P L D 2012 Lahore198 (PLP)

UMAR ATA BANDIAL, J.

The petitioners before the Court in this Writ Petition No.12-R of 2010 are the vendees transferees of land allotted to Khushi Muhammad, a military personnel by the GHQ under the provisions of the West Pakistan Border Area Regulation of Martial Law Regulation No.9 of 1959 ("MLR 9 of 1959"). Transfers of allotted land in favour of the petitioners have been cancelled by the respondent Border Area Committee ("BAC") through the impugned order dated 23-12-2009. The allottees of the land, subsequently purchased by the petitioners, paid the requisite dues and got proprietary rights conferred through mutation in the relevant revenue record. To elaborate the terms and conditions of allotment pursuant to the provisions of Condition No.9 Schedule 3 of MLR 9 of 1959, the Federal Government framed a Scheme in 1961 bearing the title "Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under MLR 9" ("1961 Scheme"). With reference to the mode and permissible types of transfers of land by an allottee, provisions of paragraph 6 of the 1961 Scheme are relevant which are reproduced below:-- The allotment of land will be subject to the following terms and conditions:-- The allottee shall

(a) Not transfer the land before acquiring the Proprietary rights except through mortgage for the purpose of obtaining a loan for the development of the land from-- (i) The Provincial Government; (ii) Any Government sponsored institution; or (iii) A Co-operative Society. (b) Not alienate the land by sale, gift, exchange, mortgage after acquiring the proprietary rights except for the objects specified in clause (a) above, or otherwise without the prior permission of the Deputy Commissioner concerned who before passing any order in this respect, shall satisfy himself that the alienee is a suitable person for settlement in the border area. In case of the Military allottee the Deputy Commissioner concerned shall obtain approval from the General Headquarters before passing final order for alienation of the land. The Deputy Commissioner before according such a permission shall in consultation with the Adjutant General, General Headquarters Det (W&R) Dte Rawalpindi satisfy himself further that no Military personnel is willing to purchase the land; (c) Bring at least 50 per cent of the allotted land under food grains crop every year. The allotting authority may relax the conditions from time to time; (d) Not allow the land to deteriorate and will not use it for a purpose other than agriculture including horticulture; (e) Regularly make payment to Government of revenue, cesses and Abiana, if any; (f) Not be permitted to sell the land for the first 5 years after obtaining the proprietorship. (ii) In the event of death of an allottee, the allottment shall devolve on the legal heirs of deceased who fulfil all the conditions relating thereto."

2. The provision of paragraph 6(b) (supra) visualize that prior to sale, gift, exchange, mortgage or transfer of proprietary rights, NOC of GHQ must first be procured by a military allottee in favour of the proposed transferee. These provisions have subsequently been reinforced by the enactment of West Pakistan Border Area Regulation, 1959 (Punjab Amendment Ordinance 1981) whereby new Condition 11 has been incorporated in Schedule 3 of MLR 9 of 1959 that provides as follows:-- "(11) The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Headquarters."

3. The dispute in the instant and connected cases before the Court is whether the transfer of land of a military allottee in favour of his heirs or their vendees, in this case the petitioners, is valid without first procuring NOC from GHQ. Detailed arguments addressed by the learned counsel for the parties have been heard. A perusal of the record reveals the following.

4. After the promulgation of MLR 9 of 1959 and the 1961 Scheme, the GHQ started enforcing the condition of NOC for the first transferee from a military allottee but not for subsequent vendees of the first transferee. This is notwithstanding the fact that paragraph 6(b) of the 1961 Scheme visualizes the issuance of NOC for every transferee. Subsequently, the Punjab Ordinance 3 of 1981 incorporated the condition of NOC in MLR 9 of 1959 making it a mandatory requirement for transfer. Nevertheless, for a number of years the extended NOC requirement was not enforced by the GHQ. However, in 1997, the GHQ appears to have decided to strictly enforce Condition No.11, Schedule 3 of MLR 9 of 1959. Accordingly, whilst addressing past transfers that had been made without procuring NOC, the GHQ issued letter dated 19-5-1997 to the respondent BAC directing as follows:-- "a. Sale of Land without NOC. All allottees who have sold their lands without NOC, be given final notice to forward requests for ex-post-facto sanction. Any allottee/legal heir who fails to get NOC within one year, his land be cancelled for violation of terms and conditions."

5. As a result of the foregoing policy decision, in a number of cases the GHQ issued ex-post-facto NOCs. We have in our record in Writ Petition No.14-R of 2010 and Writ Petition No.20-R of 2010 ex-post-facto NOCs issued on 28-1-1997. Likewise in the record of Writ Petition No.76-R of 2011 there is an ex-post-facto NOC issued by GHQ on 13-7-2001 in favour of the vendees of a military allottee which was procured not through the BAC but the Deputy Commissioner in terms of paragraph 6(b) of 1961 Scheme. By the issuance of ex post facto NOCs it appears that the GHQ was granting opportunity to transferees of military allottees to have their transactions regularized.

