' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on. 27-4-2001, whereby the writ petition filed by respondent No,1 has been accepted and sanction of crown land in favour of respondent No,1 for "Teh-Zamini" as ordered by Collector, District Muzaffarabad has been restored.
2. The necessary facts, giving rise to the present appeal, are that land measuring 2 Kanals, out of crown land (Khalsa Sarkar), comprising Survey No,181 (old), 366 (new), Which is recorded as "Ghair Mumkin Jheel" and reserved for common purpose of villagers of village Saran, Tehsil Hattian, District Muzaffarabad. Was sanctioned as "Teh-Zamini" in favour of respondent No,1 by Collector, District Muzaffarabad on 6-12-1988. The aforesaid sanction was challenged by appellant. N0.1 before the Revenue Commissioner through a revision petition which was accepted by him vide his order, dated 16-12-1989 and the order of Collector. District Muzaffarabad, dated 6-12-1988, referred to above, was cancelled. Respondent No,1 filed an appeal before the Board of Revenue against the aforesaid order of Revenue Commissioner, dated 16-12-1989. A learned Member, Board of Revenue, after making spot inspection and hearing the villagers on the spot as well as the parties dismissed .The appeal filed by respondent No,1 vide his judgment, dated 8-5-1993. Respondent No,1 filed a review petition before the Board of Revenue seeking review of the judgment of learned Member, Board of Revenue, dated 8-5-1993. The review petition was rejected vide the order. Of Board of Revenue, dated 15-6-1993. Respondent No,1 yet filed another appeal in the Board of Revenue against the orders of learned Member, Board of Revenue, dated 8-5-1993 and 15-6-1993. However, the learned Senior Member, Board of Revenue dismissed the appeal of respondent No,1 vide judgment, dated 16-12-1999. Feeling aggrieved by the judgment of Senior Member, Board of Revenue, dated 16-12-1999 respondent No,1 filed a writ petition before the High Court on 2-6-1999.
The writ petition was dismissed by a learned Judge of the High Court in Innate on 3-3-2000.
Respondent No,1, with the leave of the Court, filed an appeal before this Court which was accepted and vide judgment, dated 24-7-2000 the judgment of the High Court, dated 3-3-2000 was set aside and the writ petition filed by respondent No,1 was admitted for regular hearing.
3. After the remand of the case to the High Court, it vide its judgment dated 27-4-2001 has accepted the writ petition filed by respondent No,1 and has set aside the orders of the Revenue Commissioner as well as that of the Board of Revenue declaring them to be of no legal effect and has restored the grant/sanction of, land made by Collector, District Muzaffarabad in favour of respondent No,.1. The aforesaid judgment of the High Court, dated 27-4-2001 is the subject-matter of appeal before this Court.
4. In support of appeal it was vehemently contended by Mr: Abdul Rashid Abbasi, the learned counsel for the appellants that the High Court has recorded the impugned judgment without application of judicial mind by just reproducing the observations of the Supreme Court made at the time of admission of the writ petition. The learned Judge has taken tentative observations of the Supreme Court as final verdict in the matter. The impugned judgment thus according to the learned counsel for the appellants, suffers from non-application of independent judicial mind which in 'fact is not a judgment in the eye of law. The learned counsel contended that the High Court has left out of consideration the Revenue Record available on the file of High Court which amply proves the disputed land as part and parcel of Khasra No,181 (old), 366 (new), record as "Ghair Mumkin Jheel" which is reserved for the common purposes of the villagers and the-only road leading to the village passes through the disputed land. The learned counsel in support of his contention referred to copies of Jamabandi, register of mutation and Khasra Girdawaries. It was also submitted by t e learned counsel for the appellants that concurrent findings of the Revenue Courts having exclusive jurisdiction in the matter have been ignored altogether by the learned Judge in the High Court especially those of learned Member, Board of Revenue which.Were recorded after making any spot inspection and hearing the parties as well as the villagers. The learned counsel contended that even if it be presumed that the disputed land was available for grant of "Teh-Zamini", it could not have been sanctioned in favour of respondent No, 1 as he owns land in the same village which is suitable for residential purposes and he had also a house in the same village. The grant, thus being in utter disregard and violation of provisions of law and rules, could not have been restored while exercising extraordinary and discretionary writ jurisdiction. The learned counsel contended that "TehZamini" has been granted in favour of respondent as an ex- Army Personnel and a disabled person and for the reason that the land owned by him is occupied by the Army. All the above allegations, according to the learned counsel for the appellants. Are incorrect and do not get support from anything on record. The learned counsel also pressed into service the submission that the crown land under rules could not have been granted to respondent on any of the aforesaid grounds. The learned counsel also urged that even otherwise the land in dispute is required for public purposes and has been notified as such vide notification, dated 9-1- 1993 but the same has been left out of consideration. The learned counsel also contended that the writ petition filed by respondent No, 1 was hit by lathes as the time consumed by the respondent in filing third appeal/revision before the Board of Revenue was totally unjustified. Thus the period of six years from 1993 to 1999 having been wasted by the respondent without any lawful justification, the writ petition merited dismissal on this solitary ground. The learned counsel also contended that respondent No 1 . Challenged the order of Senior Member, Board of Revenue, dated 16-2-1999.
