Nisar Ahmad etc Vs Member Board of Revenue etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.28076 of 2021

Nisar Ahmad (deceased) through Legal Heir & others Versus Member Board of Revenue, Punjab, Lahore & others

JUDGMENT

Date of hearing: 08.04.2025.

Petitioners by: Mr. Muhammad Mehmood Ch., Advocate.

Respondents by: Ch. Awais Ahmad Qazi, Additional Advocate General.

Mr. Safdar Ali Thakar, Advocate / respondent No.5 in person.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant petition, petitioners have assailed vires of orders dated 17.09.2014, 16.11.2019 & 07.04.2021, passed by respondents No.3, 2 & 1, respectively, whereby respondent No.5’s application against transfer of land measuring 13-Kanal 11-Marla situated in Khata Nos.496, 501, 503, Mauza Muridke, Tehsil & District Sheikhupura, belonging to Irrigation Department in favour of Nisar Ahmad and Sultan Ahmad both sons of Noor Begum and others, was decided in the manner that mutation No.1777 dated 24.08.1999 (through which the land in question was transferred) was ordered to be reviewed and petitioners’ appeal as well as revision petition in this regard was dismissed.

2.Concisely, the respondent No.5 filed an application against transfer of land in question belonging to Irrigation Department in favour of Nisar Ahmad and Sultan Ahmad both sons of Noor Begum and others, which was decided vide order dated 17.09.2014, passed by respondent No.3 / District Collector, Sheikhupura, in the following manner:-

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i. The revenue record needs to be corrected with respect to Mutation No.1777 dated 26.08.1999 via which land measuring 13-K 11-M comprising Khasra No.84/3, 84/2/3 & 84/2/2 situated in Mouza Muridke, Tehsil & District Sheikhupura was transferred in favour of Nisar Ahmad & Sultan Ahmad sons of Noor Begum and others. However, as the said mutation No.1777 dated 26.08.1999 is based upon decree of civil court dated 10.04.1999 and the above paras clearly establish that the decree is based upon misrepresentation and malafide, the concerned court shall be approached by District Collector Sheikhupura under relevant provisions of Civil Procedure Code for setting aside the decree. Assistant Commissioner Sheikhpura in coordination with relevant officials of District Collector Office to put up draft application for the purpose.

ii. This order shall apply on all land comprising Khasra Nos.1024, 1025, 1035, 1036, 1051 to 1054 and 1061 to 1068 in village Muridke, Tehsil and District Sheikhupura. Appropriate entries in record shall be made and for this Assistant Commissioner Sheikhupura shall approach LRMIS Staff for the said purpose.

iii. LRMIS staff is directed to block the Khewats comprising Khasra Nos.1024, 1025, 1035, 1036, 1051 and 1061 to 1068 in village Muridke, Tehsil and District Sheikhupura and no order shall be implemented without explicit order / approval of District Collector Sheikhupura.

iv. The compliance for correction of record shall be ensured by the Assistant Commissioner Sheikhupura and compliance report shall be sent without delay.

Being disgruntled, the petitioners filed appeal before respondent No.2 / Commissioner, Lahore Division Lahore, which was dismissed vide order dated 16.11.2019. The petitioners assailed that order in revision before the respondent No.1 / Member (Consolidation), Board of Revenue, Punjab, however, the orders passed by forums below were kept intact. Hence, the instant petition.

3.Learned counsel for the petitioners submits that matter of ownership of petitioners over the land in question has been settled in their favour upto the level of the Hon’ble Supreme Court, however, respondents have reviewed the mutation without any

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lawful justification and in violation of decisions passed in their favour on civil side. He adds that a Revenue Court / Officer cannot sit as appellate authority over the judgment passed by a competent Court of civil jurisdiction. He maintains that with the afflux of time, valuable rights have been accrued in favour of petitioners, therefore, mutation in question cannot be reviewed as principle of locus poenitentiae is attracted, as such impugned orders are unsustainable in the eyes of law. In support, he relied upon Administrator, Municipal Committee, Kotli and another v. Muhammad Abdullah and 3 others (2001 YLR 3367)[Supreme Court (AJ&K)], Shahid Sharif and 22 others v. Azad Jammu and Kashmir Government, through Chief Secretary and 12 others (2017 YLR 746)[Supreme Court (AJ&K)] and Peer Muhammad Ghoas Gillani and another v. Azad Jammu and Kashmir Government through Chief Secretary and 3 others (2018 YLR Note 12).

