TASSADUQ HUSSAIN JILANI, J.- Through this Constitutional Petition, the petitioner has challenged the order dated' 2.2.1994 passed by Member (Colonies) Board of Revenue, Punjab whereby he affirmed the orders passed by Collector Mianwali dated 26.4.1993; and the order in appeal passed by Commissioner Sargodha Division Sargodha dated 17.7.1993.
2. The facts leading to the filing of this petition are that petitioner purchased land subject-matter of this petition vide Mutations No. 2081 which was sanctioned on 25.1.1974 on the basis of oral sale recorded by the Revenue Patwari on 2.9.1973 as also mutation No. 2204 which was entered in the revenue record on 4.12.1973 and sanctioned on 9.2.1974. The Pakistan Atomic Energy Commission acquired certain land for public purpose vide Notification dated 25.6.1974, the land subject-matter of the afore-referred mutations fell within the. Said scheme and as the policy, the persons who were owners of the land so acquired prior to 14.12.1973 were entitled to alternate land. The petitioner applied for the alternative land and entitlement certificate dated 25-6.1976 was issued in his favour in terms of the resettlement scheme contained in policy letter No. . 5843-75/2547-CL, dated 25.6.1976. Pursuant to the issuance of said certificate, petitioner was granted alternate land and it is not denied that he is in possession of the same since then. On a complaint received, the Deputy Commissioner/Collector Bhakhar reviewed the allotment and vide order dated 26.4.1993 cancelled petitioner's earlier allotment on the ground that since mutations Nos. 2208 and 2204 of Mauza Khola Tehsil and District Mianwali on the basis of which petitioner had obtained entitlement certificate were sanctioned on 25.1.1974 and 9.2.1974 respectively which dates were subsequent to the target date i.e. 14.12.1973, therefore he was not entitled to the grant of alternate land. This order was challenged in appeal and the Commissioner dismissed the same vide order dated 17.7.1993 which was however, confirmed by the Board of Revenue on a revision filed by the petitioner.
3. Learned counsel for the petitioner has assailed the afore-referred orders on the following grounds:-
(i) that the petitioner had purchased the land subject-matter of this petition vide Mutation No. 2081 prior to the target date as the sale of the land which is subject-matter of the said mutation was affected on 2.9.1973 and from this date he became the owner. Similarly, petitioner had become owner of the land subject-matter of mutation No. 2204 on the date it was entered into the revenue record i.e. 4.12.1973 though the mutation was sanctioned on 9.2.1974. Both the date of entries in the afore-referred mutations being earlier to the target date i.e. 14.12.1973, therefore, the petitioner was validly issued the entitlement certificate and no exception can be taken to that.
(ii) that the leamed Courts below have not attended to the main point in issue and that they have wrongly non-suited the petitioner. In support of his submissions, leamed counsel for the petitioner has relied on PLD 1961 W.P. Baghdadul Jadeed 34.
4. Leamed Additional Advocate General, Punjab, on the other hand, has vehemently opposed the petition by submitting that the petitioner had purchased the land after the target date as in law the ownership has to commence from the date of sanctioning of the mutations and not from the date on which it is entered in the revenue record; that the petitioner never submitted his claim before the target date i. e. 14.12.1973. In support of submissions made, leamed Addl. AG relied on Mst.
Reshman Bibi v. Member Board of Revenue (Consolidation) Punjab Lahore and 2 others (K.L.R. 1994 Revenue Cases 126); Abrar Jamshed Ahmad and another v. Ghazan Khan and others (1995 CLC 695) and Mst. Gulshan v. Ameer Ali and others (PLD 1997 Karachi 292). The Naib Tehsildar, appearing in Court after checking the revenue record submits that the mutation No.2081 sanctioned on 25.1.1974 and the mutation No. 2204 sanctioned on 9.2.1974 indicate that the sale and gifts transactions in these mutations were entered in revenue record on 2.9.1973 and 4.12.1974 respectively and there is no tempering in the revenue record.
5. I have heard leamed counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.
6. It is not denied that the entries in the revenue record with regard to mutations were made prior to the target date i.e. 14.12.1973. And further that the mutations were sanctioned on 25.1.1974 and 9.2.1974. The Naib Tehsildar who appeared in Court along with the record after checking the record submitted that there was no tempering with the record and further that as per the record petitioner was in possession of the land subject-matter of the afore-referred mutations ever since the date of entries in the record i.e. 2.9.1973 and 4.12.1973. That being so, the ownership of the petitioner qua the land which is subject-matter of mutations Nos. 2081 and 2204 commences form the date of their entries in the revenue record and not from the date of the sanctioning of mutations. If these mutations had been challenged or there was allegation that the entries in the revenue record were tempered with or anti-dated, then the situation would have been different. The statement of the Naib Tehsildar qua the bona fides of the entries sheds all doubts about the ownership of the petitioner. In Jangi v. Jhanda and others (P.L.D. 1961 (W.P.).Baghdad-ul-Jadeed 34), a similar question was mooted though in a different factual background and a Division Bench of this Court at page 36 held as under:- "When a mutation is sanctioned with regard to sale of land, it-is either on the basis of an oral sale or sale by a deed, arid I am clear in my mind that as far as the sale goes, it shall be deemed to have been completed on the day on which it was affected and not on the date on which mutation in the revenue record was sanctioned about it. It is true that for purposes of making the period of limitation run with regard to a suit for pre-emption, the date of the attestation of the mutation in the revenue records is taken into consideration by reason of the relevant provision of the Punjab Pre-Emption Act, 1913, which was in force in the Bahawalpur State at the relevant time, but I am clear in 'my mind that the title in the property passes and is not postponed till the attestation of the mutation in the revenue records. "
In the face of the afore-referred observations ard the law declared, the impugned judgment cannot be sustained. The precedent case-law to which reference has been made by leamed Additional Advocate General, Punjab is not relevant as in all those cases, the very validity of the mutations had been challenged. The entitlement certificate issued in favour of the petitioner and the alternate land mutated pursuant thereto could not have been set aside on yet another score.
Once an order has. Been validly passed in favour of a person and certain rights have been created, the same cannot be rescinded unless there is allegation of fraud or a glaring violation of law.
The principle of locus Poenitentiae is well-established and in Pakistan, through the Secretary.
Ministry of Finance v. Muhammad Himayatullah Farukhi (P.L.D. 1969 Supreme Court 407) and at page 412. It was held as under:- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus Poenitentiae. i.e. The power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such power is necessary in the case of all authorities empowered to pass orders to the retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where order has taken legal effect, and/in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of these rights."
7. For afore-referred reasons, I am persuaded to allow this Writ Petition and set aside the order passed by the Collector dated 26.4.1993; the Commissioner dated 17.7.1993 and that of the Board of Revenue dated 2.2.1994. There shall however, no order as to costs.