' MUHAMMAD YUNUS SURAKIIN I, AC TG.C.J.-- The above titled four appeals, with the leave of the Court, have been directed against the impugned judgment passed by the High Court on 20-3- 2001, whereby the writ petitions filed by the contesting respondents were accepted and the orders passed by the Member Board of Revenue dated 23-9-1998 and the Collector District Kotli dated 12- 10-1999, whereby the proprietary rights of the land in dispute granted to appellant were declared to be without lawful authority and consequently the allotments of respondents' were restored. Since common questions of fact and law are involved in all the four appeals therefore we propose to dispose them of through this single judgment.
2. The necessary fact, giving rise to the present appeals, are that land measuring 1 Kanal, comprising Survey No,557/1, situate in village Aghar-Jamalpur, Tehsil and District Kotli, was allotted to late Ch. Muhammad Sadiq, advocate, the husband of Mst. Khalida Begum and to each of respondents (one Kanal each) by the Collector District Kotli. The allotment was made in the name of Ch. Muhammad Nasim on 3-8-1993, Ch. Muhammad Sadiq on 29-7-1993, Muhammad Khalil on 31-10-1993 and Muhammad Nazir on 29-7-1993 for residential purposes. Four revision petitions against the allotments were filed by the appellant before the Commissioner Mirpur Division on 12- 9-1996. The learned Commissioner dismissed the revision petitions as being time-barred. Feeling aggrieved by the order of Commissioner, the appellant filed revision petitions before the Member Board of Revenue who accepted the same. After the decision of the Member Board of Revenue, the Collector District Kotli granted proprietary rights of land measuring 12 Kanals, Survey No,557/1 to the appellant under the Regularization of Nautors and Grant of Khalsa Land ' (Amendment) Act.
1989. The respondents filed writ petitions before the High Court on 20-1-2000 and subsequently filed amended writ petitions on 19-2-2001. The widow of Ch. Muhammad Sadiq, advocate, Mst.
Khalida Begum, Ch. Muhammad Nasim and Muhammad Nazir, also filed writ petitions in the High Court on 20-1-2000. A learned Judge in the High Court accepted the writ petitions through a consolidated judgment passed on 20-3-2001 and set aside the order of Member Board of Revenue dated 23-9-1998 and that. Of Collector District Kotli dated 12-10-1999, whereby the proprietary rights were granted to the appellant. It is the aforesaid judgment of the High Court dated 20-3-2001 which is the subject-matter of present appeals.
3. In support of appeals it was vehemently contended by Raja Hassan Akhter, the learned counsel for the appellant, that the High Court through its impugned judgment cancelled the proprietary rights of land measuring 12 Kanals, granted in favour of appellant, whereas those were challenged by respondents only to the extent of 4 Kanals of land, as such the order of High Court is erroneous and bad in law to the extent of 8 Kanals of land which remained unchallenged. It was also contended by the learned counsel for the appellant that according to the Revenue Record uptil 1970 the land in dispute had been in possession of Farman Ali, the father of appellant Muhammad Aziz, and subsequently in possession of Muhammad Aziz, who was entitled to its proprietary rights under the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, therefore, the Collector of District rightly granted the proprietary rights to the appellant which were in accordance with the provisions of law. The learned counsel argued that the High Court was wrong to hold that no revision petition could lie against the order of District Collector before the Commissioner. The learned counsel further contended that the High Court was not correct in observing that the Member Board of Revenue was not competent to accept the time-barred revision petitions. The learned counsel further contended that on the one hand it was observed by the High Court that revision petitions filed by the appellant were barred by limitation but on the other hand the writ petitions were badly hit by laches; instead of *king any observation with regard to laches which point was duly raised in the written statements and was also argued by the learned counsel for the appellant but neither the same was attended to nor the same finds mention in the impugned judgment which goes to be very root of the case as such the High Court accepted the writ petitions which were totally hit by laches. To elaborate his view-point the learned counsel for the appellant contended that the writ petitions were filed on 20-1-2000 against the order passed by the Member Board of Revenue on 23-9-1998 as such the same were hit by the principle of laches but, as stated earlier, the High Court did not decide this point and affidavits to this effect have been appended with the memos .Of petitions for leave to appeal filed by the counsel for the appellant. The learned counsel also vehemently urged that the High Court did not consider the fact that the whole of land measuring 12 Kanals was in possession of Farman Ali since 1947 and subsequently in possession of appellant since 1970 till to-date but the whole of the land measuring 12 Kanals was cancelled out of survey No,557/1 whereas the whole of it was not challenged. The learned counsel for the appellant contended that the learned Collector without making any inquiry on the spot granted sanction of Khalsa land in favour of respondents without 'ascertaining the genuineness of their claims. The respondents applied for different Khasra numbers to be allotted to them but, the Collector allotted them the Khalsa land out of Khasra No,557/1 whereas they moved no application for allotment out of said Khasra number.
