MUHAMMAD SAIR ALI, J. -- Through this judgment, Writ Petition No. 16644/1993 and Writ Petition No. 14980/1993 are being decided; both of which involve common controversy.
2. Agricultural land measuring 67 kanals and 15" marlas situated in village Papnakha, Tehsil and District Gujranwala, was purchased by the petitioners alongwith their father and a brother in 1974 from its owner Mst. Hashmat Bibi w/o Muhammad Din. The land was mostly Banjar-thur. After purchase, the petitioners claim to have converted it into a garden and Seed Farm by spending huge amount. At present there exists a garden, seed farm and seed industry and is being run under the name and style of "Rashid Seed Farm". The village was brought under consolidation and the scheme was confirmed on 30.9.1968. During these proceedings Khasra No. 4746 measuring 2 kanals and 1 marla situated in the middle of the land was shown as path (11 feet were) allegedly leading to the Dera of respondents at No. 1. It is claimed that to keep her land in one compact block, Mst. Hashmat Bibi surrendered about 2 kanals and 9 marlas as against 2 kanals and 1 marla as a consequence thereof a 14' were path was carved out and put to operation and the path reserved in the Scheme (to be hereinafter called as the disputed path) remained under cultivation.
The petitioners claim that since the father of the petitioners occupied the land of Mst. Hashmat Bibi, area of disputed path remained under cultivation till date and the other path created from voluntarily surrendered land of Mst. Hashmat Bibi, to by pass petitioners' land is the path in use (existing) since 1968. The Seed Farm gained international fame and was awarded "Sanad-e-lmtiaz" by the Government of Punjab in 1983.
2. The respondents Nos. 1 to 3 then tried to get the disputed path opened after over 20 years and it was during these proceedings that the petitioner claims that he came to know that Khasra No. 4746 (which fell in the middle of their garden) had, during consolidation proceedings, been reserved as path. The petitioner filed an appeal against above consolidation proceedings before respondent No. 4 with an application for condonation of delay. The appeal was, however, dismissed in limine vide order dated 27.4.1989 on the ground of limitation and also for being incompetent . The petitioner challenged this order through revision petition before the Additional Commissioner (Consolidation), Gujranwala with respondents Nos. 1, 2 and 3 as parties. Through order dated 13.6.1990, the learned Addl. Commissioner accepted the revision petition and directed substitution of the area of disputed path by the area of existing (other) path. The respondents at Nos: 2 and 3 supported the petitioner in the case.
3. Respondent No. 1 filed a revision petition before the Board of Revenue and the learned Member (Consolidation) accepted the same vide order dated 5.9.1993 and restored the order of respondent No. 4. The petitioner filed a review petition before the learned Member which was dismissed vide order dated 18.9.1993.
4. The above said order dated 27.4.1989 passed by the Collector (Consolidation) and orders dated 5.9.1993 and 18.9.1993 passed by the Member (Consolidation), Board of Revenue have been assailed through the present writ petition to seek restoration of order dated 13.6.1990 passed by Additional Commissioner (Consolidation).
5. The learned counsel for the petitioners has stated that a Committee of Local Commissioners was appointed by this Court on 12.4.1994 to ascertain the possibility of creating a new path in place of the path confirmed in consolidation proceedings bifurcating petitioners' garden/land into two pieces and to propose a new consolidation plan. This Committee submitted its report on 7.5.1994.
The learned counsel for the petitioners contended that the report of the Local Commission may be adopted to decide this case and this report reflects the case of the petitioners. Contrarily, learned counsel for the respondent No. 1 contended that he had filed objections to the said report on 14.6.1994, consideration upon which was postponed to the day of full hearing of the main case and that his objections to the report may kindly be considered. Learned counsel for the respondent further contended 4 that consolidation scheme had been confirmed on 30.9.1968 while the petitioners agitated against it after 20 years much beyond the period of limitation and none of the proceedings/appeals filed by the petitioner were within time and that this Court has no jurisdiction to condone the said delay. It was further contended that the petitioner admittedly being purchasers of the said land do not fall within the definition of land owners as given in Section 2(J) of the Punjab Consolidation of Holdings Ordinance, 1960. And that the petitioner's father had purchased the land and raised the crops or the alleged garden long after the confirmation of the consolidation proceedings which cannot be re-opened or interfered with in exercise of Constitutional jurisdiction, as has been held in 1988 SCM R 310(1) and 1987 M LD 306.
