2020 PLP 48 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this writ petition, the petitioner has challenged the order dated 25.03.2019, passed by the Chief Settlement Commissioner/Notified Officer, Punjab who dismissed the application of the petitioner.

2. Brief facts of the case as contained in the writ petition are that the grandfather of the petitioner namely Muhammad Ismail was a displaced person and Claim Form No.2844 and 1654 were issued in the name of his son Muhammad Siddique. He filed an Mukbari application under sections 10 and 11 of the Displaced Persons Land Settlement Act, 1958 against one Bhoop Khan with the contention that the allotment in favour of Bhoop Khan is illegal and based on fraud. The then Deputy Settlement Commissioner allowed the said application and cancelled land measuring 50 Kanal 8 Marla situated in Chohang Khurd from the name of Bhoop Khan and allotted it to the petitioner vide order dated 27.05.1976. Bhoop Khan filed Writ Petition No.830-R/1976 against the above order which was allowed on 16.03.1977 and the case was remanded to the Chief Settlement Commissioner for fresh decision. The Chief Settlement Commissioner vide order dated 29.03.1978 allotted land measuring 39 Kanal 01 Marla to the petitioner being informer and cancelled from the name of Bhoop Khan situated in Moza Thetar instead of Moza Chong. Bhoop Khan filed Writ Petition No.1214-R of 1978 against order dated 29.03.1978 which was dismissed. He filed an appeal before the Hon'ble Supreme Court of Pakistan which was dismissed vide order dated 19.02.1980. Later on, Bhoop Khan was murdered and the petitioner remained behind the bars in the said case. Meanwhile one Jalal Din got transferred the said disputed land in his own name. The petitioner through his grandson filed application for correction of the allotment that Muhammad Ismail is petitioner instead of Jalal Din. The District Revenue Officer, Lahore vide order dated 03.09.2003 accepted the claim of the petitioner, however, instead of correcting the name of the allottee, forwarded the case to the Secretary Settlement, Board of Revenue. Secretary Settlement put the matter before the Chief Settlement Commissioner who accepted the version of the petitioner vide order dated 31.12.2009 but advised the petitioner to apply for cash compensation in the light of notification dated 30.09.2004. The petitioner earlier filed Writ Petition No.79-R/2010 whereas other parties also filed Writ Petition No.33-R/2010 and Writ Petition No.77-R/2011 before this Court and this Court, while disposing of the matter vide order dated 15.03.2017, remanded the case to the Chief Settlement Commissioner for fresh decision. In post remand proceedings, the Chief Settlement Commissioner vide impugned order dated 25.03.2019 dismissed the application of the petitioner and cancelled the claim No.2844 along with Jalal Din, Mehar Din and Muhammad Ali and resumed the land in favour of the State. Lastly submitted that the order of the Chief Settlement Commissioner is patently illegal, unlawful and liable to be set aside.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

4. The Additional Settlement Commissioner vide order dated 14.03.1978 cancelled the excess land of Moza Thetar of Bhoop Khan at Khata Nos.132, 132/1 and 133 of Register RL.II of Moza Thetar and to be allotted to Muhammad Siddique provided that he is a genuine claimant. The operative part of the said order is reproduced as under: "I am a delegate of the Chief Settlement Commissioner under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 read with section 2(2) of the Evacuee Property Laws Repeal Act, 1975 hereby cancel and resume land equivalent to 324 P.I. units allotted to respondent Bhoop Khan at Khatas Nos.132, 132/1 and 133 of register RL-II of Mauza Mather Tehsil and District Lahore. The cancelled land be allotted to petitioner Mohammad Siddique provided he is a genuine claimant." In compliance of the aforesaid order, neither any application was filed by the petitioner nor any order of allotment was passed by the competent authority in favour of the petitioner. The petitioner managed entry in the revenue record with the collusiveness of the revenue officials without having any order in his favour. The order was passed on 14.03.1978 whereas the application was filed by the petitioner on 22.06.2001 without giving any plausible explanation that if any order had been passed in favour of the petitioner, why he remained mum for such a long period. The aforesaid order was challaned by Bhoop Khan before this Court through Writ Petition No.1214-R/1978. Muhammad Siddique son of Muhammad Ismail also filed Writ Petition No.447-R/1978. Both these writ petitions were dismissed by this Court vide judgment dated 20.10.1979, relevant portion whereof is reproduced as under: "

