' This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was instituted by the petitioner against the respondents with the prayer that the order dated 17-2- 1993 passed by respondent No,2 in an appeal and the order dated 7-11-1994 passed by respondent No,3 in a revision petition may be declared illegal, void and ultra wires and the order dated 22-8- 1984 passed by E.A.C.0./Collector, Layyah may be restored.
2. The brief facts leading to this petition are that the land measuring 92 Kanals situated in Khasra No,79 (48 Kanals) and Khasra No,87 (44 Kanals) within the area of Chak No,249/TDA was adjusted in favour of Mst. Abida Begum i,e, respondent No,4 in lieu of her 'right of return' in respect of land owned by her in village Pattal Munda, Tehsil Kot Adu, District Muzaffargrah vide order dated 22-8- 1984 passed by E.A.C.0./Collector, Layyah. The aforesaid land was purchased by the petitioner through registered sale-deed dated 2-6-1984. The photo copy of the sale-deed was brought on record as Annexure A'. On the basis of the aforesaid transaction, the property in question adjusted in favour of Abida Begum (respondent No,4) was transferred to the petitioner vide order dated 22- 8-1984 passed by E.A.C.0./Collector, Layyah (Annexure B"). It was clearly stated in the aforesaid order on the basis of the reports of the revenue officials that the land in question was transferred to Mst. Abida Begum who had sold the same to the petitioner and as such being her successor-in interest, the same was given to him as it was undisputed area and exclusively owned by T. DA.
3. The Divisional Forest Officer, Layyah, feeling aggrieved of the order of adjustment challenged the same in an appeal before the Commissioner, Dera Ghazi Khan. The grounds of appeal were brought on record as Annexure C'. It was alleged in the memo. Of appeal that the property in question did not belong to T.D.A. As the same was purchased by the Forest Department on payment of heavy amount and constituted shelter belt along with the M.M. Road. It was further alleged that the transfer of land by E.A.C.0./Collector, Layyah in favour of Abida Begum or its further transfer in favour of the petitioner was illegal. Lastly, it was contended that the D.F.O. Came to know about the order of adjustment on 8-3-1986 and applied for copy of the same on 2-4-1986. The copy was delivered on the same day but thereafter, he allegedly moved the E.A.C.O./Collector, Layyah for the review of the order in question, but he was directed to file an appeal, whereupon, the same was instituted with the delay of two years of the passing of the impugned order. The application for condonation of delay was filed along with the memo. Of appeal with the prayer that since the order in question did not come to the notice of the Forest Department i,e, D.F.O., therefore, the appeal could not be filed in time and that the delay may be condoned in view of the circumstances set out above.
4. The appeal was opposed by the petitioner but the same was allowed and the order of E.A.C.O./Collector, Layyah, dated 22-8-1984 was set aside on the ground that the land in question was within the executive control of the aforesaid department and as such was not liable to be transferred being used as shelter belt to protect M.M. Road from sand etc.
5. The petitioner, feeling aggrieved of the dismissal of his appeal, filed a revision petition before the Member, Board of Revenue i,e, respondent No,3 but the same was also dismissed on the similar grounds. In the background of the aforesaid history of the case, the petitioner filed this writ petition inter alia alleging that the order in appeal and also the order in revision aforementioned were bad in the eye of law and the order dated 22-8-1984 passed by the E.A.C.O./Collector, Layyah was perfectly legal and without any flaw. In this regard, it was alleged that the Secretary, Forest Department or the Divisional Forest Officer was not competent to file appeal before the Commissioner as it infringed the provisions contained in section 79 and that of Order XXVII, Rules 1, 2 and 3 of the Code of the Civil Procedure read with Article 174 of the Constitution of Islamic Republic of Pakistan, 1973. The provisions abovementioned required that in a suit by or against the Government and authority to be named as plaintiff or defendant, as the case may be, shall be---
(a) in the case of a suit by or against the Federal Government, "Pakistan";
