1977 PLP 208 (SCMR)

MUHAMMAD GUL, J.‑These two appeals by special leave arising out of two judgments of the Lahore High Court in Writ Petitions Nos. 429/R of 1972 and 702/R of 1973 dated respectively the 5th April 1973 and the 15th January 1974 by proceeding on the same facts, were heard together and ;re disposed of by this judgment. The facts briefly are these. Hassan and Khushi Muhammad respon dent both displaced persons and right‑holders respectively filed their claim forms kilos. 6 and 761 in village Aulakh That Jandi, Tehsil Leiah, District Muzaffargarh where they were provisionally allotted land. Their claims were later verified and allotment of land measuring 3662 kanals 1 marla was confirmed in their favour The two right holders later sold the confirmed land in favour of Bashir Ahmad and Abdul 1‑1aq respondents by two registered sale deeds each dated 10‑4‑1968. In 1971 Muhammad Ismail and Muhammad Ishaq respondents applied under sections 10 and l I of the Displaced Persons (Land Settlement) Act, 1958 (Act XLVII of 1958) to the Deputy Commissioner, Muzaffargarh, exercis ing the powers of the Chief Settlement Commissioner, alleging that claim form bearing Nos. 6 and 761 were bogus and therefore, a should be cancelled. The matter was referred to E. A. C. O. Lieah for enquiry. After a detailed enquiry by E. A. C. O. on notice to all concerned and hearing their evidence and after considering the report from the Central Record Room, he reported to the Deputy Commissioner that the two applicants have failed to prove their allegations against the genuineness of the claims of the two right holders. Accordingly the applications by Muhammad Ismail and Muhammad Ishaq were rejected by the Deputy Commissioner. His order is dated the 31st March 1971. Subsequent to the above enquiry culminating in the order by the Deputy Commissioner, Abdul Ghafoor, Muhammad Aslam and Muhammad Sadiq respondents filed fresh applications under sections 10 and 11 of Act XLVII of 1958 before the Deputy Commissioner and Additional Settlement Commis sioner (Lands), Muzaffargarh, repeating the allegations earlier made by Muhammad Ismail and Muhammad Ishaq as to the fictitious nature of claims filed by Hassan and Khushi Mubammad. A separate application to the similar effect was also tiled before O. S. D., Central Record Room at Lahore to whom the matter was also referred for enquiry by the Deputy Commissioner. Pursuant to these applications, fresh notices were issued Hassan and Khushi Muhammad to show cause why the confirmed allotments in their favour should not be cancelled. This obliged Bashil Ahmad arid Abdul Haq, the two vendees from the original right holders, to move Writ Petition No. 429‑R of 1972, in which they pleaded, inter‑ alia that the order dated the 31st March 1971 by the Deputy Commissioner, Muzaffargarh exercising the powers of the Chief Settlement Commissioner made after due enquiry holding the claims Nos. 6 and 761 to be genuine, had attained finality and therefore, the matter cannot be reopened by the Deputy Commissioner, Muzaffargarh nor by the O. S. D., Central Record c: Room. It appears that Muhammad Ismail and Muhammad Ishaq, the informers also filed separate Writ Petition No. 734‑R of 1972 to call nil question the order of tile Deputy Commissioner/Chief Settlement Commissioner dated 31‑3‑1971 anti to press their claims for the land confirmed to Hassan and Khushi Muhammad, as the informer. Both Writ Petition No. 429‑R 1972 and Writ Petition No. 734‑Rl1973 were heard together. A learned Judge accepted the former writ petition moved by Bashir Ahmad crud Abdul Hail holding that in the face of the finding by the Deputy Commissioner/Chief Settlement Commissioner, Muzaffargarh, dated 31‑3‑197t that the claims filed by Hassan and Khushi Muhammad were genuine and the allotment in their favour was valid, the matter cannot be re‑opened. 0n that finding the other writ petition filed by Muhammad Ismail ant. Muhammad Ishaq was dismissed. Subsequent to the decision in Writ Petition No. 429‑R; 1972 Abdul Haq respondent, it appears, received another notice from O. S. D., Central Record Room requiring him to appear on 7‑7‑1973 to show cause why the allotment of land in respect of claim form No. 761 filed by his vendor Khushi Muhammad, should not be cancelled ? The notice was a sequel to reference made to O. S. D., Central Record Room by the Deputy Com missioner consequent upon the fresh application made by Abdul Ghafoor and Muhammad Sadiq under sections 10 and 11 of the XLVII Ac‑t of 1958. This led Abdul Haq to tile Writ 1'rtition No. 702‑h of 1973 to challenge the com petency of O. S. D, Central Record Office to take cognizance in the matter because of the earlier decision in Writ Petition No. 429‑R of 1972 writ Petition No. 702‑R/1973 was heard by another learned Judge who accepted the same by order dated 15‑1‑1974. The learned Judge beside holding that in view of the order of the Deputy Commissioner/Chief Settle ment Commissioner dated the 31st March 1971, the question regarding the genuineness of claims filed by Hassan and Khushi Muhammad could not be re‑opened, went on to hold on the basis of this Court's judgment in Raunaq Ali etc. v. Chief Settlement Commissioner and others (P L D 1973 S C 236) that O. S. D., Central Record Room is not competent either under the Pakistan Rehabilita tion Act, 1956 (Act XLII of 1956) or Rehabilitation Settlement Scheme framed under that Act nor under the Registration of Claims (Displaced Persons) Act, 1956 to cancel a confirmed allotment. The view taken was that O. S. D., Central Record Room is custodian of records and performs what in essence, are ministerial functions confined to "verifying or reverifying" the claims on the basis of entries in the special Jamabandis received from India and preclude an enquiry and recording a finding on