13. The reason which found favour with the learned Additional Settlement Commissioner for cancellation of the excess area from Village Thathar was that the petitioner had already disposed of major portion of his land in Village Chung. I feel that the view taken by him is not open to exception. The cancellation of land from Village Chung would have driven the innocent purchasers to litigation. Even otherwise I do not feel that his score the respondent is entitled to any discretionary relief under the writ jurisdiction of this Court. Furthermore, the respondent is merely an informer who has no locus standi to invoke the constitutional jurisdiction. This view finds support from Mst. Latifan and others v. Muhammad Ishaq and others (PLD 1974 Lahore 65), and Allah Yar v. Abdul Haq and others (1978 SCMR 330). 14. for the forgoing reasons 1 do not find any merit in both the writ petitions which are hereby dismissed, leaving the parties to bear their Office has wrongly fixed this case today as the same is already fixed for costs." (emphasis supplied) The petitioner did not challenge the aforesaid judgment dated 20.10.1979 before any higher forum whereas Bhoop Khan challenged the said order before the Hon'ble Supreme Court of Pakistan through C.P. No.63 of 1980 which was dismissed being barred by limitation vide order dated 19.02.1980. The petitioner filed application for the correction of the revenue record with the prayer that Jalal Din was wrongly incorporated in the revenue record whereas his correct name is Ismail son of Fatah. The scanned copy of the said application is reproduced as under: The petitioner requested to correct the name of Jalal Din as Ismail son of Fatah which entry was made in compliance of order dated 17.05.1981 passed by Additional Settlement Commissioner order dated 14.03.1978 passed by the Settlement Commissioner and order dated 20.10.1979, passed by this Court and order dated 19.02.1980, passed by the Hon'ble Supreme Court of Pakistan whereas the Writ Petition No.447-R/1978 was dismissed by this Court but the petitioner has concealed this fact, as such, the petitioner has not come to this Court with clean hands and on the basis of concealment of facts, writ petition is liable to be dismissed. Reliance is placed on Mst. Shahida and another v. Board of Intermediate and Secondary Education, Larkana through Chairman, at Larkana and 5 others (PLD 2001 SC 26), Muhammad Sharif v. Additional District Judge and others (2007 SCMR 49), Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (2010 SCMR 1840).

5. The alleged RL-II No.427 claim No.2844 was incorporated in the name of Jalal Din son of Suba with the wording: But the Hon'ble Supreme Court of Pakistan has neither passed any order in favour of Jalal Din nor Ismail and the aforesaid entry has been made with the collusiveness of the parties and the revenue staff, as such, they have committed fraud with the evacuee land.

6. The Patwari of Central Record Room submitted report dated 31.12.2003 to the Deputy Secretary (S&R) regarding the alleged fraudulent allotment on the basis of bogus allotments as well as claim No.2844 which is as under:

7. The Chief Settlement Commissioner, after detail discussing the facts of the case concluded that the claim No.2844, on which basis the petitioner is claiming his right, is bogus one. Relevant part of the impugned order dated 25.03.2019, passed by the Chief Settlement Commissioner, is reproduced as under:

