2019 PLP 11 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this single judgment, I intend to decide titled writ petition as well as Writ Petition No.16683/2011 as both have arisen out of same impugned order passed by respondent No.1 and subject matter of the cases are also same.

2. Through these writ petitions, the petitioners have challenged the order dated 06.09.2011 whereby learned Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner/Member (Residual Properties)/ Notified Officer, Punjab declared the allotment of land measuring 5765-Kanals 07-Marlas in Mauza Pattal Munda, District Muzaffargarh at Khata RL-II No.882 dated 06.05.1980, subsequently adjusted in different villages of Tehsil Kot Addu, District Muzaffargarh and in different villages of Tehsil and District Layyah, being fraudulent allotment which was resumed in favour of Government being evacuee property.

3. Brief facts of the case as contended by learned counsel for the petitioners are that Messrs Allah Ditta, Noor Muhammad and Hussain sons of Kamman were allotted land measuring 5616-Kanals (1878 Produce Index Units (PIUs) to each brother) on 16.10.1959 against their Claim Forms Nos.12144 and 12145 in Chunian. Some part of the claim-PIUs was transferred partially to Kot Addu and remaining part to Mauza Lohanch Thal Kalan, District Layyah. Mst. Naeema Khatoon daughter of Sh. Mehmood Ahmad filed Mukhbari application under sections 10 and 11 of the Displace Persons Land Settlement Act, 1958 on 15.02.1974 against bogus allotment of Allah Ditta etc. before the Additional Commissioner (Lands). On the said application, a thorough inquiry was conducted and it was declared that the alleged allotment in favour of Allah Ditta etc. measuring 5616-Kanals dated 16.10.1959 is based on fraud and forgery and passed the order for resumption of land in favour of state vide order dated 01.11.1977 and allegedly recommended the allotment of resumed land to Mst. Naeema Khatoon as a successful Mukhbar whose claim was partially adjusted in Pattal Munda Kot Addu and in Tehsil Layyah, District Muzaffargarh and rest of her claim of land measuring 1800-Kanals was adjusted in Mauza Lohanch, Thal Kalan, District Layyah. Subsequently, the said land was resumed by Thal Department Authority. The petitioners claimed to be purchaser of said land from Mst. Naeema Khatoon through a decree of civil court and they moved an application to EACO, Layyah for adjustment of land which application was dismissed vide order dated 09.05.1982 by the EACO. The petitioners assailed said order in appeal which appeal was allowed vide order dated 13.06.1982 by the Additional Commissioner (Consolidation), Multan Division, Multan and in compliance of order dated 13.06.1982 the land was adjusted in favour of present petitioners, who are subsequent vendees from Mst. Naeema Khatoon in Chak No.357-A/TDA (164-Kanals), in Chak No.388-A/TDA (280-Kanals), in Chak No.164/TDA (376- Kanals) and in Chak No.128-A/TDA (305-Kanals 17-Marlas). Thal Development Authority filed ten appeals before the Additional Commissioner Revenue which were allowed and the adjustment orders were set-aside vide order dated 22.08.1989 by the Additional Commissioner, Dera Ghazi Khan Division. Against the said order, the petitioners and others filed RORs before the Member, Board of Revenue who dismissed the said revision petitions vide order dated 26.02.1995. Aman Ullah and Ihsan Ullah (Petitioners Nos. 1 and 2 of Writ Petition No.16683/2011) filed Writ Petition No.22-R/1995 challenging the validity of order dated 26.02.1995 passed by the Member, Board of Revenue and order dated 22.08.1989 passed by the Additional Commissioner, Dera Ghazi Khan. The said writ petition was disposed of vide order dated 28.06.2006, the order dated 26.02.1995 was set aside and case was remanded to the Member, Board of Revenue, Punjab, Lahore for fresh decision in accordance with law. In compliance of the orders dated 22.08.1989, 28.06.2006 and 30.06.2007 passed in Writ Petition No.1052/95 and order dated 01.02.2011 passed in Writ Petition No.2590/2010, the Member (Judl-V), Board of Revenue/Chief Settlement Commissioner/ Member (Residual Properties)/Notified Officer, Punjab vide order dated 06.09.2011 while dismissing the ROR Nos.1650 to 1654 of 1989, 2577/1992, 165, 166, 167 and 174 of 1993 cancelled the alleged allotment of land measuring 5765-Kanals 7 Marlas at Khata RL-II No.882 dated 06.05.1980 and its subsequent adjustments made in different villages of Tehsil Kot Addu as well as of Tehsil and District Layyah and also ordered the resumption of the allotted land in favour of the state. Hence these writ petitions.

