1995 PLP 1394 (CLC)

3. In all these writ petitions common questions are involved vide which the petitioners have challenge the impugned order i.e. (i) the order was passed without notice to the petitioner, (ii) that it was a past and closed transaction and after promulgation of the Evacuee Property and Displaced Persons Repeal Act, 1975 and being not a pending case, so any action taken in this respect i.e. the cancellation of the allotment is unwarranted, (iii) that the petitioner being bona fide purchaser from the original allottee and they are protected under section 41 of the Transfer of Property Act.

4. The respondents department contested all the writ petitions and they have submitted their comments in Writ Petition No.2/90. The respondents, in addition to the fact that the claim was unverified and a bogus one, also contended that there is no person by the name of Muhammad Rafi and all the proceedings in this respect were either taken under fictitious signature or by the so‑called attorney, who is the present petitioner (Bashiruddin) in W.P.No.2/90. Moreover, the property included in RL‑11 S.No.II was also included in RL‑11 Nos.14; 38 and 58 and allotted to the claimants. This area was later on surrendered by the allottees and legally surrendered property cannot be allotted. It was also contended that in addition to the facts that i.e. claim No.262 being bogus, non‑existence of a person by the name of Muhammad Rafi the land belonged to the Provincial Government being a surrendered land could not be allotted, that Khasra No.22 was not included in the so‑called allotment of RL‑II S.No.1l. Similarly the area of Khasra No.24 mentioned in the same RL‑11 has entered as 89 Kanals 4 Marlas, hence claim of the petitioners over Khasra Nos.24 and 22 measuring 364 Kanals, 5 Marlas, is unlawful and incorrect. They strongly refuted the allegations of the petitioners with regard to the notice and it was submitted that proper notice to the so‑called allottee was given and after inquiry and due verification the allotment was cancelled and in this respect a report of the Central Record Room is Annexure `A' and the copy of the notice which bears various endorsements with respect to the service of Bashiruddin (the present petitioner) and who was special attorney of Muhammad Rafi, the allottee, refused to acknowledge the same, were placed on file.

5. In all the four writ petitions the claim of the petitioners is that the land measuring in Khasras Nos.22 and 24 was allotted to Muhammad Rafi as evident from para. No.2 of W.P.No.2/90 by mentioning; "(i) that the disputed land measuring 364 Kanlas, 5 Marlas bearing Khasras Nos.24 and 22 situated in revenue estate Kotla Saidan Tehsil and District D.I. Khan was allotted in the year 1959 in the name of respondent No.7 Muhammad Rafi . (ii) Para. 2 of W.P.No.1/91. "though that the land involved in Khasras Nos.22 and 24 was originally owned by the Central Government which were later on allotted to respondent No.7............... (iii) Para. 2 of W.P.No.1/92. "That the disputed land measuring 364 Kanals, 5 Marlas bearing Khasra Nos.22 and 24 situated in revenue estate of Kotla Saiden Tehsil and District D.I. Khan, was allotted to Muhammad Rafi ." (iv) Para. 2 of W.P. No. 2/92, "That the disputed land measuring 353 Kanals bearing Khasras Nos.22 and 24 situated in revenue estate of Kotla Saidan, Tehshil and District D.I. Khan was allotted to Muhammad Rafi ."

6. Copy of RL‑11 has been placed on file in W.P.No.2/90 which bears all the eleven Khasra numbers mentioned in the impugned order and also in Para. 2 above. A reference has been made in the impugned orders that Khasras Nos.22 and 24 are the new Khasra numbers of Khasras Nos.1088/46, 20, 940/21, 22, 23, 24, 1079/16, 1080/16, 1081/61 as per entry of `Misli Haqiat` of the year, 1968‑

69. Mutation No.2173 dated 22‑4‑1989 was attested on the basis of allotment as evident from Para. 2 of the W.P. Nos. 1 and 2, of 1992. The land measuring 653 Kanals was shown to have been transferred to Muhammad Rafi. The property which comprising in two Khasras numbers i.e. 24 measuring 190 Kanals, 11 Marlas and Khasra No.22 measuring 462 Kanals, 9 Marlas, these have been mentioned in the mutation as the Khasra numbers, the old Khasra numbers of which had also been given. The old Khasra numbers of Khasra No.24 is 1088/46 while the old Khasra of Khasra Nos.22 are 22, 23, 940/21‑22, and 1081/16. The mutation as mentioned above was attested on 22‑4‑1989 while RL‑11 was prepared in the year 1959. RL‑11 on the basis of which the mutation was attested does not have Khasra No.1088/46, the corresponding new Khasra of which is 24 and the same also does not bear Khasra No.22 (old Khasra number) which alongwith other Khasra number as mentioned above collectively forms Khasra No.22 new, though in the impugned order there is mention of the figures 22 which is not an independent Khasra numbers,. but is 940/21‑22 and which is also the old Khasra number in the year 1959.