Whereby the earlier orders passed by the learned Member, Board of Revenue dated 8-5-1993 and 15-6-1993 were upheld. Thus the learned Judge in the High Court quashed even those orders which were not challenged by the respondent. It was also argued that appellants Nos.2 to 40 had filed an application in the High Court on 14-10-2000 for being impleaded as party to the writ petition in the line of appellants but the learned Judge in the High Court proceeded to decide the writ petition without disposal of application of the said applicants and without hearing them in this regard.
According to the learned counsel, appellants Nos.2 to 40 were necessary party and their rights of common use of disputed land have been infringed by the impugned sanction in favour of respondent No,1 and the said appellants are aggrieved persons in the eye of law but the learned Judge in the High Court proceeded to decide the writ petition without impleading them as party.
The learned counsel for the appellants in support of his contentions placed reliance on a reported case titled Raja Muhammad Hayat Khan v. Board of Revenue and others 1999 YLR 147 and rules 3(4), 7 and 8 of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985.
5. Kh. Shahad Ahmed, the learned counsel for respondent No,1, controverted the arguments advanced by the learned counsel for the appellants and forcefully defended the judgment recorded by the High Court. The learned counsel contended that the Collector of District sanctioned the land in favour of respondent No,1 after thorough inquiry and on the basis of a report submitted by the Assistant Commissioner who went on the spot and it was stated by him in the said report that the land in question was available for allotment and was never used for village common purposes. The learned counsel also contended that appellant No,1 himself filed a suit in the Civil Court wherein he alleged that the suit land is Khalsa land which is in his possession and occupation and as such is available for grant under law. The learned counsel contended that the respondent being a disabled Army Personnel has rightly been granted the sanction by the Collector, District Muzaffarabad. The learned counsel submitted that none of the rules prohibits the sanction of "Teh-Zamini" on the ground that the seeker of the same has his own land. So far as the allegation of a house belonging to respondent No,1 is concerned, it has been contended that the same is totally false because the said house belongs to the brother of respondent No, 1 The learned counsel for respondent vehemently urged that appellant No,1, as stated earlier, had filed a civil suit in which the statement of Muhammad Hussain. The witness for the appellant has been recorded wherein he has stated that the land which has been sanctioned to ' Aurangzeb is located on the other side of the passage (so-called road).
6. After hearing the learned counsel for the parties and perusing the record, it may be stated that the total acreage, of land in question, Khasra No,181 (old), 366 (new), is 62 Kanlas and 11 Marlas, out of which 60 Kanals of land is shown as "Ghair Mumkin Jheel" in the Revenue Record. However, the land measuring 2 Kanals and 11 Marlas is neither entered in the Revenue Record as "Ghair Mumkin Jheel" nor reserved for village common purposes. At the time of allotment of land measuring 2 Kanals in favour of respondent No,1, out of said Khasra number the Assistant Commissioner made a thorough inquiry on the spot in presence of villagers and submitted his report to the Collector that the lalid which is proposed to be allotted to the respondent is not used for village common purposes and the same may be allotted in favour of respondent No,
1. On this recommendation, the Collector. District Muzaffarabad duly sanctioned the grant of Khalsa land measuring 2 Kanals in favour of respondent No,1 on payment of rent. The learned Revenue Commissioner vide his order, dated 6-12-1988, without any lawful authority and without making any spot inspection set aside the order of allotment passed by the Collector.
