' This judgment shall dispose of Writ Petition No,8413 of 1990 and Writ Petition No,6394 of 1990, which are directed against the same order/memorandum of the Board of Revenue dated 29-8-1990.
2. The dispute in these two petitions relates to land measuring 102 Kanals 4 Marlas, comprised in Khasra No,88, situated in Chak Kauriana Shumali, Tehsil and District Jhang. Fazal Dad petitioner in Writ Petition No,6394 of 1990 was an Islamabad oustee and was allotted this land vide order of the Collector, Jhang dated 20-3-1982. It appears that the land was in possession of Ghulam Farid, respondent No,4, in the above petition, who is also petitioner in Writ Petition No,8413 of 1990. He challenged the order of allotment in favour of Fazal Dad by filing an appeal which was dismissed by the Additional Commissioner (Revenue) on 29-3-1983. The Board of Revenue declined to interfere in revision and affirmed the order of the Additional Commissioner (Revenue) on 15-5-1983.
3. Thereafter a suit was instituted by Ghulam Farid respondent in the Civil Court in which temporary injunction was issued but the same was vacated on an appeal filed by the petitioner by the Additional District Judge on 15-3-1990. Earlier on 5-11-1989, a miscellaneous application was filed by Ghulam Farid before the Member (Colonies), Board of Revenue, who after obtaining report from the Deputy Commissioner, Jhang passed the following order on 29-8-1990: "The report received with your memorandum under reference has been considered and it has been observed that Ghulam Farid has no case under law. However, taking a lenient view it has been decided that the petitioner may be given some available State land on lease if he is otherwise eligible after the ban is lifted. In the meantime, he should pay "Tawan" equivalent to market rent for the land in his illegal possession. In the meantime, the alternate land for temporary cultivation to be offered to him may be identified. As regards the allottee under Islamabad Oustees Scheme, he may have the choice of either waiting for the vacation of the impugned lot or choosing another lot from those available in the Schedule."
4. Mr. Muhammad Hussain Naqshbandi, learned counsel for Fazal Dad, petitioner has contended that according to the impugned order, itself, Ghulam Farid, respondent had no title or claim to the land in question and as such the Member, Board of Revenue could not have allowed him to retain the same.
5. Mr. Abdul Sattar Najam, learned Advocate-General Punjab has pointed out that having lost on judicial side up to the Board of Revenue, respondent No,4 could not have filed a miscellaneous application nor could the Board of Revenue had passed any order nullifying the effect of the provisional order dated 15-5-1983. It is also pointed out by the learned Advocate-General that as Fazal Dad was an Islamabad ousted and had been allotted the land in question, he was entitled to obtain its possession and the Member, Board of Revenue could not have allowed respondent No,4 to retain the same.
6. Ch. Khurshid Ahmad, learned counsel for respondent No,4, has, however, contended that according to the memorandum dated 10th November, 1980 addressed by the Board of Revenue, Punjab to the Deputy Commissioner, Jhang all lands which already stood allotted or utilized under a permanent Scheme for grant of proprietary rights in terms of notification dated 3-9-1979 stood excluded from the purview of the land reserved for Islamabad oustees and, therefore, the land in question could not have been included in the Schedule nor allotted to Fazal Dad, petitioner. In this respect, the learned counsel has elaborated that respondent No,4 was entitled to grant of proprietary rights under the Colombo Plan Scheme which stands on the same footing as the Grow More Food Scheme. The learned counsel has relied upon certain reports (Annexures `J', `K' and V) in support of this argument.
7. The contention raised by the learned counsel for respondent No,4 has no force. As has been pointed out by the learned Advocate-General, the allotment made in favour of Fazal Dad as Islamabad oustee was challenged by respondent No,4 in appeal before the Additional Commissioner and then in revision before the Board of Revenue which were dismissed on 29-3- 1983 and A 15-5-1983 respectively. Those orders attained finality and are conclusive of the controversy regarding entitlement of the petitioner to the land in dispute. The Board of Revenue could not, therefore, on a miscellaneous application filed by respondent No,4 interfere in the matter by passing an order on administrative side.
8. Be that as it may, even in the impugned memorandum, respondent No,4 has been held to have no case whatsoever under the law but it appears that he was allowed to retain the land in his illegal occupation. Under no law can an illegal occupant be allowed to remain in possession of the land to which he has no entitlement. It is also to be seen that respondent No,4 had himself taken the matter to the Civil Court where he failed to obtain temporary injunction. Furthermore, earlier also, a miscellaneous application filed by respondent No,4 which was dismissed by the Member (Colonies) on 7-3-1990 (Annex. 'G') on the ground that as his claim stood rejected by the judicial order of the Member (Colonies), Board of Revenue, Punjab, on 15-5-1983, the Board of Revenue cannot consider the matter any further and the matter may please be considered as closed. It is surprising that the Board of Revenue at a subsequent stage took a somersault and issued the questioned memorandum. It appears that it was the Minister (Colonies), Government of Punjab, who was responsible for the issuance of that memorandum as is obvious from the fact that it has been stated therein that the same has been issued with the approval of the Minister. It has been time and again held by the superior Courts of the country that the Minister has no jurisdiction to interfere in such matters. See Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others (PLD 1990 SC 1070).
' In this view of the matter, W.P. No,8413/90 fails and is dismissed while W.P. No,6394 of 1990 is accepted with no order as to costs.