1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to Najabat to examine the correctness of the judgment of the Lahore High Court dated 28-2-1977 whereby the constitutional petition filed by him was dismissed and the order of Member, Board of Revenue, dated 16-7-1976 was maintained.
2. Consolidation of holdings was undertaken in Chak No. 109 W. B. 133 Tehsil Mailsi, Multan, in 1966. The land of one Jalla was proposed in the scheme of consolidation in the name of appellant and that of the appellant in the name of Jalla. From Annexure `A' it appears that the appellant Najabat had proposed it and the Assistant Consolidation Officer accepted it on 18-2-1966. As Jalla, the recorded owner was dead, his legal representatives appealed against it but withdrew the appeal on 14-12- 1966. On a review petition, this order was substituted by another order dated 11-5-1967 which was set aside on the appeal of Najabat appellant by Board of Revenue on 16-5-1968 and the proceedings were remanded to Additional Deputy Commissioner (Consolidation). In the Board of Revenue, Bashir Ahmed was impleaded on the ground that he had obtained a :onsent decree from civil Court. None had, it appears objected to it. On remand, the Additional Deputy Commissioner (Consolidation) restored their pre-consolidation land to the parties with some modification. Both the parties appealed but their appeals were dismissed on 13-1-1969. Both the parties filed revision petitions in the Board of Revenue which ended in a compromise expressed in the following words in the order of Member, Board of Revenue, dated 18-6-1969 :- "The parties have made a joint statement that they have compromised on the basis of which they have accepted the scheme as originally confirmed in favour of both the parties. Their statement to this effect has been recorded on the file. Both the revision petitions, are therefore, accepted accordingly. The order of the lower Court shall stand modified accordingly."
3. Bashir Ahmed challenged this order of the Board of Revenue by a constitutional petition (W. P. No. 1067 of 1969). The controversy raised and its decision by the High Court appear clearly from the following portion of the judgment of the High Court :- "The contention of the learned counsel for the petitioner is that although the petitioner was a respondent in both the petitions before the Board of Revenue, he was neither a party to the compromise nor was be given an opportunity of being heard by the Member, hoard of Revenue, The learned counsel for the respondent Najabat Ali argued that Bashir Ahmed had no interest in the property for so long as the matter is sub judice before the civil Court and the decree passed then is not executed. He urged that in view of this it was not necessary to hear the petitioner.
4. It is clear from the argument of the learned counsel that the allegation that Bashir Ahmed was not a party to the compromise and was not heard by the Board of Revenue is correct. The order of the Board of Revenue has been passed in contravention of the provisions of section 13(4) proviso.
5. There can be no doubt that the order has been passed without lawful authority. In view of this t allow this petition with costs and quash the order dated 18-6-1969 (Annexure "A"). The effect of this order is that the revision petition of Najabat Ali etc. Shall be deemed to be pending before the Board of Revenue and shall be decided afresh in accordance with law."
6. On remand, the Member, Board of Revenue dismissed the revision petition on 16-7-1976.
7. Two constitutional petitions were filed against this decision, one by Najabat (W. P. 2083 of 1976) and the other (W. P. 2050 of 1976) by Manzoor Ahmad and Jalal Din, two legal representatives of Jalla.
8. The learned Judge, after noticing the facts, disposed of both the petitions by following operative order :- "From the statement of facts made above, it would appear that the net result of the litigation in the consolidation proceedings resultingin the impugned order of the learned Member, Board of Revenue is that the land vesting in Jalla has been allowed to remain as it was before the consolidation proceedings on the ground that there was no justification to split one compact block into two plots separated by a canal. The learned Member, Board of Revenue had not only the jurisdiction to pass the order which he did but has passed an eminently just order that the holding; of Jalla deceased need not be split up in a manner that the two blocks are separated by a canal adversely affecting utilisation and control of the land vesting in Jalla. Therefore, no exception can be taken to his order. Moreover, all the heirs of Jalla have not joined together to ask for allowing the exchange of the holding from Jalla who are respondents in this petition cannot be forced to agree to the exchange of the holding of their predecessor-in-interest against their will.