7. The cases of all the petitioners hinges mainly on the fate of the allotment in favour of Muhammad Rafi which was found by the respondents as bogus and forged one. The respondents have claimed that a thorough inquiry was made and during the course of which notices had also been issued to the concerned person i.e. the allottee Muhammad Rafi and specially through the present petitioner (Bashiruddin) in W.P. No. 1/90 who was also acting as attorney of Muhammad Rafi. It is the case of the respondents that a person by the name of Muhammad Rafi does not exist and even in this Court what to speak of filing any writ petition or to convey his grievance to the Court even he did not appear despite the fact that he being impleaded as respondent in all the writ petitions. Though a counsel appeared on his behalf to which the contested respondents i.e. the department had also taken exception by alleging the Vakalatnama had not been executed by Muhammad Rafi and did not bear his signature or thumbimpression as on the various documents e.g. mutations and registered deed purportedly to have been executed on his behalf bear his signature e.g. registered deeds executed in favour of petitioner Muhammad Ayub etc. of W.P.No.1/92 and Kifayat Hussain etc. petitioner of W.P. No. 2/92 while the Mutations Nos.2173, 2174 and 2176 bears his thumb‑impressions, (alongwith his signature) which thumb‑impressions are quite different from the one which is on Vakalatnama. Bashirddin who is petitioner in W.P.No.2/90 and also according to the respondent was acting as an attorney of Muhammad Rafi was a witness to the registered deed vide which the property purportedly to have been transferred to the writ petitioners in W.P. Nos.l/92 and 2/92 but despite that he managed to transfer the same in his own name vide Mutation No.2176.

8. The department alleges fraud based on proper inquiry but the allottee Muhammad Rafi respondent did not controvert the same by submitting any rejoinder or counter‑affidavit etc. if his existence is believed, which is denied by the depart, as earlier stated, that no person by the name of Muhammad Rafi ever existed. However, if the petitioner's (who are transferee from Muhammad Rafi) stand with regard to the absence of fraud, is considered that is factual controversy which cannot be resolved through W.P. However, if any view is to be expressed in this respect and because of insistence of the petitioner to get a verdict of the Court with this regard to commission or non‑commission of fraud, that would be in favour of department i.e. existence of commission of fraud and which conclusion has also been arrived at by the settlement authorities as a result of inquiry which both (inquiry and verification as well as the assertion of the depart for holding an inquiry) are official acts to which the presumption of regularity attached unless controversed by strong evidence and specially before passing the impugned order, based on allegation of fraud, notice was given to allottee and also in view of observations made supra in this para and in para No.7. In addition to this legal position even on factual side from the very averments in the writ petitions and the documents relied upon i.e. the RL‑11, the Mutation No.2173 reveal that all the Khasra numbers mentioned in Mutation No.2173 discussed above, have not been allotted to the allottee Muhammad Rafi and thus the claim of the petitioner even on this score also does not stand.

9. The facts that the allotment has been obtained by fraud and which was held through the impugned order after its proper verification and inquiry and notice to the concerned person Muhammad Rafi and with reference to the discrepancies in the area and description of property as mentioned in RL‑11 and Mutation No.2173 vide which the entitlement of the allottee is alleged, the allotment cannot be considered as a past and closed transaction as the allotment obtained on the basis of fraud is a nullity and inoperative as fraud vetiates most solemn transaction and no party f should be allowed to take advantage of his fraud and any instrument, deed or judgment or degree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. However, verdict of the Court or authority after giving notice to the concerned would be more appropriate to be made in order to nullify, in clear terms, the effect of such a fraud by declaring the order as cancelled or resident. In a pronouncement reported in PLD 1958 Dacca 132 it was observed:‑ "No order obtained by practicing fraud on the Court and the parties should be allowed to stand on record. If it be allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances:' In PLJ 1971 B.J. 88, the Hon'ble Judge, while relying on judgment of Division Bench of Lahore High Court as reported in PLD 1970 Lah. 714, observed an order obtained by fraud is a nullity and it is duty of the authority that has seizen of the matter to recall suo motu such an order. It was further held that even proceedings that follow from such an order obtained b fraud are void.

