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2010 Y L R 3211

 

[Lahore]

 

Before Ch. Muhammad Tariq, J

 

MUHAMMAD WALAYAT and others—Petitioners

 

Versus

 

MEMBER JUDICIAL, BOARD OF REVENUE, PUNJAB and others—Respondents

 

Writ Petition No. 2958 of 2004, decided on 4th August, 2010.

Syed Qalb-i-Hassan for Petitioners.

 

Sh. Zameer Hussain for Respondents.

 

 

ORDER

 

CH. MUHAMMAD TARIQ, J.–This order will dispose of Writ Petitions Nos.2958 and 299 of 2004 as the common questions of law and facts are involved in both writ petitions.

 

2. This writ petition has been directed against the order dated 14-9-2004 passed by respondent No.1, who dismissed the ROR No.1074 of 2000.

 

3. Brief facts of the case as mentioned in writ petition are that consolidation proceedings of village Jalalpur Sharif was confirmed in the year, 1980 and finally the consolidation scheme was approved by the Collector (Consolidation) on 28-12-1980. The predecessor-in-interest of respondents Nos.3 to 3/G, 6 to 10 and respondents Nos.4 and 5 filed appeal against the consolidation scheme confirmed on 28-12-1980.

 

4. That during the proceedings, an alleged compromise was entered on behalf of the predecessor-in-interest of the appellant and on the basis of above said alleged compromise, the Additional Commissioner (Consolidation), Rawalpindi Division, altered the approved consolidation scheme on 28-3-1988 and accordingly Mutation No. 2934 was sanctioned on 24-2-1986.

 

5. That the petitioners filed a civil suit and challenged the compromise on the ground that the petitioners are not party to the compromise so the same is not binding upon the petitioners, but the suit of petitioners was dismissed. The petitioners filed appeal before the learned District Judge which was also dismissed.

 

6. That in the third round of litigation, the petitioners filed a revision petition. During the proceedings, the petitioners made a statement that they are prepared to file an appeal before the consolidation authorities in view of the jurisdictional objections raised by the respondent and in view of the statement, civil revision was disposed of with the direction “that the appeal be decided on merit in accordance with law”.

 

7. That the petitioners in pursuance of statement, filed an appeal before Collector (Consolidation) who dismissed the same on the ground that his predecessor has specifically written at the end of the scheme that if any land owner have any objection, he may file an appeal to the Additional Commissioner, Rawalpindi, therefore, he has no jurisdiction to hear the appeal.

 

8. That thereafter on 15-12-1999 the petitioners filed an appeal before Additional Commissioner (Consolidation) Rawalpindi, who dismissed the appeal on the ground that since compromise order was not challenged before the competent forum, therefore, the appellant cannot simply brushed it aside by disowning the compromise.

 

9. That the petitioners further assailed the order of learned Additional Commissioner (Consolidation) Rawalpindi, before the Board of Revenue in ROR No.1074 of 2000, but it met the same fate and vide order dated 14-9-2004, learned Member (Judicial-II) Board of Revenue, Punjab, dismissed the revision petition being badly barred by time, hence this writ petition.

 

10. Learned counsel for the petitioners contends that the petitioners were not party to the compromise. None of the petitioners have made any statement in the Court. Even the petitioners were not marked present in the order sheet, therefore, the petitioners are not bound by a compromise which was not consented by the petitioners. Learned counsel for the petitioners further contends that the basic order passed in civil revision was a void order and all structure raised thereupon is liable to be demolished. He further contends that period of limitation does not run against the void order, therefore, all impugned orders against the petitioners be set aside and matter be decided on merit. Learned counsel for the petitioners has relied on “Mst. Rehmat Bibi and others v. Punnu Khan and others” (1986 SCMR 962), “Moulana Atta-ur-Rehman v. Al-Haji Sardar Umar Farooq and others” (PLD 2008 Supreme Court 663) and “Allandino v. Fakir Muhammad and another” (PLD 1969 Supreme Court 582).

 

11. Conversely, learned counsel for the respondents has vehemently opposed the writ petition and has argued that the matter was compromised during the appeal and accordingly consolidation scheme was modified on 28-3-1985. Thereafter, instead of assailing the order dated 28-3-1985 before the proper forum, the petitioners filed a civil suit which was dismissed. The petitioners assailed the judgment and decree of civil court in appeal which was also dismissed and thereafter, the petitioners filed a civil revision before High Court which was disposed of with the direction `that the petitioners may file appeal before the proper forum’.

 

12. Learned counsel further argued that petitioners have not annexed any application wider section 5 of the Limitation Act along with writ petition or the condonation of delay nor he has mentioned in the grounds of writ petition that what prejudice has caused to the petitioners, therefore, the writ petitions are without any merit, they be dismissed.

 

13. Arguments heard. Record perused.

 

14. Perusal of record shows that as a result of compromise, consolidation scheme was modified on 28-3-1985. The petitioners did not approach the appropriate forum despite the fact that the petitioners were party in appeal before Additional Commissioner (Consolidation) Rawalpindi and were well aware of the factum of compromise and instead filed a civil suit and challenged the factum of compromise. The suit was dismissed against whom the petitioners filed an appeal which also met the same fate and it was dismissed by the learned Additional District Judge. The petitioners further assailed the matter in this Court in civil revision which was disposed of on 1-9-1999 with a direction `that the matter be decided on merit in accordance with law’.

 

15. Perusal of record further shows that in the grounds of writ petition, the petitioners have contended that they were allotted most of the land which is “Ghair Mumkin” or “Mera”. There is no allegation that petitioners’ were allotted land less than their entitlement. The consolidation scheme was modified on 28-3-1983 against which the petitioners filed appeal before Additional Deputy Commissioner/Collector (Consolidation) Attock, on 19-11-1999, after about 14 years of confirmation of consolidation scheme. Perusal of record shows that the respondent No.1 has rightly dismissed the revision petition of petitioners. Even with the instant writ petition, petitioners have not annexed application under section 5 of the Limitation Act, mentioning therein the explanation regarding condonation of delay. The law relied by learned counsel for the petitioners is not applicable in the matter because it was the duty of the petitioners to challenge the order/judgment within period of limitation, if the said order is allegedly a void order. Relied on “Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others (PLD 2003 Supreme Court 90), “Srafraz v. Muhammad Aslam Khan and another (2001 SCMR 1062) and “Muhammad Raz Khan v. Government of N.-W.F.P. and another (PLD 1997 Supreme Court 397).

 

16. Similarly jurisdiction could not be conferred with the consent of the parties and it was duty of the petitioners to explain the delay of each and every day to the satisfaction of the Court, but the peti tioners have not even filed an application under section 5 of the Limitation Act for the condonation of delay.

 

17. From the scanning of record it reveals that the Board of Revenue has examined the case minutely in revision petition. Admittedly powers of revision are much wider in scope than the powers of this court in writ petition because in writ petition this Court can only consider the question of jurisdiction or illegality, whereas, revisional Court cannot only consider the legality but that of correctness and even of the proprietary of any finding passed by subordinate courts.

 

18. As a result, an order passed in revision petition could not be challenged in constitutional petition. Learned counsel for the petitioners further failed to point out any illegality or jurisdictional error in the impugned judgment. Resultantly, this writ petition is devoid of merit same is dismissed.

 

M.H./M-487/L Petition dismissed.

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