ORDERMIAN MUHAMMAD AKRAM, MEMBER.- Since in both the above mentioned revisions the impugned order is the same, main respondent also being the same and the facts of the case also being inter-linked therefore, these are being disposed of by this single order.
2. These two revisions are directed against the impugned order of the Additional Commissioner (Cons.) Sargodha Division, Sargodha dated 7.4.1991 whereby amendments in the Wandas of J>ost Muhammad respondent No. 4 and Khurshid Bibi, petitioner were made. Aggrieved by the said order, the petitioner has preferred this revision under Section 13 of the Consolidation of Holdings Ordinance, 1960, whereas the Provincial Government through Deputy Commissioner, Bhakkar has also preferred the other revision as the interests of the Provincial Government which existed in the form of a joint khata with Khurshid Bibi petitioner were also jeopardized by the impugned order.
3. Briefly, the Consolidation scheme of Bhakkar Nashaib, Tehsil and District Bhakkar, was confirmed under Section 10(3) of the said Ordinance by the Consolidation Officer on 31.1.1986. No appeal or revision was preferred against the petitioners. However the petitioners subsequently learnt that Dost Muhammad respondent No. 4 had filed an appeal in the Court of the Additional Commissioner(Consolidation) against Mst. Kaniz Mai etc. Which was decided by the impugned order. The said appeal was filed against an order of the Collector(Cons-) dated 5.5.1987 which had been preferred by one Muhammad Raza Khan against Mst. Jannat etc. During the pendency of the aforesaid appeal before the Additional Commissioner(Cons.), an application by Mst: Shamim Akhtar respondent No. 81 was moved on 3.3.1991 alleging that Dost Muhammad (petitioner in the appeal before the Additional Commissioner) had sold an area measuring 26k-4m in her favour vide mutation No. 760 sanctioned on 23.7.1990. It was further requested by her that she may be impleaded as a party to the proceedings. This application was accepted by the Additional Commissioner(Cons.). While passing his impugned order dated 7.4.1991 the learned Additional Commissioner(Oons.) while accepting the appeal of Dost Muhammad respondent No. 4 disturbed the wanda of the petitioner by excluding khasra Nos. 1804, 2425/1805, 1806, 1807, 1802/2 and instead allocated the above land to Mst. Shamim Akhtar respondent in lieu of her khasra Nos. 1488, 1512, 1552/1, 1640, 1652, 1656, 1791 & 1724 which all comprised GHAIR MUMKIN RASTAS and public path, which had been allegedly purchased by Mst. Shamim Akhtar vide mutation referred to above. As the order was passed at the back of the petitioners and they were condemned unheard, therefore the impugned order has been now assailed in the form of the present revision before this Court.
4. I have heard the counsel for the petitioners at length. Relevant record and connected documents produced by Munshi Abdur Rehman, Patwari(Consolidation) were also examined.5. For the proper appreciation of the facts of this case, it is relevant to examine the conduct of the respondents party in this revision. The present revision was instituted in this Court on 6.6.1991. As the respondent's party failed to enter its appearance through normal service of notices, therefore a proclamation in the newspaper was ordered against the rest of the respondents with the exception at respondent No. 81 Mst. Shamim Akhtar, who was represented by Malik Abdul Sattar Chughtai, Advocate. As a status quo had been issued in this case, therefore, the case was adjourned on 28.10.1992 at the request of aforesaid counsel for respondent No. 81 to 11.11.1992. On this date, the Patwari was directed to appear with the relevant record. As the Patwari failed to appear, therefore, the Patwari was directed to be summoned for 13.4.1993. Although the Patwari was also present, with record and the counsel for the petitioners was also present however, the case was adjourned to 14.4.1993 at the request of the counsel for the respondent No. 81. On 14.4.1993, the counsel for the petitioner was heard and the Revenue Record produced by the Patwari was also examined, but the counsel for respondent No.,81 took another adjournment for 22.4.1993 for putting up his arguments.