4. Ch. Muhammad Azam Khan, the learned counsel for contesting respondents, vehemently controverted the argument advanced by the learned counsel for the appellant. He contended that it is wrong to allege that the Collector at the time of granting sanction of Khalsa land in favour of respondents did not observe the formalities of relevant law and rules. The sanction order of Khalsa land in favour of respondents made by the Collector District Kotli shows beyond any manner of doubt that he sent the Assistant Commissioner on spot to make an inquiry to the effect that as to whether the Khalsa land was available for grant and whether the applicants/respondents were deserving to be sanctioned the Khalsa land on the payment of compensation/rent. The Assistant Commissioner after thorough inquiry vide his report dated 28-9-1998 submitted the same to the Collector District Kotli and on its basis the grant was sanctioned in favour of respondents. The mere fact that the respondents or some of the respondents did not apply for grant of Khalsa land out of Khasra No,557/1 is no ground to detract the respondents from the allotment of Khalsa land which was available from other Khasra number. It is merely a clerical mistake, as rightly observed by the Commissioner, therefore, this argument itself is not of any substance to be taken into consideration. The learned counsel for respondents also referred before us section 3 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, which reads as follows:,--- "Regularization of existing Nautors.-(1). A person to hom right in respect of Khalsa land had accrued under Council Orders No,38/C, 40/C of Dogra Regime or any order of Poonch State or Government Order No,282/57 and the right could, not be granted due to absence of entry in the Revenue Record as required under Government Order No,282/57 shall be entitled to the grant of proprietary rights: ' Provided it is proved before the Collector of the District, after such enquiry as may be prescribed, that such person has been .In continuous possession of Khalsa land and recorded as such in the Revenue Record before Rabbi 1957 A.D. Such grant may be made on payment of premium and subject to limitations as laid down in the aforesaid orders, as amended from time to time: ' Provided further that Nautors which do not fulfil the conditions laid down in Government Order No,149/60 dated 11-3-1960 shall not be regularized.
2. Proprietary rights for Nautors made out of Khalsa land after Rabbi 1957 A.D. And before 17th June, 1985 shall be granted by the Collector of the District in the name of Nautor Kunindah---
(a) whose entire holdings including Nautor do not exceed eight Kanals, without payment; or
(b) whose entire holdings including Nautor exceed eight Kanals but do not exceed thirty Kanals, on payment of market price or at the rate of Rs,2000/- per Kanal whichever is less.
3. Proprietary rights under subsection (2) shall be granted only when it is proved before the Collector of the District concerned that the Nautor Kunindah has been in continuous possession of the Nautor and recorded as such in the Revenue record; ' Provided that for the purpose where Revenue Records does not exist, the Collector shall' satisfy himself through n enquiry to be conducted by a Tehsildar Officer not below the rank of Tehsildar.
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' By referring to the aforesaid Rules, the learned counsel for the respondents contended that the present appellant has no locus standi to contest the appeals as he never remained in possession of Nautor land as such he does not fulfil the conditions laid down in section 3 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974. The learned counsel contended that the father of appellant, Far-clan Ali, of course has been in possession of land in dispute but as a tenant-at-will and not as a Nautor Kunindah but he did not apply to the Collector for grant of Khalsa land in his favour nor he challenged the grant of sanction or Nautor land or Khalsa land in favour of respondents. The contention raised by the learned counsel for the appellant that the appellant, Muhammad Aziz, lodged the appeal in his capacity as attorney for Farman Ali, is fallacious and the argument, on the face of it, seems to be unfounded. Firstly there is no power-of attorney placed on record by Muhammad Aziz on behalf of Farman Ali, his father, and secondly the contents of his appeal show that Muhammad Aziz filed appeal in his own capacity rather than on behalf of his father. The learned counsel for respondents also contended that the writ petitions by the respondents cannot be construed to be hit by laches as the whole proceedings before the learned Member Board of Revenue. Were taken in absence of respondents without hearing them and the contesting respondents while filing their writ petition's have mentioned the specific date on which they acquired the knowledge that the appellant has acquired the proprietary rights of Khalsa land in absence of respondents. This averment of respondents is supported by their affidavit but on the other hand the said averment has not been repudiated by the affidavit of any relevant person or any person who was in the knowledge of the proceedings. The affidavit on behalf of appellant has been annexed with the High Court file by Sardar Abdul Razak Khan, the advocate for Board of Revenue and others, but none of the functionaries of Board of Revenue has filed his affidavit in rebuttal of the assertion made by respondents in their writ petitions. The learned counsel in support of his contentions referred to a reported case of this Court titled Muhammad Irshad Khan v. Chairman M.D.A. And others (1997 M LD 3066).
