' This judgment shall dispose of (1) Writ Petition No, 1334 of 1978, Rab Nawaz etc. v. Member Board of Revenue etc.; (2)Writ Petition No, 1776 of 1978, Usman and others v. Member, Board of Revenue and others Writ and (3) Petition No, 1945 of 1978 Haq Nawaz etc. -Member; Board of Revenue, etc. ; as all these three Constitutional Petitions assail one and the same order passed by the learned Member, Board of Revenue (Colonies), on 22-12-1977 involving common questions of law and facts.
2. The land of 42 villages including villages of Silwan and Ghalughara of Mianwali District were acquired for construction of Chashma Barrage. In regard to village Silwan, notification under section 4 of the Land Acquisition Act, 1894 was issued on 18-6-1965 while in respect of village Ghalughara such notification was issued on 2-6.1965.
3. Lt.-Col. Muhammad Hanif son of Ahmad, viz. Respondent. No, 4 in Writ Petition No, 2945 of 1978 owned 1774 Kanals and 1 Marla of land in village Silwan and 295 Kanals of land in village Ghalughara. The said Muhammad Hanif through Mutation No, 5247 which was attested on 10-2- 1968 alienated by way of sale land measuring 243 Kanals and 10 Marlas situate in village Silwan in favour of Rab Nawaz etc., 9 vendees who are petitioners in Writ Petition No, 1334 of 1978. Similarly, he transferred his entire land i,e, land measuring 295 Kanals situate in village Ghalughara in favour of his relations including his wife, mother, sister, etc. Vide mutation No, 1922 dated 14-4-1969, by way of gift.
4. Owners of land of four villages namely Silwan, Band Sumble, Kundian Katcha, Katchi Aaheeranwali, were directed to be resettled immediately as these villages were expected to be inundated in the near future while the resettlement scheme for resettling the affectees of Chashma Barrage was not yet promulgated. Consequently, the Deputy Commissioner, Mianwali, prepared Special Jamabandi of village Silwan viz. Annexure 'G' to Writ Petition No, 1334 of 1978, incorporating all the qtested mutations therein. In the Special Jamabandi thus prepared. Mutation No, 5247 dated 10-2-1968 was also incorporated alongwith numerous other mutations which had been attested after the issuance of notification under section 4 of the Land Acquisition Act which was issued on 18-6-1965.
5. Subsequently, in September, 1968 a scheme for the resettlement of Chashma Barrage affectees was promulgated by the Colonies Department. According to the said Scheme, a person owning not less than 16 Kanals of Barani cultivable land was entitled to the allotment of land as a measure of resettlement. In case of Rab Nawaz etc. The petitioners in Writ Petition No, 1334/78 they became owners of land in village Silwan by virtue of Mutation No, 5247 to the extent of 27 Kanals and 1 Marla each but according to khasra girdawari entries, the cultivable land in each case was lass than 16 Kanals. They, however, moved an application before the Collector, Mianwali, for correction of khasra girdawari entries. The Collector, after obtaining the reports from the field staff, ultimately allowed the correction vide his order dated 18-1-1970 for the harvests of Kharif 1967 and Rabi 1968.
As a result of this correction, Rab Nawaz etc. The petitioners became owners of cultivable land in village Silwan to the extent of more than 16 Kanals in each case. Consequently, they became entitled to the allotment of land under the resettlement scheme and the Resettlement Officer thereupon allotted land to them in Rakh Maikan, Tehsil Khushab on 4-8-1970.
6. The original owner viz, Lt.-Col. Muhammad Hanif had also obtained allotment of maximum permissible area of 50 Acres in Rakh Nikro Snaheed on 15-7.1968 in lieu of the land abandoned by him in village Silwan.
7. In October, 1970 Muhammad Hanif as also Rab Nawaz etc. Submitted an application before the Resettlement Officer/Collector for allotment of land to them in Rakh Dullewala in exchange for the land already allotted to them in Rakh Nikro Shaheed and Rakh Maikan contending that their other with and kips were resettled in Rakh Dullewala, and, therefore, they should be also re-settled over there. The Collector vide his order dated 29-10.1970 resumed the land already allotted to them in Rakh Nikro Shaheed and Rakh Maikan and by subsequent order dated 10-2-1971 allotted land to them in exercise of his powers under section 10 of the Colonization of 'Government (Lands) Act of 1912 in Rakh Dullewala.
8. Usman etc. The close relations of Lt.-Col. Muhammad Hanif i,e, petitioners in Writ Petition No, 1776/78 to whom Muhammad Hanif had gifted his entire land measuring 295 Kanals in village Ghalughara vide Mutation No, 1922 dated 14.4-1969 obtained allotment of land at the rate of 15 acres each in lieu of the land thus gifted in their favour and subsequently they also by way of exchange obtained land in Rakh Dullewala. A few other relatives of Muhammad Hanif namely Sher Ahmad, Umar Hayat and Muhammad Ramzar who had obtained allotment of land in Rakh Nikro Shaheed in their own rights also obtained allotment in Rakh Dullewala by way of exchange.
