MUHAMMAD WARIS and 3 others vs PROVINCE OF PUNJAB through Secretary, Cooperative Department, Lahore and 16 others

ORDER

There was a Cooperative Society set up in Village Nehang, Tehsil Shahpur, District Sargodha, which launched, consolidation proceedings there, in the year 1959. The petitioners who were owners of 42-1/2 Kanals of land were statedly given 84-1/2 Kanals of land which according to them was of inferior quality than the land of their original holding. Later on the Managing Committee reduced their holding to 42-1/2 Kanals and another reduction of six Kanals was also made at the time of confirmation of the proceedings. Feeling aggrieved thereagainst an appeal was filed by them before the Assistant Registrar/Circle Registrar, Cooperative Societies, Sargodha who appointed one Ch.Muhammad Shafi, Inspector Cooperative Societies, Sargodha as Arbitrator in the matter. He made the award dated 3-6-1965 giving 28 Kanals land in addition. An appeal was filed by the private respondents which was dismissed on 9-5-1966 on the ground that he had no jurisdiction in the matter of consolidation. The matter then was taken before the Consolidation Authorities which reached the apex Court and it was held by the Hon'ble Supreme Court of Pakistan on 17-3-1977 in Civil Petition for Leave to Appeal No,138 of 1976, that Consolidation of Holdings Ordinance did not affect the consolidation proceedings commenced by the Cooperative Society. It was thereafter, that the private respondents made an application before the Assistant Registrar, Cooperative Societies for the review of order dated 9-5-1966 and restoration of their appeal. It was dismissed vide order. Of the Assistant Registrar/Circle Registrar on 18-12-1982, that the same was barred by time. The matter was then taken before the Deputy Registrar, Cooperative Societies who on 5-3- 1983, remanded the matter to the Circle Registrar, Sargodha, for decision on merits after hearing the parties. He treated the appeal to have been within time. The petitioners herein then felt aggrieved of that order and instituted Writ Petition No,2589 of 1983 before this Court. The said writ petition was accepted on 26-1-1988, observing that "the order dated 5-3-1983 passed by respondent No,3 appears to have been passed in haste without regard to the legal issues arising in the case. The said order deserves to be set aside, so that the revision of the respondents is remanded to him once again for a proper disposal according to law, so that the legal issues arising in the case, as detailed by the learned counsel for the petitioners, can be properly dealt with and decided". The matter was thus remanded to Deputy Registrar, Cooperative Societies, Sargodha, for fresh hearing and decision after notice to the parties. Thereafter, the Deputy Registrar, Cooperative Societies, Sargodha vide order dated ' 26-8-1988, reached the conclusion that the petitioners herein were entitled to 42-1/2 Kanals of land. This order was challenged by the petitioners by instituting the revision petition which was dismissed on 16-2-1989, whereafter, Writ Petition No,1650 of 1989 was filed before this Court. The said petition was accepted and disposed of on 20-11-2000, by remitting the matter to respondent No,1 for re-hearing and decision of the matter afresh as the order impugned lacked application of mind and reasoning. In pursuance thereof respondent No,1 has dismissed the revision petition of the petitioner vide order dated 12-3-2001, which has now been again assailed by the petitioners through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The learned counsel for the parties have been heard at length.

3. The perusal of the order passed by the Deputy Registrar, Cooperative Societies dated 26-8-1988, would show that the appeal filed by the respondents before the Assistant Registrar, Cooperative Societies was treated to have been instituted within limitation. The view expressed and observations appearing in his order in view of their relevance and significance are reproduced hereunder:- "The case could very easily be remanded after I have held that the appeal of the present revisions should be considered as in time before the Assistant Registrar who passed the impugned order dated 9-5-1966 but I am not inclined to do so because of the fact that the parties are constantly in litigation since the year 1966 till today and they have gone right up to the Supreme Court of Pakistan in the first round of litigation and up to the Honourable High Court in the second round of litigation and if this process of remanding the case continues, then this litigation can be extended to years. I have consulted the counsel for the parties that if this case may be decided on merits.

They have agreed that there is no bar in making final adjudication of the dispute between the parties by the undersigned. Therefore, I invited the counsel for the parties to address this Court on merits of the case." (Underlined by me in view of the relevance in the context).

It was thus agreed by the parties that he should decide matter on merits. It was, therefore, no more open for the petitioners to have re-agitated the plea of limitation or the competency of the proceedings. Approbation and reprobation could not be allowed in judicial proceedings. Having suggested and agreed to a mode of procedure, the petitioners are estopped to resile therefrom and challenge the same. Reference may be made to A.R. Khan v. P.N. Boga through legal heir. (PLD 1987 SC 107). The petitioners thus cannot be heard in taking that plea over again in writ jurisdiction.

It may be mentioned that while deciding the revision petition in pursuance of the order passed by this Court in Writ Petition No,1650 of 1989 the respondent No,1 has indeed taken into consideration the matter from all angles and recorded his conclusions that the petitioners should get land measuring 42-1/2 Kanals. It may be reiterated that the original entitlement of the petitioners was 42-1/2 Kanals. No reduction in their entitlement has been made at all. It was only some excess land which was given and then withdrawn from them. No injustice has been done to them. The order maintaining the original entitlement of the petitioners passed by the Deputy Registrar dated 26-8- 1988, and maintained by the Secretary, Cooperative dismissing the revision petition filed by the petitioners on 12-3-2001 suffer from no illegality or jurisdictional error.