5. The District Collector at the time of granting sanction in favour of respondents, in our opinion, has observed the relevant law and rules and after his satisfaction granted the sanction. Under the rule 3(4) of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, it has been provided as follows:--" Khalsa land may be granted under section 7 for the residential purpose or for the re-settlement of shelterless State Subjects of Jammu and Kashmir on terms and conditions as prescribed by rule 11 and Schedule "B" of these Rules. However, in the case of destitutes, the Government may determine terms and conditions in accordance with the merits of an individual case."
' Rule 7 of the aforesaid Rules states as follows:--- " The person seeking grant of Khalsa land on ground rent for residential or commercial purpose shall make an application to the Collector of the District on form "A" attached with these Rules and shall enclose an agreement deed in form "B" attached to these Rules.
' Rule 8 of the aforesaid Rules speaks as follows:--- "Collector of the District concerted shall on receipt of such application cause an enquiry into the matter through Assistant Commissioner concerned who shall inspect the site and shall satisfy himself after enquiring:
(a) that the applicant is eligible for the grant and is otherwise a deserving person;
(b) that the area in question is not required for any Government or other public purposes;
(c) that the area is suitable for residential or commercial purpose and there is no likelihood of the area being used for cultivation purposes;
(d) that no coniferous trees are standing on the land; and
(e) that the proposed area of construction does not contravene provisions of the Highway Ordinance, Electricity Act, Master Plan Areas Ordinance or any other law or rule for the time being in force."
' Rule 9 of the aforesaid Rules is couched in a following manner:--- "The concerned Assistant Commissioner after satisfying himself of the merits of the case, shall submit the case to the Collector of the District with his recommendations."
' Rule 10 of the aforesaid Rules is to the following effect:- "The Collector of the District on satisfaction about the genuineness of the application, direct the applicant to deposit an amount equal to 5 years ground rent, as advance, in the Government treasury. The applicant shall deposit the amount and submit the Treasury receipt to the Collector of the District, who shall then sanction the grant of Khalsa land for residential and commercial purposes."
6. In our view, none of the aforesaid rules debar the Collector of District to grant the sanction of Khalsa land for residential purposes in favour of a person who has his own personal holding to a particular extent. The requirement of law simply is that the Collector shall send the Assistant Commissioner for making spot inspection and to report as to whether the applicant is eligible for grant of land and is a deserving person. The Collector District Kotli while granting a sanction in favour of respondents for residential purposes observed all the formalities required by law and then sanctioned the land in favour of respondents. Our aforesaid view finds support from an unreported case of this Court titled Qamar Zaman and others v. Aurangzeb and others (Civil Appeal No,I14 of 2001 decided on 24-12-2001). The order passed by Member Board of Revenue does not disclose any cogent reason for setting aside the order of C grant of sanction in favour of respondents, therefore the same is violative of taw.
7. The learned counsel for the respondents is correct in submitting that section 3 of Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, deals with the Regularization of Nautor and the same has no application in the instant case so far as the respondents are concerned. It has no nexus with rules 7, 8, 9 and 10 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, therefore the objection of the learned counsel for the appellant that the respondents do not fulfil the requirements of section 3 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, is based on misconception and stands repelled.
8. The contention of the learned counsel for the appellant. Raja Hassan Akhter, that the writ petitions filed by the respondents before the High Court were hopelessly time-barred as the decision of Board of Revenue was pronounced on 23-9-1998 whereas the writ petitions were tiled on 20-1-2000, therefore the writ petitions were barred by laches of one year and four months.