9. Haq Nawaz etc. The contesting respondents, in Writ Petitions No, 1334/78 and 1776/78 and petitioners in Writ Petition No, 2945/78 filed appeals before the Commissioner, Sargodha Division, Sargodha, challenging allotment of land to the aforementioned Muhammad Hanif and Rab Nawaz etc. In Rakh Dullewala, on the grounds that the land in Rakh Dullewala could not be allotted to Muhammad Hanif and others by way of exchange after they bad already obtained allotment in Rakh Nikro Shaheed and Rakh Maikan ; land in Rakh Dullewala was exclusively reserved for affectees from village Ghalughara and thus could not be allotted to Muhammad Hanif and Rab Nawaz etc. Who were affectees from village Silwan and allotment of land to Muhammad Hanif and others in Rakh Dullewala was made in the Chak reserved for Sarwar Khails of village Ghalughara whereas Muhammad Hanif etc. Who were Awans could not be allotted land in that Chak. They, if at all, were to be accommodated in Rakh Dullewala, could be allotted land in the Chak reserved for Warhi Awans.
10. The appeals of Haq Nawaz etc. Were heard by the learned Additional Commissioner (Revenue), Sargodha, and were rejected on 26-10-1971 on the grounds of limitation as also on merits. Haq Nawaz etc. Thereupon filed Revision Petitions viz. R. O. R. No, 558 to 561/71-72 before the Board of Revenue, calling in question the order dated 26-10-1971 passed by the learned Additional Commissioner (Revenue), Sargodha. Haq Nawaz etc. Had also impugned the order of the Deputy Commissioner/Collector, Mianwali, dated 16-1-1970 regarding the correction of khasra girdawari entries before the Commissioner but the Additional Commissioner, Sargodha, vide his order dated 18-1-1973 declined to interfere with the Collector's order. Consequently, they filed a Revision Petition Bearing No, R.
0. R. 780/72-73, before the Board of Revenue, impugning the order of the Additional Commissioner dated 18-1-1973.
11. They had also simultaneously submitted an application before the learned Adviser to the Governor alleging that Lt.-Col. Muhammad Hanif had fraudulently obtained multiple allotments of State land under the Resettlement of Chashma Barrage Displaced Persons Scheme, 1968 and that an enquiry should be held into the matter.
12. The Commissioner, Sargodha Division, was asked to hold an enquiry. After enquiry, he submitted report on 19-4-1975 whereby he held that Muhammad Hanif had transferred his excess land in villages Sdwan and Ghalughara to his near relatives through Mutations No, 5247, dated 10-2-1968 and 1922 dated 14-4-1969 after these lands had been acquired under the Land. Acquisition Act for the construction of Chashma Barrage and that on the basis of these mutations he got multiple allotments of State land in his own name as well as in the name of his relatives and further that subsequently he got the allotted land exchanged improperly with lands of Rakh Dullewala.
Thereupon, Board of Revenue in exercise of its revisional powers under section 164 of the Land Revenue Act accorded permission for the review of Mutations No, 5247 and 1922 afore-mentioned.
The Assistant Commissioner, thus cancelled both the mutations.
13. Rab Nawaz and Osman etc. Questioned the legality and propriety of these orders before this Court vide Constitutional Petition No, 8 of 1976 inter alia on the ground that the impugned orders were passed at their back without affording an opportunity of being heard to them. After obtaining comments from the Board of Revenue, status quo was ordered to be maintained and the writ petition was kept pending to await the decision of the Board of Revenue, as some proceedings between the parties were pending the Member, Board of Revenue. It was also observed that the matter should be decided judicially by the Board of Revenue after hearing all concerned.
Consequently, Board of Revenue, in exercise of its suo motu revisional jurisdiction under section 164 of the Land Revenue Act issued notices to all, who were affected by the order dated 9-12-1975 of the Board of Revenue, according permission to review Mutations No, 5239 and 1922. The aforementioned Revision petitions filed by Haq Nawaz etc. Were also taken up for hearing alongwith the suo motu revision under section 164 of the Land Revenue Act.
14. After considering the contentions of both the parties and the material placed on record, the learned Member, Board of Revenue, found that the following questions required determination for the disposal of the aforementioned revision petitions as also the suo motu revision ;- "(1) Whether the petitioners had a locus standi to challenge the allotments made to the respondents by way of exchange ;
(2) Whether the appeals before the Additional Commissioner were barred by limitation, and if so, whether they could be decided on merits without getting over the bar of limitation ;
(3) Whether the Board of Revenue was competent to allow the review of impugned mutations and interfere with allotments obtained without entitlement in exercise of its revisional jurisdiction under section 164 of the Land Revenue Act, 1967 ;
(4) Whether the transfer of land in village Silwan through Mutation No, 5247 after the publication of notification under section 4 of the Land Acquisition Act, 1894 was valid ;
(5) Whether it was competent for the Collector to allow corrections in the entries of Register girdawari which continued to be incorporated in the last jamabandis, on the plea of clerical errors ;
(6) Whether the allotment of alternate lands in favour of Lt.-Col. Muhammad Hanif and his 9 transferees and its subsequent exchange with the lands in Rakh Dullewala was valid and according to law and Government instructions ;
(7) Whether the transfer of land by gift in village Ghalughara on 14-4-1969 vide Mutation No, 1922 was valid and whether the donees were entitled to get alternate allotments after the donor had already takers maximum allotment of 50 acres against his total ownership authorized under the 1968 Scheme ;
(8) Whether it was lawful for the Collector to allow exchange of lands sold by private treaties without the express sanction of the Government and whether the procedure adopted by him in so doing was warranted by law ; and
(9) Whether the respondents were entitled to the benefit of section 16 of the Colonization of Government Lands Act, 1912 in view of their continued possession of the land for more than 3 years."