4. Learned counsel for the petitioners submit the impugned order was not passed as per direction of this Court and that the Chief Settlement Commissioner has no jurisdiction. Further submit that the order dated 06.09.2011 is illegal, unlawful, as such, same is liable to be set aside.

5. Learned counsel appearing on behalf of respondent No.1 submitted that the fraud has been committed in order to grab the valuable State property, that under the direction of this Court the Member (Judicial-V), Board of Revenue/Notified Officer rightly passed the order and committed no illegality.

6. Heard. Record perused.

7. The petitioners claim that they purchased land from Mst. Naeema Khatoon who was allottee of the said land vide order dated 01.11.1977. For resolving this controversy, firstly I have perused the order dated 01.11.1977 which was passed by the Additional Settlement Commissioner (Land), Punjab on the application of Mst. Naeema Khatoon and others. From the perusal of the said order, it reveals that the alleged allotment in favour of Allah Ditta, Noor Muhammad and Hussain sons of Kamman of land measuring 1872-Kanals against 1878 Produce Index Units each made on 16.10.1959 was declared bogus vide order dated 01.11.1977 against their claim form Nos.12144 and 12145 but the original allottee did not challenge the said order before any forum till to date. Mst. Naeema Khatoon claimed that on 01.11.1977 order for allotment against her pending unadjusted PIUs was made and accordingly land measuring 5765-Kanals 07-Marlas in Mauza Pattal Munda, District Muzaffargarh was allotted to her on 06.05.1980 at Khata RL-II No.882 on 06.05.1980. The operative part of order dated 01.11.1977 of the Additional Settlement Commissioner (Land)/Chief Settlement Commissioner, Punjab, Lahore is as under:- From the perusal of aforementioned order, only a recommendation for allotment was passed in favour of Mukhbar Mst. Naeema Khatoon for adjustment of her pending units and it cannot be considered a valid allotment as no independent order for allotment with elaborate specification of land as well as the pending claim was passed by the Notified Officer. The alleged RL-II No. 882 appended with the petition at page 13 is reproduced as under:-- From the perusal of the above orders mentioned in alleged RL-II No.882 at page 13 of the writ petition, there was no order of any of the competent authority for transfer of Naeema Khatoon's claim from Chunian District Kasur to District Muzaffargarh whereas she obtained land measuring 5765-Kanals 07-Marlas in Mauza Pattal Munda on the basis of an order dated 06.05.1980, which order (06.05.1980) was undoubtedly passed by the Additional District Collector/ADC(G), Muzaffargarh who was not vested with the powers as Notified Officer for disposal of evacuee agricultural land, as such, the orders dated 27.03.1980 and 06.05.1980 are without jurisdiction and coram non-judice as well as void ab initio which are liable to be ignored. Admittedly evacuee agriculture land was resumed in favour of state vide order dated 01.11.1977 and without taking into account the law, instructions, guidelines issued by the competent authority a recommendation for allotment of the resumed land was made in the following manner:- Whereas the evacuee laws were repealed on 01.07.1974 and the Notified Officer was vested a limited jurisdiction only to decide actively pending proceedings as prescribed under section 2(2) of the Act, 1975. Thereafter the Notified Officer has no jurisdiction to allot or transfer land or grant alternate land against unadjusted verified units. The Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCMR 1635) has held as under:- "

