' This revision petition under section 13 of the Consolidation of Holdings Ordinance, 1960 is directed against the order of the Additional Commissioner (Cons ), Lahore, dated 18-2-1980 whereby the appeal of the petitioners was dismissed and the order of the Collector (Cons ), Lahore, dated 10-9- 1979 making certain amendments in the schemes of the parties was upheld.
2. Briefly, the consolidation scheme of Revenue estates Niaz Beg and Hanjarwal of Lahore Tehsil, was confirmed by the Assistant Consolidation Officer, on 29-9-1977, under section 10(3) of the Consolidation of Holdings Ordinance, 1960 (hereinafter referred as the Ordinance). The Canal View Co-operative Housing Society (hereinafter called the respondent Society) resisted the Scheme before the Collector (Cons.), Lahore by two delayed appeals, one filed against Sher Muhammad etc. And the other against the petitioners Malik Shah Muhammad Mohsin and his two brothers, Muhammad Ali and Muhammad Yaqub, contending that it had purchased, among hers, an area of 37 Kanals, 3 Marlas comprised in Kishtwari Khasra No,:' 520, 521, 522, 539, 540 and 541 corresponding to Kham Khasra Nos. 5184, 5332, 5198, 5199, 5200, 5202, 5210, 5385 and 6096 from the petitioners and respondents Nos. 2 to 20, through registered sale-deeds No, 9696, dated 31-7-1977, No, 9702, dated 16-7-1977 and No, 9933 dated 9-8-1977, for development of a housing scheme, but during consolidation proceedings the petitioners and respondents Nos. 2 to 20 had, instead of Khasra numbers purchased by the Society, got collusively and fraudulently adjusted Khasra Nos.
4706, 47Q7, 7396, 7409, 7411 and 7417, which were not only inferior in quality but were located beyond the limits of the housing scheme of the Society. The Collector (Cons.) accepted the appeals and, after condoning the delay, made certain amendments in the schemes, vide his order, dated 10-9-1979 by which, among other, Kham Khasra No, 5210 measuring 2 Kanals, 14 Marlas and No 5214 measuring 2 Kanals were taken away from the exclusive Scheme No, 336 of petitioner Malik Shah Muhammad Mohsin and adjusted respectively against Scheme No, 325 of Malik Ghulm Hussain respondent No, 2 and against the joint Scheme No, 336/1 of the petitioners and in the same manner, Kham Khasra No, 5215 measuring 8 Kanals, 1 Marla had been withdrawn from the joint Scheme No, 336/1 of the petitioners and assigned to the khata of Sher Muhammad etc. At Scheme No, 308/1 for transferring over to the entitlement of the respondent Society.
3. Being aggrieved by these amendments, the petitioners and Sher Muhammad etc. Preferred two separate appeals before the Additional Commissioner (Cons.), Lahore, but the same were dismissed on 18-2.1980 with the following observations.
"Since the respondent (Society) had purchased the land in question from the appellants on 31-7- 1977 and 9-8-1977, while the consolidation scheme had been confirmed on 294.9-1977, the learned Collector (Cons.) was perfectly right in restoring this land to the scheme of the appellants. It was simply with mala fide intention that the appellants had managed to see ire some other land and shifted the respondents out of the housing scheme to another place."
4. Now, the petitioners, Malik Shah Muhammad Mohsin and his two brothers have come in revision before this Court calling in question the propriety and legality of the amendments made in their schemes and seeking restoration of the land withdrawn from them, on the following main grounds, namely :-
(i) That the respondent Society was not an aggrieved party and had thus no locus standi to question the confirmation of the consolidation scheme and claim the land purchased by it during the pendency of the consolidation proceedings, in view of the prohibition imposed on the transfers of such lands by section 24 of the Consolidation Ordinance and rule 27 of the Consolidation Rules, and also in view of the provisions of section 6 precluding land owners or any other persons from objecting to or interfering with, the transfer or exchange of their rights or liabilities in the land, made for the purpose of giving effect to any scheme of consolidation ;
(ii) That the respondents Society was also barred by Estoppel to claim the lands from Khasra Nos.
