KARAM ALI (deceased) through legal heirs vs MEMBER (CONSOLIDATION), BOARD OF REVENUE PUNJAB and others
This petition is directed against the order of the Lahore High Court dismissing the petitioners' constitutional petition against the order of the Member, Board of Revenue, which re-opened a consolidation scheme. During the pendency of the constitutional petition, a fresh consolidation scheme was sanctioned, prompting the petitioners to file an appeal before the Collector as an abundant precaution. The High Court dismissed the constitutional petition on the ground of alternative remedy. The Supreme Court granted leave, converted the petition into an appeal, and held that an appeal filed as a safeguard against a consequential order does not bar the invocation of constitutional jurisdiction against the primary order of the Board of Revenue. The Supreme Court set aside the High Court's order and remanded the case for decision on merits.
- Whether an appeal filed against a consequential order as an abundant precaution bars the constitutional jurisdiction against the primary order?
- Can a constitutional petition be dismissed on the ground of alternative remedy when the pending appeal does not challenge the foundational order?
' MUNIR A. SHEIKH, J.---This petition is directed against order, dated 10-3-1999 passed by Lahore High Court whereby Constitutional petition filed by the petitioners against order, dated 23-11-1993 passed by the Member, Board of Revenue, Punjab has been dismissed.
2. Through memo. Dated 23-11-1993, Board of Revenue re-opened the case of consolidation in Mauza Raichand regarding which consolidation scheme was sanctioned by Consolidation Officer on 28-6-1984. This order was challenged through Constitutional petition before the High Court but without any success.
3. During pendency of the said petition, however, in pursuance of the said order of the Board of Revenue, Consolidation Officer sanctioned fresh scheme on 28-5-1995. Petitioners filed an appeal against this order before the Collector, which was pending when writ petition came up for hearing before the High Court, which has been dismissed on the ground that the petitioners had sought the remedy against fresh scheme before the Collector in appeal, therefore, they should first avail the saidremedy before invoking the Constitutional jurisdiction through the impugned judgment, against which leave is sought.
4. Learned counsel for the petitioners submitted that in appeal against fresh order of consolidation made in pursuance of the order of the Board of Revenue, the petitioners could not challenge the said order. The said appeal was filed as abundant precaution to safeguard the rights of the petitioners in case the writ petition was dismissed. Otherwise, legally the said appeal was not alternate remedy against an order of Board of Revenue.
5. Learned counsel for the caveators has not been able to meet the argument raised by the learned counsel for the petitioners. The order impugned in this petition is not sustainable, therefore, we convert this petition into appeal, order, dated 10-3-1999 passed by the High Court is hereby set aside and the case is remanded to the said Court for decision of the Constitutional petition on merits in accordance with law. There will be no order as to costs.