(b) in the case of a suit by or against a Provincial Government, the Province. Likewise the plaint or written statement shall be signed by such person as Government may, by general or special order, appoint in this behalf, and shall be verified by any person the Government may so appoint who is acquainted with the facts of the case. Needless to say that those provisions will be applied mutatis mutandis to other judicial proceedings such as appeals etc. However, in the case in hand no such procedure was followed, and as such appeal was liable to be dismissed on that ground. In addition to that the appeal was badly time-barred as the impugned order was passed on 22-8-1984, whereas the appeal was filed on 6-5-1986 with the delay of almost two years. It was admitted by the D.F.O. That it had come to his knowledge on 6-3-1986 and that he had obtained the copy on 2- 4-1986 but he did not file the appeal immediately after getting the copy because he had instituted a review petition before the E.A.C.0./Collector, Layyah and after it was directed that an appeal should be filed, he immediately instituted the appeal. According to the learned counsel for the petitioner, this was not a sufficient ground to take away the precious right of the petitioner which he had evacquired in the disputed property after the expiry of limitation period. As such the inordinate delay in filing the appeal was not liable to be condoned because the same had become hopelessly time-barred due to the sheer negligence of Department. It was further alleged that the aforesaid department had relied upon the Notification No, S.O.A.(IX)-22.(97)-58, dated 1-4-1958 to show that the department was in possession of the land as its owner. However, it was alleged that the aforesaid notification only related to the transfer of executive charge from T.D.A. To the Provincial Government regarding the areas notified therein. But that notification did not speak that the ownership was also transferred either to the Government or to Forest Department. The relevant notification was placed on record as Annexure 'J'. It was contended that the notification under reference did not show that the Forest Department had paid any amount to T.D.A. To acquire proprietary rights in the disputed land. On the contrary, 'Misal-eHaqiat' for the year 1979-80 and 'Register Haqdaran Zameen' for the year 1985-86 showed that the land in question was owned by T.D.A. And not by the Forest Department for which Annexures 'K' and 'L' were relied upon being the copies of the aforesaid documents. Another letter was relied upon by the Forest Department addressed by E.A.C.O./Collector, Layyah to the D.F.O., Layyah on 26-10-1961 whereby, area shown at Serial No,24 of the first column measuring 76 Acres, 2 Kanals and 10 Marlas in Chak No,249/TDA was given in control of Provincial Forest Department from the control of Thal Development Authority with effect from 1-4-1958 in view of amendment of the former Punjab Notification No, ISH.D(F) dated 1-6-1951 followed by subsequent amendments hereto mentioned as:---
(1) No,2051 D(F), dated 22nd June, 1951.
(2) No,2028.D(F), dated the 5th August, 1953.
' The Governor of Punjab had thereby directed that with effect from 1-1-1959, the 'executive charge' of the Thal Forest Circle shall be with the Forest Department which included the Layyah Forest Division. Learned counsel for the petitioner, however, stated that this letter had no sanctity in the eye of law because it was an administrative arrangement for the management of land but no notification was ever issued whereby the ownership of the aforesaid land was ever transferred to Forest Department through any instrument or legal notification. Even otherwise, it did not show that the Khasras of the land in dispute were included in the area shown therein. No detailed notification or document was produced to make it clear even until now. It was, therefore, alleged that mere transfer of Executive charge' of the Forest Division would in no way affect the right of the petitioner because he was given land from the Khasra numbers which were found to be clear of any dispute and were in the undoubted ownership of the T.D.A. As per Revenue Record. As such, it could not be said that the land in question was included in the aforesaid notification. Lastly, the learned counsel for the petitioner submitted that both the orders challenged in this petition were not only illegal and without jurisdiction but also against the facts found on record.
6. The writ petition is resisted on the ground that the land in question was not liable to be transferred because its 'executive charge' stood transferred to the Thal Forest Circle vide letter referred to above i,e, dated 28-10-1961, It was, therefore, urged that the E.A.C.O./Collector, Layyah had illegally transferred the land in question, which actually was in the charge of Forest Department.
7. About limitation, it was contended that though the order was made on 22-8-1984 by the E.A.C.0./Collector, Layyah but it came to his knowledge on 6-3-1986 and the appeal was filed on 6- 5-1986 after the lapse of about two months because the review petition was filed before the E.A.C.0./Collector, Layyah who had directed that an appeal be preferred. It was, therefore, contended that there was no intentional default on the part of the aforesaid department which instituted the appeal and the delay caused therein was rightly condoned. Lastly, it was contended that since the entries in the Revenue Record were got entered collusively by the petitioner or his predecessor-in-interest i,e, Mst. Abida Begum, therefore, those were not binding and were rightly set aside. Thereafter, the entries were made in the Revenue Record showing that the Forest Department was in possession, whereas, the Provincial Government was the owner of the land in question.
