' This Constitutional petition is for a direction against respondent No,3 Collector/Deputy Commissioner Jhang restraining him from cancelling the disputed land auctioned in favour of the petitioner in the year 1962 with a further prayer that deed of conveyance may be ordered to be executed in favour of the petitioner.
2. Facts relevant for the disposal of this writ petition are that land measuring 886 Kanals 16 Marlas situate in Chak No,506/J.B. Jhang was auctioned on 26-12-1962 in eleven lots namely 22, 23, 24, 25, 26, 28, 29, 52, 53, 54 and 55, and auction price amounting to Rs,1,75,684 was paid by the petitioner as auction-purchaser. The original file of auction is produced which shows some of the lots auctioned exclusively in favour of the petitioner and others jointly with Mst. Karim Bibi. The possession of the auctioned property was delivered to the petitioner. However, the land was resumed from the name of the petitioner by the Collector vide his order, dated 25-3-1970 on the ground of non-payment of the auction-price but the time was extended and in spite of this the petitioner could not avail extension and the disputed land was resumed for the second time on 16- 1-1974 by the Collector Jhang.
3. Finally the petitioner applied to the Board of Revenue and the request was granted and he was allowed to pay the auction money by Board of Revenue vide letter No,1762-VI/1873-CB, dated 12-6- 1974 which is as hereunder:--- "It has been observed that the applicant has deposited Rs,79,177.00 as purchase price. His annual income is less than the amount of annual/half-yearly instalment. According to your report his half- yearly income out of this land is Rs,3,408.00 only, while latest amount of half-yearly instalment was fixed at Rs,7,500.00. It is clear that the auction-purchaser has developed the land, and has paid about 50% of the purchase price. Your order dated 16th January, 1974 (resumption order) though is a legal order and still holds good, but at this belated stage the auction-purchaser viz. Mr. Ahmad Khan son of Hamayoon should not be deprived from the land in question.
' In the circumstances explained above and in exercise of the power conferred on it under section 164 of the West Pakistan Land Revenue Act, 1967, the Board of Revenue is pleased to accord sanction to the revision of the order of resumption and forfeiture; passed by you on 16th January, 1974 and allow the applicant to pay the outstanding amount in equal half-yearly instalments alongwith interest and penal interest beginning from 1st July, 1974, at the rate of Rs,7,500 on the condition that the auction-purcasher viz. Mr. Ahmad Khan son of Hamayoon is ready to produce a Bank Draft in respect of proposed amount and Bank Guarantee for the remaining amount within one month from the date of issue of these orders."
' In pursuance of the above letter issued by the Board of Revenue permitting the petitioner to deposit the auction-price, the petitioner deposited a sum of Rs,1,75,684 plus penal interest as was directed. According to the terms and conditions of the letter the petitioner also furnished a bank guarantee of Rs,30,000 and after the deposit of the amount, respondent No,3 Deputy Commissioner Jhang on 22-2-1983 addressed a letter to the Board of Revenue for the release of the Bank Guarantee which was agreed to by the Board of Revenue vide letter No,3062-83-VI/2558 dated 15-8-1983 which is as hereunder:--- "The Board of Revenue, Punjab has been pleased to accept your recommendation contained in your Memorandum No,719/CB. CIV, dated 22-2-1983, and allow for the release of Bank Guarantee of Rs,30,000 (Rupees thirty thousand only) in favour of Ahmad Khan son of Hamayun r/o Chak No,506/J B, Tehsil and District Jhang.
2. The District Office file received with your memorandum under reference is returned herewith.
Please acknowledge its receipt."
4. The learned counsel for the petitioner vehemently argues that in spite of total auction-price having been deposited, the Deputy Commissioner/ Collector, Jhang is not executing the conveyance deed and is rather adamant to resume the possession of the disputed land without being legally entitled to. Mr. Maqbool Elahi Malik, learned Advocate-General has appeared on behalf of the respondents and in presence of the officials states that the petitioner is not entitled to retain the land in question and the Collector, Jhang would be right to resume the land in question.
In support of his contentions he has raised the following two submissions which according to him disentitle the petitioner to claim any relief from this Court.
(a) That the case of the petitioner was remanded by the order dated 9-10-1979 of the Additional Commissioner to the Deputy Commissioner but the same is still pending.
(b) That the petitioner filed a civil suit which was decreed in his favour and then applied for the execution proceedings against which the Province of Punjab has filed an appeal before the District Judge and the same is also still pending.
' And in view of the pendency of the proceedings aforementioned, the petitioner is not entitled to any relief.