6. In the present case, almost all the transfers to vendees from the legal heirs of the military allottee, Khushi Muhammad, were concluded in 1997 or before. However, the impugned order dated 23-12-2009 by the BAC cancelled all the transfers recorded from the allottee for lack of a NOC from the GHQ. This includes the cancellation of the mutation of inheritance dated 15-6-1987 recorded in favour of the heirs of Khushi Muhammad allottee. The impugned order is wrong because a mutation of inheritance records a transfer made by operation of law which should be subject to limited scrutiny and not NOC. In so far as subsequent transactions are concerned, consistency with GHQ practice would require that those concluded prior to 1997 should be granted ex post facto NOCs.

7. Likewise in Writ Petition No.14-R of 2010 the transfer in favour of the petitioners in 1997 has not been granted ex-post-facto NOC. In another case bearing Writ Petition No.17-R of 2010 civilian transferees of the allottee were issued an open NOC on 26-1-1985. Thereafter the transfer of the land made in favour of the petitioner on 22-10-2005 by the legal heirs of the allottee has been cancelled for lack of a corresponding NOC. The petitioners in all the cases allege inconsistency, discrimination in the action taken by the BAC; and they do so with some justification.

8. In the background of the foregoing facts and with the able assistance of the learned counsel for the petitioners and the learned counsel for the BAC, the following important points stand established. The NOC procedure provided in Clause 6(b) of 1961 Scheme has fallen into the disuse. On the other hand, Condition No.11 of Schedule 3 of MLR 9 of 1959 prescribes no procedure for the procurement of NOC. As a result, transferees of military allottees or their legal heirs do not have a duly established and notified channel for securing NOC in order to perfect their legal title to land transferred to them. Secondly, there is no written or declared criteria on which an NOC is granted by the GHQ to transferees of military allottees. The honourable Supreme Court in Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another (PLD 2008 SC 591) has interpreted the law to conclude that the primary criterion is the desirability of a transferee. However, it appears from the impugned action of the BAC that the said criterion may not be the only factor taken into consideration and what other factors are considered is not known to the public. Thirdly, it is also established that for many years until 1997 the GHQ was not enforcing the condition of NOC for subsequent vendees of the first transferee of a military allottee. The letter dated 19-5-1997 by the GHQ reflects a change in policy and expressly authorizes issuance of ex-post-facto NOCs. There is evidence on record that such ex-post-facto NOCs were issued until the year 2001. There is accordingly, good ground for the objection when such an ex post facto NOC is denied for a transaction that was concluded prior to the cutoff date in 1997. More importantly there is merit in the objection as to how the change in GHQ policy in 1997 to enforce requirement of NOC and then the policy to close ex post facto NOCs some time after 2001, was conveyed to the public. Silence by the BAC, GHQ and revenue authorities in the above matters caused uncertainty which can seriously prejudice proprietary rights.

9. Learned counsel for the petitioners has shown that the respondent BAC has required a NOC to be issued by the GHQ even in a case where the land has devolved to the legal heirs of an allottee. Learned counsel for the BAC has clarified that contents of para 6 (ii) of the 1961 Scheme are clear in exempting such a transfer from the requirement of NOC. The impugned order has thus violated the 1961 Scheme. However, he submits that such transfer by a living allottee to his putative legal heirs requires NOC. The rationale for requiring an NOC in the said case as an exception to the rule is not clear.

10. For the grave uncertainty on account of the foregoing matters that results to members of the public who have proprietary interest in land transferred by military allottees or their successors mandates that the same be cleared of all confusion and doubt about the law. The present state of ambiguity in BAC, GHQ and revenue authorities policy and action leads to arbitrariness in the determination of rights affected by such law Arbitrariness is a serious form of discrimination under Article 25 of the Constitution. Accordingly, in the foregoing background and to remove the elements of discrimination that are likely to pervade decisions by the BAC in matters regarding proprietary interest of transferees of military allottees, it is directed that the BAC shall intimate the concerned competent authorities to frame rules and regulations that formalize criteria for granting NOC to transferees of military allottees and notify the available or new procedure for obtaining the same. Steps must also be taken that the record in respect of the rights of persons interested in land allotted under MLR 9 of 1959 is maintained and is available for public inspection either in the offices of the BAC or at the Tehsil offices where the record duly authenticated by the BAC should be available for inspection by the public.

11. This petition is accordingly allowed with a direction of remand to the BAC to decide the same afresh in the light of observation made above. M.H./S-14/L Case remanded.