24. Besides, it was mandatory condition for grant or allotment of land that proceedings must be pending, which could be dealt with and finalized by the "Notified Officer' within the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters under consideration, claims of respondents had not been fully adjusted or lands allocated to them for being transferred in their favour was not available for one or the other reasons. Therefore, without much comments relying on the instructive observations in cases of Member Board of Revenue v. Muhammad Mustafa and others (1993 SCMR 732), Syed Saifullah v. Board of Revenue, Balochistan and others (1991 SCMR 1255) and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCMR 1358) we are inclined to hold that on the promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units." The Hon'ble apex Court further ruled that if circumstances disclose that order pre-eminently provides right to either party is nullity the same should be ignored. Relevant portion of the judgment is reproduced as under:- "Now we will proceed to deal with other aspect regarding consequence of order passed by authority having no jurisdiction in the matter. Question relating to legality and impact of void order and for disregarding the same when nullity, has been considered by this Court on numerous occasions. Pivotal question which needs attention is whether impugned orders concerning allotment of land passed by Notified Officer are mala fide or suffer from total lack of jurisdiction or have been passed in disregard to existing law and tends to frustrate provisions of evacuee laws and schemes framed thereunder, therefore, be deemed as nullity. In case of Muhammad Swaleh (PLD 1964 SC 97) this Court ruled, that if circumstances disclose that order pre-eminently provides right to either party is nullity the same should be ignored. In the case of Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104) the Court did not attach finality to the orders which were passed by an authority in excess of its jurisdiction or suffered from want of jurisdiction and were found to be devoid of lawful authority and nullity. It was observed in these matters that edifice constructed on the basis of void order crumbles along with same, and did not require to be set aside through appeals or any other proceedings. In the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) it has been observed that elementary principles of law require mandatory condition regarding exercise of jurisdiction by a Court, Tribunal or Authority must be fulfilled, otherwise all proceedings drawn by such forum would suffer from total want of jurisdiction, otherwise action taken and decision rendered by said forum shall have no legal effect. Similar view was (taken in case of Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184) wherein it was held that orders passed by tribunal having no jurisdiction are not sustainable and all successive proceedings based upon the same are equally illegal and devoid of lawful authority. In Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197) it was observed that "where the Court is not properly constituted; all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances it could never be too late to admit and give affect to the plea that the order was a nullity" and thus impugned order was set aside. The above discussed proposition was elaborately discussed in case of Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) wherein action and orders were found to be coram non judice and nullity in the eye of law. After surveying case-law this Court in a recent judgment reported in PLD 1997 SC 351 (Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari) also dealt with the effect of orders which are void and coram non judice, and prepounded that same may not be carried out." Further the excess allotment of Allah Ditta etc. was cancelled being fraudulent vide order dated 01.11.1977 and there is no final independent order for allotment in favour of Mst. Naeema Khatoon was ever passed by any Notified Officer. There is no any order passed by the Chief Settlement Commissioner Punjab on which basis the alleged claim of Mst. Naeema Khatoon was transferred from Central Record Room Lahore to District Kasur and wherefrom to District Muzaffargarh before passing of order dated 01.11.1977, whereas for the first time she applied to the Chief Settlement Commissioner on 26.12.1977 for transfer of her 6486 Units from Kasur to Muzaffarh, which were allegedly transferred on 18.04.1978, about six months after passing the order dated 01.11.1977 regarding adjustment of her unsatisfied PIUs/claim as such the Additional Commissioner was not pertinently aware of the number of pending units as well as the status of her claim if any and it is proved on record that there is no independent order of allotment ever passed by the competent authority/Chief Settlement Commissioner in favour of Mst. Naeema Khatoon as such subsequent claim of the present vendees on the basis of alleged ownership of Mst. Naeema Khatoon is not sustainable, consequently the superstructure built on the alleged void recommendation made through order dated 01.11.1977 shall automatically be collapsed. Reliance is placed on the case reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729). Moreover, the petitioners' claim that they are vendees from Mst. Naeema Khatoon and in compliance of order dated 13.06.1982 passed by the Additional Commissioner, Multan Division, Multan they obtained land in Chak No.357-A/TDA (164-Kanals), in Chak No.388-A/TDA (280-Kanals), Chak No.164/TDA (776-Kanals), Chak No.128-A/TDA (305-Kanals 17-Marlas). The said order subsequently was set aside by the Additional Commissioner, Dera Ghazi Khan Division vide order dated 22.08.1999 and revision petitions of the petitioners and others were also dismissed by the Member, Board of Revenue vide order dated 26.02.1995. Order dated 22.08.1989 is still in field and in the presence of said order, the alleged adjustment in favour of the petitioners is not sustainable in the eye of law. Much emphasis has been laid upon the non-availability of jurisdiction of Notified Officer to investigate a past and closed transaction accomplished in 1977 as the evacuee law stood repealed in 1974, suffice it to say that on the one hand petitioners are constituting their right on the basis of order dated 01.11.1977 which was admittedly passed after the repeal of the Act and on the other hand under the garb of Repealing Act they are challenging the jurisdiction of the Notified Officer which contradictory stance are manifestly hit by the principle of approbate and reprobate. Moreover the order dated 01.11.1977 in itself is a sketchy and absurd kind of order, which is passed without proper application of judicious mind and the same could not be made basis for the allotment of land to a Mukhbar, as such, the Settlement Commissioner has jurisdiction to adjudicate upon the matter on the disclosure of commission of fraud in obtaining the evacuee land. Reliance in this regard is placed on Muhammad Baran and others v. Member, (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691), wherein it was held as under:- "Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter "was clearly without jurisdiction." Similarly this Court in a case reported as Mst. Bilqees Barkat and 3 others v. Member Board of Revenue J-V/Chief Settlement Commissioner and 4 others (2018 YLR 829) has held that any ill-gotten gain achieved by committing fraud cannot be validated under any laws. Relevant portion of the aforesaid judgment is reproduced as under:- "Undoubtedly Sharaf ud Din committed a glaring fraud and misrepresentation in obtaining the fraudulent claim as well as the allotment which gathers no sanctity in the eyes of law being void ab initio and non-existent. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any laws."