the genuineness or otherwise of a claim This is relatable to exercising judicial functions falling within the exclusive jurisdiction of the Chief Settlement Commissioner or his delegate under sections 10 arid 11 of the 1958 Act. file learned Judge further observed that the Chief Settlement Commissioner in view of the order Massed by the Deputy Commissioner on 31‑3‑1971 had attained finality. Therefore, any further of fresh proceedings by the O. S. D., Central Record Room, purport ing to be pursuant to a direction by the Chief Settlement Commissioner, were ";absolutely without jurisdiction". Leave was granted to consider whether notwithstanding the order dated 31‑3‑1971 of the Deputy Commissioner exercising the powers of the Chief Settlement Commissioner or his delegate, recorded after proper enquiry under sections 10 and 11 of the Displaced Persons (Land Settlement) Act 1958 (Act XLVII of 1958) that the claim of the right holders is genuine, the question can be reopened for a fresh enquiry ? Malik Maclbool Ilahi, learned counsel for the appellant; in both the appeals did not question the broad proposition that the Chief Settlement Commissioner or his delegate appointed under section 30 (2) of the 1958 Act has the sole jurisdiction to cancel a confirmed allotment, if obtained by misrepresentation or fraud or excess allotment resulting from miscalculation etc., anti that O. S. D., Central Record Room has not been authorised by the Chief Settlement Commissioner in the relevant behalf. Learned counsel, however, contended that in the instant case, fraud having been discovered, O. S. D., Central Record Room, issued notices to Bashir Ahmad and Abdul Haq on a direction by the Deputy Commissioner exercising tile powers of the Chief Settlement Commissioner, to show cause why the allotments in favour of their predecessors‑in‑interest, the original right holders, be not cancelled and land resumed from them. It was further stressed that the previous report by O. S. D., Central Record Room, on which rested the Deputy Commissioner's order dated the 31st March 1971 proceeded on rnusana (duplicates) of the claim forms filed by the original right‑holders which were later discovered to be spurious documents. According to learned counsel even these duplicates subsequently disappeared from the Central Record‑Room, and a number of interpolations in the relevant entries in the special Jamabandis were also detected. Therefore, it was submitted that fraud loomed large in the case which justified the re‑opening of the case notwithstanding the earlier Deputy Commissioner's order dated the 31st March 1971. Learned counsel referred to the well known proposition that fraud vitiates even the most solemn proceeding and there is no reason why the present case should be an exception once fraud is established and the fresh enquiry is directed tc that end. The argument however, conveniently ovarlooks the provision of section 22 of the 1958 Act. It reads: "Subject to the foregoing provisions of this Chapter any order made under this Act, shall be final, and save as provided in section 21, shall not be called in question in any Civil or Revenue Court." The order made by the Deputy Commissioner on 31‑3‑1971, in exercise of the delegated jurisdiction for the Chief Settlement Commissioner under sections 10 and 11 of the Act is definitely such order, which in the absence of any revision under section 21 of the Act has become final. To allow fresh enquiry into the genuineness of the Claim Forms Nos. 6 and 761 would amount to an attempt to review tile order dated 31‑3‑1971, which is nugatory to the provision of the statute which is mandatory in terms. It may be that order of the Deputy commissioner about the genuineness of the claim. does not proceed on a full consideration of the ambient circumstance appearing on the record or is otherwise erroneous. But that would nod impair the finality of the order. There is no power of review either. The argument also overlooks the fact that Bashir Ahmad and Abdul Haq the two contesting respondents are transferees for value from the original right‑holders and it is nobody's case that they were privy to any fraud or misrepresentation alleged against their predecessors-in-title. There fore, on no discoverable principle can Bashir Ahmad and Abdul Haq be penalized for any fraud or misrepresentation if any by their predecessors in‑title unless they are pari, delicto with their vendors. Finally learned counsel for the appellants submitted that the object of the fresh proceedings under sections 10 and 11 of the 1958 Act is not only to cancel the allotment secured by misrepresentation and fraud by Hassan and Khushi Muhammad respondents but also to punish those members of the staff in the Central Record Room with whose active collaboration or connivance the fraud was actually perpetrated and unless fresh enquiry is allowed to proceed, it would not be possible to uncover the guilty and to bring them to book. Any departmental enquiry or disciplinary action against any delinquent, in the Central Record Room stands entirely on a different footing and would not be hit by section 2.2 of the Act. The enquiry before the Deputy Commissioner under sections 10 and 11 of the Act was confined to determining the genuineness or otherwise of Claims Nos. 6 and 761 and the conduct of member of the staff of the Central Record Room was not directly in question before the Deputy Commissioner nor did it otherwise fall within the purview of the proceedings "under this Act" within the meaning of section 22 of the Act. Therefore, this argument does not avail the appellants either. For the foregoing reasons there is no merit in these appeals which are hereby dismissed with costs. Costs will be payable to Bashir Ahmad and Abdul Haq respondents only who get one set of costs. Appeal dismissed.