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1982 C L C 969

 

[Lahore]

 

Before Muhammad Zafarullah, J

 

MUHAMMAD HUSSAIN‑Petitioner

 

versus

 

MEMBER BOARD OF REVENUE AND OTHERS‑Respondents

 

Writ Petition No. 1236 of 1969, decided on 9th May, 1982.

 

 

Muhammad Anwar Buttar for Petitioner.

 

Muhammad Younas Barlas, C. O. Sheikhupura with record for Respondent.

 

Date of hearing : 9th May, 1982.

 

JUDGMENT

 

This case has a long history. Consolidation scheme in the village was sanctioned on 25‑3‑1960. A number of appeals were made against the sanc tion of the scheme but they were disposed of by the Collector in 1951. Three revision petitions were moved before the Additional Commissioner and they were disposed of on 7‑4‑1963. Ghulam Nabi, Faiz and Farzand took the matter in second revision before the Member Board of Revenue. These revision petitions were disposed of on 3‑7‑1965 by the Member, Board of Revenue and the cases were remanded to the Additional Commissioner for fresh decision. In all these proceedings Muhammad Hussain petitioner was not a party. The learned Member Board of Revenue, while remanding the case of the three revision petitioners on 3‑7‑1965, gave a general remark regarding the petitioner of obtaining benefits out of the consolidation scheme to which he was not entitled. He, however, made no direction to the Additional Commissioner while remanding the case of the revision petitioners regarding the case of Muhammad Hussain, the present petitioner. When the Additional Commissioner took up the case on remand, Mst. Barkaty respon dent No. 10, moved a petition on 17‑10‑1966 praying that Muhammad Hussain petitioner may be impleaded as a party. Two other petitions were made by Amanat Ali and Amir Din but they were directed against Rehmat Ullah. The Additional Commissioner in disposing of the matter after remand made certain changes in the khata of the present petitioner vide his order dated 7‑4‑1969. He took away 28 kanals from Square No. 36 from the petitioner and instead give him 41 kanals 17 marlas elsewhere. The petitioner challenged this order in the Board of Revenue but his petition was dismissed on 21‑6‑1969. He has challenged the orders of the Additional Commissioner and the Member Board of Revenue in the present writ petition.

 

2. Certain lands lying in the pool of evacuee property were subject to mortgage and were allotted to the respondents. These parcels of land belonged to the Central Government and in the consolidation operations all these interests were grouped together in Square Nos. 42, 43, 55 and 56. The respondents’ entitlements which till then were confined only to the mortgage interest were adjusted in these squares. At some stage after the consolida tion scheme had been sanctioned the mortgagees were given option to pur chase the land under the settlement scheme. As a result of the improved title of the respondents they set up a case for being adjusted in the consoli dation scheme. This was, however, not permissible as the consolidation authorities cannot take into account any changes in the status of the parties which may have taken place after the start of consolidation proceedings. The Additional Commissioner was, therefore, not justified in making adjustments in the khatas on this ground.

 

13. As observed above, the consolidation scheme sanctioned in 196 was challenged before the Collector, the Additional Commissioner and then Board of Revenue for five long years but no challenge was thrown to the rights of Muhammad Hussain petitioner in any of these proceedings. His case, therefore, could not be reopened in 1966 through an application Mst. Barkaty respondent No. 10, seeking that the petitioner may be implead as a party. The possession had been taken over by the petitioner in Rabi 1961 and the respondents took possession of their khatas in the squares reserved for the Central Government. It cannot, therefore, be said that the respondents bad no notice of the land being given to the petitioner in square No. 36. The proceedings taken at the instance of Mst. Barkaty respondent No. 10, by the Additional Commissioner in 1966 were, therefore, clear barred by limitation and it could not have conferred any jurisdiction on the Additional Commissioner. The Additional Commissioner was obviously not exercising sou motu revisional jurisdiction as Mst. Barkaty had specifically invoked his jurisdiction. The period of limitation, therefore, will bet attracted to the present case.

 

4. In view of the above considerations, the ‑ orders of the Additional Commissioner dated 7‑4‑1979 the subsequent orders of the learned Member, Board of Revenue of 21‑6‑1969 were without lawful authority and are declared to be of no legal effect. The writ petition is allowed with costs.

 

Petition allowed.

M. Y. H.

 

 

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