Constitution of Pakistan—
—-Art. 199—Board of Revenue Memo No. 1065070/1177-CIIV dated 18-04-1970—Constitutional petition—Village site, conversion of—Scope—Respondents being in possession of half of village site moved application before Collector for change of its category and allotment, which was accepted in their favour—Validity—Half of village site after change of its category had been allotted in favour of respondents which had never been challenged by the petitioner or anyone else—Collector being competent to change the category of village site was not bound to require prior approval of Board of Revenue in that regard—Revenue hierarchy for whose field staff the village site had been reserved was not in its occupation rather it being abandoned was encroached by the respondents—Competent authority had allotted village site after change of its category as per mandate of Policy Letter No. 565-2002/310-CL-IV dated 13-03-2002 and price so fixed had also been received—Petitioner had no claim over the questioned plot—Constitutional petition was dismissed, in circumstances. [Paras. 3, 4 & 5 of the judgment]
Naseer Ahmad v. Member, Board of Revenue and others 1985 MLD 1277 and Sardar Muhammad and another v. Akram and others 2000 SCMR 807 rel.
Mian Shah Abbas for Petitioner.
Rana Shamshad Khan, Additional A.-G. for Respondents Nos.10 to 12.
Ch. Muhammad Mustansar Kaleem and Atif Mohtashim Khan for Respondents Nos. 2 to 9.
Date of hearing: 6th May, 2019.
JUDGMENT
CH. MUHAMMAD MASOOD JAHANGIR, J.—In concision, the facts of the case were that the subject village site meant for “Patwar Khana” was measuring 2-Kanals 2-Marlas 2-Sarsahi and half of its part was under occupation of respondents Nos.2 to 9, who made two fold application before the Collector for change of category as well as its allotment. The latter required the reports from Field Staff through his subordinates , wherein not only longstanding possession of respondents Nos.2 to 9 was acknowledged, but it was also disclosed that two more ihatas meant for “Patwar Khana” were lying vacant as well, which on need could be utilized and being satisfied on 23rd April, 2003 the Collector accorded first request, whereas latterly vide order of 17th May, 2003 it was also allotted to them @ of Rs.750/- per marla along with 50% penalty besides 10% surcharge, where they also raised some construction. The allottees subsequently approached the concerned Authority for conferment of Proprietary Rights, which on 12th December, 2012 for certain clarification was remanded by the District Collector to the Colony Office. Being dejected, the allottees preferred Appeal, which was allowed by the Additional Commissioner on 12th August, 2013 and despite being assailed by the present petitioner through ROR as well as Review before the Board of Revenue, the same was maintained. Now to call in question the unanimous orders of respondents Nos.10 and 11, this Constitutional Petition has been preferred.
2. Arguments heard. Record perused.
3. Admittedly, the order dated 17th May, 2003, whereby after change of category half of village site allotted to respondents Nos.2 to 9 was never ever challenged by the petitioner or any one else. The argument of learned counsel for the petitioner that category of village site meant for public welfare could never be changed, is not well founded. This controversy has already been dealt with by this Court in the case reported as “Naseer Ahmad v. Member, Board of Revenue and others” (1985 MLD 1277) while observing that under Memo No.1065070/1177-CIIV dated 18th April, 1970, the District Collector was fully empowered to change the category of village site. Moreover, in a case titled “Mehmood Ahmad deceased through L.Rs v. Haroon-ur-Rashid and others” bearing Appeal No.1078 of 2000, while dealing with controversy of identical nature the apex Court formulated the following points for consideration:-
“(i) Who out of the two i.e. the District Collector and Member Board of Revenue under the relevant law is competent to change the category of ‘Talab’ into the residential area.
(ii) If a change into a category/status of certain land is made by the learned Member Board of Revenue then can such a change be nullified by the High Court in writ jurisdiction in exercise of its discretionary power.
(iii) Whether in absence of any misreading/non-reading of evidence and lack of jurisdiction, the High Court could set aside the judgment of learned Member Board of Revenue and submitted its own judgment for it in a purely discretionary matter.”
and while finally dealing with point No.(i) vide judgment dated 10.03.2006, in para No.8, it was concluded as under:-
“As regards the contention of the learned counsel for the appellants that the change of the nature of the land from ‘Talab’ to residential by the Collector was subject to the approval of the Board of Revenue, the same is not supported by any law. Section 10 of the Colonization Act, relied upon by the learned counsel for the appellants, only requires that the Collector may allow land under the Act in accordance with the statements of conditions issued by the Provincial Government and that such allotment was subject to the control of the Board of Revenue. No rule has been pointed out to show that the Collector required prior approval of the Board of Revenue for change in the nature of the land. In any case, the District Collector in the present proceedings had carried out the exercise of determining the nature of the land and the suitability of its change to residential and the party to whom the same could be allotted, on the direction of the Board of Revenue given in its order dated 29.09.1994, which was duly upheld by the Lahore High Court. Whereas the Collector had given reasons for the change of the status of the land to residential, the Board of Revenue had advanced none for reversing the decision.”
There left no doubt that Collector was competent to change the category of village site and was not bound to require prior approval of the Board of Revenue in this regard.
4. In this case, the Revenue Hierarchy for whose field staff the village site had been reserved was not in its occupation for said purpose, rather it being abandoned was encroached by the respondents and to regularize their possession, the competent Authority at its own while changing the category allotted it as per mandate of Policy Letter No.565-2002/310-CL-IV dated 13th March, 2002, moreover, the price so fixed was also received. The Revenue Field Staff for whom the plot in dispute had been reserved at the most could be the aggrieved party, but petitioner lacked locus standi to make any claim over the disputed plot. See “Sardar Muhammad and another v. Akram and others” (2002 SCMR 807). Firstly, the Additional Commissioner and then learned Member Board of Revenue twicely while examining the record passed the impugned orders under their lawful authority, which are neither coram non judice nor ultra vires to call for interference by this Court in the exercise of Constitutional jurisdiction.
5. This Writ Petition being devoid of any merit and force stands dismissed.
ZC/L-8/L Petition dismissed.