On this date the case for arguments of the counsel for the respondent was again adjourned at his request to 11.5.1993. On 11.5.1993 counsel for respondent No. 81 was stated to be away to Islamabad and therefore the case was adjourned to 29.5.1993. On 29.5.1993 a request was made by the counsel for the respondents 'party that a Writ Petition No. 9049/90 on the same matter is pending before the Honourable High Court, Lahore and therefore the present revision should be pended till the decision in the aforesaid Writ Petition. This plea was refuted and controverted by the counsel for the petitioner and it was pointed out at length thai the said Writ Petition had absolutely no bearing on the present revision and the said application was nothing but a device for delaying a decision in this case. After hearing both the counsels this application was turned down and final opportunity wa given to the counsel for the respondents' party to put up his arguments on 31.5.1993.
On this date the view point of the counsel for the respondent was heard and it was contended by him that decision in this case be pended till the decision in the other ROR No. 1367/1991 titled 'Government of the Punjab v.v, Shamim Akhtar, respondent No. 81 in which the same order of the learned Additional CommissionerfCons.) had been challenged. The case was then adjourned for 19.6.1993. On this date a formal application was submitted by the counsel for respondents' party to consolidate these two revisions, which was accepted and a formal order to this effect was passed and the case was adjourned to 8.7.1993 for arguments. As no proceedings could be taken on this date on account of the absence of the Presiding Officer, therefore, the case was adjourned to 13.7.1993. On 13.7.1993 the counsel for the respondents' party reiterated his earlier view point in ROR No. 1059/1991 and the case was fixed for orders on 7.9.1993. However, no arguments were submitted by the counsel for the respondents in other revision ROR No. 1367/19*11 which also came up for bearing on this date. Adjournment at his request was allowed for 8.9.1993. On this date, an application was moved by him about his inability to appear on account of illness. However it was made clear to the Clerk of the said counsel, that on the next date the view-point of l. e respondents' party must be submitted. The case was then adjourned for 16.9.1993. On 16.9.1993 the counsel for the respondents' party submitted an application through his Clerk that an agreement has taken place between the parlies and both the cases may be adjourned for a short date. This fact was refuted vehementefy by counsel for the petitioners and it was pointed out that in the circumstances of this case the possibility of a compromise was simply out of question. Moreover, no such intimation had been received by him from the petitioners party with whom he was on telephonic contact just two days back. It was also pointed out that compromise in R.O.R. No. 1367/91 was out of question in which Punjab Government was the petitioner. However, the case was adjourned in view of the above request to 14.10.1993 and it was clarified that no further opportunity would be given after 14.10.1993. On 14.10.1993 petitioners' party as usual was present but none.
Appeared on behalf of the respondent's party. By way of added precaution, a notice was ordered to be issued to the counsel for the respondents party for 28.10.1993 giving him yet another opportunity. On 28.10.1993 counsel for the petitioners party was present as usual, but the Clerk of the counsel for the respondents' party reported that the counsel had not so far reported in his Chamber. He was informed to ensure his presence on 6.11.1993 at all costs failing which no further opportunity would be given. On 6.11.1993 petitioners' counsel was present as usual and the Clerk of the counsel for the respondents' party was present and failed to offer any explanation as to the absence of the counsel for the respondents' party. Eventually both these revisions are being disposed of by this single order.
5. Needless to remark that in this particular case the respondents' party has intentionally and deliberately attempted to use of all possible and conceivable means to forestall any decision.
Although on 31.5.1993 a brief view-point of the counsel for the respondent party was heard, in ROR No. 1059/1991 but it is evident that he intentionally and deliberately avoided to wind up his arguments and avoided to submit his arguments on the other case ROR No. 1367/1991 titled 'Government of the Punjab through Deputy Commissioner, Bhakkar v. Shamim Akhtar etc.