8. Moreover as regard to question of re-allotment of evacuee resumed land, suffice it to say that the then Additional Settlement Commissioner with the powers of Chief Settlement Commissioner vide order dated 01.11.1977 declared the alleged allotment in favour of Allah Ditta etc. as bogus and ordered re -allotment of the resumed land to Mst. Naeema Khatooni against her pending units in contravention of instructions issued by the Chief Settlement Commissioner restraining all his subordinates to make any further allotment of agricultural resumed land without obtaining prior approval of the Chief Settlement and Rehabilitation Commissioner. Through following notifications/ circulars:- i) Vide circular No.4027/3576 R(L) dated 21.07.1966 certain instructions were issued. The said circular is reproduced as under:- "No. 4027/3576 R(L) Office of the Chief Settlement and Rehabilitation Commissioner, West Pakistan. Lahore, dated the 21st July, 1966. Subject: Fresh Allotment of agricultural land resumed on the report of Director of Enforcement and other authorities. Memorandum Reports have been received that in number of cases, where agricultural land allotted to bogus or un-authorised persons was resumed on the report of the Director of Enforcement (Evacuee) Property and Claim, Lahore for any other investigating agency fresh allotment of the land in question was obtained by the previous allottee by producing fresh entitlement certificates in their own name or attorney of some other claimants. This is most unsatisfactory and the whole purpose of resuming land from bogus and un-authorised allottees is defeated. It has accordingly been decided that in all cases where the allotment of any person is cancelled on the basis of fraud or other irregularity as reported by the Director of Enforcement, the resumed area should not be allotted to any person without the prior approval of Chief Settlement and Rehabilitation Commissioner. Full details of Khasra No. are and classification of the land resumed together with copy of the order of the competent authority about the resumption of the land may please be furnished to this office for obtaining the orders of the Chief Settlement and Rehabilitation Commissioner about fresh disposal of the land. These instructions will also apply to the land already resumed which has not been disposed of before the issue of the memorandum. Sd/- Deputy Secretary (Rural) to the Chief Settlement and Rehabilitation Commissioner, West Pakistan." ii) Further instructions were issued vide memo No.7330-66/378-R(L) Lahore dated 7.2.1967 for fresh allotment of Agricultural resumed land. The relevant portion of the circular dated 7.2.1967 is reproduced below: "The resumed area should not be allotted to any person without the prior approval of the Chief Settlement and Rehabilitation Commissioner. Full details of khasra numbers, areas and classification of the land resumed together with a copy of the order of the competent authority about the resumption of the land may please be furnished to this office for obtaining the orders of the Chief Settlement and Rehabilitation Commissioner, about fresh disposal of the land." iii) The Chief Settlement Commissioner West Pakistan in continuation of the above referred instructions also issued further instructions vide circular No.6167-66/1063-R(L) Lahore dated 15.4.1967 for allotment of Agricultural resumed land under West Pakistan Rehabilitation and Settlement Scheme. The relevant portion of the circular dated 15.4.1967 is reproduced below:- "The Chief Settlement and Rehabilitation Commissioner West Pakistan is pleased to order that the allotment of land resumed under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 will be made by a committee constituted for this purpose consisting of the following members:- a. Settlement Commissioner (Lands), b. Deputy Secretary (Rural), in his capacity as Addl. Settlement Commissioner (land), c. Addl. Settlement Commissioner (Legal)." (iv) In continuation of the above instructions dated 15.4.1967, the Chief Settlement Commissioner West Pakistan further