8. Now, turning towards the petitioner Muhammad Ismail, through Muhammad Jamil, for the allotment of resumed land, measuring 39-kanals 02-marlas, situated in Mauza Thather, Tehsil Cantt. District Lahore. There is no doubt that the "mukhbari" of Muhammad Siddique, the predecessor-in-interest was successful and in result, thereof, the allotment of Bhoop Khan, measuring 39-kanals 02-marlas, was cancelled from Mauza Thather and it was ordered by the Deputy Settlement Commissioner (Lands) and Additional Settlement Commissioner through orders, dated 25.07.1976 and 14.03.1978, for allotment of resumed land, measuring 39-kanals 02 marlas, to the informer/mukhbar subject to genuineness of his claim. Astonishingly, Muhammad Ismail, son of Fatta, also carries the same duplicate claim No.2844 that had been issued to three other persons i.e. Jalal Din son of Sooba, Muhammad Ali son of Sooba and Mehar-ud-Din son of Allah Ditta. From the inspection of record, pertaining to Register Hagdaran Zamin of Mauza Kabirpur, Hadbast No. 218, Tehsil Ajnala District Amritsir (India), it transpired that the claim No.2844 was issued to Muhammad Ismail, son of Fatta, at serial No.10, Jalal Din, son .of Sooba at serial No. 17, Muhammad Ali, son of The said 85 Sooba, at serial No. 82 and Mehar-ud-Din, son of Allah Ditto, at serial No.85. The said claim No.2844 has been issued to above four persons and they got allotments in different areas of Lahore District. The original record, containing file of claim No. 2844, was summoned from the Central Record Office, so that the genuineness of original claimants may be determined. No original file of claim No.2844 of Mauza Kabirpur, Hadbast No.218 Tehisl Ajnala District Amritsar, ever exists either in the name of Muhammad Ismail, son of Fatta, or any other claimant. In this situation, mere entries in the Revenue Record, without any backing of original record are not sufficient to prove the genuineness of claim No.2844 that has already been issued to three other persons. The claim No. 2844 has no worth and value and cannot be declared as genuine in this situation and does not carry weight and create any right in favour of anyone. The claim No.2844 is declared as bogus and no one can be allowed to reap the fruit of fraud, resultantly, land secured on the basis of this claim is also liable to be resumed.

9. As far is the correction in khata RL-II No.427 is concerned, Jalal Din, son of Sooba, had secured allotment at khata RL-II No.427, against the same claim No. 2844, that was declared as bogus by the learned predecessor of this court, vide order dated 31.12.2009. The contention of the petitioner for correction of entries at khata RL-II No.427 in favour of the petitioner seems an attempt to replace same bogus claim on same bogus khata in his name on the basis of mukhbari of his predecessor-in-interest Muhammad Siddique, son of Muhammad Ismail. From the perusal of the record, it reveals that Jalal Din, son of Sooba, through Muhammad Siddique etc. at khata RL-II No.427, on the basis of bogus claim No.2844, secured an allotment of land, measuring 39- kahals 02-marlas, situated at Mauza Thather on the basis of order, dated 14.03.1978, as a `mukhbari and they sold it to the various hands through different mutations. The mutation No.725, dated 16.08.1981, was sanctioned in favour of Jalal Din from the Central Government. After his death, mutation of inheritance No.797, dated 16.06.1985, was sanctioned in favour of Muhammad Siddique and present petitioner Muhammad Shafi. They sold out said land to various other persons and the said land was resumed, vide order dated 31.12.2009, passed by the predecessor of this court. Now, the illegal occupants are enjoying the benefits of land in question without paying a single penny to the government. The version of the petitioner for correction in khata RL-II No. 427 in the name of petitioner by replacing the name of Jalal Din, son of Sooba, is not reasonable on the basis of bogus claim and khata as well, therefore, bogus khata RL-II No.427 cannot be implemented in the revenue record, therefore, the request of all these petitioners including applicant 1(10), C.P.C. is rejected being devoid of any force.