15. In regard to question No, 1 pertaining to locus standi the learned Member, Board of Revenue, through the impugned order came to the conclusion that Haq Nawaz etc. Had the locus standi to challenge the allotments of land to Muhammad Hanif, Rab Nawaz etc. Usman etc. And Umar Hayat etc. By way of exchange in Rakh Dullewala. He has based his findings on the question of locus standi on the following grounds :-
(a) Land in Rakh Dullewala was ear-marked for evictees of village Ghalughara according to the minutes of the Meeting of the Board of Revenue held on 39-4-1968 ;
(b) Four Abadis were carved out and reserved for each tribe of Ghalughara ;
(c) Lt.-Col. Muhammad Hanif and his relatives were allotted land in the area reserved for Sarwar Khel tribe of Haq Nawaz etc. Jeoperdising Sarwar Khel's rights.
(d) Large number of Sarwar Khel tribe has still not been allotted any land."
16. A copy of the Minutes of the meetings held on 29th April, 1960 in the room of the Member, Board of Revenue (Colonization) relating to the re-settlement of the displaced land owners of Chashma Barrage is available as Annexure 'E' (pages 55-63 in Writ Petition No, 1334/78). A careful persual of the contents of these minutes leads to the conclusion that the area of Rakh Dullewala was reserved for resettlement of the displaced land owners of Chashma Barrage. The land of this village was not reserved exclusively for evictees from village Ghallughara alone. It was, however, observed that the land in Rakh Dullewala and such like other rakhs was available in compact blocks and, therefore, the desire of the affectees to settle villagewise and tribewise could be satisfied to a great extent. As per these minutes, no chakbandi of agricultural land of Rakh Dullewala for any particulars tribe was ever drawn. The Deputy Commissioner, Mianwali, vide his Letter No, 42081/SG, dated 25-7-1974 (Annexure 0/11 at page 121 in Writ Petition No, 1334/78), informed Commissioner, Sargodha Division, Sargodha, that there was no force in the cbjection of Haq Nawaz regarding chakbandi as land was reserved in Rakh Dullewala for the oustees of Chashma Barrage irrespective of their tribal labels. In the above circumstances, there are no basis for the conclusion that Muhammad Hanif and Rab Nawaz etc. Were allotted land in Rakh Dullewala in the area reserved for Sarwar Khels. These persons were allotted available Government land in Rakh Dullewala by the Collector/Resettlement Officer who was empowered to allow allotment by way of exchange to them.
17. It transpires from the records that in fact Sarwar Khela had been allotted land in Rakh Dullewala prior to the allotments made to the petitioners and it further appears from the contents of letter dated 18-4.1972 sent by the Deputy Commissioner, Mianwali, to the Deputy Secretary, Board of Revenue, Punjab. Lahore, (Annexure 'F' at page 65 in Writ Petition No, 1334/ 78) that majority of the Sarwar Khel tribe later on got the land allotted in Chaks No, 80/ML and 80/A ML by way of exchange. The respondents Haq Nawaz etc. Themselves were also allotted land in Rakh Dullawala and on 25-2-1971 they got their allotment cancelled from Rakh Dullewala. It is indicated in the Deputy Commissioner's letter referred to above that the respondents and other Sarwar Khels wanted to be accommodated in Rakh Majgarh but the local tenants had obtained a stay order from the High Court. Again they tried to get land in chaks near Kaloorkot but the same were under agricultural farm of the A. D. C. According to the Deputy Commissioner, the problem could be solved by allotting land of their choice to them in the chaks/rakhs reserved for Chashma Barrage affectees. It is thus evident that the findings of the learned Member, Board of Revenue, in regard to the question of locus standi are not supported by the records. In Ch. Muhammad Younis v. Islamic Republic of Pukistan (I), it was held that a Constitutional petition should be maintained only by an 'aggrieved person' and that an 'aggrieved person' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand.
Similarly, in Ghulam Mohyud Din v. Government of Pakistan (2), it was ruled that where a petitioner was not in possession of a property in question, he had no entitlement to the said property and consequently no locus standi to challenge the order of the Central Government transferring the property to the respondents. In the circumstances of the under-consideration case also, the respondents were not in possession of the land allotted to the petitioners. They were not even lawful claimants for allotment before any authority. The land was not exclusively reserved for them.
In the circumstances, they had no locus standi to challenge the validity of allotment of that land to the petitioners. It is, however, observed that in the circumstances of the under consideration Constitutional petitions the question of locus standi is not of much consequence because the Board of Revenue in exercise of its powers under section 164 of the Land Revenu Act, 1967 could competently exercise its powers of suo motu revision and call for the record of any case pending before or disposed of by any subordinate Revenue Officer and pass such orders as the Board thought fit. This power has been exercised by the Board of Revenue in the present case as well and while passing the impugned order the suo motu revision under section 16 of the Land Revenue Act, 1967 was under consideration of the learned Member, Board of Revenue. He could, therefore, irrespective of the locu standi of the respondents (Haq Nawaz etc.) competently decide as to whethe allotments made to the petitioners in Rakh Dullewala were valid or otherwise.