issued instructions vide circular No.2771-67/2141-R(L) Lahore dated 5.6.1967 for allotment of Agricultural land resumed under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. The relevant portion of the circular letter dated 5.6.1967 is reproduced below:- "The lands resumed under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 will not be allotted by the Settlement Authorities of the District. The Chief Settlement Commissioner will issue separate instructions for the disposal of such lands" (v) The Chief Settlement Commissioner also issued instructions vide circular No.6208-67/4945-R(L) Lahore dated 25.11.1967 for fresh allotment of Agricultural land resumed from unauthorized persons. The relevant portion of the circular dated 25.11.1967 is reproduced below:- "The Chief Settlement Commissioner and Rehabilitation Commissioner has noticed with concern that the instructions contained in this office circular memo under reference are not being complied with by the local officers and the cases of fresh allotment of land resumed under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 to this office for placing before the committee constituted vide this office circular No. 2771-67/2142-R(L) dated 5.6.1967. It is, therefore, requested that instructions of the Chief Settlement and Rehabilitation Commissioner may please be complied with strictly and the requisite information in the prescribed pro forma be furnished to this office in each case." vi) Further instructions were also issued by the Chief Settlement Commissioner for allotment of resumed land vide circular No.426-69/720-R(L) Lahore dated 20.2.1969. The relevant portion of the circular is reproduced below:- "The land resumed is not to be disposed by the District Settlement Authorities but by the special allotment committee constituted for the purpose by the Chief Settlement Commissioner vide this office memorandum No.2771-67/2141-R(L) dated 5.6.1967. It is further reported that some Settlement Authorities are themselves re-allotting the land so resumed in utter disregard of the requisition for referring such cases to the special allotment committee." The principles of restraintment laid down in the above instructions are fully applicable in these cases whereas the subordinate authorities in deliberated disregard to the above instructions passed allotment order of the resumed land without obtaining prior permission from the competent authority which orders are patently illegal, passed without jurisdiction and are considered conclusively as non-existent in the eye of law. Moreover, from the perusal of the entries of so-called alleged khata RL-II No.882, it has been established that the said khata was prepared with reference to the order of ADC(G) Muzaffargarh and admittedly, the ADC(G)s were never vested with the powers as Notified Officer in the whole province of Punjab for disposal of Evacuee Agricultural land.

9. In view of the above, admittedly through order dated 01.11.1977 only recommendations were passed by the then Additional Settlement Commissioner (Land) without ascertaining the genuineness of Naeema Khatoon's pending claim and arbitrarily made uncalled for recommendation without having any authority whereas neither Naeema Khatoon filed an application for obtaining the allotment in respect of any pending units nor the competent authority passed such order nor her claim comes within the ambit of pending proceedings. All the subsequent proceedings on the basis of order dated 01.11.1977 were passed without applying any judicious mind and are also made in violation of the circular/memorandums reproduced above, issued by the Chief Settlement Commissioner, West Pakistan. As such while passing the impugned order dated 06.09.2011, the Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner/Member (Regional Properties)/ Notified Officer, Punjab has not committed any illegality or any irregularity calling for any interference in the writ jurisdiction of this Court, as such both the writ petitions are hereby dismissed being devoid of any merits. MH/M-166/L Petitions dismissed.