10. Keeping in view the state interest, the Deputy Commissioner/Collector, Lahore, is directed to immediately retrieve the land measuring 39-kanals 02-marlas, bearing khasra Nos. 2409, 2410, 2412, 3224/2118, 2069 and 2767, situated in Mauza Thather, Tehsil Cantt. District Lahore, and put the whole land into 'unrestricted public auction', after fulfillment of legal requirement. However, the illegal occupants are left at liberty to take the advantage of first right of refusal in the auction proceedings. The 'Tawan' of illicit cultivation be imposed upon the occupants, in accordance with law, for the period during that the land in question remained in their illegal occupation. The 'unrestricted public auction' shall be supervised by an auction committee. The auction committee shall be headed by the Additional Deputy Commissioner (Revenue), Lahore. The Deputy Secretary (S&R), Board of Revenue, Punjab and Assistant Commissioner concerned shall be the members of the committee. The current market price, assessed by the District Price Assessment Committee, shall be the reserve price for auction proceedings. The highest auction amount/bid money shall be deposited under head of Bank of Punjab, Civil Secretariat Branch, Lahore No.0080019002280001 "Deposits in favour of Chief Settlement Commissioner Punjab" that shall be subject to final approval of the Chief Settlement Commissioner, Puqjah, under rules/policy. The Deputy Secretary (S&R), Board of Revenue, Punjab, is directed to prepare a schedule for auction of land in question and conduct the auction proceedings with the help of District, Authorities strictly in accordance with law. The copies of this order be remitted to the Deputy Commissioner/Collector, Lahore, for .further legal action and concerned 'Arazi Record Centre' for updating the record, if the Land Record has been computerized. A copy of the order be also submitted to the Commissioner, Lahore Division, Lahore for compliance." (emphasis supplied)

8. From the report dated 31.12.2003 it is clear that on the basis of one claim form No.2844, different persons got allotted land in their names, as such, fraud has been committed with the evacuee land. 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. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).

9. As a clear fraud has been committed in obtaining the allotment order against the bogus claim, as such, the Chief Settlement Commissioner has a jurisdiction to adjudicate or investigate the genuineness of the evacuee's claim, and if he found any fraud committed in obtaining the allotment of the evacuee property, he has the jurisdiction to reverse the said allotment order. The Hon'ble Supreme Court of Pakistan in a recent judgment reported as Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd and others (2016 SCMR 222) has observed that when a matter of allotment is re-opened the Settlement Authority has the jurisdiction to re-examine all the facts pertaining to the title of the parties from the very inception of claim and to decide the matter according to available record as per law. In another judgment cited as Virasat Ullah v. Bashir Ahmad Settlement Commissioner (Industries) and another (1969 SCMR 154), the Hon'ble Supreme Court of Pakistan has observed as under:- "We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Commissioner which merely required that the petitioner should disclose his credential as the transferee of the property in dispute. The learned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no apparent reason why the petitioner wants to avoid this examination. The grievance of the petitioner at this stage is baseless and premature. This petition is dismissed." (emphasis supplied) The above said view has been reiterated in case reported as Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). Moreover section 21 of the General Clauses Act, 1897 confer an inbuilt jurisdiction to an authority which earlier passed the order, to undo the erroneous or illegal order passed by it. Further it is well established by now that where any benefit has been obtained by practicing fraud, the same authority/forum is vested within jurisdiction to undo the same. In this regard the Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) has held that where the allotment order made by the authorities was illegal, without jurisdiction, based on fraud and forgery, in that eventuality Chief Settlement Commissioner/Notified Officer can interfere with illegal transfer of properties by its own motion against the fraud and forgery and in such like matter, the superior Courts should avoid to exercise their discretionary writ jurisdiction to annul the order of the authority, even though it was clearly without jurisdiction. Relevant portion of the said judgment is reproduced 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." Further in another judgment reported as Shamrooz Khan v. Muhabbat Khan and another (1989 SCMR 819), the Hon'ble apex Court held that the Settlement Authorities have jurisdiction to issue notices on the complaint wherein it reveals that the order of transfer was procured on the basis of fraud and non-existent documents. The relevant portion of the judgment (supra) is reproduced as under:- "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre-empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court. We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs."

10. The Notified Officer/Chief Settlement Commissioner after minutely perusing the original record and hearing the parties, rightly passed the impugned order which does not require any interference. Learned counsel for the petitioners has failed to point out any perversity, illegality or any jurisdictional defect in the impugned orders calling for any interference by this Court in its constitutional jurisdiction.

11. In view of above, this writ petition is hereby dismissed in limine being devoid of any merits. SA/M-94/L Petition dismissed.