' The Commissioner vide his endorsement No, CB-21-247/81, dated 12-12-81 forwarded to the Secretary (Colonies), Board of Revenue Memo. No, 4068/SK, dated 1-11-81 from the Deputy Commissioner, Dera Ghazi Khan in which to dispose of Appeal No, 207-M titled Ghulam Mustafa v.
Abdul Rahman etc. He had sought clarification from the Board of Revenue through the Commissioner, Multan on the following points :-
(a) Whether the land is liable to be resumed from the respondents for the reasons that the purchasers have not followed the conditions of transfer of land and used it for the purpose other than that for which they got. The position of the land under dispute has been changed by construction of shops instead of factory in contravention of the conditions of deed. He has thus obtained wrongful gain of the cost of the Government by changing the land used and by evading stamp duty and registration-fee by showing less value in the deeds.
(b) How is the partition of this land possible in view of the provision as contained in Chapter 18 of Land Records Manual regarding prohibition of partition of an area below one acre.
(c) This late attestation of mutation, the change, in all min khasra numbers occurred and became absolute. In the light of findings of Lahore High Court whether the previous position in the Revenue Record might be maintained by rejecting the mutation under provision of para. 7.63 of Land Records Manual so that all the occupiers of Khasra No, 879 might be got their due rights from the B.O.R. According to their possession in the area and boundaries etc.?
(d) Whether it would be advisable to defend the case in the civil Court at public expense to safeguard the rights of the Government. The D. C. Has recommended this course of action?
2. The Secretary (Colonies) directed the Audit Officer II to inspect the spot and submit the report.
The Audit Officer submitted his report and proposed the following action :-
(a) The area transferred to Punjab Transport Service, may be resumed and the Deputy Commissioner, Dera Ghazi Khan be directed to get fixed the rent from Government for the period G.
T. S. Remained in possession.
(b) As the vendee has not used the land for the purpose for which it was sold and further the sanction of sale was obtained on misrepresentation of facts, a notice may be served upon the vendee for cancellation of conveyance deed under section 30(2) of the Colonization of Government Lands Act, 1912, as amended.
(c) The area claimed by the vendee may be disposed of either through sale by private treaty to the unauthorised occupants or by open auction.
' The office recommended that action on para. (b) proposed by the Audit Officer be taken first on judicial side. Notices were issued to the parties.
3. I have heard the learned counsel for the parties. The learned counsel for the petitioner contended that the Board of Revenue, accorded sanction on 8-8-1961 to the sale of Khasra No, 879/1 measuring 2 Kanals 6 Marlas situated in Dera Ghazi Khan Town in favour of Ahmad & Co. For the installation of Petrol and Diesel Pumps. The conveyance deed was executed and registered on 15-11-1981 in favour of Ejaz Ahmad instead of Ahmad & Co.. He contended that the Commissioner, Multan recommended on 22-11-1961 to the Board of Revenue that the approval of sale granted in favour of Ahmad & Co. Be withdrawn. The Board of Revenue had withdrawn its sanction to the sale of the land on 26-12-1961. He contended that the Board of Revenue, however, on 5-2-1962 withdrew his order, dated 26-12-1981, vide which the sanction of sale in favour of Ahmad & Co. Was withdrawn. He argued that according to the usual terms of conditions of sale the company had to install the Petrol & Diesal Pumps and raise construction within six months but he failed and also failed to observe other conditions of Sale No, 4, 5, 6, 8 and thus according to Condition No, 11, the sale was liable to be cancelled. He contended that the sale was sanctioned in favour of Ahmad & Co. But the conveyance deed was executed in favour of Ejaz Abmad which was against the law. He stressed that Mutation No, 8403 in favour of Ejaz Ahmad was sanctioned in 1978 in which instead of Khasra No, 879/1, Khasra No, 879/2 was entered against the conveyance deed. He stressed that as the possession of the disputed land was never delivered to the Company, the grant and the mutation was void He contended that Ejaz Ahmad sold out the land to Abdul Rehman etc. Respondents on 19-1-1978. It was further contended that Ghulam Mustafa petitioner submitted an application to the Deputy Commissioner/Collector on 3-2.1980 against the sanction of mutation for Khasra No, 879/2 instead of Khasra No, 879/1 with the request that correction be made according to the conveyance deed and the Deputy Commissioner/Collector after obtaining report from the field staff on 5-4-1980 allowed the review of mutation but on next day i,e, on 6-4-1980 withdrew his order for the review. He argued that the petitioner filed an appeal before the Additional Commissioner (Revenue), Multan. He further contended that the respondents on 14-5-1980 submitted an application to the Secretary (Colonies) Board of Revenue for the correction of Khasra No, 879/2 instead of Khasra No, 879/1 in the letter of approval or sale made to Ahmad & Co. And the Secretary (Colonies) called for report from the Deputy Commissioner, Dera Ghazi Khan on the same day. The Deputy Commissioner asked the Assistant Commissioner Saddar on 18-5-1980 for report who on the same day made a report that he had visited the site and that the request of the applicant was genuine and that it was purely a clerical mistake and that necessary permission to correct entries of sale-deed be accorded. The Deputy Commissioner forwarded the report of the Assistant Commissioner/Collector on 19-5-1980, and the Secretary (Colonies) on 20-5-1980 himself allowed the correction and did not send the file to the Member (Colonies). Information of that action taken was sent to the Deputy Commissioner on 21-5-1980. He argued that it was all done when the appeal was pending before the Additional Commissioner (Revenue). He stressed that on the reference from the Deputy Commissioner for seeking clarification, the Board of Revenue deputed his Audit Officer for enquiry, who reported that action under section 30(2) for cancellation of conveyance deed be taken as the land was not used for the purpose for which it was obtained and the sale was obtained by misrepresentation of facts and that the area in dispute was with the Punjab Transport Service on lease. He stressed that the High Court vide its order, dated 5-4-1981 had held the orders issued by the Board or Revenue on 21-5-1980, for the correction of Khasra No, 879/2 to read as Khasra 879/1 of no legal sanctity on the Writ Petition No, 7173/80 filed by Ghulam Mustafa petitioner.