4.Contrarily, the learned Law Officer defends the impugned orders by contending that the decree dated 10.04.1999, on the basis of which mutation No.1777 dated 24.08.1999 was entered and attested, the Irrigation & Power Department, Government of the Punjab, Lahore being the most relevant party, was not impleaded in the suit for declaration along with permanent injunction, filed by petitioners, as such the aforesaid mutation, being based upon mala fide and concealment of facts, has rightly be reviewed by the respondent-authorities. He contends that even otherwise, letter dated 30.04.1992 relating to surrender of land, was later on withdrawn vide letter dated 13.11.1994. In the end, he submits that impugned orders are liable to be upheld.

5.Arguments heard. Available record perused.

6.Record shows that the petitioners had initially filed a suit for declaration along with permanent injunction with respect to the property in question contending therein that land measuring 76- Acres, 04-Kanal, 11-Marla was acquired by the respondent-

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department for the purpose of construction of Qadirabad Balloki Link Canal in the year 1962, whereof the property measuring 73- Kanal, 10-Marla including suit property measuring 13-Kanal 12- Marla, owned by Ali Muhammad, predecessor-in-interest of petitioners, was declared surplus to the requirement of Irrigation & Power Department. Upon receipt of applications from different applicants in support of their claim, Director Tarbela for Chief Engineer Dams wrote to Secretary, Irrigation & Power Department, Government of Punjab with regard to land measuring 31-Acres, 05-Kanal, 04-Marla, falling within the municipal limits of Farooqabad, vide letter dated 02.01.1992 to issue confirmation as to whether said land is surplus to the requirement of Irrigation & Power Department so that the Board of Revenue, Punjab be requested to surrender the land in question in favour of original land owners. Subsequently, Secretary, Irrigation & Power Department informed Secretary, Colonies, Board of Revenue, Punjab, Lahore vide letter dated 30.04.1992 that aforesaid land measuring 73-Kanal, 10-Marla is part of total land measuring 31.65 Acres and falls within municipal limits of Farooqabad and belongs to Irrigation Department, who surrendered said land to the Board of Revenue vide letter dated 30.04.1992, which is reproduced hereunder:- “Copy of an application of M/s Mukhtar Ahmad etc. of Farooqabad received through Chief Engineer (Dams) WAPDA vide letter No.1955 / WI / 92 / 61 / 75 dated 16.02.1992, is enclosed. It has been requested therein that the land measuring 73 Kanals 10-Marlas may be surrendered in favour of the applicants, who claimed to be the original owners.

2.The said piece of land which is a part of total land measuring 31.65 Acres is situated along R.D. 209000 to 215715 / L of Q.B. Link Canal and belong to this department. This land falls within the Municipal limits of Farooqabad.

3.The land in question comprising Khasra Nos.1024, 1025, 1035, 1036, 1051 to 1054 and 1061 to 1068 in village Muridke Tehsil and District Sheikhupura is no longer required by this department

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hence it is surrendered to the Board of Revenue for further disposal.”

Later on, the surrendered land was restored vide letter dated 17.01.1994 in favour of the petitioners in the following manner:- “Reference correspondence resting with Board of Revenue endorsement No.2467-93 / 1272-S.IV, dated 05.10.1993 on the above subject.

2.Government of the Punjab, Revenue Department is pleaded to restore the surrendered land by the Acquiring Department to M/s Nisar Ahmad / Mukhtar Ahmad etc. (the original land owners) under Para 100 of Standing Order No.26 read with Para 493 and 495 of Land Administration Manual and Rule 14 of Punjab Land Acquisition Rules, 1983.”

