' Inter alia, submits that petitioner was allowed to purchase land in possession originally allotted on the basis of an entitlement certificate issued by the Atomic Energy Project, Chashma, District Mianwali, which was found to be ingenuine. Purchase by the petitioner was asserted to be on the basis of private treaty, at market value of the land, which was deposited, and conveyance document was also executed. It is urged that land subject to purchase absolutely vested in the petitioner, which could not have been cancelled on a review petition by respondent No.3.
2. Points raised need consideration. Admit. Notice.
3. Ch. Muhammad Suleman, Additional Advocate-General Punjab accepts notice on behalf of the respondents and requests that main case may be taken up today, for final determination, as no private individual is party to this petition. Learned counsel appearing on behalf of the petitioner has no objection to decision of the main case today. Main case be taken up for hearing.
4. This Constitutional petition seeks judgment/order dated 17-6-2003 passed by respondent No.2 to be declared as illegal, void and ineffective qua the rights of the petitioner.
5. Precisely, relevant facts for disposal of this petition are that the petitioner was allotted 15 acres of State land in Rakh Maikan, Tehsil Noorpur District Khushab, against an entitlement certificate issued by the Land Acquisition Collector under Atomic Energy Project Scheme, which was got re-verified and was found bogus and consequently was cancelledby the D.C./Collector, Mianwali, vide order dated 24-1-1988 on the ground that petitioner's land was not acquired. Petitioner filed a revision petition before the Board of Revenue which was laid for hearing before Senior Member (Colonies) for restoration of allotments or in the alternative petitioner may be permitted to purchase the land allotted on market value. Learned Member (Colonies) , Board of Revenue, vide order dated 22-3- 1995 accepted revision petition of the petitioner and allowed purchase of the land, at market price as on 10-3-1993 plus 10% surcharge payable in 10 equal half-yearly instalments, keeping in view the long affiliation of the petitioner with the land so allotted which was also claimed to have been made cultivable by undergoing hard labour and expenses. Petitioner is said to have deposited price of the land and is in possession of it, as an owner for last about two decades.
6. Deputy Commissioner/Collector, Khushab, on 9-10-1997, after lapse of about 2-1/2 years, filed a review petition against the order dated 22-3-1995 on the grounds that order allowing purchase of land by the petitioner, was passed by the then Member, Board of Revenue, without hearing the representative of the State and that bogus entitlement certificate of the petitioner did not confer any right to purchase the land, as the said certificate was obtained fraudulently in connivance with the Patwari concened. This review petition filed by respondent No.3 was accepted by respondent No.2 with certain unbecoming remarks against the former Member (Colonies) vide judgment/order dated 17-6-2003, mainly on the ground that State agricultural land could not be sold to any person, at market rate because there was no law/policy allowing this course. Learned Member, Board of Revenue (respondent No.2) observed that since order dated 22-3-1995 was void, there is no question of limitation involved in the case and setting aside the said order, refused purchase of land by the petitioner. Petitioner has now filed this Constitutional petition against the order of respondent No.2 for the relief, not above:
7. Learned counsel for the petitioner submits that Member (Colonies) who passed the order dated 22-3-1995, was himself incharge of Colony hierarchy within the Province of Punjab and as such, it could not have been said that he while passing the order under review, did not hear any State representative or respondent No.3, who filed the review petition. It has also been contended on behalf of the petitioner that dispute regarding bogus entitlement certificate having been obtained out of fraud and connivance with the revenue field staff, stood already concluded at the time of order dated 22-3-1995, as these facts have been noted in the said order. According to him, right to purchase laud in possession of the petitioner was not given by the learned Member, Board of Revenue, on the basis of entitlement certificate, but it was granted out of private treaty, on the basis of possession of the petitioner and viewing hard labour and expenditure incurred by the petitioner for making the land cultivable. In this manner, it is urged that respondent No.2 incorrectly reviewed the order of the Member (Colonies), making false facts basis thereof. He further elaborated his arguments by saying that for reviewing a judicial decision, there should have been some error apparent on the face of the judgment/order subject of review, in absence of which review jurisdiction could not have been exercised. Relying on certain other decisions of the Board of Revenue including decision dated 2-10-2003 given by the Full Board in the case of The State v.
Khadim Hussain (ROR 1296 of 1997) learned counsel for the petitioner graded the judgment/order impugned as discriminatory and submitted that in this precedent case Board of Revenue has itself allowed the persons in possession of land to purchase it on market value. Learned counsel further submits that judgment/order dated 22-3-1995 was not a void order and for invocation of powers of review, respondent No.2 should have condoned delay on the basis of some sound and sufficient reasons, which were lacking in the case, in hand. He also submits that since judgment/order dated 22-3-1995 was within the knowledge of respondent No.3, from the very beginning, as he accepted price of the land by the petitioner and thus there was no reason to file review petition after lapse of 2-1/2 years.
