GHULAM MUHAMMAD Versus GHULAM RASOOL

The facts leading to the instant revision petition in substance are that the Collector sanctioned an internal path through the land of the petitioner under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 vide order, dated 17‑1‑1‑1966. The petitioner challenged this order before the Additional Commissioner in appeal which was dismissed on 24‑7‑1967. Later he moved the Board of Revenue in a revision petition which too was dismissed on 27‑11‑1967.

2. Having exhausted his remedy on the Revenue side, the petitioner filed a civil suit on 31‑1‑1975 for declaration challenging the abovesaid orders of the Revenue Court as being illegal and void. The main ground of attack was that the petitioner was not heard at the time of passing the impugned order by the Collector and that after the grant of proprietary rights, the learned Collector was not competent to grant the internal path through the land of the petitioner.

3. The said suit was resisted by the respondents who controverted the same on the grounds that the Civil Court had no jurisdiction; that the suit was barred by time and that the suit was bad for non‑joinder of necessary parties. Upon merits it was contended that the Collector had the exclusive jurisdiction to sanction an internal path through the colony land and that the orders, dated 17‑11‑1966 of the Collector, the order in appeal, dated 24‑7‑1967 by the Additional Commissioner and the order, dated 28‑11‑1967 of the Board of Revenue were strictly in accordance with law. The learned trial Court after recording evidence found that the suit filed on 31‑1‑1975 against the last order, dated 28‑11‑1967 in the hierarchy of the Revenue Courts was barred by time and that the jurisdiction of the Civil Court was ousted under section 36 of the Colonization of Government Lands (Punjab) Act, 1912 as the orders of the Revenue Courts challenged in the suit did not suffer from any excess of jurisdiction. Upon merits also the action of the Collector in sanctioning the internal path was upheld. The petitioner preferred an appeal which was dismissed vide judgment and decree, dated 28‑1‑1989. While endorsing the judgment and decree of the trial Court on legal as well as factual grounds, the learned Appellate Court also‑found that the sanctioning of the internal path was made in exercise of the powers given to the Collector under section 30, Schedule II of the Act of 1912. It was also held that the jurisdiction existed even after the grant of proprietary rights.

4. The main contention raised in this civil revision is that the proprietary rights have been granted to the petitioner according to instructions and conditions laid down in Schedule II of the Act of 1912 and that without satisfying the essential conditions the path in question could not be sanctioned. It was further contended that as the Collector, the Additional Commissioner and the Board of Revenue have acted without jurisdiction, the bar contained in section 36 of the Act of 1912 shall be of no avail and that plenary jurisdiction of the Civil Court shall remain intact. The Learned Counsel for the petitioner referred to condition of the instructions to canvass his point, and said condition reproduced as under:‑

URDU PARAGRAPH 622

5. Relying upon this condition it was contended that path can only be sanctioned for the benefit of the general public and not for an~ individual person.

6. On the other hand, Mr. M.M. Bhatti, Advocate for respondents contended that the suit filed on 31‑1‑1975 against the order, dated 28‑11‑1967 passed by the Board of Revenue was patently barred by time and was rightly dismissed as such by both the lower Courts. He further submitted that nature of orders passed by the Revenue Courts was in accordance with law and under section 36 of the Act of 1912 the jurisdiction of the Civil Court stood ousted. He also referred to the judgment, dated 20‑9‑1982 passed in Civil Revision No.9 of 1976 passed by this Court, wherein, while vacating the stay order in this very case, it was observed that in view of the bar in section 36 of the Act of 1912, the Civil Court would have no jurisdiction. On facts, it was contended that the learned Collector was fully authorized under section 10(2) of the Act of 1912 to sanction the internal path even after the grant of proprietary rights.

7. Arguments have been heard and record perused.

8. The orders passed by the Collector, Bahawalnagar, the Additional Commissioner, Bahawalpur Division and the Member, Board of Revenue have been examined. The conclusion deducible from the said orders is that under section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 it is the Collector who has the necessary jurisdiction to sanction an internal path. The sanction of the path has been carried out, in a just and fair manner keeping in mind that no undue interference in the proprietary rights of adjoining owners is made. , It is worthy of note that whereas the respondents wanted a thoroughfare from the eastern side of Square No.45 belonging to the petitioner, yet the learned Collector did not accede to this request as that would have resulted into splitting the land of the petitioner into two parts. On the other hand, it was found appropriate to sanction the path from western side of Square No.45 so as to cause minimal interference in the rights of the petitioner. The petitioner challenged this order in appeal, wherein, after hearing both the parties and examining the record produced by the Patwari the Additional Commissioner found that it would be equitable to allow the path on the western side of Rectangle No.45 as decided by the Collector. In revision also the same consideration prevailed and the revision of the petitioner was dismissed by the Board of Revenue on 28‑11‑1967. The analysis of these orders do not disclose any illegality or perversity or want of jurisdiction. Eventually, the Civil Court would have no jurisdiction when the judicial for a in a special hierarchy has exercised its jurisdiction within the four corners of law. A civil suit was thus ‑barred by section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Although this was observed in similar terms by this Court while dealing with the interlocutory matter in Civil Revision No.9 of 1976, yet the said finding is adhered to in this civil revision against the final decree. Again the findings of the learned lower Courts that the suit filed on 31‑1‑1975 against the judgment of the Board of Revenue, dated 28‑11‑1967 was barred by time is unexceptionable. The suit was time barred and nothing has been urged in this civil revision in this respect. The contention of the learned counsel for the petitioner that no path can be sanctioned after the conferment of proprietary rights is belied by the conditions applicable to the grantees who acquired the proprietary rights. Schedule II to section 30 of the Colonization of Government Lands (Punjab) Act, 1912 defines the conditions applicable to grantees who acquired proprietary rights. The following extract is reproduced:‑‑

"The Crown does not grant to the grantee, but hereby absolutely excepts and reserves to itself out of and the land in respect of the said lands or any part thereof already marked out, excavated or otherwise utilized for the distributory channels, and (2) all existing rights to and overall mines and minerals, coals, gold washings, earth oil and quarries in or under the said lands or any party thereof, together with all easements heretofore enjoyed by the Crown in respect of the said lands, or any part thereof. And it likewise excepts and reserves the rights of the public to use existing thoroughfare traversing the said lands or any part thereof including a width of 1‑1/2 Qadams on either side of survey base lines, and also any lines of road which, though not yet made, have been marked out upon the ground."

9. The condition contained in the instructions under which proprietary rights are granted have been reproduced in para' 4 (supra).

10. It follows that the Collector is entitled to create public path/village road to connect individual holdings of colonist with the village Abadi. In the context of the Colony Lands in respect of which proprietary rights are conferred upon individuals, the word "Awam" shall not refer to "public‑at‑large" as understood in the common parlance but shall refer, in the peculiar exigency to one or more colonist also. This intendment shall be commensurate with the purpose and object of the Colonization of Government Lands (Punjab) Act, 1912.

11. For all what has been stated above, there is no merit in this civil revision, which is hereby dismissed leaving the parties to bear their own costs.

H.B.T./147/L

Revision dismissed.