7.It is a matter of record that following the issuance of letters dated 30.04.1992 and 17.01.1994, the petitioners/original owners made repeated requests to the concerned authorities for the reversion of ownership of their unutilized land. However, after receiving no response, they approached this Court by filing a W.P. No.15030 of 1994. The Court disposed of the petition by directing the petitioners to file applications before the relevant Collector, who was required to decide the matter in accordance with Rule 14 of the Punjab Land Acquisition Rules, 1983. Rule 14, when applicable, does not explicitly provide for the return of land to the original owners or their heirs, but grants the Government discretionary power to return it, provided such discretion is exercised fairly and reasonably. Upon submission of their applications, the petitioners were required to reimburse the amounts previously disbursed to them—a demand they promptly honored by depositing the requisite sum. This effectively restored ownership to them; however, continued inaction by the respondents compelled the petitioners to file a suit for declaration with permanent injunction, which was decided in their favour through a judgment and decree dated 10.04.1999. Subsequently, a letter dated 17.08.1999 was issued to the Assistant Commissioner,

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Sheikhupura, directing implementation of the aforementioned decree. Consequently, mutation No.1777 dated 24.08.1999 was entered and attested, transferring the land in question—measuring 13 Kanals and 11 Marlas—in favour of the petitioners.

8.It is pertinent to mention that the respondent-department filed an application under Section 12(2) CPC seeking to set aside the judgment and decree dated 10.04.1999, which was dismissed vide order dated 07.10.2004. This order was subsequently upheld by the learned Revisional Court at Sheikhupura through an order dated 04.06.2005. The respondent-department then pursued the matter further by filing a constitutional petition W.P. No.19668 of 2005, which was dismissed by order dated 20.05.2008. These orders remained intact through all levels of appeal, culminating at the Hon'ble Apex Court, where Civil Petition No.1006-L of 2008 filed by the department was ultimately dismissed vide order dated 30.03.2012 in the following manner:- “We have heard learned counsel for the petitioner and learned counsel representing the respondents who were the original owners of the land in dispute. The said land which was acquired was not utilized for any public purpose and has since been denotified . The petitioner filed an application under Section 12(2) CPC but the same was dismissed by the learned Civil Judge on 7.10.2004. Valid considerations prevailed with the learned Court while dismissing the said application. The petitioner then filed a revision petition which was dismissed on 4.6.2005 by the learned Additional District Judge, Sheikhupura. The petitioner thereafter filed a Writ Petition No.19668 / 05 which has been dismissed for valid considerations by the learned Judge-in- Chambers in the High Court vide impugned judgment dated 20.5.2008.

2.After hearing learned counsel for the parties and having gone through the record and the impugned judgments, we find no justification for interfering in the same. The petition is, therefore, dismissed and leave to appeal is refused.”

9.It is worth noting that the Government has the discretion either to auction the unutilized land or, as a matter of grace, restore

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it to the previous owner(s), who cannot claim restoration of unutilized land as a matter of right. However, the discretion vested in the Government must be exercised fairly and reasonably, not arbitrarily or capriciously—in accordance with the well-established legal maxim 'discretio est discernere per legem quid sit justum' which means that when a judge or authority uses discretion, it is not about acting on personal whims or subjective feelings, but rather about using reasoned judgment within the framework of the law to determine what is fair and just in a given situation. It has been repeatedly held by the superior Courts of the country that discretionary powers vesting in an authority are to be exercised judiciously and in reasonable manner, otherwise the decision will be arbitrary and may be considered misuse of power. Reliance in this regard could also be placed upon Col. Shah Sadiq v . Muhammad Ashiq and others (2006 SCMR 276), CORRUPTION IN HAJJ ARRANGEMENTS IN 2010 in Suo Motu case No.24 of 2010 and others (PLD 2011 Supreme Court 963), Workers' Party Pakistan Through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 Supreme Court 681), M.Q.M. (Pakistan) and others v. PAKISTAN through Secretary Cabinet Division, Government of Pakistan and others (PLD 2022 Supreme Court 439), Malik Gull Zaman v. Deputy Commissioner and others (2022 CLC 1261) and Messrs Mirpurkhas Sugar Mills Limited and 4 others (2021 CLC 1801). In this case, the competent authority decided to restore the excess land to the petitioners/original owners, and accordingly initiated the process. The available record clearly demonstrates that the Irrigation Department itself surrendered the land to the Board of Revenue through a letter dated 30.04.1992, requesting that the surrendered land be restored to the petitioners under Para 100 of Standing Order No.26, read with Paras 493 and 495 of the Land Administration Manual and Rule 14 of the Punjab Land