5. As to the first contention it would be most appropriate to state that at one time on 24-1-1977 the Collector, Jhang directed the Tehsildar, Jhang to take possession of the disputed land on which the present petitioner filed an appeal and the Additional Commissioner (Consolidation), Sargodha Division vide his order dated 9-10-1979 remanded the case for fresh decision. Para. 6 of the order is reproduced as under:-- "For the above reasons, 1 accept the appeal, set aside the impugned order dated 24-1-1977 of the D.C./Collector, Jhang, and remand the case to him 'or passing a fresh order in the matter after giving a hearing to both the parties and affording them full opportunity of producing evidence in support of their respective contentions. He shall also look into the circumstances as to how the appellant came in possession of the lots in dispute. If he was not the auction-purchaser and why he has been filing appeals and revisions against the orders of cancellation of the lots and paying instalments of sale price in respect of the lots in dispute. It is possible that Mst. Karim Bibi deceased might have illegally and against Government instructions transferred her rights of tenancy to the appellant by execution of an agreement to sell the lots or in some other manner if the lots had not been purchased by her jointly with the appellant. This aspect of the matter needs close examination by the learned D.C./Collector, Jhang as in the event of the factum of illegal transfer of rights tenancy without the sanction of the Collector being proved Mst. Karim Bibi will be deemed to have violated the terms and conditions governing her tenancy and the lots will be liable for resumption to the State."
6. Admittedly by the learned Advocate-General no order has been passed by the Deputy Commissioner in pursuance of the order dated 9-10-1979 by the Additional Commissioner (Consolidation), Sargodha Division, Sargodha.
7. It will be most appropriate to refer to some litigation which ensued in this regard by way of W.P.290 of 1977 filed by the petitioner. In this writ petition the petitioner had prayed for issuance of a direction to the learned Deputy Commissioner/Collector for expeditious disposal of the case and the following order was passed by this Court on 14-10-1979:-- "In view of the fact that the writ petition is being withdrawn the same is dismissed in limine in the hope that the Deputy Commissioner/ Collector shall now decide the case without inordinate delay."
' From the above it is amply demonstrated that in spite of the direction by this Court in the aforementioned writ petition the Deputy Commissioner Jhang for reasons best known to him has not decided the case in pursuance of the directions dated 9-10-1979 of the Additional Commissioner and then of this Court dated 14-10-1979 in W.P. No,290 of 1977.
8. As to the second contention of the learned Advocate-General regarding the pendency of the litigation before the learned District Judge some facts have to be taken into consideration in this regard and these are that one Mst. Karim Bibi was claiming to be the auction-purchaser of the disputed land whereupon a civil suit was filed by the petitioner and there, the legal heirs of Mst.
Karim Bibi had entered into a compromise with the petitioner and according to this a sum of Rs,9,00,000 was to be paid by the petitioner to the legal heirs of Mst. Karim Bibi. This compromise was accepted and finally the Civil Judge, Jhang passed a decree on 10th July, 1990. Rs,4,50,000 were to be paid by the petitioner up till 29th October, 1989 and the remaining amount of Rs,4,50,000 till 29th April, 1990. The petitioner has produced before me two certificates dated 28-4-1993 of the District Accounts Officer, Jhang showing the deposit of Rs,4,50,000 on 28-10-1989 vide treasury challan No,162/407 under the head 3500000-3501001 Revenue Deposits decree money, in Jhang District and further showing that the said amount has been paid to Mr. Javed Iqbal etc. on 21st November, 1989. Another certificate of the same date has been produced .to show that a sum of Rs,4,50,000 has been deposited by the petitioner under the Head 3500000-3501001 Revenue Deposit, decree money, in Jhang Treasury on 25th April, 1990 vide treasury Challan No,89/1125 and the said amount has been paid to Mr. Javed Iqbal etc. on 26-6-1992 by the order of the Civil Judge, Jhang. Although the entire amount of Rs,9,00,000 is stated to have been paid as is clear from order dated 23-7-1992 of the Civil Judge, II Class, Jhang passed in execution proceedings initiated by the petitioner, but for my own satisfaction I directed the petitioner to produce the certificate of deposit and withdrawal. Javed Iqbal etc. are the legal heirs of Mst. Karim Bibi who died in 1966.
8-A. After the suit was compromised and decreed, the petitioner filed execution proceedings which were resisted by the Province of Punjab but decided in favour of the petitioner by order, dated 23- 7-1992 of the Civil Judge, II Class Jhang. The operative part of the order in para 23 is as follows:-- "In purview of aforementioned observations, I am of the view that the Revenue Authorities are not, on the present showings, justified in refusing to record necessary mutations/changes in their records in favour of the petitioner qua the land in question. Their objections do not find support from their own record. They are bound to act in accordance with law. This disposes of their objections, as also the execution petition."
' The respondent Province of Punjab has filed a revision petition against the order dated 23-7-1992 which is currently pending before the District Judge, Jhang and the learned Advocate-General is referring to these proceedings.
9. It is in view of the aforementioned two pending proceedings that the learned Advocate-General wants to non-suit the petitioner. He has further contended that it is Mst. Karim Bibi deceased who was the auction-purchaser of the property and not the petitioner and this was the stand before the Additional Commissioner who had already remanded the case to the Deputy Commissioner for decision and also the plea before the District Judge. It is submitted by the learned Advocate- General that the Deputy Commissioner has yet to pass an order to determine who is the auction- purchaser of the property, the petitioner or Mst. Karim Bibi and that the same issue is involved before the learned District Judge.