6. The privilege of opportunity of hearing even by its most liberal interpretation cannot be deemed to provide a free licence to a party to forestall or impede further proceedings in a judicial case. At the most, the duty of Court is to provide such an opportunity once, and more than once if justified on valid grounds. But where a party even after having been provided nearly a dozen of such opportunities has intentionally abstained from avail of this opportunity, it has by its conduct established beyond any doubt that it has not only abused this privilege, but has tried to furstrate any further progress in the finalization of judicial proceeding. Such a course of action is not only reprehensible but it is the sacred duty of the Court to curb it. In such a case the concerned party has to be deemed to have ceded its right to avail of the opportunity of hearing. It is then the duty of the Court doubly to scrutinize and critically examine all facts and evidence on the file before giving its final verdict.
7. As regards the factual and legal position of the case, it was contended by the counsel for the petitioner that Rashid Akbar Khan, husband of Shamim Akhtar respondent No. 81 who was an MNA and Chairman of the District Council, Bhakkar fraudulently got mutated an area of 45 kanals in the name of his domestic servant one Muhammad Raza Khan who was only an owner of 7k-7m of land which was purchased by him after the Consolidation. Even a major portion of this land had been gifted by Muhammad Raza Khan to his wife and he was just an owner of 10 marlas of land. After getting 45 kanals of land mutated in his name, aforesaid Rashid Akbar Khan obtained an agreement to sell a major portion of this land from Mr. Muhammad Raza Khan in favour of his minor daughter namely Samcra Rashid. This fraud was discovered by the local administration and as a result of review, this fake mutation was cancelled on 29.12.1990. Further, proceedings in this fraud were also started by the local authorities against Rashid Akbar Khan and with a view to frustries these proceedings a Writ Petition No. 9049/1990 was filed by Rashid Akhtar Khan titled 'Miss Samera Rashid v. Deputy Commissioner. Bhakkar. A status quo was also obtained from the Honourable High Court. It was further pointed out by the learned counsel for the petitioners that in order to grab this land, Rashid Akbar Khan managed another transaction of the same land in the name of his wife Mst. Shamim Akhtar respondent and it was shown that Dost Muhammad respondent had sold an area of 26K-4m vide mutation No. 760, dated 23.7.1990. As the aforesaid Muhammad Raza Khan was made a big landowner by a bogus and fake appeal titled Muhammad Raza Khan vs. Mst. Janat Bibi, allegedly decided by the Collector (Cons.) on 5.5.1987 which had caused substantial loss and deficiency to Dost Muhammad respondent No. 4, therefore, he challenged the said bogus order in appeal before the Additional Commissioner (Cons.). At this stage Shamim Akhtar respondent No. 81 through an application alleging that she had purchased some area all comprising GHAIR MUMKIN RASTAS and public paths for Rs. 26.000/- from Dost Muhammad respondent was allowed to be impleaded as a party in the said appeal by the Additional Commissioner(Cons-). My attention was also drawn to the fact that this transaction or any sale was vehementally denied and refuted by Dost Muhammad respondent. Ignoring all this, the learned Additional Commissioner by the impugned order made amendment in the scheme of the petitioners by allocating their extremely fertile and valuable land in khasra Nos. 1804, 2425/1805, 1806, 1807 & 1802/2 in lieu of Ghair Mumkin Rastas and public paths comprising khasra Nos.
1488,1512,1552/1,1640,1652, 1656,1791 & 1724 which had been allegedly purchased by Shamim Akhtar, to the wanda of the respondent No. 81.
8. It was also pointed out that the petitioners were neither a party before the Collector (Cons.) nor were ever impleaded at any stage before the Additional Commissioner (Con). They were condemned unheard and as such the impugned order was legally not sustainable. Moreover, the said order of the Collector (Cons.), dated 5.5.1987 was stated to the out right fictitious and bogus document because no trace of any such file was available anywhere in the office of the Collector (Cons.), Sargodha. The permission granted by the Additional Commissioner (Cons.) to Mst.