8. Conversely, learned Law Officer appearing on behalf of the respondents refuted submissions of the petitioner and supported judgment/order of respondent No.2 and urged that no indulgence in Constitutional jurisdiction of this Court should be shown to a person who had obtained entitlement certificate by committing fraud on Government officials. It has also been argued that purchase of land on market value, cannot be justified under any law or scheme promulgated by the Government. Learned Law Officer also submits that an order having no legal backing was rightly graded as a void order and there is no period of limitation to challenge it.
9. I.Have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Section 8 of West Pakistan Board of Revenue Act, 1957, lays down certain preconditions for invocation of review jurisdiction by respondent No.2. Under these provisions of law, any person considering himself aggrieved of an order made by the Board of Revenue can move for review on account of discovery of new and important piece of evidence which after exercise of due diligence, was not within his knowledge, at the time of passing of the order under review or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. In the instant case, review was not moved by respondent No.3 on any of the prerequisites detailed in section .8 of the Board of Revenue Act, 1957, but was only sought to be reviewed on the ground that petitioner having obtained entitlement certificate from Land Acquisition Collectoropulently, is not entitled to purchase land occupied by the petitioner. Learned Member (Colonies) while passing order dated 22-3-1995 was cognizant of all these facts, who by keeping it aside, allowed purchase on the ground of affiliation of the petitioner with the land for a long time, which has been claimed to have been made cultivable by expending huge money and putting hard labour. It appears that review jurisdiction could not have been invoked for rescue of respondent No.3 for reasonstailed by him in the review petition. Since this aspect of the case has not been dealt with by respondent No.2, I intentionally refrain from commenting any more on it, as I intend to remand back the case for fresh decision to respondent No.2 and consequently keep it open for decision by him.
10. Reference by the learned counsel for the petitioner to decisions of the Board of Revenue in similar circumstances, in which persons in possession were allowed to purchase land at market price, especially the recent decision of the Full Board dated 2-10-2003, is not misplaced. While deciding ROR No.1296 of 1997 Full Board took a decision that persons in possession may be allowed to purchase the property, who were allotted land within prohibited zone. Allotment within prohibited zone how can be graded as lawful and not involving any element of fraud or misrepresentation, but Full Board unanimously found that sale by private treaty has attained finality and does not require any relaxation of policy. This decision as well as other decisions of the Board, applicable to the case of the petitioner, were not brought to the notice of respondent No.2 at the time of passing of impugned order, as such, I find it appropriate that these decisions be brought to the notice of respondent No.2 who is the rightful person to take a consistent decision so that public may not feel their handling out of discrimination, as asserted by the petitioner.
11. Similarly, looking at the decision of Full Board dated 2-10-2003,I am of the tentative view that if sale through private treaty can be said to have attained finality in that case, the order of Member (Colonies) dated 22-3-1995 which was subject of review before respondent No.2 cannot be graded as void. In these circumstances, respondent No.3 will be required to explain delay in filing his review petition. In such-like cases, once the limitation starts running, it cannot be stopped by any subsequent act. It is also settled principle of law that in case of delay, it has to be explained from day to day meaning thereby each day's delay, E has to be explained. A reference in this behalf can be made to alighted judgments of the Honouable Supreme Court of Pakistan in the cases of Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (1975 SCM R 304), Government of,, the Punjabthrough Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem (PLD 1995 SC 396) and Cantonment Board, Rawalpindi v Muhammad Sharif through Legal Heirs (PLD 1995 SC 472). Point of limitation shall also be decided by respondent No.2 afresh keeping F in view authoritative judgments of the Honouable Supreme Court, noted above.
12. Judgment/order dated 22-3-1995 manifests that petitioner was not allowed right of purchase on account of entitlement certificate, as such, it could not have been made basis for review by respondent No.2. I am clear in my mind that all the facts, circumstances of the case, decisions in other matters and right of the petitioner to purchase land which once given, cannot be taken back, under law, were not brought to the notice of respondent No.2 and thus remained outside the comprehension of the decision impugned in this Constitutional petition, thus the same cannot be sustained. I accordingly, accept this Constitutional petition, declare judgment/order dated 17-6- 2003 passed by respondent No. 2 as illegal, void and ineffective and in result thereof review petition filed by respondent No.3 will be considered as pending and shall be decided afresh, in accordance with law, keeping in view the above observations. Parties are directed to appear before respondent No.2 on 8-3-2004. There will be no order as to costs.