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Acquisition Rules, 1983. Notably, the Department's application under Section 12(2) CPC has been dismissed at all levels, including by the Hon'ble Supreme Court.

10.It is a well-established legal principle that when acquired land, either in whole or in part, remains unused, it should rightfully revert to its original owner in due course of law. Undoubtedly, when authorities acquire private property for public purposes and subsequently fulfill those objectives with surplus land remaining, the government retains the authority to repurpose such excess land for alternative public initiatives. However, in absence of any government-approved scheme demonstrating this new public purpose, the law requires that such land be de-notified and restored to its original proprietors or their rightful successors. This principle of reversion serves as a safeguard against indefinite governmental retention of land beyond its legitimately required scope. Reliance is placed upon Provine of Punjab through Collector, Lahore, and another v. Mian Saeed Ahmad and 4 others (PLJ 1993 SC 184), Ghulam Rasool and another v. Said Ahmed and others (2012 CLC 1655) [Supreme Court (AJ&K)] and Muhammad Tariq and another v. Syed Alam Shah and 17 others (2014 MLD 1519).

11.Similarly, in a case with identical circumstances concerning land acquisition for the construction of Qadirabad Balloki Link Canal, the Hon'ble Supreme Court, through its order dated 07.05.2021 in C.P. No.348-L of 2021, in case titled Province of Punjab through Secretary, Irrigation & Power Department, Lahore etc., adjudicated the matter in favour of the private respondents/original owners by making the following observations:- “2. We have heard learned counsel for the parties. The learned counsel for the petitioners inter- alia submits that the same project is being remodelled and widened for which the excess acquired land is required to be utilized and, therefore, it cannot be returned. We are not convinced by the arguments advanced by the learned counsel for the

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petitioners. All the three Courts below have directed that the land be restored to the original owners after deposit of its price. The learned counsel for the petitioners has not been able to make a case for our interference in the concurrent findings of three fora below. Consequently, this petition is dismissed and leave to appeal is refused.”

When confronted with these facts, both the learned Law Officer and the respondent No.5, appearing in person, failed to identify any legal infirmity in mutation No.1777 dated 24.08.1999—a mutation entered and attested in favour of the petitioners regarding the suit property pursuant to the judgment and decree dated 10.04.1999 issued by the learned Trial Court. It bears emphasizing that revenue authorities cannot contravene a decree passed by the Civil Court; so, the sanctioning of a mutation in pursuance of such a decree was merely a formality and was not an independent act, which did not create separate rights. Under these circumstances, the mutation in question was clearly beyond the District Collector's (respondent No.3) authority to review, as doing so would effectively nullify the decree granted in the petitioners' favour. It is not within a revenue officer's jurisdiction to reassess or question the merits or correctness of a Civil Court decree. The law unequivocally requires revenue officers to accept such decrees and implement them in the revenue records accordingly. The respondent-authorities, in issuing the impugned orders, failed to properly consider both the legal framework and factual background of the case, erroneously ordering a review of the aforementioned mutation without accounting for critical aspects of the matter. Reference is made to Khushi Muhammad and others v. Member, Board of Revenue and others (1992 CLC 125), Syed Mustafa Haider v. Provincial Government and others (1992 CLC 1329) and Hakeem Khadim Hussain through Legal Heirs v. Member (Judicial-II), Board of Revenue, Punjab Lahore and 3 others (2019 YLR 710).

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12.In view of above discussion, instant petition is allowed. Consequently, the impugned orders are set-aside being illegal and without lawful authority.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan / A.H.S.*