Writ Petitions Nos. 5567/78, 5568/78, 5569/78 and 5570/78 which arise out of similar facts and raise an identical' question of law for decision, can conveniently be disposed of by one order.
2. Brief facts are that the petitioner (in W.P.No. 5567/78), a proprietor of agricultural land situated in Chak No. 493/GB, Tehsil Samundari, District Faisalabad, applied to Assistant Commissioner/ Collector for allotment of a residential Ahata No. 364 measuring, 10 M 1 Sarsai vide application Annexure 'A'. Assistant Commissioner/Collector, Samundari, vide order daed 19-3-1977, conveyed his approval for transfer of the above-noted Aliata in favour of the petitioner on payment of the price at the rate of Rs. 80 per Marla. In the other three connected writ petitions, Abdul Rehman, Mst.
Ulfat Bibi and Muhammad Ismail, similarly applied for transfer of Ahatas Nos. 365, 367 and 366 measuring 10 Marlas each. Vide order dated 19-3-1977 passed separately, on each petition, transfer of Ahatas was ordered on payment of Rs. 80 per marls by the Assistant Commissioner/Collector Samundari.
' Muhammad Sadiq, Wall Muhammad, Liaqat All and Shaukat Ali, through separate appeals, preferred in the Court of Additional Commis sioner (Consolidation) Sargodha Division, Sargodha, challenged the order of allotment/transfer of Ahatas in favour of the writ petitioners. Additional Commissioner, vide order dated 26-7-1978, dismissed the appeal. Relevant observations are: - "Since the Deed of Conveyance is already executed and proprietary rights given to the respondents, I am afraid this Court cannot interfere at this stage, as the respondents have become proprietor and are no more lessees. The best for the appellants would have been to apply at the proper time for getting the operation of the impugned order stayed during the pendency of the appeals. Or they could get an oder that during the period of limitation for filing the appeals, the amount should be kept in the revenue deposit and proprietary rights should not be transferred by means of execution of the Conveyance Deed. In the absence of any such stay order, I am afraid, nothing can be done with the present appeals which fail and are hereby dismissed."
3. Aggrieved with order, passed on appeal, by the learned Additional Commissioner (Consolidation), revisional jurisdiction of the Board of Revenue, through separate petitioner for revision was invoked. Here, the petitioners succeeded. Revisions were accepted and the impugned orders, passed by the Assistant Commissioner, maintained in appeal by Additional Commissioner (Con.) were set aside and the case was remitted for decision afresh by the Collector. Through these constitutional petitions, order dated 19-9-1978, passed by the learned Member Board of Revenue, in exercise of his revisional jurisdiction has been assailed on the ground that the Member Board of Revenue after conferment of proprietary rights and execution of conveyance deed lacked jurisdiction to interfere. Writ petitions were admitted to examine the legal question in regard to the competence of the Board of Revenue to interfere after conferment of the proprietary rights and the execution of the Conveyance Deed.
4. I have heard learned counsel for the parties and examined the available material. Main burden of the argument raised by learned counsel for the writ petitioners was that after proprietary rights had been conferred and deed executed, the same could not be interfered with by the Authorities acting under the provisions of Colonization of Government Lands (Punjab) Act, 1912. Learned counsel stated that subsection (2) of section 30 introduced in Act V of 1312 vide Ordinance XII of 1978, did not apply to the facts of the case under consideration. He relied on a decision by Board of Revenue in Allah Ditta v. Muhammad Rafiq PLD 1959 (W.P) Rev. 167 to contend that once the conditions of a tenancy obtained by sale or otherwise have been complied with and full proprietary rights acquired by the execution and registration of a Deed of Conveyance the purchaser ceases to be tenant and becomes an owner. Thereafter if the Revenue Officer wishes to take some action against the grantee for cancellation of the sale, he will have to resort to Civil Court and cannot utilize the provisions of the Colonization of Government Lands Act. In the case in hand, since a sale- deed had been executed after payment of the sale price, the petitioners walked out of the ambit of the provisions of Punjab Act V of 1912 as amended. Despite fraud and misrepresentation, the transfer could not be recalled. In the opinion of learned counsel, it was a case of direct sale not covered by the provisions of subsection (2) of section 30 of Punjab Act V of 1912 as amended in 1978.