6. I have examined the record and also considered the statements of the learned counsel for the parties. It is an admitted position of the parties that the disputed path bearing Khasra No. 4746 was confirmed in consolidation scheme dated 30.9.1968 to provide access to the Dera of respondent No. 1 i.e. Javed Ahmad etc. It is also not denied by the parties that the consolidation scheme dated 30.9.1968 qua this disputed path was never implemented and this path was never opened for public in last 33 years. Till today, respondent Javed Ahmad and others have never used the disputed path to and from respondent No. 1's Dera/land, but have been using the alternate path (existing) admittedly created to by-pass petitioners' land from the land surrendered by Mst.
Hashmat Bibi. Respondent No. 1 in his written statement had generally denied the petitioners' pleadings contained in their Constitutional petition. In absence of specific and particularized denial regarding the (existing) path, its use and nonimplementation/non-opening of disputed path, these facts will be deemed to be admitted by principle of non-traverse. Furthermore, examination of order dated 13.6.1990 passed by learned Addl. Commissioner (Consolidation), Gujranwala Division, Gujranwala also shows that he visited the site, examined the parties, their counsel and 'Ahalian Deh' to conclude that the disputed consolidation scheme regarding the disputed path was never implemented to effect opening the said path for the use of public. And that the disputed path passing through the existing garden of the petitioners from the middle, was carved out in consolidation proceedings as a passage only to the land/Dera of respondent No. 1 and the said path ends there. The disputed path in no way is a path of general public utility for the community of the village residents. It will, if opened, only serve the ego and personal needs of respondent No. 1, who admittedly failed for over 20 years to seek implementation of consolidation scheme to obtain opening of the said path.
6. The in action and indolence of Consolidation Authorities and the respondent No. 1 conversely created rights in petitioners that their garden would not be bifurcated/fragmented into pieces through opening of the said path.
7. Extracts from order dated 13.6.1990 passed by learned Addl. Commissioner (Consolidation), Gujranwala Division, Gujranwala reflecting upon the spot realities are reproduced hereunder:- "The site was also visited in the presence of the parties and the counsel for the respondents, where the parties were given lengthy hearing. The site inspection also supports the view points of the petitioners and I am of the considered view that Javaid Ahmad, etc., respondents are adamant to simply tease the petitioners by passing through the courtyard of his house on the eastern or by opening the abandoned path passing in-between the garden. Apart from the damage to fruit plants and nursery, the Tractors and Trolleys cannot pass through the alleged path on the eastern side or the abandoned path because it has been amalgamated in the garden. The best course for Javaid and other right holders is the alternate path on the western side of the garden which is 14 feet were leaving aise the width of the adjoining water-course.
Mere legal technicality should not deprive the parties of their genuine rights. If Javaid, etc., respondents were serious about the actual path provided in consolidation they should not have slept over it for about 22 years and should have opened it up instantaneously. It transpires that they are disturbing the petitioners so that they may sell their land as has been pointed out by the petitioners as well. They want to just wreak vengeance of their preemption suit failure, in view of the aforesaid Notification of the Board of Revenue.
Ahalian Deh including Ghulam Mustafa, Chairman, Union Council, lnayat Ullah, etc., and many other right holders have submitted that alternate path on the western side of the garden is beneficial for 'Malkah Deh` and many land owners including Javaid Ahmad, etc., respondent whereas the abandoned path connects the Dera of Javaid, etc., only. In view of the evaluation of the arguments of the parties and revenue record and the prayer of the Ahalian Deh including petitioners and lnayat Ullah, etc., I am of the considered view that the western path is more facilitative than the abandoned path."
8. The learned Member (Consolidation), Board of Revenue, while passing the impugned orders as revisional as well as reviewing authority failed to attend to the cogent reasoning advanced by the learned Addl. Commissioner (Consolidation) in his above said order. The learned Addl. Commissioner through his impugned order only maintained the spot realities/site position as adopted, maintained, implemented and continued by the residents of the village through consensus by use, to suit the requirements of the village land owners. Such a consensus is the basis and spirit of statutory intendment of Punjab Consolidation of Holdings Ordinance, 1960 and the Rules framed thereunder. Change of the disputed passage (as confirmed in Consolidation Scheme of 1968) to the existing passage (carved and carried out by consensus of about 33 years) does not seem to haye caused and prejudice or injury to the residents of the village including respondent No. 1. Contrarily, there is every likelihood that change from the existing route to the disputed route will create disharmony, disputes and bad blood between the land owners. Hence through acceptance of this case, neither would the spirit of law be countenanced nor would there be a departure from the law settled by the Hon'ble Supreme Court of Pakistan, refusing to grant a writ against "change of spot position" to accommodate "better claim" of a party (1988 SCM R 310). In fact, acceptance of the present Constitutional petition will only advance the principles of law laid down by the Hon'ble Supreme Court of Pakistan to reverse an "unjust order" for obviating the injustice likely to occur by change of spot realities. There can thus be no better case than the present one to exercise judicial and equitable jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to maintain the preponderance of existing facts and equities between the parties as against the abandoned conferment in consolidation scheme.