8. I have considered the foregoing submissions. It is to be seen whether the land in question was rightly transferred to the petitioner from Mst. Abida Begum to whom it was given as an owner in 'right of return' for her other lanu. The perusal of the order dated 22-8-1984 passed by the E.A.C,O./Collector, Layyah clearly indicates that the petitioner had purchased the land in question comprising Khasra numbers aforementioned vide registered sale-deed No,1119 dated 2-6-1984 which was got registered before the Sub-Registrar, Kot Adu by Mst. Abida Begum, vendor. The order Annexure B' is, therefore, clear enough to show from the revenue reports recorded therein by Patwari and Halqa Girdawar that it was available for transfer to Mst. Abida Begum as 'right of return' in lieu of her land situated in village Pattal Munda, Tehsil Kot Adu. The order passed by the E.A.C.0./Collector also shows that the land in question exclusively belonged to Thal Development Authority and was available for transfer to Mst. Abida Begum as there was no dispute about this area. It was accordingly transferred to her. This order was passed on 22-8-1984 and is supported by the Revenue Record existing at that time, and which has now been brought on record of this petition. The copy of 'Register Haqdaran Zarneen Misal Mayadi' for the year 1979-80 shows that Khasra Nos.79 and 87 were shown as 'Ghair Mumkin Zakheera' which was in the possession of Thal Development Authority which was shown to be its owner in column No,3. As such, it is clear that by then, there was no entry about the ownership or possession of the Forest Department. Had the Forest Department purchased the land in question, they should have been in possession of the conveyance deed or at least, a notification showing that they had purchased it for consideration from T.D.A. And should have placed it on record. However, no such transaction is brought on record till todate although several opportunities were given to the Forest Department. The learned A.A.-G.
Also impressed upon the department to produce any document showing such transaction of sale but it wasnot possible for the department to bring on record anything showing that the land in question was a subject-matter of any such transaction. The learned A.A.G., therefore, rightly contended before this Court that there was no document or conveyance showing that the land was actually sold by the T.D.A. To the Forest Department against the alleged amount of money. On the contrary, it appears that the land in question belonged to T.D.A. Which was also in its possession according to the Revenue Record. The extract produced by the D.F.O. Regarding the 'Register Haqdaran Zameen', 1979-80 also shows that the disputed Khasra i,e, Khasra. Nos.79 and 87 were in possession and ownership of the Thal Development Authority though entry in column No,2 showed that it was 'Ghair Mumkin Zakheera Darakhtan'. However, it does not mention that the Forest Department has its ownership as is mentioned against the entry immediately above the entry under discussion. That entry relates to Khasra No,51, Khatoni No,81 and it clearly shows that it was in the possession of Forest Department. Had Khasra Nos.79 and 87 been in the actual possession of the Forest Department then that should have been recorded in column No,4 instead of Thal Development Authority which is shown to be in its possession and also its owner unlike the above entry. Even in the 'Register Haqdaran Zameen', relating to year 1985-86 produced by the Forest Department, it is shown that Thal Development Authority is the owner of Khasras in dispute though it is ' Zakheera Darakhtan'. The copy of Khasra Girdawari for Khareef 1984 relating to Chak No,249/T.D.A. Placed on record by the petitioner, shows that Khasra Nos.79 and 87 has fallen in 'Wanda' No,56 confirmed in favour of Mst. Abida Begum allottee, who had sold it in favour of Ghulam Nabi son of Allah Wassaya i,e, the petitioner who was in its self-possession. Although it was recorded as Zakheera Darakhtan' yet it does not indicate that the trees were planted by the Forest Department. This also shows that the petitioner was in possession of the property in question after he had purchased the same from its original owner Mst. Abida Begum. The copy of Khasra Girdawar for the years 1984 to 1986 further shows that initially the ownership and possession vested with Thal Development Authority, but was transferred to Mst. Abida Begum and then to Ghulam Nabi, who was shown to be in its possession as vendee. It is, thus, clear that according to both the Khasra Girdawaries referred to above, the land was owned and possessed by T.D.A. And was available for allotment on the basis of 'right of return' to Mst. Abida Begum who had then sold it to Ghulam Nabi petitioner. The impugned order passed by the E.A.C.O./Collector, Layyah on 22-8-1984 was acted upon by Mst. Abida Begum and her successor i,e, Ghulam Nabi/petitioner and as such he was in rightful possession of the aforesaid land as per Khasra Girdawaries. However, change started in Khasra Girdawaries after 1987 when in Khasra No,79 though the ownership was shown to be of the T.D.A., but the Forest Department was shown in its possession. Even then, regarding Khasra No,87, Ghulam Nabi was shown in possession as a purchaser of land from Ms. Abida Begum to whom, it was given as right of return. These documents sufficiently show that there was a solemn transaction between the petitioner and Mst. Abida Begum in respect of the land in dispute, of which the latter had acquired full proprietary rights to the exclusion of everyone. As such, the order dated 22-8-1984 passed by the E.A.C.0./Collector, Layyah was well-considered and true to the Revenue Record. The Forest Department has not even been able to produce any document or notification showing that this part of the land was ever purchased by them. Even the learned A.A.- G., as stated earlier, had conceded that there was no such record with the department so as to produce the same in this Court. It is, thus obvious that the petitioner had good case on merit to support the order dated 22-8-1984 passed by the E.A.C.O./Collector, Layyah which has been set aside in appeal and against which revision, filed by the petitioner had also failed.