5214 and 5215, firstly, because the same had been purchased by it, after the confirmation of the consolidation scheme from petitioners Nos. 2 and 3 through registered sale-deeds, dated 14-12- 1978 and dated 10-8-1978, and secondly, because the Society had itself applied to the District Collector for acquisition, inter adia, of these very Khasra numbers for the housing scheme, for which a notification had easy published, vide No, LAC/8910, dated 16-4-1979.
(iii) That the appeal filed by the Society before the Collect& (Cons.), being barred by time, could not be admitted for bearing, nor the delay could be condoned under section 5 of the Limitation Act, which in view of section (2) of that ,,Act was not applicable to appeals arising from the user the Consolidation of Holdings Ordinance, 1960, . That being apart, even the application made 5 was not supported by an affidavit, which was essential .Under law.
(iv) That the disputed Khasra Nos. 5210, 5214 and 5215 had been allotted to- the petitioners at Schemes Nos. 336 and 336/1 as long ago as 23-11-1974 and finally confirmed in their names, at the time of general confirmation of the Consolidation Scheme, on 29-9-1977, and same having neither been the subject-matter of appeal nor any relief in respect thereof sought for either by the respondent Society or by the parties of Schemes No, 308 and No, 325 etc. There was no legal justification for the Collector (Cons.) to have such Khasra numbers withdrawn from the schemes of the .Petitioners and adjusted at Schemes Nos. 308 and 325 for transiting over to the entitlement of the respondent-Society.
5. The case of the respondent Society is that it had purchased about 1865 Kanals of land through various registered sale-deeds from the owners of revenue estates, Niaz Beg and Hanjerwal, including the petitioners, for the development of a housing scheme. After having received lacs of rupees from the Society and having sold specific Khasra numbers to it, the petitioners and other land owners of the village, in collusion with the lower consolidation staff, tried to blackmail the Society with a mala fide intention. The scheme evolved was to get some land in the area where the hot4ing scheme was located, shift the land purchased by the Society from them outside the housing "scheme and then compelling the Society for the purchase of land at exorbitant rates.
6. With that end in view the petitioner Malik Shah Muhammad Mohsin got adjusted at his Scheme No, 336, Kham Khasra No, 5210, measuring 2 Kanals, 14 Marlas and No, 5214, measuring 2 Kanals, which in fact fell in the area of the housing scheme of the Society and where the petitioner held no land prior to consolidation. Similarly Kham Khasra No, , 5215 measuring 8 Kanals, I Maria, which bad already been allotted, since October, 1974, to Sher Muhammad etc.. At Scheme No, 308 had fraudulently been got adjusted by the petitioners, on 23-11-1974, in their joint Scheme No, 336/1.
Subsequently Muhammad Ali and Yaqub petitioners Nos. 2 and 3 sold an area of 9 Kanals, 8 Marlas from Khasra Nos. 5214 and 5215 falling in their cultivating possession as Hissadors, in favour of the Society, by means of two separate registered sale-deeds No, 7110, dated 10-8-1978 and No, 11263, dated 14-12-1978, for a consideration of Rs, 2,44,400. As a consequence of these sales, Mutations No, 4240 and No, 5885 were sanctioned favour of the Society on 16-8-1979 and 16-10-1979, respectively.
In this way, all the three disputed Khasra numbers i,e, Nos. 5210, 5214 and 5215 came to vest in the respondent-Society and had been rightly withdrawn from, the Schemes of the petitioners for restoration to the entitlement of the Society.
7. The consolidation scheme, it has been submitted, was finalized in the, absence of and without any notice to, the respondent-Society, affecting adversely its vital interests in the land purchased by it. Therefore, the Society was definitely an aggrieved party and had thus the locus standi to question the confirmation of consolidation scheme by which its rights in land had been illegally transferred to the petitioners and others. The objection that the sale transactions were hit by the provisions of section 24 of the Ordinance, 1960 and rule 27 of the Consolidation Rules was not valid, inasmuch as the sale transactions were made with the prior permission of the Consolidation Officer as required under section 24 and also the petitioners being themselves a party to the sale transactions and thus in pari delicto were legally estopped to take such objection.