9. To benefit from in depth report of the Committee of Senior Advocates appointed as Commission through order dated 12.4.1994 and rejecting technical objections of respondents for the reason recorded above, the following passages from the said report are reproduced hereunder:- "After attending to the dispute in depth, keeping in view the situation at the site, and the statements made on the two sides, this Commission has reached the conclusion as under:-
(1) Out of the lands of the village Papnakha Tehsil and District Gujranwala only 2 acres (exclusively belonging to the petitioners) adjoin the main road. On either sides of these 2 acres lies the land of village Sainakey (shown in grey) which too adjoins the main road, is also owned y the petitioners.
(2) On the Western side of these 2 acres wherein the petitioners have planted a Fruit Garden, lies the 14 feet were way (existing way) running along a Khata, leading straight to and hitting lands of respondent No. 1 (shown in green) while also providing way to Inayat Ullah whose land (shown in yellow) fall in between those of the petitioners (shown in red) and that of respondent No. 1.
(3) The existing way is raised about 1 foot from the ground and more than 2 feet from the Khata and is at the level of the main road. It is considerably old (although its definite age cannot be given) and shows the signs of being well in use.
(4) From the point where the afore-mentioned existing way hits the lands of respondent No. 1, he has himself made another path (marked 'D' & 'D/1') leading to his Dera which is at least as were and as well used as the existing one ('A & 'A/1').
(5) If for reaching his Dera, respondent No. 1 uses the existing way, he has to' travel a distance of 8-1 /2 acres, but at the same time if he uses any other path (included the disputed one) his travelling distance is in no way less than 6-1 /2 acres.
(6) When comparing distance to be travelled while using the existing way, and the disputed path for reaching Dera of respondent No. 1 the difference is only that of one acre.
(7) On the Eastern side of petitioners' land, there is a private way leading to their Dera, this has been previously used by respondent No. 1 with the permission of the petitioners prior to the litigation leading to estrangement of relations between both the parties, however in the existing circumstances the petitioners have been shown their inability to allow respondent No. 1 to pass through this private way.
(8) The claim of respondent No. 1 for being given a way from Eastern side of the garden of the petitioners will result in the unnecessary splitting of their holding and reduction of its area alongwith an invasion on the privacy of the petitioners.
(9) Respondent No. 1 failed to show any other way in his use for reaching his Dera from main Road and actually there exists none. Since only the existing way ('A' & 'A/1') provides access to his land, coupled with the fact that he has himself connected the same to his Dera with another one ('D' & 'D/1'). It can therefore, be safely presumed that the existing way is and has been in the past used by respondent No. 1 alongwith the other land holders of village quite willingly."
10. Examination of the impugned orders passed by the learned Member (Consolidation) shows that he did not, fake account of non-implementation of consolidation scheme by the consolidation staff qua the disputed path. Such in action cultivated in the petitioner at least a sense of security, peaceability, comfort and complacency as land holders since 1974. Upon threat of disturbance and bifurcation of his land through opening of disputed passage, petitioner had the cause, right and locus standi to challenge such invasion as transferee of the land covered by definition of land owner u/S. 2(J) of Punjab Consolidation of Land Holdings Ordinance, 1960. Further that the right to sue accrued to the petitioner upon threat and invasion of opening the disputed passage and knowledge of the confirmation of scheme. The impugned orders, thus, cannot be termed as self- explanatory and result of due appreciation of facts and law under the circumstances of the case.
11. In view thereof, these petitions are accepted. The impugned orders dated 5.9.1993 and 18.9.1993 passed by the learned Member, (Consolidation) Board of Revenue are held to be without lawful authority and of no legal effect. Resultantly, order dated 13.6.1990 passed by the learned Addl.
Commissioner (Consolidation), Gujranwala Division, Gujranwala is upheld. In view of the peculiar circumstances of the case, parties are left to bear their on costs.