' The facts leading to this petition under section 115, C.P.C. By the Province of the Punjab are as follows:
2. The defendant, Eida (he has died; he was not made a party in the appeal before the District Court; he has not been made a party to this revision petition) was allotted land in Chak No 114/S.B., Tehsil and District Sargodha under the Ejected Tenants Scheme. Later, it was found that that land was situated within the prohibited zone and the allotment was cancelled. Eida applied for the allotment of alternate land and he was allotted the land in suit which measures 71 Kanals 5 Marlas and is situate in Chak No,13/S.B., Tehsil Bhalwal, District Sargodha; it is part of Square No,37. Eida was granted proprietary rights in this land and a deed conveying it to him was duly executed in his favour on 18-11-1976. On the same day, Eida sold the land in suit to the plaintiff, Muhammad Akram, for Rs,1,20,000.
3. One Muhammad lnayat complained to the Member, Board of Revenue that the land in suit was situate within the prohibited zone and that Eida had obtained its allotment by fraud and misrepresentation in collusion with the revenue staff. Thereupon, the learned Member, Board of Revenue proceeded under section 30, subsection (2) of the Colonization of Government Lands Act, 1912 and held that the entire land of village Lulliani "form part of Town Committee". The disputed land was within the prohibited zone from the outer limits of the Town Committee and thus the allotment of the land was obtained by Eida by misrepresentation of facts in connivance with the revenue field staff'. He, therefore, revoked the conveyance deed "executed and registered on 18-11- 1976" and ordered that "the mutation on the basis of this conveyance deed if any sanctioned afterwards for the sale of the land be cancelled". As the plaintiff, Muhammad Akram had stepped into the shoes of Eida, the Member, Board of Revenue directed that he be allotted alternate land "outside the prohibited zone and thereafter the possession of this land be resumed from him" leaving it to the plaintiff, Muhammad Akram, to "search out any available State land outside the prohibited zone".
3-A. The plaintiff brought this suit for a declaration that the order of the Board of Revenue dated 6- 3-1984 was illegal and without jurisdiction. The suit was contested. It was decreed by the judgment of the learned Civil Judge, Sargodha, dated 28-11-1989 and the petitioner's appeal was dismissed by a judgment of the learned Additional District Judge, Sargodha, dated 4-12-1990. In decreeing the suit, the learned Courts below held, and here I quote from the judgment of the learned Additional District Judge, that "the impugned order was only passed under the impression that the suit property falls within the prohibitory zone of Town Committee Lulliani". The learned Courts below referred to the evidence of Busharat Ali Patwari (P.W.1) and held that the land in suit did not fall within the prohibitory zone.
4. The land in suit was allotted to Eida on 10-9-1976 under the Ejected Tenants Scheme. It is common ground between the parties that its proprietary rights were granted to Eida by a conveyance deed dated 18-11-1976. On behalf of the petitioner, a copy of a memorandum dated 12-12-1972 (Exh.D.2) issued by the Government of the Punjab (Colonies Department), Lahore, was placed on the record. That memorandum said that "a considerable area in and outside the limits of Municipal Committee/Cantonment Boards/Town Committees has been excluded from the purview of these schemes and such areas are treated as prohibited zones"; that the limits of those prohibited zones varied from scheme to scheme and that the Government had decided to fix uniform limits of the prohibited zones in such schemes. The memorandum went on to say that in case of Town Committees, prohibited zone was two miles.
5. In finding against the plaintiff, the learned Member, Board of Revenue observed in para.6 of his order dated 6-3-1984: "The Colony Clerk stated that as per verification of Secretary, Town Committee, Lulliani, the entire Agricultural land of the village was within the boundary of the Town Committee. He stated that thus the disputed land was within the prohibited zone. The Patwari stated that the disputed land was within the prohibited 2 miles from the outer limits of Lulliani estate."