10. I have heard the learned Advocate-General, the officials of respondents and the learned counsel for the petitioner at length. The officials of the respondents Nos.1 to 3 have also produced the original record and are persisting that the auction-purchaser in this case according to the record maintained by them is Mst. Karim Bibi and not the petitioner. Precisely and forcefully they are pleading the case of the lady that she was the auction-purchaser.
11. The crucial point arises is as to who is the auction-purchaser of the property---the petitioner or Mst. Karim Bibi. It is not difficult to answer this question on the admitted facts of the case as the litigation is going on from 1%2 and there has to be some end to it.
12. There is a letter dated 12-6-1974 reproduced above where the Board of Revenue has held the petitioner as an auction-purchaser of the property in question and also direction was issued to deposit the auction price which direction has been admittedly complied with by the petitioner and the money deposited. In view of this there is no earthly reason to hold that the petitioner is not the auction-purchaser. The Board of Revenue is at the wex of the Revenue Authorities and having treated the petitioner as auction-purchaser in 1974 no subordinate Revenue Officer could go .beyond the above direction. The petitioner has referred in para. 8 of the writ petition, the order of the Board of Revenue dated 12-6-1974 treating him as the auction-purchaser on certain terms and conditions and report was called for and the Deputy Commissioner as against this para stated as under:--- "It was not gone into whether the petitioner was the auction-purchaser or not at that juncture?
' This report is duly signed by the Deputy Commissioner Jhang who either has not read para. 8 of the writ petition or has just signed the report. On the application of the petition the Board of Revenue considered the matter on 12-6-1974 and has held as under:--- "In the circumstances explained above and in exercise of the power conferred on it under section 164 of the West Pakistan Land Revenue Act, 1967, the Board of Revenue, is pleased to accord sanction to the revision of the order of resumption and forfeiture; passed by you on 16th January, 1974 and allow the applicant to pay the outstanding amounts in equal half-yearly instalments alongwith interest and penal interest beginning from Ist July, 1974, at the rate of Rs,7,500.00, on the condition that the auction-purchaser viz. Mr. Ahmad Khan son of Hamayun is ready to produce a Bank Draft in respect of the proposed amount and Bank Guarantee for the remaining amount within one month from the date of issue of these orders."
12. From the portion of the order, dated 12-6-1974 reproduced above and addressed to the Deputy Commissioner, Jhang, it cannot be pleaded by respondent No,1 Deputy Commissioner, Jhang that the Board of Revenue did not consider the status of the petitioner as auction-purchaser. I cannot help but observing that when the matters are pending in this Court the functionaries dealing with the written statements/reports do not apply their mind resulting in an unnecessary litigation and public waste of time for which the officials owe their explanation and can also be held for damages. If the Deputy Commissioner to whom the case was remanded on 9-10-1979 by the Additional Commissioner, had decided this case in view of the orders of the Board of Revenue referred to above the litigation would have come to an end long ago not only in 1979 but in 1974 when the Board of Revenue had passed the order but it is not understandable why this was not done.
Not only this the petitioner filed W.P. No, 290 of 1977 which was disposed of by this Court on 14-10- 1979 with direction that the Deputy Commissioner/Collector shall decide the case without inordinate delay. This Court was referring to the order dated 9-10-1979 of the Additional Deputy Commissioner in pursuance of which the case was remanded to the Deputy Commissioner, Jhang but in spite of this direction the Deputy Commissioner, Jhang slept over the matter and till now has not decided the case. In view of the aforementioned resume of fads it is not permissible to argue that the matter is pending with the Deputy Commissionei or with the learned District Judge and therefore, the petitioner is not entitled to relief claimed for.The matter has already been concluded by order, dated 12-6-1974 of the Board of Revenue treating the petitioner as auction-purchaser and the entire amount of auction of the disputed property has been deposited. As to the claim of Mst.
Karim. Bibi a compromise has already been entered and decree passed thereupon and a sum of Rs,9,00,000 was deposited and withdrawn by the legal heirs of Mst. Karim Bibi. Therefore, there is no dispute pending between the petitioner and heirs of Mst. Karim Bibi as to who is the auction- purchaser. In view of this the pendency of the proceedings before the Deputy Commissioner or before the learned District Judge regarding the disputed Property is of no avail to the D.C./Collector, Jhang and the final order in this case deciding the rights of the petitioner is the order dated 12-6-1974 of the Member, Board of Revenue.
In view of above the writ petition is accepted and respondent No,3 Collector/Deputy Commissioner, Jhang is refrained from cancelling or resuming the disputed property from the name of the petitioner. It is further directed that respondent No,3 shall execute a deed of conveyance of the disputed land in favour of the petitioner within a month. The respondents to pay costs of the petition to the petitioner.