4. The learned counsel for the respondents contended that mutation No, 8403 was already sub judice in judicial proceedings before the Deputy Commissioner/Collector after remand of the case by the Additional Commissioner (Revenue) in appeal. He argued that the Deputy Commissioner/ Collector instead of disposing of the matter, sought clarification on certain points from the Board of Revenue, which was unprecedented as the same was bound to prejudice the case pending before him and that the reference in itself was misconceived and against law. He further argued that the Deputy Commissioner only sought clarification on certain points and never invoked the suo motu revisional jurisdiction by the Board of Revenue. The Deputy Commissioner/Collector had to decide the case pending before him on judicial side after regular hearing. He contended that if any decision was taken in the Board of Revenue in the matter on the points involved in appeal before the Collector, the parties would be deprived of two remedies of appeal and revision, further contended that Ejaz Ahmad was proprietor of Ahmad & Co. And 2 Kanals 6 Marlas of land was sold to the company by private treaty and conveyance deed was executed in favour of Ejaz Ahmad on 25-11-1981, who further sold it to the respondents through separate registered deed on 29-1-1978 and no fraud was played or any misrepresentation made while obtaining the land by Ahmad & Co.
And thereafter. He argued that the exercise of suo motu revisional jurisdiction in the present case was, therefore, not competent. He argued that the High Court vide its order dated 5-4-1981, held that the order of Board of Revenue dated 21-5-1980 had no legal sanctity as at that time when it was passed by the Board of Revenue the appeal against the same land between the same parties was pending before the Additional Commissioner (Revenue). He argued that the petitioner was tenant of the respondents and was ousted from the land through legal prOcess of law and as such he could not be a party against the respondents in the suo motu revisional jurisdiction. He argued that the respondent were the purchasers of land from Ejaz Ahmad who purchased the land from the State through private treaty according to the provision of law, and if he had contravened any condition of sale, action against him could have been taken at that time according to section 32 of the Colony Act, and the respondents who were bona fide vendees could not be penalised at this belated stage. He stressed that the sale was made to Ejaz Ahmad for the construction of a factory and small factories were working in the premises. He argued that the area of Khasra No, 879 was 52 Kanals 8 Marlas and out of . This only a portion measuring 2 Kanals 6 Marlas was sold to Ejaz Ahmad and the only litigation before the Deputy Commissioner/Collector was for the correction of the tatima shajra and nothing further was to be scrutinised. He prayed that the suo motu proceedings be dropped.
5. The colony clerk stated that Ahmad & Co. Applied for the purchase of 2 Kanals 6 Marlas of land on the Eastern side of the Kehkashan Talkies in Dera Ghazi Khan Town for the installation of Petrol Pump and Service Station and had attached with his application site plan of Khasra No, 879/1 of proposed land. The Board of Revenue allowed the sale and conveyance deed in favour of Ejaz Ahmad which was executed and registered in 1961 for Khasra No, 879/1. The Audit Officer (Colonies), Board of Revenue stated that he made an enquiry at the spot as per orders of the Board of Revenue. According to the enquiry Khasra No, 879/1 was leased out to the Punjab [Transport Service and was not available for sale to anyone. He further arguea that the land was sold to Ahmed & Co. In 1961 for the installation of Petrol Pump and Service Station but it was not utilised for the purpose for which it was sold and was further sold to the respondents in 1978 by the original vendee of the State. He contended that the sale was obtained by misrepresenting the facts and according to section 30(2) of the Colony Act it was liable to be cancelled.
6. I have considered the argument and perused the record of the case. The Manager of Ahmad & Co., submitted an application for the purchase of 2 Kanals 6 Marlas of land, lying vacant to the end of the land that has been allotted to the Dera Petroleum Agent of Burmah-Shell Company situated to the east of Kehkashan Talkies. The land was, therefore, properly identified. The conveyance deed does not show that there was any restriction on the vendee of the State to further sell the land. The litigation before the Deputy Commissioner/Collector was only for correction of the field number of the land sold to the respondents in the mutation. It is not denied by any party that the area of Khasra number 279 out of which the Company was sold 2 Kanals 6 Marlas of land was 52 Kanals 8 Marlas. The land sold to the Company and thereafter to the respondents is there at the site, and can very well be checked and measured in accordance with the revenue record and its location identified by the description mentioned in the application submitted by Ahmad & Co. And the description given in the conveyance deed. I therefore, do not think that any fraud or misrepresentation was practised in obtaining the sale of the land. There is thus no sufficient ground or justification at this stage to invoke suo motu jurisdiction under section 30(2) of the Colony Act when action against the purchasers could have been taken according to the terms and conditions of sale. The suo motu proceedings are, therefore, dropped. The Deputy Commissioner/Collector should decide the case pending before him on its own merit according to law after hearing the parties concerned. The clarification sought for by him is uncalled for as it is likely to prejudice his decision.