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Civil Appeal No. 160 of 1983, decided on 7th December, 1985.

(Against the judgment and order of the Lahore High Court Lahore, dated 11‑5‑1981 in Writ Petition No. 197/11 of 1981).

‑‑‑Art. 185(3)‑‑Leave to appeal granted to Province of Punjab to examine inter alia whether High Court had justifiably dismissed in limine a constitutional petition filed by appellants on ground that it suffered from indolence and laches'.

‑‑‑Paras. 9 & 15, Sched. III, para. 10‑‑Land allotted under Border Area Allotment Scheme cancelled by Board of Revenue but subsequently restored on second review‑‑Restoration order challenged unsuccessfully before Board of Revenue and in writ jurisdiction which was dismissed on account of indolence and laches‑‑Appeal to Supreme Court‑‑Order passed by Border Allotment Committee being immune from attack, first order of Board of Revenue cancelling allotment, held, was without jurisdiction and a corrective which removed that order from scene could not be objected to on any legal or jurisdictional plane‑‑Order cancelling allotment had to be corrected and even if not so corrected, it had to be ignored so far as its legal implications were concerned‑‑Appeal dismissed in circumstances.

‑‑‑Para. 9, Sched. III, para. 10‑‑Allotment of land in 'border area'‑ Cancellation of‑‑Procedure‑‑In case of any illegality or impropriety in making allotment, procedure prescribed in Regulation or under Regulation, has to be followed and none outside it.

M. Nawaz Abbasi, Assistant Advocate‑General Punjab and Rao M. Yousaf Khan, Advocate‑on‑Record for Appellants.

Respondent No. 1: Ex parte.

Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.2.

S.M. Zafar, Senior Advocate Supreme Court and Ghulam Dastgir, Advocate‑on‑Record for Respondent No. 3.

Date of hearing: 7th December, 1985.

Leave to appeal was granted to the Province of Punjab to examine, inter alia, whether the Lahore High Court had justifiably dismissed in limine the constitutional petition filed by the appellants on the ground that it suffered from 'indolence and laches'.

On the 17th of March, 1959 was promulgated the West Pakistan Border Area Regulation, 1959 (hereinafter referred to as the Regulation) which brought within its purview all the area within five miles of the border. The 'border area' was defined any area in West Pakistan along the Indo‑Pakistan Border which falls within five miles from such border. The land situated within this belt was reserved for allotment by Border Allotment Committee and according to its Schedule II army officers were to be allotted fifty Acres of land (one officer in each Patwar Circle) Schedule III of the Regulation provided for the terms and conditions of the allotment and condition No. 10 thereof was in the following words:‑

"10. The allotment shall be liable to be cancelled for breach of any of the conditions contained in paragraphs 5, 6 and 9 above provided no allottee will be finally disposed of the allotment till he has been given a fair chance to explain such conduct in the manner as follows:‑

Assistant Rehabilitation Commissioner will issue a notice to such allottee to appear before the Deputy Rehabilitation Commissioner within a period of one month after the service of the notice. The Deputy Rehabilitation Commissioner after hearing the allottee and after perusal of such record as he may require will pass the necessary orders. In case of a Military allottee a reference shall have to be made to the General Headquarters for approval if the Deputy Rehabilitation Commissioner finds cogent reasons for cancellation of his allotment. The notice to an allottee will be served through a Registered letter (acknowledgment due) or through the Tehsildar concerned or by affixing it on the recognised residence of the allottee concerned."

On the 6th of November, 1969 the Government of West Pakistan in the Colonies Department communicated an order to the Adjutant General, General Headquarters, Rawalpindi, the operative part of which was as follows:‑

"The Government of West Pakistan is pleased to transfer all Sate land lying within five miles belt of the Indo‑Pakistan Border in the former Punjab Province and the Bahawalpur State to the General Headquarters for allotment through the agency of the Border Allotment Committee subject to the condition that the price of the land will be settled by negotiation between the Board of Revenue with General Headquarters and in consultation with the Finance Department.

As for the delivery of the possession of the land normally it cannot be done before the settlements of the price issue but in this particular case the General Headquarters should undertake that they (not the individual) shall pay the price as fixed in consultation with Finance Department so that the possession of State land may be delivered to them."

The land in dispute which measures 486 Kanals 19 Marlas was allotted on the selection of General Headquarters by the Border Allotment Committee to an army officer Raja G.B. Kiani. The respondent No. 3 Major Raja Muhammad Aslam Khan had been at first allotted land under the Regulation in Bahawalnagar District on 3‑7‑1970. He was then allowed to shift his allotment to village Rakh Bhulewal, Tehsil Dipalpur, District Sahiwal. There too, it appears, he did not expect to get possession of the land and asked for its exchange with land in Kasur. The G.H.Q. by its letter, dated 13‑8‑1971 informed him that the shifting of his allotment from Rakh Bhulewal to Kasur was approved and the land earlier allotted to Raja G.B. Kiani and surrendered by him was to be allotted to him. Pursuant to this recommendation of the G.H.Q. the land was confirmed to him on 18‑8‑1971.

It appears that against allotment in the border area by Border Allotment Committee a number of constitutional petitions had been filed which were remanded to the Board of Revenue for getting the entitlement of the writ petitioners determined in accordance with law. It was while examining those allotments that the respondent No.3 was associated by the Board of Revenue in the proceedings before it and by an order, dated 27‑3‑1976 the Board of Revenue exercising its revisional jurisdiction set aside the allotment made to respondent No. 3 by observing as follows:‑

"486 Kanals 19 Marlas of land was allotted to him on 18‑8‑1971 and 28‑8‑1971. As the allotment has been made after 4‑8‑1971 on which date it was explicitly directed not to make any allotment within municipal limits, the allotment is ab initio void and cannot be sustained. The allottee has stated that previously he was allotted land in Rakh Bhullewal on 7‑10‑1970 and in lieu of that allotment, the present allotment was made. It should, therefore, be considered to have been made since 7‑10‑1970. This plea cannot be accepted because no allotment could be made within municipal limits after 4‑8‑1971. It is, therefore, cancelled.

