This order shall dispose of Revision Petition No.4 of 1998 and Civil Revision No. 160 of 1998 as both have arisen out of the judgment and decree of the Additional District Judge, Khushab dated 24-9- 1997.
2. Ghulam Nabi, respondent, was allotted land in Chak No.41/MB, Tehsil and District Khushab. This allotment was subject to the terms and conditions published in Gazette Notification No.1403/54/2030-TH, dated 27-6-1955 the said allotment was resumed from the name of Ghulam Nabi, respondent, on account of breach of conditions. The Administrator, Thal Development Authority restored the allotment in favour of the respondent. The order passed by the Administrator restoring the lot was withdrawn by the Government of the Punjab vide order contained in memo.
No.4702-72/1173, dated 18-10-1972. The matter was brought to the High Court invoking the writ jurisdiction. Three writ petitions, i.e. Writ Petitions Nos. 1489 and 1538 of 1972 and Writ Petition No.91 of 1973 were filed by the aggrieved persons. The case was remanded by the High Court on 3-10-1973 to the Board of Revenue for final/fresh decision on the judicial side. It was observed that the Board of Revenue may decide the cases afresh in accordance with law, which would include the consideration of validity of the orders passed' by the Administrator. The learned Member (Colonies), Board of Revenue ultimately remanded the case to the Collector, Jauhrabad vide his order dated 10-6-1974. The Collector, Jauhrabad examined all the cases remanded by the Board of Revenue in pursuance of the orders passed by the High Court dated 3-10-1973 and by virtue of the orders dated 10-11-1983 observed that despite restoration order in favour of Ghulam Nabi he could not be accommodated because he never came back to the land in question all through his period spreading over 11 years since restoration. The Collector was of the opinion that the restoration order pertaining to Ghulam Nabi therefore was not maintainable. Against this order of the Collector dated 10-11-1983 Ghulam Nabi filed an appeal, which was accepted by the Additional Commissioner (Revenue), Sargodha Division vide order, dated 30-4-1987 with the following observation:-- "It thus appears that Ghulam Nabi could not get the possession due to this technical ground, otherwise he fulfilled all the conditions for getting this lot under the orders of the learned Member (Colonies), Board of Revenue, Punjab, Lahore. Under the circumstances, I am of the opinion that a genuine case is made out for the appellant. I accordingly set aside the impugned order and accept the appeal with the direction that as soon as the lease period of Sultan Ahmed expires, the appellant should be put into possession of the lot in question."
3. Sardar Muhammad, petitioner herein, filed a revision petition before the Member, Board of Revenue, Punjab, Lahore against the order dated 30-4-1987 of the Additional Commissioner, (Revenue) through which the land was restored to Ghulam Nabi. This revision petition was accepted on 21-9-1998 by the Member, Board of Revenue, on the ground that the basic condition was continuous possession of the persons who were restored the lot and further if the lot stood allotted to some other person the restoration order would not be maintainable. According to the Member, Board of Revenue, Ghulam Nabi never remained in possession of the lot after his original allotment in 1949, and further that the land had been validly given on Temporary Cultivation Lease Scheme to Sardar Muhammad, petitioner, therefore, Ghulam Nabi did not fulfil two main conditions as laid down by the Board of Revenue. This order of the Member, Board of Revenue, dated 21-9- 1988 was challenged by Ghulam Nabi, respondent, by way of filing a suit for declaration and permanent injunction before the Civil Judge, Khushab. The petitioner resisted the suit.
4. From the divergent pleadings of the parties, following issues were framed by the learned trial Court/Senior Civil Judge, Khushab:--
(1) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD
(2) Whether the suit is not maintainable in its- present form? OPD
(3) What is the effect of Preliminary Objections Nos.4 to 6 of written statement filed by defendant No.2?
(4) Whether this Court lacks jurisdiction to try the suit? OPD
(5) Whether the suit is false and frivolous and the defendants are entitled to special costs? OPD
(6) Whether the order of MBR, Punjab, Lahore dated 21-9-1988 regarding cancellation of allotment is illegal, against facts, mala fide, void and inoperative upon the rights of the plaintiff? OPP
(7) If the preceding issue is proved, whether the plaintiff is allottee in possession of suit-land mentioned in the head note of the plaint under Abad Kari Scheme and is entitled to get proprietary rights? OPP
(8) Relief.
5. The learned Senior Civil Judge, Khushab accepted the contention of Ghulam Nabi, respondent, and declared the order of Member, Board of Revenue, Lahore dated 21-9-1988 regarding cancellation of allotment as illegal by deciding Issue No.6 in favour of Ghulam Nabi. On Issue No.4 the Court held that jurisdiction of the Civil Court is not ousted under section 36 of the Colonization of Government Lands (Act of 1912). He proceeded to decree the suit of Ghulam Nabi vide judgment and decree dated 26-2-1994. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Khushab on 24-9-1997.
6. The learned counsel for the petitioner has argued that the finding of the learned Senior Civil Judge on Issue No.4 regarding jurisdiction is erroneous as the Civil Court had no jurisdiction to set at naught the order passed by the Member, Board of Revenue, Punjab dated 21-9-1988, which was within the jurisdiction of the Member, Board of Revenue. Further contends that respondent Ghulam Nabi did not fulfil the condition of allotment, therefore the land could have not been restored to him. The argument of the learned counsel is that Ghulam Nabi was out of possession which was condition precedent for restoration of the allotment. Reliance has been placed on the case of Zafarul Hassan v. Republic of Pakistan PLD 1960 Jewna v. Mst. Shah Bi PLD 1954 Lahore 253, Maqsood Ali v. Ali Ibadat Khan and others PLD 1958 Lahore 340, Raja and others v. Member, Board of Revenue and another PLD 1976 Lahore 329 and Karam Dad v. Arif Ali and another PLD 1978 Lahore 679.
