Find a Lawyer

Civil Petition for Leave to Appeal No. 494 of 1982, decided on 8th January, 1983.

(On appeal from the Judgment and order of the Lahore High Court dated 29‑3‑1982 in W. P. 1618/77)

Constitution of Pakistan (1973)‑

‑--‑ Art. 185(3) read with West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S. 13‑‑Order for fresh consolidation‑Leave to appeal‑Granted to consider whether order of fresh consolidation passed by Board of Revenue in exercise of plenary powers was competent.

M. Zainul Abdeen, Advocate, Supreme Court of Pakistan and M. Aslam Advocate‑on‑Record for Petitioners.

Muhammad Arif, Senior Advocate, Supreme Court and Ejaz Ahmad Khan Advocate‑on‑Record for Respondents.

Date of hearing : 8th January, 1983.

MIAN BURHANUDDIN KHAN,

J.‑‑By this petition the petitioners call in question the order of a learned Single Judge of the Lahore High Court dated 29‑3‑1982 passed in Writ Petition No. 1618 of 1977,

2. A consolidation scheme was sanctioned in the year 1962 but the matter could not be concluded as the record of consolidation was mis placed. Against the scheme itself, twenty‑one appeals were filed which were accepted on 6‑2‑1983 by the Additional Commissioner who remanded the case back to the Additional Deputy Commissioner for fresh consolidation of the whole village. A revision was preferred against the order of remand before the Board of Revenue and the learned Board directed that the twenty-one appeals may be decided afresh individually and not by a consolidated order. The case was, therefore, remanded to the Additional Commissioner for the said purpose. On 21‑5‑1965 the learned Additional Commissioner dismissed fourteen appeals and directed adjustments in the Khata in respect of the remaining seven appeals. Second revision petition against this order was preferred which was dismissed by the Board of Revenue on 3‑8‑1967. The matter stopped there as the record bad been misplaced in the meantime. After that the right‑holders in the village had been litigating by other proceedings ; some of them for fresh consolidation in the village while others were satisfied with the consolidation operation so far taken and just asked for the reconstruction of the record. On 6‑12‑1967 the Additional Commissioner directed that the record should be reconstructed but the Additional Deputy Commissioner, on a miscellaneous application, ordered on 31‑12‑1968 for fresh consolidation in the village. This order was again challenged in the Board of Revenue. The learned member of the Board rejected the plea of consolidation in the village and directed that the record be reconstructed as early as possible. At this stage, Writ Petition No. 1480 of 1969 was moved in the High Court seeking a fresh consolidation and setting aside of the order of 12‑8‑1969. This writ petition was, however, withdrawn in order to pursue the remedy before the Board of Revenue.

3. Haji Ali Akhtar and others then filed a review petition before the Board of Revenue in which Sufaid Khan, one of the respondents, was made a party. This petition was rejected by the learned Member of the Board on 29‑4‑1972 who again ordered for reconstruction of the record. The matter remained static for about five years until on 6‑6‑1977 a new order was passed by the Board of Revenue directing the Additional Deputy Commissioner (Consolidation) to start consolidation operation in the village. This order was challenged before the High Court which resulted in the impugned order.

4. The view taken by the High Court was that "once a matter has been decided on the judicial side, the exercise of executive authority to nullify the effect of judicial decisions will be an improper exercise of authority". It is, however, contended by the learned counsel for the petitioners that the learned Judge of the High Court did not take into consideration the reasons which had weighed in the mind of the Member, Board of Revenue, in ordering a fresh consolidation. In this connection it was pointed out, with reference to the departmental comments received in the High Court that the reconstruct ed record had not been found to be satisfactory, that the basis of the record was dubious and unreliable and that the consolidation staff could not prepare the field map of the village on the basis of the one prepared at the time of confirmation of the scheme, for which reason the field staff had failed to demarcate and identify the position of the area given to the right‑holder at the time of confirmation of the scheme in 1962. It was for these reasons, it is submitted that a fresh consolidation had been ordered for which the Member, Board of Revenue, in the exercise of his plenary powers was competent to so order. The point raised needs consideration. Leave

is, therefore, granted. Security Rs. 2,500 (rupees two thousand and five hundred only) the appeal to be heard on the basis of the present record with liberty to the parties to file additional document if so desired. Status quo with regard to the parties possession shall be maintained.

S.Q. Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.