GHULAM MAHMOOD QURESHI, J.- This common judgment shall dispose of Writ Petitions Nos.
16737/1999, 17994/1999, 17396/1999, 18825/1999 and 20349/1999 as in all the abovesaid Constitutional petitions vires of Memorandum dated 16.4.1997 and 31.8.1999 have been challenged.
WRIT PETITION NO. 16737/1999.
2. The consolidation of village Sahiwal started in the year 1981 and consolidation scheme was allegedly confirmed on 31.3,1990. However no written confirmation order was available on record and the proceedings of consolidation were challenged by filing a revision petition before the Additional Commissioner, Sargodha Division, Sargodha who vide order dated 6.6.1992 also approved the scheme by holding that the visit of the Consolidation Officer and-the Addl. Deputy Commissioner to the village on 31.3.1990 in the absence of any dissenting note from the Collector (Consolidation) is to be interpreted on confirmation order of the scheme. This order was assailed in R.O.R. No. 1476/1992 before Member (Consolidation), Board of Revenue Punjab, Lahore who vide detailed order dated 29.5.1993 set aside the order passed by the Addl. Commissioner (Consolidation) and directed that the consolidation proceedings in this village shall be taken-up afresh.
WRIT PETITION NO. 17994/1999
3. The consolidation of village Shahpur started in the year 1981 and a scheme was allegedly confirmed in the year 1990 by an oral order and no formal order was passed. The matter was agitated before the Addl. Commissioner who did not agree for the reconsolidation. Thereafter R.O.R.
No. 1476/1992 was filed before Member (Consolidation) Board of Revenue who vide order dated 29.5.1993 set aside the consolidation, mainly on the ground that there were grave irregularities justifying for setting aside the whole of the scheme and moreover since the scheme was not confirmed by any order, as such, the matter shall be considered to be pending. Fresh consolidation proceedings were started after the-order passed by the learned Member (Consolidation), Board of Revenue.
WRIT PETITION NO. 17396/1999
4. The consolidation of Mauza Darya Khan Dogar stared in the year 1960 and after usual formalities it was confirmed on 31.7,1986. Some of the land-owners preferred appeal against the abovesaid confirmation on the ground of irregularities in large scale and the learned Additional Commissioner vide order dated 11.10.1967 set aside the scheme and directed that fresh consolidation be carried out. This order was assailed in revision before the Member, Board of Revenue who vide his order dated 22.4.1989 uphold the order of learned Addl. Commissioner and the revision petition was dismissed. Writ Petition No. 256/1998 was filed challenging the order dated 22.4.1989 which was also dismissed and the order of reconsolidation was upheld. Lot of change has occurred on the spot during pendency of the abovesaid litigation as some of the area was included in Town Committee and certain houses were constructed which were-to be excluded from the consolidation as the same are to be kept as it is. Board of Revenue on the basis of above change inasmuch as the persons who were in possession and had constructed houses remained no more owners, passed order for special revision of Misal Haqiat. Meanwhile Memorandum was issued in the year 1997 by the Board of Revenue wherein i( was observed that consolidation be not made in the area of Municipal Corporation, Municipal Committee, Town and important Chowks.
WRIT PETITION NO. 18825/1999
5. The consolidation proceedings in Mauza Razai Shah Shumali Nashaib commenced on 16.5.1993 and approval for the consolidation was also accorded by the Board of Revenue, Punjab, (Consolidation Wing) vide Memorandum No. 2084-93/ 1977-CH (P)I, dated 7.11.1993. On 28.10.1999, Consolidation Officer, Bhakkar, respondent No.4 made a. Statement before this Court to the effect that Muaza Razai Shah Shumali Nushaib, Tehsil and District Bhakkar is situated outside prohibited zone U. 5 K.M.
WRIT PETITION NO. 20239/1999
6. The consolidation schemes of Mauza Jhawarian, Tehsil Shahpur, District Sargodha was carried out in 1977 and consolidation proceedings were finalized. However, in 1979, fresh proceedings commenced and finalized in 1984.