5. Impugned order was defended by respondents by relying on the provisions of section 30(2) of the Punjab Act V of 1912. It was stated that the petitioners managed to obtain transfer of certain Ahatas in their favour by misrepresentation of facts and perpetration of fraud as observed by learned Member Board of Revenue quite contrary to their entitlements. In this view of the matter, the Board of Revenue was possessed of ample jurisdiction in revision to recall any order made by an officer subordinate to the revisional jurisdiction of the Board of Revenue. Correctness, propriety or legality of the order could validly be gone into by Member Board of Revenue. Apart from the provisions of section 30(2) of Punjab Act of 1912, it was stated that the order passed by the Collector was amenable to appeal and revision under the provisions of the Colonization of Government Lands Act.
6. Petitioners applied for allotment and transfer of ahatas above-mentioned. Assistant Commissioner/Collector vide orders dated 21-3-1977 and 19-3-1977 transferred ahtas in dispute to the petitioners on payment of price at the rate of rupees. 80 per marla it is admitted that the price worked out has already been paid and a deed of conveyance executed in favour of the grantees it is also admitted that the writ petitioners were not in possession of ahatas-in -dispute either at the time of the making of an application or thereafter. Admittedly, the contesting respondents are in possession of the Ahatas. It is also admitted as is clear from the order made by the Member Board of Revenue that the petitioners are already in possession of a number of Ahatas in the relevant Chak. Deed of conveyance was executed admittedly during the pendency of appeals before the Additional Commissioner. Conveyance deed could not provide an insuperable obstacle in the proper disposal of the appeal/division on its on merits or in any manner affect the right of appeal/ revision available to the aggrieved party . Mere fact that a stay order was not applied or issued by the court of appeal. Would not render the appeal/revision infructuous and prevent the court seized of the dispute from rendering its decision on merits of the case . Arguments that after the payment of sale price and execution of the conveyance deed, it could not be interfered with by court of appeal or revision as no merit accept that of ingenuity. Acceptance of this argument would lead to statling results . it could make the order caused by the Collector final and immune from scrutiny in appeal or revision which right is other wise available under the provisions of the Colonization of government lands Act. That aside, on the findings of the land member board of revenue , the allotment/transfers have been obtained by practicing fraud and misrepresentation . For this conclusion , learned Member Board of Revenue seems to have placed reliance on the results of an inquiry conducted by the assistant Commissioner Samundari on 28-7-1977. Ordered tainted with fraud or misrepresentation cannot be allowed to attain finality in the face of express provisions of section 30(2) of the Punjab Act V of 1912 as amended subsequently by Ordinance XII of 1978.
Controversy regarding powers to interfere after the execution of the Conveyance deed had since been set at rest by subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act 1912 which has been recently inserted by an amendment through Punjab Ordinance XII of 1978 empowering the Board of Revenue to resume the land in respect of which proprietary rights have been acquired by fraud or misrepresentation or on account of ineligibility of a lessee. In view of this recent amendment, in law, decision of Board of Revenue reported in Allah Ditta v. Muhammad Rafiq PLD 1959 (W.P.) Rev. 167, no longer holds the field. Learned Member Board of Revenue, -in State v.
Malik .Jahangir Khan PLD 1979 Rev. (Pb.) 1 has taken a different view from the one in the case of Allah Ditta.
' Board of Revenue, vide order dated 19-9-1978, has simply remanded the controversy for decision afresh to the Collector. The sole point raised in support of writ petition has been adequately dealt with in the preceding paragraphs. Factual controversy can best be resolved by the officer to whom the case had been remitted by learned Member Board of Revenue.
' In view of what has been stated above, I hold that the order passed by the learned Member Board of Revenue did not suffer from lack of competence or jurisdiction. Jurisdiction existed both on revisional side and under section 30(2) of the. Punjab Act V of 1912 as amended through Punjab Ordinance XII of 1978. Writ Petitions, therefore, have no merits and are dismissed leaving the parties to bear their own costs.