8. As to the objection that the Society had applied to the Distric Collector for acquisition, inter alia, of the disputed Khasra Nos. 5210, 5214 and 5215 for its housing scheme and a notification in this regard had already been issued on 16-4-1979, it was submitted that the Khasra number in question had been inadvertently mentioned in the application and on A discovery that the same had already been purchased by the Society a reference bad been made to the Collector for the deletion of the said Khasra numbers from the notification. Therefore, the mere publication by in advertence of these Khasra numbers in the notification is not sufficient to operate as estoppel against the respondent-Society to seek redress in respect of such Khasra numbers.
9. With regard to the question of limitation it has been submitted that as the land was purchased from the Kislitwari fields which after conversion to Kham Khasra numbers had not been correctly reflected in the Shajra musavi, therefore, the Society could not come to know of what had actually been assigned to it during consolidation. As soon as the Society came to know that the area purchased by it had been fraudulently obtained by the petitioners and others it had immediately filed the appeal, alongvkith an application duly supported by an affidavit, for the condonation of delay under section 5 of the Limitation Act.
10. It is not correct to say that section 5 of the Limitation Act wa not applicable to the appeals in the consolidation matters. According to subsection (4) of the section 11 of the Ordinance, which had been added b the West Pakistan Consolidation of Holdings (Amendment) Act, 1964, the provisions of Limitation Act relating to the questions of the admission of and the computation of the period for, appeals from the orders passed under the Consolidation of Holdings Ordinance, 1960 were made applicable. Therefore, the power for condonation, under section 5 of the Limitation Act was available to the Collector (Cons.) and he had rightly exercised that power in the appeal of the respondent-Society.
10. After having heard the lengthy arguments addressed on both sides and ongoing through the relevant record as well as the written arguments placed on the file and also after inspecting the spot, I find that the disputed Khasra Nos. 2510, 5214 and 5215 are located well within the area of the housing scheme of the respondent-Society, who had already constructed metalled roads and laid sewerage and water lines on the ground. I also find from the record that Kham Khasra No, 5210 measuring 2 Kanals, 14 Marlas, which corresponded to old kishtwari Khasra No, 520-min fell in the share of Malik Ghulam Hussain respondent No, 2, step-brother of the petitioners, and be had sold this Khasra number, along-with other areas, in favour of the respondent-Society, through registered sale-deed. No, 9696, dated 31-7-1977. Similarly Kham Khasra No, 5214 measuring 2 Kanals and No, 5215 measuring 8 Kanals, 1 Marla, which had been allotted to the petitioners at Scheme Nos. 336 and 336/1 and fell under the hissadari possession of Muhammad Ali and Muhammad Yaqub petitioners Nos. 2 and 3 were sold by the latter, inclusive of 1/3rd share therein of their brother, Malik Shah Muhammad Mohsin petitioner No, 1, in favour of the respondent-Society, by means of two separate registered sale-deeds No, 7110, dated 10-8-1978 and No, 11263, dated 14- 12-1978 witnessed by Mutations No, 4247, dated 16-8-1979 and No, 5885, dated 16-10-1979, respectively.
11. It is pertinent to note that one of these Khasra numbers, viz. No, 5215 had already been assigned to Sher Muhammad etc. At Scheme. No, 308 since October, 1974 and was not available for subsequent allotment. Nevertheless, the petitioners had manoeuvred the allotment of this Khasra number, on 23-11-1974, at their joint Scheme No, 336/1. Subsequently this very Khasra number was sold twice to the respondent-Society, once by the petitioners Muhammad Ali and Muhammad Yaqub by means of two separate registered sale-deeds as mentioned above, and again by Sher Muhammad etc. Of Scheme No, 308, through Mutation No, 4237, dated 16-8-1979.
12. Thus, by virtue of these registered sale-deeds and mutations in favour of the respondent- Society, the disputed Kbasra Nos. 5210, 5214 and 5215 had stood duly vested in it. And as these Kbasra numbers were secured by the petitioners through double allotment and other underhand means with a mala fide intention to blackmail the Society and dislodge it from the areas falling under the housing scheme, therefore, the Collector (Cons.) had rightly interfered in the matter and taken away the Khasra numbers in question from the schemes of the petitioners for restoration of the same to the respondent-Society.