9. Now, the question would arise whether or not justice has been done to the petitioner. It follows from above discussion that Forest Department has miserably failed to prove its ownership qua the land in question. It is disappointing to observe that the Forest Department unnecessarily entered into the protracted litigation with a citizen, who was a rightful owner of disputed land for a valuable consideration. The Forest Officials not only acted with lethargy but also added to misery of a rightful claimant, against whom they had no reliable evidence to rebut his ownership or at least to have their own entitlement.
10. It is clear from the record that the order conveying the land in question to the petitioner was passed by the E.A.C.O./Collector, Layyah on 22-8-1984 but the Forest Department remained indolent only to discover this fact per chance on 6-3-1986 i,e, after about one year and five months.
Had they been owner in possession, they would have come to know immediately if there was any change in possession or ownership. On the contrary it was urged that the transfer of ownership to the petitioner was the result of fraud and misrepresentation but no detail of fraud or misrepresentation was even given, or brought on record to show that the transfer of the land in favour of the petitioner was fishy or mala fide. It seems that the plea of fraudulent transaction was only invented to spoil the sanctity of the validly entered transaction between two sides. Likewise, point of limitation in this case cannot be ignored easily. The order of E.A.C.O./Collector, Layyah was passed on 22-8-1984 as stated earlier but it came to the knowledge of the D.F.O. On 6-3-1986 and he obtained the copy on 24-1986, but the appeal could not be filed before 6-5-1986. The law on this issue is very clear. It requires that the delay of each day beyond limitation period should be meticulously explained by showing good reasons that there was no fault on the part of the party, claiming condonation of delay. In the instant case, though a responsible officer like D.F.O. Had come to know about the disputed order on 6-3-1986 and had also obtained the copy on 2-4-1986 but again one month and four days were wasted in pursuing the Review Petition when there was a clear remedy to challenge such an order in appeal. The choosing of wrong forum does not create any concession so as to condone delay of one month and four days which appears to be patently willful and contumacious. As such, it was not a good case for condonation of delay particularly when the Government had so many functionaries to look after its interest. It is usually seen that the Government matters are taken casually and are quite often conducted at snail's pace by some of the departments. Due care and attention is not given even to important matters, which involve precious rights not only of the citizens but also of the Government. In the instant case, the functionaries did not act diligently to pursue the matter as would be clear from the fact that a delay of about two years had passed in-between the passing of order on 22-8-1984 and the filing of the appeal on 6-5-1986. The appeal was, therefore, hopelessly time-barred and finding to the contrary was not good in the eye of law. Likewise, the appeal was instituted in violation of section 79 read with Order XXVII, Rules, 1, 2 and 3, C.P.C. The procedure laid down for filing suits etc. By or against the Government and as detailed above was not followed. Likewise, the provisions of Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 were ignored by impleading Secretary Forest or the D.F.O. As the appellants instead of Province of Punjab etc. Though these are technical failings and one should not ordinary non-suit a party on such technical grounds, an opportunity should be provided to rectify such procedural defects, but in the instant case no attempt was ever made by the department to bring the pleadings in line with the law referred to above. As such, this type of failing would be considered as contumacious and willful defiance of law so as to attract the dismissal of such pleadings.
11. Now, I come to the revision petition, which was dismissed by the learned Member, Board of Revenue on 7-11-1994. The impugned order shows that instead of relying on the Revenue Record as it stood at the relevant time, strangely enough enquiries were made with the object of changing the record through the lower revenue officials by calling the desired reports to suit the Government.