18. On the question of limitation, the learned Member, Board of Revenue, has held through the impugned order that as there was an element of concealment of facts about the whole proceedings of the transfer of land and manner in which the subsequent allotments were obtained through exchanges in Rakh Dullewala, the period of limitation would start from the date of knowledge. It is true that Haq Nawaz etc. Were not party to the sale and gift mutations. They were also not party to the order whereby Khasra Girdawari entries were directed to be corrected. They also were not before the Collector/Resettlement Officer as rival claimants while he allotted lands to the petitioners by way of exchange in Rakh Dullewala. In these circumstances; no exception can be taken to the conclusion arrived at by the
(1) PLD 1972 Lah; 847 (2) 1971 SCMR 747 learned Member, Board of Revenue, that the period of limitation to challenge the aforementioned proceedings in case of Haq Nawaz etc. Would start from the date of their knowledge. It is, however, observed that on the question of locus standi it has already been found that Haq Nawaz etc. Had no locus standi to challenge the validity of allotment made to the petitioners and Ramzan etc. In Rakh Dullewala. Therefore, it is nothing but futile exercise to determine as to whether their appeals before the Additional Commissioner were within time or not. For the purpose of suo mot revision under section 164 Land Revenue Act, 1967 no period of limitation is dscribed.
19. On the question of competency of the Board of Revenue to allow review of the impugned mutations viz. Mutation No, 5247, dated 10-12-1968 of village Silwan and Mutation No, 1922, dated 14- 4-1969 of village Ghallughara, the learned Member, Board of Revenue, in the impugned order has found that the Board of Revenue could interfere in exercise of its suo motu revisional powers to set the wrong right and these powers of the Board were unfettered and could be freely invoked whenever there had been a material irregularity and also material injustice. While dealing with the question of locus standi, it has already been observed that in exercise of its powers under section 164 of the Land Revenue Act, 1967, Board of Revenue could competently exercise revisional jurisdiction whereby the record could be called and appropriate order could be passed.
20. Regarding the question of validity of Mutation No, 5247 of village Silwan, the learned Member, Board of Revenue, in his impugned order has held that the said mutation was liable to cancellation for the following reasons :-
(a) Mutation could not be sanctioned in view of the letter of the Land Acquisition Collector dated 19-8-1967.
(b) The mutation was not permissible under section 24 (clause seventhly) of the Land Acquisition Act, 1894.
(c) The mutation having been sanctioned after the date of issuance of notification under section 4 of the Land Acquisition Act without the sanction of the Collector, was not permissible.
(d) The WAPDA had been given physical possession of the land in village Silwan on 8-2.1968 i,e, prior to the sanctioning of the Mutation NO. 5247.
(e) There is nothing in the revenue record to suggest that the possession of the land covered by Mutation No, 5247 was ever delivered to the vendees.
(f) The mutation was kept hidden even from the Land Acquisition Collector who announced and declared in the award on 31-12-1968 that no transaction of any land had taken place in village Silwan during the past five years.
(g) That the transaction was not motivated by any business principle but was effected with a view to creating more eligibilities to obtain alternate land under the Resettlement Scheme.
21. The letter of Land Acquisition Collector referred to in (a) above is available as Annexure JJ in Writ Petition No, 1334/78. According to the contents of this letter the Land Acquisition Collector invited the attention of the Deputy Commissioner, Mianwali, to the provisions of section 24, clause seventhly of the Land Acquisition Act and has observed that any change effected in the record after the publication of the notification under section 4 could result in wrong payment of compensation. It was further desired in this letter that in order to avoid wrong, payment, the Deputy Commissioner could instruct his Revenue Officers not to sanction the mutations or allow any transaction of land after the date of publication of notification under section 4. It thus appears that the letter dated 19-84967 of the 'Land Acquisition Collector is based on section 24, clause seventhly of the Land Acquisition Act. 1894 which provides that any layout or improvements on or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under section 4 of the Land Acquisition Act shall not be taken into consideration while determining the compensation. Thus, it is evident that the disposal of the land affected by acquisition proceedings after the publication of notification under section 4 of the Land Acquisition Act, is not prohibited under section 24, clause seventhly supra. It is simply provided that disposal of such land, after the publication of the notification under section 4 shall not be taken into consideration while determining compensation. Thus section 24, clause seventhly of the Land Acquisition Act does not serve as a bar to the sale of land after the publication of notification under section 4. The Land Acquisition Collector, in his award dated 31-12-1968 (Annexure 'B' at page 31 of Writ Petition No, 1334/78) has observed that numerous mutations of sale were entered and sanctioned after the publication of notification under section 4 of the Land Acquisition Act. Similarly, the Deputy Commissioner, Mianwali, in his letter dated 18-4-1972 addressed to the Deputy Secretary, Board of Revenue (Annexure 'F' at page 65 of Writ Petition No, 1334/78) has mentioned that numerous mutations were sanctioned in the area by the Revenue Officers after the publication of notification under section 4 of the 'Land Acquisition Act. The Land Acquisition Collector had incorporated all such mutations in the award for payment of compensation to the new right holders. It also appears from the contents afford bachh (Annexure page 85 of Writ Petition No, 1334/78) that vendees of mutations which were sanctioned after the notification under section 4 were paid cash compensation as land owners by the land Acquisition Collector.
22. In view of the above, it may be concluded that letter dated 19-8-1967 addressed by the Land Acquisition Collector, to the Deputy Commissioner, Mianwali, and the provisions of section 24, clause seventhly of the Land Acquisition Act, 1894 did not serve as a legal bar to the sale of land after the publication of the notification under section 4 'of the Land Acquisition Act and as a matter of fact numerous mutations of sales sanctioned after notification under section 4 were given effect for purposes of payment of compensation by the Land Acquisition. Collector. The judicial precedent referred to as PLD 1964 Azad 1 & K 21 in the impugned order deals with mode of computing compensation and not prohibition of alienation.