Similarly the appellant was granted proprietary rights on 12-10-1999 and the writ petitions were filed on 20-1-2000. Even against the proprietary rights transfer order the writ petitions were hit by laches which has not been explained by the respondents. The High Court also tailed to record any finding on the said point despite the fact that the point was raised specifically and argued before the High Court. The contention raised by the learned counsel for the appellant seems to be devoid of any legal force for the simple reason that though the point of laches was specifically taken in the preliminary objections filed by the appellant in his written statements but he cannot take the benefit of said plea because of the reason that in the amended written statements this . Plea was abandoned by the appellant. Therefore, it shall be deemed that the averments made in para 7 of the writ petitions filed by the respondents have been admitted as correct by the appellant. The averments made in para 7 of the amended writ petitions by the respondents herein read as follows:--- "That the petitioner was not served upon. He was not aware of the impugned order. Recently the impugned order came in the knowledge of the petitioner in the last week of December, 1999. He immediately applied for copies and after obtaining the copies, the writ petition has promptly been tiled."
' This para of the amended writ petitions filed by respondents remains un rebutted by the appellant. In support of para 7 of the writ petitions, the respondents have filed their affidavits and supported the said para. In the amended written statements, the appellant has not denied the date of knowledge of respondents. Moreover in support of denial of facts mentioned in para No,7 of the amended written statements, affidavits have been filed by Sardar Abdul Razak Khan, the advocate representing the Board of Revenue and others.
9. The reliance placed by Ch. Muhammad Azam Khan, the learned counsel for contesting respondents, on a case reported as Muhammad Irshad Khan v. Chairman M.D.A. And others (1997 M LD 3066) seems to have a great substance in it, wherein it has been observed that an affidavit can be acted upon if it has been sworn by a person having personal knowledge. The aforementioned affidavits filed by Sardar Abdul Razak Khan do not fulfil this requirement and cannot be regarded as rebuttal to the affidavits of the respondents. Therefore, there is nothing to disbelieve the affidavits of the respondents. The affidavits, as stated earlier, filed by Sardar Abdul Razak Khan, the advocate for Board of Revenue and other officials, cannot be regarded as sufficient to controvert the allegations made by the respondents in their amended writ petitions whereby they have averred that from the specific date they acquired knowledge of passing of the impugned order. Even no summons or an affidavit on behalf of any official of Board of Revenue was placed on record. Therefore the averments made in para 7 of the amended writ :petitions tiled by the respondents shall be deemed to have been admitted as correct and the appellant now cannot raise the plea that the writ petitions were hit by laches.
10. Raja Bashir Ahmed Khan, the learned counsel for official respondents. Also supported the contentions raised by Ch. Muhammad Azam Khan, the learned counsel for allottees/respondents.
However, he contended that the High Court rightly cancelled the remaining land measuring 8 Kanals, out of Survey No,557/1, from the name of appellant as he does not fulfil the qualifications of section 3 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, wherein it has been provided that proprietary rights for Nautors made out of Khalsa land after Rabbi' 1957 A.D. And before 17th June, 1985, shall be granted by the Collector of the District in the name of Nautor Kunindah. Since the appellant did not break the land and make it cultivable, therefore, he was not entitled to the proprietary rights of the Khalsa land.
11. The argument of the learned counsel for the respondents is devoid of any legal force as the interest of allottees/respondents is confined to 4 Kanals of land and not beyond that. To the extent of the other remaining land measuring 8 Kanals, the allottees/respondents are not aggrieved persons. Therefore, the were not competent to challenge the proprietary rights of the whole of the land.
12. In the light of what has been stated above, the appeals of appellant are partly accepted in terms that proprietary rights granted to the appellant on 22-10-1999 by the Collector District Kotli to the extent of 8 canals of land out of Survey No,557/1, situate at village Aghar Jamalpur, shall stand intact and the judgment of the High Court to the above extent is set aside. However, the appeals of the appellant to the extent of 4 Kanals of land which were allotted to respondents herein, Ch. Muhammad Nasim on 3-8-1993, Ch. Muhammad Sadiq who is being represented by his widow, Mst. Khalida Begum, on 29-7-1993, Muhammad Khalil on 31-10-1993 and Muhammad Nazir on 29-7- 1993, are dismissed and the judgment of the High Cou,rt to the above extent is upheld and their allotments stand restored; In the circumstances of the case we pass no order as to, costs.