Shamim Akhtar to be impleaded as a party was stated to be an illegality of serious nature. She was not at all a sachem-holder in the village and moreover the very mutation No. 760 by which she was stated to have purchased, some area was challenged as bogus and fraudulent. It was pointed out that the learned Additional Commissioner (Cons.) had acted beyond his jurisdiction especially when Dost Muhammad had dearly termed this mutation as fraudulent and had denied any transaction of sale in her favour. Even if the said mutation is presumed as genuine and based on true facts, even then she was entitled, to retain only that area which she had purchased through this mutation and was not at all entitled to the allocation of any other land in lieu of the same after Consolidation proceedings. It was obligatory for the Additional Commissioner to refer the parties to the Civil Court for obtaining a finding as to the validity of the said mutation instead of determining the same issue at his own level. In this connection it was pointed out that eventually this mutation was challenged in the Civil Court and vide order dated 29.2.1992 the Civil Court had held this mutation to be bogus and fraudulent. By the impugned order the valuable rights of the Provincial Government were also stated to have been seriously jeoparidzed. Provincial Government and the petitioners were co-sharers in the joint khata. While reviewing this fraudulent and bogus mutation sanctioned in favour of Muhammad Raza Khan, the land involved was also transferred back in favour of the Provincial Government and the petitioners party. In view of the above facts it was urged that the impugned order being ab initio null and void should be set aside.
9. Counsels for the respondents' party while submitting his brief viewpoint on 31.5.1993 refuted these contentions but referred to nothing of substantial nature except that both the revisions should be decided simultaneously.
10. I have given careful consideration to the contentions raised by the counsels of the respective parties and the facts of the case. The record of the case bears a loud testimony to the fact that the petitioners were condemned unheard. They were neither a party before the Collector (Cons.), nor they were impleaded at any stage before the Additional Commissioner (Consolidation). The impugned order was passed at their back and they were condemned unheard. The petitioners have been unnecessarily subjected to substantial loss and hardship as they have been deprived of their extremely valuable and fertile land and in lieu thereof the area of public paths and GHAIR MUMKIN RASTAS allegedly purchased by Mst. Shamim Akhtar from Dost Muhammad had been included in their wanda. Such an order is simply unsustainable,
11. The logic and the reason of allowing Mst. Shamim Akhtar respondent to be impleaded as a party in the appeal filed by Dost Muhammad before the Additional Commissioner(Cons.) are incomprehensible to this Court. She was not at all a scheme holder in this village. The alleged sale transaction was vehemntally denied by Dost Muhammad. Even if the said sale transaction which was later on held by the Civil Court to be bogus and fake is presumed as genine, even then she 'ould not claim the allocation of fertile land of any other parly except the one ch has been allegedly purchased by her from Dost Muhammad respondent.
12. The strategy adopted by Rashid Akbar Khan though devious is crude one. It is more than obvious that domestic servant Muhammad Raza Khan, an Qwner of 10 marlas of land only, by a fake mutation was made the owner of 45 kanals of land which was further made subject to an agreement of sale by him in favour of minor daughter of Rashid Akbar Khan namely Samera Rashid. As this mutation was reviewed by local District authorities on 29.12.1990, but further legal action by the local administration against him was frustrated through a Writ Petition No. 9049/1990 filed by him in the Honourable High Court. A second attempt to grab the same land in the name of his^wife by a fake mutation from the holdings of Dost Muhammad respondent clearly speak volumes about his greed. It has been sufficiently shown by evidence on the file that Dost Muhammad respondent was not only an illiterate person, but almost a half-wit. He became an easy target. It is clear that the respondents' party not only managed the impalement of Shamim Akhtar as a party in the appeal of Dost Muhammad before the Additional Commissioner, but also succeeded in getting the contention of Dost Muhammad of not having made any transaction with Shamim Akhtar respondent totally ignored by the Court. As contended by the learned counsel for the petitioner, it was patently clear that Shamim-Akhtar respondent was not legally entitled to be impleaded as a party and secondly it was not only expedient but necessary for the Additional Commissioner(Cons.) to refer the parties to the Civil Court fqr a clear-cut finding on the validity of controvertial mutation No. 760. It is not understood as to why l|iis serious illegality was committed by him.
13. In view ol thc for Of the case and its legal position as discussed above, 1 am led the impugned order being irregular and illegal is not sustainable. The j^^^^^Brefore, set aside with the result that the original Consolidation scheme as Bned on 31.3.1986 shall remain in-tact.