7. In all the above writ petitions vires of memo, dated 31.8.1999 has been challenged.
8. Learned counsel for the petitioner vehemently contended that through a judicial order learned Member (Consolidation) Board of Revenue set aside earlier consolidation and directed the Mauza to be re-consolidated. The aforesaid judicial decision cannot be frustrated by an administrative order directing the return of Mauza to the Mahal side and the learned Member, Board of Revenue has no authority whatsoever to issue such a letter. It is further contended that the abovesaid letter has been issued without affording any opportunity of hearing to the land-owners concerned as they have been demanding consolidation. Thus the latter issued by the Member, Board of Revenue is violative of principle of natural justice. Learned counsel further contended that letter issued in the year 1997 cannot be said to be retrospective in effect.
9. Learned Addl. Advocate-General has drawn my attention to the para wise comments submitted by the Member (Consolidation), Board of Revenue and contended that the Board of Revenue, Punjab was justified to exclude such area falling within the limits/zone from the consolidation operation under the provisions of Section 9-A of the Punjab Consolidation of Holdings Ordinance, 1960 in the following:- #tbs ((Table))
Miles (8-KM)
03 Miles (4.80 KM)
01 Mile (1.60 KM) radius taking the crossing as centre pool. #the #tbs Municipal Committee Town Committee Important Chowks no. Highway which have obtained commercial importance. #the #tbs 10 Miles (16-KM) #the
(i) Municipal Corporation He further submitted that majority of people have constructed houses on their land and in case fresh consolidation is to be ordered, they will he deprived of their valuable residence and commercial areas.
10. I have heard learned counsel for the parties and also learned Addl. Advocate General on behalf of the respondents. Therefore, the present writ petitions are being disposed of as notice cases.
11. I have given my anxious consideration to the arguments advanced by the learned counsel.
Perusal of record shows that the plea of right-holders for fresh consolidation had been accepted on judicial side. First order in this respect was passed by the Member, Board of Revenue, while exercising revisional jurisdiction on 29.5.1993. This order was never challenged through further judicial proceedings. In Writ Petition No. 17396/99 the order passed by the Addl. Commissioner on judicial side dated 11.10.1987 whereby fresh consolidation was upheld by the learned Member, Board of Revenue on 24.4.1979 and by this Court in Writ Petition No. 256/1998 were confirmed. These were all judicial proceedings. There is no cavil with the proposition that the Board of Revenue acts in a dual capacity. On the administrative side, it controls the consolidation proceedings and on the judicial side it deals with the matter arising out of it. I have no hesitation to hold that once a matter has been decided on the judicial side, the exercise of executive authority to nullify the effect of judicial decision will be an improper exercise of authority. I am fortified by the judgments reported as Chuttan and others v. Sufaid Khan and others (NLR 1987 Revenue 122) and Sufaid Khan, etc, v.
M.B.R. (Consolidation), etc. (NLR 1982 Revenue 87), Hon'ble Supreme Court of Pakistan in the abovesaid cases observed as under:- "We are inclined to agree with the observations reproduced above. In this case, admittedly the Board of Revenue exercising their powers on the judicial side thrice rejected the plea of consolidation afresh, it has, therefore, no powers on the administrative side to set at naught the judicial orders, more so when they had attained finality."
12. Nullifying the effect of judicial decision even by legislative process has never received a universal backing, although it is not unknown to our system of law and the examples of this can be found in our legislative history but revoking of a judicial decision by an administrative process is certainly some thing new and cannot be approved. In Nizamuddin Yahya and others v. Additional Chief Land Commissioner, Sindh and others (PLD 1987 Supreme Court 26), it was held by their Lordships as under:- "It is now well-settled that a statutory Notification cannot be given retrospective effect, so that it will always be prospective in operation. Another principles which is now firmly postulated is that a subordinate body., in exercise of power of delegated legislation, cannot issue orders or notification, so as to take away and destroy rights already accrued under orders or notifications earlier issued in assertion of the same power."
13. In view of the above discussion the orders passed by the Board of Revenue dated 31.8.1999 have no legal sanction behind them, they are, therefore, declared to be of no legal effect. The writ petitions are allowed with costs.