PROVINCE OF PUNJAB through District Officer (Revenue), District Collector, Kasur vs BORDER AREA COMMITTEE through Chairman and others

' ASIF SAEED KHAN KHOSA, J.---The record of this appeal by leave of the Court is voluminous but the point in issue is quite simple and, therefore, we would like to come to it straightaway. A parcel of land was allotted to Shujat Ali respondent No 2 (hereinafter referred to as 'the respondent') by the Border Area Committee within the Municipal Limits of Kasur on 10-5-1971 but the said land was ordered by the Board of Revenue, Punjab to be resumed as having wrongly been allotted. As a consequence of that direction issued by the Board of Revenue, Punjab the revenue authorities cancelled the respondent's allotment which was assailed by the respondent before the Lahore High Court, Lahore through a writ petition which culminated in an order of remand and in the post- remand proceedings the allotment in favour of the respondent was upheld by the Border Area Committee, Lahore. The appellant herein challenged that decision of the Border Area Committee before the Lahore High Court, Lahore through. Writ Petition No. 75-R of 2002 which was, however, dismissed by a learned Judge-in-Chamber of the said Court vide judgment dated 12-4-2004.

Hence, the present appeal before this Court by leave of the Court.

2. After hearing the extensive arguments advanced by the learned counsel for the parties we have found that the main issue involved in this case is as to whether the Border Area Committee, Lahore could lawfully allot the relevant parcel of land to the respondent on 10-5-1971 or not. The answer to this question has been dug out by us from the record of this case and the same is in the negative.

On 20th March, 1959 West Pakistan Border Area Regulation, 1959 (MLR No. 9) was promulgated and according to paragraph No. 3(a) of the same a "'border area' means any area in West Pakistan along the Indo-Pakistan border which falls within five miles from such border" and under paragraph No.4 the said MLR the Provincial Government was required to constitute a Committee for the border area. Paragraph No. 12 of that MLR categorically provided that "All properties surrendered or taken possession of under this Regulation shall vest in the Provincial Government free from all encumbrances." Paragraph No. 13(a) of the said MLR further provided that "The evacuee property surrendered or taken possession of in pursuance of this Regulation shall be allotted by the Committee in such manner, keeping in view the principle of consolidation of holdings, and on such terms and conditions as may be prescribed by the Provincial Government."

On 6-11-1969, in furtherance of the requirements of M.L.R. 9, the Provincial Government transferred "all State land lying within five miles belt of the Indo-Pak Border in the former Punjab Province and the Bahawalpur State to the General Headquarters, for allotment through the agency of the Border Allotment Committee." It has already been noticed above that in terms of paragraph No. 13(a) of M.L.R. 9 an allotment could be made by the Boarder Area Committee only in such manner and on such terms and conditions as may be prescribed by the Provincial Government and on 28-9-1970 the Provincial Government had decided that "in accordance with the general policy of Government pertaining' to disposal of Nazul land, no allotment within the Kasur Municipal limits would be made and in case any allotment has actually been made by the Border Area Committee, it should be cancelled immediately." The General Headquarters made a representation against the said decision of the Provincial Government and pending consideration of that representation the Colonies Department of the Provincial Government issued an order in the month of November, 1970 that "Action should be stayed regarding cancellation of allotment already made by the Boarder Area Committee, in respect of the land within the Kasur Municipal limits. Further orders shall be conveyed after consideration of the case by the Government." It was quite obvious that the Colonies Department of the Provincial Government had, pending consideration of the representation filed by the General Headquarters, stayed the action only to the extent of cancellation of allotments already made by the Border Area Committee in respect of the land within the Municipal limits of Kasur and it had not suspended its decision dated 28-9-1970 regarding prohibition against any future allotment within the Municipal limits of Kasur. It is admitted at all hands that the relevant parcel of land had been allotted to the respondent on 10-5- 1971, i.e. At a time when there was a complete prohibition against any allotment by the Border Area Committee within the Municipal limits of Kasur. The above mentioned representation made by the General Headquarters was duly attended to by the Provincial Government and on 8-6-1971 it was finally rejected with a decision that the Municipal limits of Kasur would be a restricted zone and the land within those limits would not be allotted by the Border Area Committee. Through the same decision the General Headquarters was also directed to cancel the allotments already made to 34 persons within the Municipal limits of Kasur. This factual sequence is borne out from the record and the same could not be controverted by any party to this case before us. From the facts narrated above it is quite clear that the allotment of the relevant parcel of land by the Border Area Committee in favour of the respondent on 10-5-1971 was in clear violation of the prohibition ordered in that regard by the Provincial Government and, thus, not only the said allotment was totally without jurisdiction but the entire superstructure built upon the same was also without any lawful foundation.

3. It has been pointed out by the learned counsel for respondents Nos. 3 to 5 that after dismissal of the appellant's Writ Petition No. 75-R of 2002 by a learned Judge-in-Chamber of the Lahore High Court, Lahore on 12-4-2004 the appellant had filed Intra-Court Appeal No.215 of 2004 before the same Court but that Intra-Court Appeal was dismissed by a learned Division Bench of the Lahore High Court, Lahore on 9-6-2004 on the ground of being barred by limitation. The learned counsel for respondents Nos. 3 to 5 has argued that the said order passed by the learned Division Bench of the Lahore High Court, Lahore dismissing the appellant's Intra-Court Appeal has not been assailed by the appellant before this Court and, thus, the present appeal is not maintainable against the judgment handed down by the learned Judge-in-Chamber of the Lahore High Court, Lahore in the same lis. We have, however, remained unable to subscribe of this submission of the learned counsel for respondents Nos. 3 to 5 because the learned Division Bench of the Lahore High Court, Lahore had refused to entertain the appellant's Intra-Court Appeal on account of its being barred by time and, thus, the end result was that there was no Intra-Court Appeal competently and properly filed by the appellant before the Lahore High Court, Lahore. This objection raised by the learned counsel for respondents Nos.3 to 5 C has, thus, failed to impress us. The learned counsel for respondents Nos.3 to 5 has also contended that where an Intra-Court Appeal is competent before a High Court there a petition or appeal cannot be filed by a party to the case before this Court without availing of the remedy of filing such Intra-Court Appeal before the High Court. We have, however, found even this contention of the learned counsel for respondents Nos.3 to 5 to be without merit because in the case of Commissioner of Income Tax and others v. Messrs Media Network and others (PLD 2006 SC 787) a window had been kept open by this Court for entertaining a petition or appeal before this Court without insisting upon filing of an Intra-Court Appeal before the High Court if the exceptional circumstances of a case so warranted. A similar approach had subsequently been adopted by this Court in the case of Chaudhry Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan and others (Civil Petition No. 317 of 2010 decided on 31-3-2010 by a Bench of seven Honourable Judges). In the case in hand leave to appeal had been granted by this Court almost two years ago and the entire record of this case has been scanned by us in the present proceedings and, therefore, we have decided not throwout this appeal on the basis of such an objection raised by the learned counsel for respondents Nos.3 to 5. It goes without saying that the issue involved in this respect is based upon a rule of practice regulating exercise of discretion which does not oust or abridge the constitutional jurisdiction of this Court.

4. For what has been discussed above this appeal is allowed and the impugned judgment passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore on 12-4-2004 in Writ Petition No. 75-R of 2002 is set aside and, resultantly, the said writ petition is accepted in terms of the prayers made therein. There shall be no order as to costs.