9. In view, of the above, there is no force in these petitions and the same are, therefore, dismissed leaving the parties in the circumstances to bear their own cost,."
10. Leave to appeal was granted to examine "as to whether Bashir Ahmed respondent No. 1 who Joined this litigation at a very late stage had a locus standi to challenge the exchange and legitimately allowed it to get it' reversed particularly when it was based on acompromise arrived at between the parties on 18-6-1969''.
11. Raja Abdur Razzaq, Advocate, the learned counsel for the appellant contended that the scheme of consolidation was the result of compromise between the parties and they stood by it. Bashir Ahmed had no interest in the land of Jalla and whatever he claims he obtained was subsequent to the consolidation and subsequent acquisition of interest could not entitle him to get the compromise consolidation scheme upset. Besides, according to the learned counsel, he is estopped from challenging the consolidation as he claims to have acquired interest in that property of Jalla which had fallen to his Wanda after the agreed Consolidation Scheme.
12. Mr. Muhammad Rashid Chughtai, Advocate, the learned counsel for the respondents, contended that both on facts and on law the Member, Board of Revenue, exercised a jurisdiction possessed by him and such a fair, just and proper order could not be upset in constitutional jurisdiction and has rightly been not upset.
13. The interest of Bashir Ahmed in the matter has been noted by the Member, Board of Revenue in his order dated 16-5-1968 in the following words for the first time :- "A petition has been moved on behalf of one Bashir Ahmed son of Muhammad Din praying that he should be made a party to the proceedings in this Court. He has obtained a consent decree from a civil Court in this instant case. The learned counsel for the petitioner has no objection. Bashir Ahmed is, therefore, allowed to be made a party to the proceedings before this Court."
14. He was thereafter treated as party to the proceedings. The High Court while deciding constitutional petition noted the interest of Bashir in the following words :- "It is clear from this order that Bashir Ahmed petitioner, who had obtained a decree against Nemat Bibi etc. In regard to the title of property which was in the name of Jalla in the Revenue record, be filed an application before the Member, Board of Revenue for being impleaded as a party. This application was allowed. And the order Annexure D was passed after hearing him, Mutation No. 93 was attested on 14-2-1974 giving effect to the decree of the civil Court.
15. What is crucial in the controversy is not the locus standi of Bashir but the Consolidation Scheme satisfying the requirements of law. The Member, Board of Revenue in his order dated 16-7-1976 expressed it forcefully in the following words :-- "In the A. C. O's. Order dated 28-2-1966 under which the consolidation scheme was confirmed the plots of Niamat Bibi etc. Of Scheme No. 71 was split up into 2 plots and they were allotted land not of their previous ownership/possession but in Squares Nos. 2743 and 44. There is a canal running between the two plots which makes id difficult for the respondents to cultivate their land. I find absolute] no justification for the splitting up of the holding of the respondents which was compact and in one piece before consolidation. The action of the A. C. O. In depriving the respondents of their holding and allotting them land in two plots at another place was contrary to the basic principles of consolidation."
16. Another Member, Board of Revenue, had on an earlier occasion mad;. The following observation on merits of the controversy :- "It is an admitted fact that all the petitioners are co-sharers in the `Khata' and there is no doubt that it is not possible for the co-sharers, properly to cultivate the land lying on two sides of this big canal. It has also been argued that the land on the eastern side of the canal is recorded as Banjar in the Revenue record.
17. There seems to be no justification, for splitting up the holding of the petitioners and increasing their blocks in consolidation."
18. Where a consolidation scheme is found to be so offensive to the requirements of the law, appears on the face of it to be unjust and unfair, the Consolidation authorities are under a duty to reject it even though it be based on compromise or undertaking among the parties or most of them.
19. In the circumstances, we find that there is no merit and the appeal is dismissed with costs.