7. Conversely, the learned counsel for the respondent and the learned Additional Advocate- General for the Province of Punjab in the connected appeal argued that the order of cancellation passed by the Member, Board of Revenue dated 21-9-1988 was legal and the Civil Court had no jurisdiction to reopen the matter and see the legalities of the order passed in hierarchy of the Revenue side. Reliance has been placed on Barkat Ali v. The Administrator, Thal Development, Bhakkar PLD 1978 Lah. 360; Nawab Din v. Province of Punjab 1986 MLD 921.
8. I have considered the arguments of the parties and perused the record. The first question which is to be determined is whether the Civil Court lacks jurisdiction to see the orders passed by the Revenue Authorities in the matter of allotment under the Colonization of Government Lands Act, 1912. Reference has been made to section 36 of the Colonization of Government Lands Act, 1912, which is worded as follows:-- "36. Jurisdiction of Civil Court barred as regards matter arising under the Act.--A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which Provincial Government/Board of Revenue or Collector or any other Revenue Officer exercises any power vested in him by or under this Act. "
Different statutes provide that an order made by an authority acting under it shall not be called in question in any Court. Section 10 of the Public Conduct (Scrutiny) Ordinance (III of 1959), which ousted the jurisdiction of the Civil Court, came up for interpretation before the Honourable Supreme Court in case of Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) PLD 1960 SC (Pak.) 113 and it has been ruled: "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the Authority should have been constituted as required by the statute, the person proceed against should be subject to the jurisdiction of the Authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the Authority. If an Appellate Authority is provided by the statute the omissions or irregularity alleged will be a matter for that Authority, and not for a Court of law."
9. The ratio of the judgments, the Bar on behalf of both the sides, section 36 of the Colonization of Government Lands (Punjab) Act, 1912 is available only where authorities concerned acted within powers and four corners of their jurisdiction and not their acts are ultra vires or without jurisdiction or void or in excess of their jurisdiction. See case of Karam Dad v. Arif Ali and another PLD 1978 Lahore 679, Maqsood Ali v. Ali Ibadat Khan and 2 others PLD 1958 Lahore 340, Jewna v. Mst. Shah Bi PLD 1954 Lahore 253, Barkat Ali v. Administrator, Thal Development, Bhakkar PLD 1978 Lahore 360. On the touchstone of the above stated section 36 of the Colonization of Government Lands (Punjab)
Act, 1912 and the case-law referred above, one has to see the order dated 21-9-1988 of the Member, Board of Revenue whether it has been passed under the provisions of the Act and was within the competence of the Member. It has been observed by the Collector and the Additional Commissioner in their orders dated 10-11-1983 and 30-4-1987 that the restoration of the lot in dispute in favour of Ghulam Nabi vide order of the Administrator, Thal Development Authority dated 29-3-1972 was legal and valid. The lot No.71/32 was allotted increasing the price from Rs.150 per acre to Rs.450 per acre, which amount had been deposited by Ghulam Nabi. In pursuance of the orders of the High Court passed in Writ Petition No.1489 of 1972, the Member, Board of Revenue remanded the case to the Collector vide order dated 10-6-1974 with the following conditions:-- (a)Verification of the contention of the petitioners that they are still in possession of the lots restored in their names.
(b)Verification of the genuineness of the orders of restoration.
(c)Whether during the interval of the original cancellation of allotment and its subsequent restoration, i.e. 1949 to 1972 the land remained vacant or was permanently allotted to some other person.
(d)In case the land was allotted to some other person the restoration order was not to be maintained.
10. As observed above, the restoration of land was proper and legal, the respondent could not get the possession because there was a stay order issued by the Member, Board of Revenue against the handing over of the possession. The land was not allotted to any other person on permanent basis. The restored land was on temporary lease with Sultan Ahmad and the possession could not have been delivered to the respondent because Sultan Ahmad obtained the stay order. It is conceded that Ghulam Nabi has obtained the possession, so all the conditions of the remand order made by the Member, Board of Revenue were fulfilled by Ghulam Nabi and the allotment was within the provisions of the Colonization of Government Lands (Punjab) Act, 1912 and with the competence of the Administrator. In this view of the matter, the Member, Board of Revenue's order was mala fide and does not fall under the provisions of the Act. Therefore, the jurisdiction of the Civil Court was not ousted under section 36 of the Colonization of the Government Lands (Punjab)
Act, 1912: Issue No.4 regarding jurisdiction of the Civil Court and Issue No.6 that the order of the Member, Board of Revenue, Punjab, Lahore dated 21-9-1988 regarding cancellation of the allotment is illegal were rightly decided by the Civil Court in favour of Ghulam Nabi respondent. The appeal of the petitioner has been rightly dismissed as the petitioner has even no locus standi to question the restoration of allotment in favour of Ghulam Nabi, who has deposited the amount and is in possession of the land for the last so many years.
Concurrent finding of fact recorded on the basis of evidence by the competent Courts of jurisdiction cannot be interfered with by this Court in exercise of revisional jurisdiction under section 115, C.P.C. Resultantly, this revision petition fails and is dismissed.
M.U.K./S-627/L