23. The learned Member, Board of Revenue, in his impugned order has also observed that WAPDA had been given physical possession of the land in village Silwan on 8-2-1968 i,e, two days before Mutation No, 5247 was sanctioned. This observation appears to be based on gross misreading of documents. Total area of village Silwan is 11785 Acres 2 Kanals and 5 Marlas. Out of such large area, possession of only 182 Kanals and 12 Marlas was given to WAPDA on 8-2-1968. The possession of - the remaining area was transferred on 4-2-1970 es transpires from Annexure 'C' (Copy of rozenameha waqiati dated 4,24970.Page .49). It is, therefore, incorrect to say that possession of the land in village Silwan was transferred to. WAPDA on 8-2-1968 i,e, two days prior to the sanction of Mutation No, 5247.
24. The learned Member; Board of Revenue, has also incorrectly observed that there was nothing on the record to suggest that the possession of land covered by Mutation No, 5247 was ever delivered to the vendees. It appears from the letter dated 18-4-1972 addressed by Deputy Commissioner, Mianwali, to the Deputy Secretary, Board of Revenue, (Annexure 'F' page 65 of Writ Petition No, 1544/78) that the sale effected by Mutation No, 5247 was given effect in the Special jamabandi of village Silwan which was prepared prior to the promulgation of Re-Settlement Scheme. This fact is also evident from the contents of Annexure `G' (Photostat copy of Register haqdaran zamin of village Silwan 1967-68). The tenants who were in possession of the land under Muhammad Hanif, the vendor, prior to the sale effected by Mutation No, 5247 attorned to the vendees i,e, Rab Nawaz etc. After the sale as transpires from the contents of affidavits Annexures K, K-1, K-2, (pages 87, 89 and 91 of Writ Petition No, 1334/78). Khasra girdawari entries Annexure K/3 at page 93 are also to the same effect. The Land Acquisition Collector himself paid compensation to the vendees are transpires from the contents of fard bachh (Annexure 'J' page 85).
25. The observations of the learned Member, Board of Revenue, to the effect that the transaction of Mutation No, 5247 was kept hidden even from Land Acquisition' Collector who announced and declared in the award on 31-12-1968 that no transaction of any land had taken place in village Silwan during the past five years is also based on misreading of records and facts. It is evident from the contents of the award (Annexure 'B' page 31 of Writ Petition No, 1334/78), that the Land Acquisition Collector had observed that no mutation of lease for any land had ever been entered and sanctioned in the revenue estate of Silwan during preceding five years and, therefore, valuation of the land could not be worked out on the basis of rental charges. In the same award, Land Acquisition Collector expressly observed that numerous mutations of sale were entered and sanctioned during this period of five years. The Land Acquisition Collector had incorporated in his records the names of Mutation No, 5247 and they were paid cash compensation. Numerous other mutations were also incorporated in the record by the Land Acquisition Collector.
26. In the light of the contents of the aforementioned documents, the learned Member, Board of Revenue, could not justifiably come to the conclusion that transaction of mutation of 5247 was kept hidden even from Land Acquisition Collector. While considering the vires and bona fides of Mutation No, 5247 it has also been observed by the learned Member, Board of Revenue, in his impugned judgment that the transaction was not motivated by any business principle but it was brought about to create more eligibilities to obtain alternate land under the Re-settlement Scheme. These observations are also not supported by the records. Mutation No, 5247 was sanctioned on 10-2-1968. At that time, there was no scheme issued by the Government for the resettlement of affectees of Chashma Barrage. Resettlement Scheme in regard to Chashma Barrage affectees was issued on 18/19-9-68. A letter regarding resettlement of affectees was issued by the Government for the first time on 3-7-1968. Copy of the letter dated 3-7-h 68 is Annexure 'D' at page 51 while the details of the conditions of allotment of land under Re-settlement of Chashma Barrage displaced persons are contained in Annexure T at page 55 in Writ Petition No, 1776/73. It would thus appear that the sale by way of Mutation No, 5247 took place about 7 months prior to the inception of resettlement scheme and, therefore, it cannot be said that the transaction brought about by this mutation was made with a view to creating more eligibilities to-obtain alternate land under the Resettlement Scheme.
27. The land was purchased by the vendees for Rs, 12,000 in February, 1968 and they received cash compensation amounting to Rs, 13,550 for the said land. Even from that angle, it cannot be said that the transaction did not involve any business principle.
28. In the light of what has been said above, it can be concluded that on the question of validity of Mutation No, 5247, the findings recorded by the learned Member, Board of Revenue, in his impugned judgment are based on misreading of records and misinterpretation of documents.
29.. On the issue pertaining to the vires of the order dated 16-1-1970 of the Collector whereby he allowed correction in the entries of the khasra girdawari register, the learned Member, Board of Revenue, has held that :- "In doing so, the Collector ignored the provisions of paragraphs 7.43 and 7.49 of the land Record Manual which inter atia provide that in carrying out changes in the kind of soil in register girdawari as well as in the register haqdaran zamin, care should be taken that land once classed as unirrigated or waste land be not classed as irrigated unless a permanent change of this nature has occurred. Since the entries required to be changed had been recorded continuously as such not only in the Registers girdawari but also in all the jamabandis, old or new, there was no occasion for the Collector to have ordered a change in those entries which were of permanent nature, unless of course it had been established during the course of an inquiry that a permanent change in the kind of soil had occurred. The correction for the purpose, if at all was considered necessary should have been made through a mutation of sehat indraj as required under section 44 of the Land Revenue Act. It is now a settled law that no disputed entry in a jamabandi should be altered whether on the ground of mistake or of fraud except on the basis of an obvious clerical error or a patent fact."