The respondent No. 3, thereafter sought review of this order on the ground that the Board of Revenue had no jurisdiction to interfere with the allotment made by the Border Allotment Committee and in any case his allotment was not a fresh one but of an earlier date and only the venue of it had been shifted to a land which was not a freshly allotted land but stood allotted in favour of another army officer Raja G.B. Kiani. This review petition was, however, rejected on 7‑1‑1977.

Another review petition was thereafter, moved by him seeking recall of the order of cancellation of his allotment by the Board of Revenue. This was allowed by the same Member, Board of Revenue on 5‑5‑1977 holding that:‑‑

"The land in dispute had already been allotted under Border Area Allotment Scheme before 4‑8‑1971, its subsequent allocation in favour of the petitioner does not constitute a fresh allotment prohibited under Government letter, dated 4‑8‑1971. I, therefore, accept this review petition, remand the orders, dated 27‑3‑1976 and 7‑1‑1977 and restore the allotment of the petitioner made to him in Kasur Town."

The Deputy Commissioner Kasur, who it appears was looking for a suitable site for locating the District offices found that a part of this land could usefully serve the purpose He moved on 13‑4‑1978 for the cancellation of the order of the Member, Board of Revenue, dated 5‑5‑1977 restoring the allotment of respondent No. 3. He was informed by the Board of Revenue that it was not possible to do so. Thereafter, the Deputy Commissioner moved a formal review application before the Board of Revenue on 21‑7‑1979. It was rejected on 24‑4‑1980. Thereafter, a constitutional petition was filed by the Deputy Commissioner/ Collector impleading the Province also as the writ petitioner and challenging the order of the Board of Revenue, dated 5‑5‑1977 whereby the allotment of respondent No. 3 was retired on the second review application and the order, dated 24‑4‑1980 whereby a formal review petition filed by him was dismissed.

This constitutional petition came up for hearing before 1a learned single Judge of the Lahore High Court who found that the history of the case and the interest shown by the Deputy Commissioner clearly established that he was aware of the orders passed from time to time and yet he had inordinately delayed the filing of review petition before the Board of Revenue and the filing of the constitutional petition in the High Court. The learned Judge found no adequate reason for giving a preferential treatment to the appellants and, therefore, dismissed the petition on account of indolence and laches.

The learned Assistant Advocate‑General has taken us through the various letters that issued from the Provincial Government to the General Headquarters with respect to the availability of the disputed land for allotment to army officers. His effort was to demonstrate that the allotment to respondent was made by the Border Allotment Committee at a time when Provincial Government had prohibited allotments to be made within the municipal limits of Kasur. On account of such a prohibition, according to the learned Assistant Advocate‑General, the allotment of the land surrendered by another army officer was hit by the prohibition and was against law and untenable. It was also urged that the first review petition having been dismissed by the Board of Revenue a second review petition was not at all competent on the same ground and the Board of Revenue had committed an error of jurisdiction and law in entertaining the second review petition and in allowing it.

The learned counsel for the respondent No. 3 has drawn our attention to the provisions of the Regulation with a view to show that the orders passed by the Border Allotment Committee, as was the subject‑matter of controversy in the present appeal, was immune from attack before Member, Board of Revenue and what is more by the review impugned by the appellants, the Board of Revenue did nothing but correct its own jurisdictional error keeping intact the allotment which was not within its jurisdiction to set aside. Further, the learned counsel has also supported the order of the Member, Board of Revenue passed in review on the ground that in fact there was no fresh allotment made in favour of the respondent No. 3. It was an allotment already made which was allowed to be shifted from one District to another and the land so allotted to him was not an un-allotted land but one which had been earlier allotted to another army officer. The recommendation of the General Headquarters will show that the recommendation was one of substituting one officer for the other and not of making a fresh order of allotment.

It appears to us from the history of the case that the case of respondent No. 3 was not remanded to the Board of Revenue by the High court. The Board of Revenue had suo motu associated him in the proceedings before them. It was, therefore, a case of suo motu revision of order of his allotment. The Regulation provides on the question of jurisdiction in its Article 15 as follows:‑‑

"15. No provisions of this Regulation, or order made or direction issued there under, shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority, except as provided in this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter arising out of the operation of this Regulation.

(b) No such Court or authority shall be competent to grant any injunction or other order in relation to any proceeding before a committee or before any officer exercising any power or discharging any function under this Regulation or under any order made or direction issued thereunder."

Besides, it appears that the procedure for interfering with such allotments was provided for in Para 10 of Schedule III already re‑produced. The Board of Revenue does not figure anywhere in the Scheme. Therefore, the very first order of the Board of Revenue by which it proceeded to cancel the allotment of the respondent No. 3 was without jurisdiction and outside the frame‑work of Regulation under' which the land had been allotted by the Border Allotment Committee. That order being absolutely outside the jurisdiction of the Board of Revenue a corrective which removed that order from the scene cannot be objected to on any legal or jurisdictional plane. It had to be corrected' and even if not so corrected it had to be ignored so far as its legal implications are concerned. If there is any illegality or impropriety in making the allotment the procedure prescribed in the Regulation or, under the Regulation had to be followed and none outside it. On this short ground, this appeal is liable to be dismissed and we dismiss it, with costs.

M. I. Appeal dismissed.

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