7. In the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, rule 2(c) provides that "Khalsa land" means the land which is so mentioned or entered in the Revenue Record but it does not include demarcated forest land, or such other Khalsa lands which stand earmarked for village common purposes. Thus the position is clear that out of the whole land. 2 Kanals of land which was allotted to respondent No,1 was neither entered in the Revenue Record as "Ghair Mumkin Jheel' nor it was reported by die Revenue officials to be used for village common purposes. In this view of the matter, the Revenue Commissioner was not justified to set aside the order of sanction passed by the Collector. Similarly the reasons advanced by the Member, Board of Revenue and the Senior Member, Board of Revenue are not recognized in law to deprive the respondent of getting the sanction of disputed land in his favour. None of the villagers stated before the learned Senior Member. Board of Revenue or before the Board of Revenue that in the land in dispute their cattle used to graze or it was used for the common purposes of village. Rule 3(4) of the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985 provides as follows:-- "Khalsa land may be granted under section 7 for the residential purpose or for the resettlement of shelterless State Subjects of Jammu and Kashmir on terms and conditions as prescribed by rule t 1 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 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 'IV attached to these Rules."
' Rule 8 of the aforesaid Rules speaks as follows:-- "Collector of the District concerned shall on receipt of such application cause an inquiry into the matter through Assistant Commissioner concerned who shall inspect the site and shall satisfy himself after inquiring-
(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 High Way 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 way:-- "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."
8. None of the above-referred rules debars the Collector of the District to grant the sanction in favour of a person who has his own personal holding. The requirement of law simply is that the Collector shall send the Assistant Commissioner for making the spot inspection and to report as to whether the applicant is eligible for grant of land and is a deserving person. The Collector, District Muzaffarabad while awarding sanction in favour of respondent No,1 observed all the formalities required by law and then sanctioned the land in favour of respondent No, I. The orders passed by the Revenue Commissioner, Member, Board of Revenue and Senior Member, Board of Revenue disclose no cogent reason for setting aside the order of grant of land in favour of respondent No,1; therefore, the same are violative of law.
9. The contention raised by the learned counsel for the appellants that the writ petition filed by respondent No,1 suffered from laches as he had been unnecessarily pursuing the legal remedy before the Revenue Authorities. This argument, after careful consideration, is found to have no substance as the orders passed by the Revenue Commissioner and Member, Board of Revenue merged in the order of Senior Member. Board of Revenue which was duly challenged by the respondent in the writ petition. It may also be noted that the term "Iaches" in Constitutional jurisdiction is totally different than the limitation. The respondent all along has been pursuing his remedy and never acquiesced by his act or conduct to forego the sanction of land granted in his favour. Therefore, the contention raised by the learned counsel for the appellants stands repelled.
10. The contentions raised by the learned counsel for the appellants that on the land in dispute a passage is situated which is being used by the villagers and the cattle of the village graze in the said land and drink water are such grounds which were not raised in the previous round of litigation as submitted by Kh. Shahad Ahmed, the learned counsel for respondent No,
1. Therefore, the same cannot be allowed to be raised for the first time before this Court.
11. It was also contended by the learned counsel for the appellants that an application was moved before the High Court for impleading appellants Nos.2 to 40 in the line of appellants as they being villagers were the necessary parties but the High Court without deciding the question of their impleadment, disposed of the writ petition., From careful perusal of the judgment of the High Court, it appears that the aforesaid application was not pressed before the High Court nor an affidavit to this effect was filed by the said appellants or the learned counsel for the appellants. In this view of the matter, the point which was not pressed before the High Court cannot be allowed to be raised at this stage. Even otherwise we are of the view that originally the sanetion, of "Teh-Zamini" in favour of respondent No,1 was challenged by Qamar Zaman, appellant No,
1. And thereafter before the Revenue Authorities as well as before the High Court only he had been pursuing his remedy.
When the case was remanded by this Court by setting aside the judgment of the High Court and the writ petition filed by respondent No,1 was admitted for regular hearing, it was only Qamar Zaman, the present appellant, who was in the line of respondent.
12. The last contention raised by the learned counsel for the appellants is that the questions of fact determined by the Revenue Authorities should not have been set aside by the High Court in exercise of writ jurisdiction. He in this regard placed reliance on a case reported .As Raja Muhammad Hayat Khan v. Board of Revenue and others 1999 YLR 147. We have already stated that the judgments recorded by the Revenue Authorities, i,e, the Revenue Commissioner, Member, Board of Revenue and Senior Member, Board of Revenue are not based on cogent reasons and are against the factual position. Therefore, the orders which are based on wrong assumption of facts can be set aside by the High Court if they seem to be patently illegal and erroneous,
13. In the light of what has been stated above, finding no force in this appeal. The same stands dismissed with costs. As the appeal has been dismissed, therefore, the status quo order issued by this Court vide order, dated 16-8-2001 also stands vacated.