This is unfortunate that instead of determining the right of a citizen on merit, an attempt was made to help a Government department in order to support its stand even against the Revenue Record maintained by the Revenue officials in the ordinary course of their official business. The entries in the 'Iamabandies' previous to the order dated 22-8-1994 clearly showed that T.D.A. Was the owner of the land in dispute, which was also in its possession. However, after this dispute had arisen, conscious or unconscious efforts were made to enter the name of Forest Department in the Revenue Record in one way or the other without any actual change at the spot. Such (sic) been made after the opening of dispute between the parties and during the pendency of matters before Revenue Courts, would not adversely effect the right of petitioner, which accrued to him before the start of controversy. Hence the order dated 17-12-1993 passed by the Commissioner, Dera Ghazi Khan and the order dated 7-11-1994 passed by the Member, Board of Revenue, Punjab were not sustainable in the eye of law being illegal, beyond jurisdiction and void. As such, both those orders are set aside and the order dated 22-8-1984 passed by the E.A.C.O./Collector, Layyah is restored being lawful and valid.
12. The writ petition is accordingly accepted. Cost to follow the event. C.M. No,2843/96: ' The learned counsel for the petitioner did not press this petition after the main petition was fixed for hearing. Hence it is dismissed as withdrawn.
' C.M. No,2280/96:
13. This C.M. Was moved by Muhammad Afzal, Muhammad Nazir Ahmad and Muhammad Akram through their special attorney Muhammad Asghar under Order I, rule 10, C.P.C. With the prayer that they may be impleaded as respondents in the writ petition on the ground that the applicants along with their brother Muhammad Iqbal, Mst. Umat-ul-Wahid, Mst. Umat-ul-Malik, Mst. Umat-ul- Ishaque and Mst. Sarwar Sultana daughters of Abdul Rehim, caste Arain had purchased 400 Kanals of land from the original owner Allah Bukhsh in equal shares and that the land claimed by the writ petitioners was possessed by the applicants and the ownership of the applicants Mst. Umat-ul- Malik and others co-vendees of the applicants from Mehar Allah Bakhsh is still to be adjusted and incorporated in the Revenue Record. As such, it was prayed that they may be impleaded as respondents so that they may watch their interest.
14. The petition was resisted by the writ petitioner on the ground that the applicants have nothing to do with the land in question as their alleged rights for adjustment are yet to be adjusted by the competent Authority. Besides that, it was contended that the order in favour of the writ petitions was passed on 22-8-1984 by the E.A.C.0./Collector, Layyah but the applicants did not take any action to show their interest in the proceedings. Likewise, they did not join the review petition moved by the D.F.O. To challenge the aforesaid order nor did they join the revision petition filed by the writ petitioner in the Board of Revenue. This writ petition was also allegedly pending since 1994 and today it was fixed for final hearing that this petition was moved with ulterior motive in order to delay the matter. It was further alleged that the documents attached with the petition in no way show that the applicants or their predecessor-in-interest had anything to do with the land in question. Their claim for 'right of return' is yet to be adjusted, apparently from the property different than the property in question. The decision in this writ petition is in no way likely to affect their rights.
15. In view of the above submissions made by the learned counsel for the writ petitioner, learned counsel for the applicants had no answer to explain as to why they remained quiet for so long time.
It was also apparent that the applicants or their predecessor-in-interest had nothing to do with the land in question which has been adjusted in favour of Mst. Abida Begum who later on, sold it for consideration vide registered sale-deed to the writ petitioner who has been held to be an owner, in possession.
16. In view of my above discussion, the applicants are neither proper nor necessary party to be implicated in this writ petition. It is accordingly dismissed
17. Before parting with the judgment, it may be observed that files of some petitions i,e, W.P. 15/R of 1988, Crl. Org.145/W-95, Crl.Org.147/W-95, W.P.No,704-92, W.P. 705-92, W.P.706-92, Crl.Org. 146/W-95, and Crl. Org.127/W-95 in W.P.48/R-93 were attached with this writ petition as connected matters. I have asked the learned counsel for the parties appearing before me as to how these matters are connected with the writ petition under disposal. However, it has not been made clear that those petitions have any bearing on this writ petition or vice versa. On the contrary, the writ petitions attached herewith relate to different parties and different matters, and of course different land.
However, those cannot be treated as connected matters for the disposal of the present writ petition. Those files are, therefore, sent to the office so that those may be fixed in routine as separate cases.