' He thus concluded that the order dated 16.1-1970 of the District Collector allowing corrections in the entries of Register girdawari which had been incorporated in all the jamabandis for long, was without lawful authority and, therefore, void and of no legal effect.
30. As observed by the learned Member, Board of Revenue, a clerical error can be rectified without having recourse to the provisions of paragraph 7.43 and 7.49 of the Land Record Mann Al. Similarly for correction of clerical errors, a mutation as envisaged in section 44(1) of the Land F Revenue Act, 1967 is not required. The main requisite, however, of section 44 are that a Revenue Officer on the application of any party interested and after such enquiry as he thinks fit determine the entry to be made in the relevant records. In the circumstances of the under-consideration case, Rab Nawaz, one of the vendees, applied to the Collector for correction of khasra girdawari entries on 16-6-1968.
The Collector sent down his application to the field staff for enquiry. It is evident fom the contents of Annexure W i,e, rozenamcha waqiati that girdawar visited the spot on 18-6.1968. He also recorded the statements of the tenants and Lambardar (Annexure 'v' and Annexure V/I). Subsequently, the Naib-Tebsildar visited the spot on 3-7-1968 as is evident from the contents of Annexure W/1 and recommended the correction of entries vide his report Annexure 'X'. Reports of the Revenue Officer and of H. V. C. Are Annexed as X. 1 and X.
2. The Collector ultimately passed an order dated 16-1-1970 (Annexure X. 3). As there was no dispute between Rab Nawaz etc. On the one side and any party on the other side, therefore, there was no need for entering a mutation of sehat andraj Haq Nawaz etc. The respondent's In Writ Petition No, 1334/78 and Writ Petition No, 1776/78 were neither residents of village Silwan nor they owned or possessed any land in that village. They, thus, had no locus standi to challenge the or der dated 16-1-1970 passed by the Collector.
31. Regarding the validity of allotment of lands in favour of Muhammad Hanif and his nine transferees and its subsequent exchange of the land in Rakh Dullewala, the learned Member, Board of Revenue, observed :- "Assuming, however, for argument sake that mutation was valid and the correction made in the Register girdawari were justified even then the nine transferees could not get alternate land because according to the Board of Revenue Letter No, 6544-69/27-28-C. S. I. Dated 27-11-1969, only owners at the time of publication of the notification under section 4 of the Land Acquisition Act, were entitled to the alternate land. Although, this date was subsequently changed from the date of publication of notification under section 4 to the date of award vide Letter No, 993/72.994-C. 1, dated 2S-3-1972 and again to the time when the possession of the land was taken under sections 16 and 17 of the Land Acquisition Act, 1894 vide Letter No, 5386.73/779-C-1V, dated 11-3-1974, yet these changes in the dates for determining the entitlement of eligible owners for allotment of alternate land were of no avail to the nine transferees because their case had already been finalized and they had been given allotments on 4-8-1970 on the basis of their so-called eligibilities created through Mutation No, 5247 and subsequent correction of Register girdawari by the Collector. Moreover, as it was clarified in Board of Revenue Letter No, 1924-75/4061C-1V, dated 9-12- 1975. 1 hese changes in the original policy were introduced to accommodate only cases of bona fide transactions whereas alienations involved in the present case were made after the issuance of notification under section 4 with the obvious intention of creating multiple cases of eligibility to secure alternate land and was, therefore, not covered by aforementioned Government letters. It was also observed that such transferees were not eligible for the grant of any alternate land and the land allotted to them were liable to cancellation under sub-para. (5) of para. 14 of the 1968 Scheme. In view of the position thus explained, the nine transferees were not entitled to get any alternate land under the Scheme."
32. The sum and substance of the aforequoted observations of the learned Member, Board of Revenue appears to be that the alienation in favour of Rab Nawaz etc. By Muhammad Hanif was not legally valid and was effected only with an intention to create multiple eligibility and further that correction of khasra girdawari entries as ordered by the Collector was also obtained with the same intention and, therefore, these transferees were not eligible for the grant of any alternate land and that the Government letters referred to above in the Member, Board of Revenue's order shifting date of entitlement from the date of notification under section 4 of the Land Acquisitton Act to the date of transfer of possession were of no avail to these transferees.
33. ' On the questions of validity of Mutation No, 5247 and of the order of the Collector whereby he allowed correction in khasra girdawari entries, it has already been held that the same was lawful and valid. Therefore, the basis of the order of the learned- Member, Board of Revenue, that transfer in favour of petitioner being fraudulent and non-genuine, they were not entitled to the benefit of the changes brought about in Government policy whereby dates of entitlement for resettlement were shifted from the date of publication of notification to the date of transfer of possession, cannot be pressed into service against the petitioners.
