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Writ Petition No.917 of 1978, decided on 21st February, 1987.

---S.10--Constitution of Pakistan (1973), Art. 199--Confirmation of consolidation scheme with consent of parties--Such scheme due to non-challenge by way of appeal or revision within time became final- Board of Revenue subsequently modifying such scheme and allotting substantial part of such Scheme to respondent whose claim had already been satisfied--Modification of confirmed and final consolidation scheme by Board of Revenue, held, being ex facie arbitrary was without lawful authority--High Gust its constitutional jurisdiction set aside modification of consolidation scheme by Board of Revenue.

Muhammad Jahangir Wahlah for Ch. Muhammad Ashraf Wahlah for Petitioner.

Sh. Ziaullah for Respondent to Nos. 1 to 5.

Date of hearing: 21st February, 1987.

Assistant Consolidation Officer confirmed v consolidation scheme with the consent of the parties on 27-1-1974. Nobody challenged the consolidation made in favour of Muhammad Hayat, the petitioner. Respondent No.6 filed an appeal against Ahmad Khan and others, respondents Nos.1 to 17 before the Additional Deputy Commissioner (Consolidation) who made certain modifications vide order, dated 31-10-1974. Respondents Nos.l to 5 filed an appeal. So also respondent No.18. Respondent No.6 who had filed the appeal before the Additional Deputy Commissioner (Consolidation) and obtained the order, dated 31-10-1974, also challenged the same through a revision petition. All these were instituted before the Additional Commissioner (Revenue). Ahmad Khan etc. respondents Nos.1 to 5 filed an application before the Additional Commissioner (Revenue) for impleading the petitioner as well. The Additional Commissioner (Revenue) dismissed the appeals as well as the revision petition, vide order, dated 26-8-1975. Respondents Nos.l to 5 filed a revision petition before the Member (Consolidation). Board of Revenue. The learned Member (Consolidation), Board of Revenue took away 48 kanals from Square No.77 from the petitioner and gave that land to Ahmed Khan and the former was given the equivalent area in Square No.83. This is vide order, dated 30-4-1977. The petitioner filed a review petition which was dismissed on 22-9-1977. Hence this Constitutional petition.

2. Learned counsel for the petitioner has contended that the Scheme confirmed in favour of the petitioner was not appealed against. The order had become final. There was no justification to disturb the petitioner. Further, the respondent No.l has still some land in Square No.83. He could be left with the extra 48 kanals there.

There was no need to take that away and give that to petitioner and disturb the petitioner in his holding in Square No.77 and shift him to Square No.83 where he has no land. Moreover, the petitioner was not served before the order, dated 30-4-1977 was passed by the learned Member (Consolidation) Board of Revenue adversely affecting his rights.

3. Learned counsel for the respondents Nos. l to 5 has submitted that the petitioner was a party before the learned Member (Consolidation), Board of Revenue. He was issued notice. He also filed a review application which was heard and dismissed. It is further contended that under section 13 of the Colonization of Government Lands Act, the learned Member (Consolidation), Board of Revenue had power to modify the scheme. He relied upon Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139.

4. From a perusal of the record it would appear that the Consolidation Scheme was confirmed by the Assistant Consolidation Officer on 27-1-1974. This was with the consent of all concerned. Nobody has challenged the scheme confirmed in favour of the petitioner by way of an appeal or revision within time. The scheme in his favour had become final. There was no justification to interfere in his rights. From the order of the learned Member (Consolidation), Board of Revenue; dated 30-4-1977 it would appear that the respondent' No. 1 had been "allotted about 108 kanals at the disputed place as against 109 kanals of their share in square Nos.77 and 78 before consolidation. However, he observed that "they were actually in possession of 156 K-14 M in old khasras Nos.1210 and 1211. The petitioners (Ahmad Khan etc.) can thus at best claim an area of 48 kanals at this place. I, therefore, allot 48 kanals to the petitioners in square Nos.77 and 78 and rake the following amendments in the scheme of the parties." The modification is that he has taken away 48 kanals from Square No. 77 given to the petitioner in the Consolidation Scheme confirmed with the consent of the parties by the Assistant Consolidation Officer against which order nobody had filed any appeal or revision within time and gave that to Ahmad Khan, respondent No.l and the petitioner was given land in Square No.83. There was no justification whatsoever to make the changes and deprive the petitioner of the land given to him in Square No.77 with the consent of all concerned and the order having become final too. As far as Square No.77 was concerned, respondent's share in Squares Nos.77 and 78 was 109 kanals and he had already been given 108 kanals. In spite of the change ordered Ahmad Khan, respondent would still have land in Square No.83. Therefore, there was no justification to shift him for 48 kanals to Square No.77 and disturb the petitioner in this square where his holding has been consolidated with the consent of all and nobody had appealed against him. The impugned order, dated 30-4-1977 is ex facie arbitrary and without lawful authority. It is so declared. Let the petitioner have peace after 12 years of the order in his favour. The petition is, therefore, allowed but, in the circumstances there shall be no order as to costs.

A.A./H-15/L Petition accepted.

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