13. The contention of the petitioners that the respondent-Society was not an "aggrieved party" and, therefore, had no locus standi to question the confirmation of the Scheme, has no merit. The Society being a purchaser of hundreds of Kanals of land from the land owners of the village, including the petitioners, prior to the confirmation of the consolidation scheme, was entitled to be heard and consulted during the consolidation proceedings. This was, however, not done and the scheme finalized in the absence of, and without any notice to the Society, which C had adversely affected the vital interests of the Society in the land purchased by it. As such, the Society was definitely an affected party and notwithstanding the fact that it had not been recorded as land owner in the revenue record, it had, by virtue of various registered sale transactions, acquired ownership in the land, which having been unlawfully, transferred to the petitioners and others during the consolidation, the Society had every right to question the confirmation of the consolidation scheme to get restored its lands.
14. The objection that the sale transactions made during the pendency of the consolidation proceedings were hit by section 24 of the Ordinance and rule 27 of the Consolidation Rules cannot be sustained for the simple D reason that such transactions had been made with the prior permission of the Consolidation Officer as required under section 24 of the Ordinance and were, therefore, unexceptionable. Apart from this, the restrictions, on sales under section 24 were inended rather against the petitioners as g land owners who, being themselves a party to such sales and thus in parii delicto cannot take this objection, nor they have the right to take advantage of their own wrong to gain the favourable interpretation of law.
15. There is also no force in the contention that the Society was estopped, under section 6 of the Ordinance, to object to or interfere with, the transfer or exchange of its rights in land, made for the purpose of giving effect to the consolidation scheme, There is no doubt that the plea of estoppel under section 6 will be available against such right-holders as had been a patty to the consolidation proceedings and got their schemes confirmed with their own consent. But in the case of a right-holder, who had not been called upon to participate in the consolidation proceedings and present his objections against the transfer or exchange of his land, made for the confirmation of the consolidation scheme, as had been done in the case of the respondent- Society, then in that case no plea of estoppel under section 6 or otherwise would be effective as agains the exercise by such right-holder of his legal right to file an appeal, under section 11, and to question the confirmation of the consolidation scheme to get such transfer as exchange annulled.
16. It is true that the appeal by the respondent-Society was time-barred but the Collector (Cons.) bad, after going through the entire background and the circumstances of the case, condoned the delay by invoking section 5 of the Limitation Act. The objection of the petitioners that section 5 of the Limitation Act having been expressly excluded by ,section 29(2) of the Limitation Act was inapplicable to the proceedings under the Consolidation of Holdings Ordinance, being a special law, and, therefore, the Collector (Cons.) was not competent to condone the delay, is not well- founded. It will be observed that the provisions of limitation Act, 1908, in so far as they relate to the questions of admission of, and the computation of the period for, an appeal horn the order passed under the Consolidation of Holdings Ordinance, were made applicable by adding a new subsection 14) to section 11 of that Ordinance, through West Pakistan Consolidation of Holdings (Amendrhent), Act, 1964 (XVI of 1964). And as the amendment made in the aforesaid subsection
(4) became a part of the principal Ordinance, therefore, it had, G notwithstanding the subsequent repeal by the West Pakistan Repealing Ordinance, 1970 (Ordinance XVIII of 1970) of the Amending Act XVI of 1964, continued in operation by virtue of section 5 of the West Pakistan General Clauses Act, 1956 and under the saving clause of the Repealing Ordinance, 1970. Thus, the provisions of section 5 of the Limitation Act being applicable and the power of condonation thereunder available, the Collector (Cons.) was well within his rights to condone the Limitation and decide the appeal of the respondent-Society on merits.
17. Still another objection that the application under section 5 of the Limitation Act was not accompanied by an affidavit, is patently incorrect. A perusal of the appeal file of the Court of the Collector (Cons.) would prove the falsity of the assertion. The application was in fact supported by an affidavit and could not be called in question.
18. Thus, in view of what has been discussed above, this revision petition cannot succeed and it is hereby dismissed. The parties are left to bear their own costs.