HAFEEZULLAH ISHAQ, MEMBER.-- These revision petitions are directed under section 13 of the Consolidation of Holdings Ordinance, 1960, against the order dated 9.5.1988 of the Additional Commissioner (Cons), Lahore Division, whereby he approved the suo moto proposal.
2. Brief facts of the case are that the consolidation scheme of the village Niaz Beg, Tehsil and District Lahore was confirmed under section 10(3) of the Ordinance ibid, by the Assistant Consolidation Officer on 29.9.1977. Mst. Mukhtar Begum widow of Muhammad Ali, one of the respondents, moved an application before the Additional Commissioner (Cons) on 11.1.1987 stating therein that during the consolidation operations she had suffered a loss of 1 kanal and 13 marlas Class-I land in her entitlement and requested for making it up. The Additional Commissioner
(Cons) sent this application to the Consolidation Officer Lahore city for report, who vide his report dated 31.1.1987 corroborated the contention of the petitioner and the Collector (Cons) endorsed the report of the Consolidation Officer. The Additional Commissioner (Cons) after considering the reports, vide his order dated 4.5.1987 granted permission for submission of suo moto proposal after scrutinizing the record and hearing the parties concerned. In pursuance of this order, the Collector
(Cons) forwarded Consolidation Officer's proposal to the Additional Commissioner (Cons), Lahore Division which was approved by him making up the deficiency from the unallotted land. Hence these revision petitions.
3. The learned counsel for the petitioners contended that Saba Atiq petitioner had constructed a house on khasra No. 8164/2 measuring 2K-3M, the kham number of which was 5159-min. Mst.
Mukhtar Begum respondent moved an application somewhere in 1987 i.e. After 10 years of confirmation of the scheme for making up deficiency in her entitlement and on report of the Consolidation Officer the Collector (Cons) forwarded the proposal to- the Additional Commissioner (Cons). This proposal was, however, rejected by the Additional Commissioner
(Cons) for further scrutiny but on 9.5.1988 the Additional Commissioner (Cons) without issuing any notice to any party allotted this khasra number to Mst. Mukhtar Begum. The Additional Commissioner (Cons) was not competent to exercise his suo moto jurisdiction in the case as held in PLD 1982 Revenue 10 because when an application by a party is moved the provision for suo moto exercise of jurisdiction comes to end. The respondent Mukhtar Begum had not preferred any appeal or revision on the judicial side for a long period of ten years and therefore exercise of the suo moto jurisdiction by the consolidation functionaries was malafide. The petitioner Society was, however, willing to make up the deficiency of Mst. Mukhtar Begum respondent elsewhere.
4. The learned counsel for respondent Mukhtar Begum stated that the Society was not the owner of the land in dispute and had never acquired it. It came into the possession of the Society as it was surrounded on all sides by the land held by them. The petitioners taken possession as the only yardstick in the present case but it was possession without title and the Society was not a scheme- holder. It had been held in PLD 1974 Revenue 64 that possession without title was of no consequence in consolidation proceedings. If the Society had an excess area it should give to the petitioner Saba Atiq instead of offering it to respondent Mukhtar Begum. In any case adverse possession against the state cannot be considered.
5. The learned counsel for the petitioner exercising his right of reply stated that the Society was in adverse possession through long lapse of time and therefore had a locus standi. He cited PLD 1982 Revenue 60 in support of his contention.
6. I have considered the arguments and perused the case record as well as the record produced by the Patwari. The land in dispute falls within the land developed for residential purposes by the petitioner Society and admittedly roads and other facilities around it have been provided by the Society. The petitioner Saba Atiq Khan has even raised a construction thereon under the impression that she had validly been allotted that land by her co-petitioner Society. During the long course of the consolidation proceedings and even thereafter neither the Consolidation Department nor other rightholders raised any objection the development of this land by the petitioner Society and certainly no proceedings for trespass on this piece of land were initiated against the Society. However, this piece of land was never acquired or purchased by the petitioner Society and the development thereof was either in the mistaken belief of owning this land or with the deliberate purpose of encroaching on said property. In any case the consolidation authorities and other rightholders /through their neglect have allowed this land to pass into the possession of the petitioner society and subsequently of Saba Atiq Khan who has since raised the construction thereon and is decidedly in possession of the land in dispute perceiving herself to be its bonafide purchaser. While making the impugned order this fact of possession was entirely lost sight of by the Additional Commissioner (Cons) and Saba Atiq Khan petitioner was condemned unheard. No attempt was ever made to effect service of the notice on Saba Atiq Khan or the Society presumably due to the reason that this disputed land was wrongly reported as Baqaya in the proposal forwarded to the Additional Commissioner (Cons). However, in these circumstances the petitioner has a claim on this piece of land having built a house thereon. As has been seen, this land has changed its character from agricultural to residential during the last few years. Saba Atiq Khan petitioner who has built a house thereon, through no fault of hers, should therefore not be penalized for the mistake of the Society and neglect of consolidation authorities especially when the deficiency of respondent Mukhtar Begum can be met from agricultural land to be surrendered by the Society elsewhere, for which the Society has made written offers. I have little doubt in my mind that had the land in dispute not been allotted to an innocent person by the Society, the complexion and probably outcome of the case would have been different. It is rather interesting that prime residential and developed land measuring 2 kanals was allotted to the respondent Mukhtar Begum in lieu of her time barred claim of 1 kanal 13 marlas of 1st class agricultural land at an unknown location. The lack of application or outright connivance of consolidation functionaries has thus manifested itself in this case. The party in possession was never heard at any stage.
7. The upshot of the above discussion is that the impugned order is set aside, the case is remanded to the Additional Commissioner (Cons), Lahore Division, for fresh decision after hearing the parties.
The offer made by the petitioner society for surrendering land of equal value may also be examined to set this matter at rest.
8. The orders in this case were reserved and the parties should be informed accordingly.