34. In case of village Silwan, date of notification under section 4 of the Land Acquisition Act is 18-6- 1965, date of announcement of award is 31-12-1968 ; date of transfer of possession when the entire land was transferred to WAPDA is 4-2-1970. The Deputy Commissioner, Mianwali, in his letter dated 18-4-1972 addressed to the Deputy Secretary, Board of Revenue, Punjab, Lahore (Annexure 'F' page 65 of Writ Petition No, 1334/78) has observed in para. 2 : "Allotment of land to owners of 4 villages namely Silwan, Kundian Katcha, Band Sumble, and Katchi Aaheeranwali, was made in July, 1968 (one year before the inception of resettlement wing) by the Colonization Officer, Thal Project, Colony according to list of entitled persons prepared by the Deputy Commissioner's Office, Mianwali. As is obvious, it was done prior to promulgation of resettlement scheme circulated vide memorandum dated 18-9-1968 by the Colonies Department.
Since, there was no definite instructions regarding the date of entitlement at that time, it was deemed proper to prepare a Special jamabandi of village Silwan .Incorporating all the attested mutations therein, before calculation of entitlement of land owners or allotment of land. In this way, the impugned Mutation No, 5247 attested on 10-2-1968 was incorporated in the jamabandi alongwith numerous other mutations which bad been attested after the notification under section 4 issued on 18-6-1965 and above-mentioned persons obtained ownership of 27 Kanals 1 Marla of land each. The saikth land according to the khasra girdawari in each case was 13 Kanals and 15 Marlas at that time, and as such they were not made any allotment in the first instance. However, they submitted an application for correction of girdawari and the Collector of the District allowed it vide orders dated 18-1-1970 changing the classification of land purchased by them from uncultivated to cultivated in the harvest of Kharif, 1967 and Rabi, 1968. Since the entitlement of village had been prepared according to the classification of land in the same harvests, they represented for allotment on the basis of orders of correction and the Resettlement Officer accepted their demand and made allotments of land to them in Rakh Maikan, Tehsil Khushab.
Later, they applied that they wanted to settle with their kith and kins who were owners of land in village Ghallughara. So their allotment in Tehsil Khushab was cancelled and a few months later they were accommodated in Rakh Dullewala, with other owners of village Ghallughara vide orders dated 10-2-1971."
35. It is thus evident from the circumstances detailed in the aforementioned letter of the Deputy Commissioner, Mian wail, that the petitioners have been allotted land like many other residents of village Silwan who became owner of land in that village after the publication of notification under section 4 of the Land Acquisition Act. In case of evictees from village Silwan like evictees of three other villages viz. Kundian Katcha, Band Sumble, and Katchi Aaheeranwali, which were likely to be inundated very soon, there were instructions to resettle them immediately although by that time Chashma Barrage evictees Resettlement Scheme had not yet come into inception. In case of such evictees, the owners of land recorded in Special jamabandi, prepared by the Collector, for the purpose were considered entitled to resettlement. The petitioners and many other land owners who obtained land after the publication of notification under section 4 who were entered in the Special jamabandi were resettled. It cannot, therefore, be held that the petitioners were not entitled to be resettled as they purchased land after the notification under section 4 of the Land Acquisition Act was published. It may also be observed, that subsequently on account of protest by the affected persons and on the recommendation of the Collector, the Government Board of Revenue, firstly shifted the date of entitlement from the date of notification under section 4 to the date of award and ultimately to the date of transfer of possession. The alienation in favour of the petitioners obviously took place prior to the date of award and date of transfer of possession.
36. About the validity of Mutation No, 1922 dated 14-4-1969, whereby Lt.-Col. Muhammad Hanif transferred by way of gift, his land measuring 295 Kanals in village Ghallughara in favour of 15 relatives, the learned Member, Board of Revenue, has held the gift to be invalid mainly on two grounds. Firstly, that the value of the land was Rs, 26,000 while a sum of Rs, 5,000 was only shown to have been paid by the vendees and secondly that no delivery of possession to the donees was proved. It is noteworthy that! Mutation No, 1922 was a gift mutation and, therefore, in case of such mutation, no payment of consideration was required. Rs, 5,000 has been shown to be the price of land for the purpose of payment of District Council Fee at the rate of 1 0/0 of the sale price. The Land Acquisition Collector, however, subsequently determined the price of this land as Rs, 26,600. A gift mutation cannot be declared invalid merely on the ground that the sale price was not paid by the donees to the donor because in case of gift, no sale price is required to be paid at all.
37. Regarding delivery of possession, it may be observed, that at the time of gift, the land was in cultivating possession of the tenants under the donor viz. Col. Muhammad Hanif and after the gift the tenants attorned to the donees as transpires from the affidavits of the tenants i,e, Annexure 'F' to 'F. 8' (at pages 29 to 45 of Writ Petition No, 1776/78). The names of all K the donees had been incorporated as land owners in possession by Land Acquisition Collector in his record. Cash compensation was also paid to all these donees for the land acquired from them. It is also noteworthy that gift Mutation No, 1922 was sanctioned with the prior permission of the Land Acquisition Collector as is evident from the contents of Annexure 'B' and 'BR' (page 21 in Writ Petition No, 1776/70.
38. As already mentioned, this mutation was sanctioned on 14-4-1969 while the land of village Ghallughara was transferred to WAPDA authorities on 5-5-1971. Donees were, therefore, lawfully entitled to be resettled under the Resettlement Scheme in lieu of the lands acquired from them.
The findings recorded by the learned Member, Board of Revenue, on the question of validity of Mutation No, 1922 dated 14-4-1969, in the above circumstances, are erroneous.
39. On the question of validity of exchange, the learned Member, Board of Revenue, has called into question the order of the Resettlement Officer/ Collector, mainly on the following grounds :-
(a) The Resettlement Officer/Collector, should have approved exchange in accordance with the provisions of section 17 of the Colonization of Government Lands Act, instead of having recourse to the provisions of section 24 ibid.