' It is obvious that the question whether the land in suit was within or outside the prohibited zone, that is within or outside the two miles limits of the Town Committee, was a question of fact and the establishment of that fact depended upon physical verification. The learned Member, Board of Revenue was, however, content to rely upon the oral statement of the Colony Clerk that "as per verification of Secretary, Town Committee, Lahore the entire agricultural land of the village was within the boundary line of the Town Committee", and the oral statement of the Patwari that the land in suit was situate within two miles "from the outer limits of Lulliani estate". He himself held no inquiry into that question. Even if the Secretary, Town Committee, had carried out physical verification, there was no evidence that Eida or his transferee, Muhammad Akram, plaintiff, had been associated and had had an opportunity of hearing.
6. There is under section 30, subsection (2) of the Colonization of Government Lands Act, power in the Board of Revenue to "pass an order resuming the land in respect of which proprietary rights have been acquired" if the "Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever". As the power to resume land vests in the Board of Revenue, the inquiry resulting in the resumption order must be held by the Board of Revenue itself. Further the power to resume is subject to the necessary condition precedent that the tenancy rights had been acquired "by means of fraud or misrepresentation"; whether there was fraud or misrepresentation is, therefore, a jurisdictional fact and it is upon the establishment of that fact that the power of the Board of Revenue to resume the land depends. As has been seen, here, the Member, Board of Revenue held no inquiry; he was content to rely upon the oral statement of the Colony Clerk, whose statement was based upon an alleged verification by the Secretary, Town Committee, Lulliani. As regards the statement of the Patwari before the Board of Revenue, that was not relevant, fcr what he said was that "the disputed land was within 2 miles from the outer limits of Lulliani estate", for the question was whether the land in suit was within or without two miles of the limits of the Town Committee. It seems to me, therefore, that the learned Member, Board of Revenue was not even conscious that the function that he was performing was a function of a quasi-judicial nature.
7. On the material before the learned Member, Board of Revenue, it is difficult to say that it was reasonably possible for a finding to be recorded that the tenancy rights in respect of the land had been acquired by Eida by misrepresentation or fraud. There was no evidence of collusion between Eida and the revenue staff before him and the abovementioned facts were incapable of giving rise to the inference of fraud and misrepresentation. Thus the necessary substratum of fact was not laid. It must be held therefore that in resuming the land, the Member, Board of Revenue exceeded his powers under section 30, subsection (2) of the Colonization of Government Lands Act and that his order dated 6-3-1984 was ultra vires of that section.
8. Busharat Ali Patwari (P.W.1), who was called as the plaintiff's witness, had prepared two documents; they were Exh.P.1 and P.2. Exh.P.1 showed that the land in suit was situate at a distance of 6 miles two furlongs from the municipal limits and according to Exh.P.2, the distance of the land in suit from the municipal limits was 6 miles 2-1/2 furlongs. It appears that the Patwari had prepared these documents on the basis of actual measurements. There was no evidence in rebuttal. This shows that if there had been physical verification of the actual situation of the iand in suit by the Member, Board of Revenue he would not have reached the conclusion that he did.
Learned counsel for the petitioner referred to two cases Muhammad Shafi v. Member, Board of Revenue and others 1985 CLC 2991 and Muhammad Sharif v. Muhammad Sadiq and another 1985 CLC 1645. The first case was a case of cancellation of allotment. The second case was a case of resumption of land after proprietary rights had been granted but it was decided on its own facts.
Learned counsel for the petitioner argued further that the jurisdiction of the Civil Court was barred by section 36 of the Colonization of Government Lands Act. That section excludes the jurisdiction of Civil Courts in matters "of which the Collector is empowered by this Act to dispose" and forbids Civil Courts to "take cognizance of the manner in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act": It has been seen that in making the order dated 6-3-1984, the Member, Board of Revenue had exceeded his powers under section 30, subsection (2) of the Colonization of Government Lands Act and the order was, therefore, ultra vires. The bar contained in section 36 is therefore, not attracted.
9. For these reasons, the revision petition is dismissed but the parties are left to bear their own costs.