FS(C), dated 6-8-1965, wrote to the Deputy Commissioner, Mianwali, with a copy to the Additional Deputy Commissioner (Consolidation), Mianwali, requesting him to intimate immediately if the rights of land-owners had been determined or demarcated by the Thal Development Authority in the village Daggar Rohtas, Tehsil Bhakkar, District Mianwali, to enable the Board of Revenue, West Pakistan, to decide if the consolidation operations may be allowed to be completed there. After a number of reminders, the Additional Deputy Commissioner (Consolidation), Mianwali, signing for Deputy Commissioner, Mianwali, replied, vtde memorandum No, 4468/ADC, dated 1-11-1966, sending a copy of the memorandum of the Colonization Officer, Thal Project Colony, Bhakkar, to the effect that as reported by Colony Naib Tehsildar, Darya Khan and the Extra Assistant Colonization Officer, Bhakkar, the final adjustment of village Daggar Rohtas had not so far been made and was pending for confirmation and that consequently the rights of Haji Qadir Bakhsh and others were yet to be determined and the area would be demarcated as and when the confirmation would take place. No orders vacating the order stopping consolidation were issued from the Provincial Government or the Board of Revenue.
10.On 23-5-1968, my predecessor, on a Miscellaneous application from Malik Ghulam Mohammad and others called for a report from the Additional Deputy Commissioner (Consolidation), Mianwali. In para. 3 of the application, it was stated that Member, Board of Revenue, Mr. I. U. Khan, had directed that the consolidation proceedings of the mauza should be stopped and that the influential people of the Mauza, however, once again, with the connivance of the local consolidation officers, had managed to over-look the orders passed earlier and to procure re-commencement of the consolidation proceedings. The confirmation of the consolidation scheme was made on 20-6-1968 while the Miscellaneous application was pending with the Member, Board of Revenue. In his report, Additional Deputy Commissioner (Consolidation), Mianwali, stated, with reference to para. 3 of the application, that the village records were taken up for consolidation in 1962, but the consolidation staff could not obtain the consent of the required number of land-owners and the work remained held up. This was patently false. The filing of the miscellaneous application shows that the petitioners lost no time in approaching the Board of Revenue in the matter.
11. For the reasons discussed above I hold that the order of the Additional Deputy Commissioner(Consolidation), Mianwali, dated 18-4.1968, directing the consolidation operations of the Mauza and the order dated 20-6-1968 confirming the consolidation scheme were in contravention of the order of the Provincial Government/Board of Revenue, stopping consolidation operations as and such cannot be maintained. I, therefore, set aside both these orders of the Additional Deputy Commissioner (Consolidation), Mianwali.
12.A copy of this order may be sent to Secretary (Consolidation) for necessary action on the executive side against the staff at fault and for examining the question of obtaining vacation of the order stopping consolidation of the Mama.
13.In view of the above facts all the revision petitions except Revision Petition R.O.R. No, 73/1968-69 (at serial No, 2) are accepted. As regards R. 0. R. No, 73 relating to recovery of consolidation fee from the land owners of the Mauza the question is of executive nature. It may, therefore, be examined on the executive side. The revision petition R.O.R. No, 73 may, therefore, be transferred to the executive side.
14. Setting aside of consolidation announced. Parties may be informed of the order.