(b) The Collector disregarded the instructions communicated through the Commissioner on the subject of exchange ; and
(c) The land purchased at auction and through sales by private treaties could not be allowed to be exchanged with Government land without the prior permission of the Government.
40. Resettlement Officer in this case was specifically given powers to allow exchange by virtue of notification dated 15-10-1970 (Annexure RN/3 in Writ Petition No, 2945/78). It is also noteworthy that besides the petitioners in Writ Petition No, 1334/78 and Writ Petition No, 1776/78, the Collector/ Resettlement Officer allowed exchange in numerous other cases including exchange in favour of Haq Nawaz etc. The respondents, wherefor he used the printed form bearing the beading "under section 24 of the Colonization of Government Lands Act", printed on it, may be inadvertently as a clerical mistake. It is also obvious from the coxtents of Annexure 'RN' and `RN/2' (in Writ Petition No, 2945/78) that the Resettlement Officer has complied with the instructions and orders on the subject of exchanges as he received from the Commissioner. The land in the under-consideration cases was neither purchased by auction nor through private treaties by the petitioners. The land was allotted to them for purpose of Resettlement being evictees of Chashma Barrage and, therefore, for the exchange of such land with another Government land no prior permission of the Government was required. It may also be observed with advantage that the learned Member, Board of Revenue, himself has approved the exchange in favour of Lt.-Col. Muhammad Hanif in Rakh Dullewala in lieu of his previous allotment in Rakh Nikro Shaheed as also the exchange allowed in favour of Bashir Ahmad, Umar Hayat, and Muhammad Ramzan, through the impugned order. He has directed regularization of these exchanges and permitted them to retain the land in their occupation in Rakh Dullewala. This finding of the learned Member, Board of Revenue, has been impugned through Writ Petition No, 2945/78. The exchanges in favour of Rab Nawaz etc. And Usman etc. Have taken place under the same circumstances under which the exchanges in favour of Muhammad Hanif, Bashir Ahmad, Umar Hayat, and Muhammad Ramzan were ordered.
41. The protection claimed by the petitioners under the proviso to section 16 of the Colonization of Government Lands (Punjab) Act, 1912, is no more available to them because the proviso to section 16 has been deleted retrospectively by the Colonization of Government Lands (Punjab)
Amendment Ordinance, 1978, which is to be deemed to have taken effect on and from 3rd March, 1948. No exception can, therefore, be taken to the findings recorded by the learned Member, Board of Revenue, on this point.
42. The upshot of what has been discussed above is that the findings of the learned Member, Board of Revenue, on the question of validity of Mutations No, 5247 and 1922 and also on the points of validity of allotment alternate lands to the petitioners in Constitutional Petition No, 1334/78 and 1776/78 and subsequent exchanges in their favour in Rakh Dullewala are based on misreading of records and misinterpretation of documents and law.
43. In Muhammad Hussain Munir and others v. Sikandar and others (1), It has been ruled that High Court, in exercise of its writ jurisdiction is concerned only with the question whether Court or Tribunal below had acted within its jurisdiction and that a tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority. It was
(1) PLD 1974 SC 139 ' further held that High Court in writ jurisdiction is not competent to interfere with the order of a tribunal on purely equitable considerations. Similar view has been expressed in Abdul Haq and another v. Khan Muqarrab Khan and others (1), wherein it was held that the High Court was justified in not interfering in its limited constitutional jurisdiction with decisions which were taken on facts. In Abdul Rehman Bajwa v. Sultan and 9 others (2), also it was laid down that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction.
44. The circumstances of the under-consideration case are, however, distinguishable in as much as the findings of the learned Member, Board of Revenue are based on misreading of records. And misinterpretation of documents and law. In Noora v. The Settlement and Rehabilitation Commissioner and another (3), it was held :- "If. The Settlement Commissioner purported to find as a question of fact that Nizam-ud-Din had surrendered his claim to Survey No, 302/1, then the High Court was, in our opinion, right in taking the view that the finding was based wholly upon a misreading of the evidence in the case. Such a misreading, therefore, justified the High Court in reversing the said finding.
' No legitimate exception can be taken to this. The High Court had the jurisdiction, under Article 98 of the Constitution, to reverse a finding which was, on the face of the record, unwarranted or based upon a clear and manifest misreading of the evidence."
45. Similar view has been expressed in the Montgomery Flour & General Mills Ltd. v. The Director, Food Purchases West Pakistan and others (4), wherein it was held that all discretion must be exercised justly, fairly and reasonably and that arbitrary exercise of discretion can be interfered with in exercise of writ jurisdiction.
46. As already held, the findings of the learned Member, Board or Revenue ( Colonies) on the major issues involved in this case, are based on misreading of records and misinterpretation of documents and law, this Court can, therefore, competently reverse such findings in exercise of its constitutional jurisdiction. ##T##
47. For the foregoing reasons, Writ Petitions No, 1334/78 and 1776/78 are allowed and the orders of the learned Member, Board of Revenue (Colonies) assailed through the said Constitutional petitions are declared to have been passed without lawful authority and of no legal effect. Writ Petition No, 2945/78, is however, dismissed, in all the three cases, the parties are left to bear their own costs.
(1) 1981 SCMR 691 (2) PLD 1981 SC 522
(3) 1969 SCMR 517 (4) PLD 1957 Lab. 914