10. There is no cavil with the proposition that even tribunal of limited jurisdiction has the authority and is competent and inherent jurisdiction to call any order passed by it if the same has been obtained by fraud and misrepresentation. In addition to the general proposition of law in the strict legal parlance the authority which passed the impugned order having jurisdiction to do so. The impugned order was passed by respondent No.3 acting as Chief Settlement Commissioner. Government of N.‑W.F.P. exercising the power under section 2(2) of the Evacuee Property and Displaced Persons Law (Repeal) Act 1975 (Act XIV of 1975) (hereinafter may called as Repealing Act of 1975) issued a Notification dated 1‑10‑1975 empowering the Deputy Commissioner to act as Chief Settlement Commissioner within the meaning of sections 10 and 11 of Displaced Persons (Land Settlement) Act 1958 (hereinafter may be called as Act XLVII of 1958) empowering him to deal with cases pending under sections 10 and 11 of the Act ibid. which notification is as follows:‑‑ NOTIFICATION. Peshawar, dated the 1‑10‑1975. No.3213/BB/BOR/NWFP/75. In exercise of the powers and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), and in partial modification of this Department Notification No.6345/P.B., dated 7‑ll‑1974, the Government of the North‑West Frontier Province is pleased to direct that, with effect from the date of publication of this Notification, the powers of the Chief Settlement Commissioner in respect of 'cases pending under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, shall also be exercised, within their respective jurisdiction, by the Deputy Commissioner of all the Districts in the Peshawar and Dera Ismail Khan Divisions. (Sd.) Secretary to Govt: Of North‑West Frontier Province Revenue Deptt;" Then according to section 10 of Displaced Person (Land Settlement) Act 1958 the Chief Settlement Commissioner on being satisfied that an allotment has been obtained by fraud or misrepresentation may pass an order of cancellation of allotment. For ready reference section 10 is reproduced:‑‑ "10 Power of Chief Settlement Commissioner to cancel allotment.‑‑If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fraud or false representation then without prejudice to any other penalty to which such person may be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment or reducing the area of the land allotted or such other order as he may deem fit: Provided that no order under this section shall be passed by the Chief Settlement Commissioner without giving the person affected thereby a reasonable opportunity of being heard." When the authority has been given power to deal with cases pending under section 10 and which powers under section 10 was exercised as evident from the impugned order then 'the authority would not be derogated of its powers simply on the reason that fraud had not earlier been detected to bring the case within the category of pending cases. Thus, the cases, irrespective of the date of detection of fraud in which orders have been obtained by fraud and misrepresentation would be considered as pending cases for the purpose of exercising the powers under section, 10 of Disph ced Persons Act XLVII of 1958 by the authority concerned empowered by notification issued under section 2(2) of the Repealing Act of 1975.

11. Even in the absence of such enabling provisions empowering the authority to deal with pending cases under section 10 of the Act 1958 the Supreme Court in Rehman Bibi. v. Elahi Sain and 8 others (PLD 1991 SC 1034) held that section 2 of the Repealing Act could not have taken away the jurisdiction of the High Court under Article 199 of the Constitution and no presumption should be raised that section 2(2) of the Repealing Act of 1975 has directly or even indirectly taken away the jurisdiction of the High Court which view has been further strengthened by the language of subsection (2) of the section 2 which has got two parts one relating to the High Court and Supreme Court and other relating to designated officers who are normally called Notified Officers. The part relating to designated officers has got a precondition that they could deal with only those cases which were pending at the time of repealed of Laws while part relating to High Court and Supreme Court has got no such precondition of qualification of pendency. The Supreme Court in other judgment Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 SC 691) held that if the order of allotment obtained by fraud and forgery and was set aside by the functionary (in that case the Board of Revenue) the High Court would not interfere in its discretionary Constitutional jurisdiction to annul the order of the authority which exposed the fraud though the order is without jurisdiction. Id another case before the Supreme Court in Mst. Saleem Khatoon and another v. The Deputy Commissioner/Authorised Officer and 2 others (PLD 1994 SC 160) the question of jurisdiction of settlement authorities came directly for determination and for the settlement of which point leave was granted and which order reads, to:‑‑ "examine the question, whether the Deputy Settlement Commissioner .(Land) had no jurisdiction in the matter to initiate the proceedings for the cancellation of the allotment of the disputed land under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958; after its repeal by the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975 whereunder only the pending proceedings could be continued." . And in final adjudication of the appeal while re‑affirming the views in above mentioned judgments it was held that Constitutional writ jurisdiction of the High Court is not controlled by subconstitutional legislation placing limitation and in the absence to jurisdiction of the Settlement Authority the action of the High Court one way or the other under its constitutional jurisdiction cannot be termed as assailable because of the condition of the pendency of proceedings. For the convenience sake the relevant portion of which is reproduced:‑‑ .....the Constitutional position is clear that the Constitutional (Writ) jurisdiction under Article 199 of the High Court, as recently held by this Court, is not controlled by the sub constitutional legislation placing limitations, vis‑a‑vis, pending proceedings on the powers of the Settlement Authorities. See Muhammad Baran. v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab (PLD 1991 SC 691) and Mst. Resham Bibi. v. Mst. Elahi Sain (PLD 1991 Supreme Court 1034). It is now beyond question that in a case of this type, if the High Court declines to interfere with findings of fact going against an allottee, this refusal cannot be made subject of jurisdictional attack, vis‑a‑vis, the pendency qualification. Even if the Settlement Authority could not assume jurisdiction, High. Court's action, one way or the other, under Article 199 of the Constitution, cannot be termed as assailable on account of the condition of pendency of proceedings before the Settlement Authority. In this case also the same comment would apply as the High Court not only declined to interfere with findings of fact, but also affirmed those findings. Even without such affirmation, it would also be treated as a refusal to exercise discretion by the High Court in its Writ jurisdiction:'

12. As regards the notice, the concerned person before the respondent department and whose name has been mentioned in RL‑11 S.No.11 alleged by the respondent to be forged was Muhammad Rafi to whom the notices had been issued, bearing the endorsement of his attorney Bashiruddin to have refused the receipt of the said notices. The weight to any of the rival contention, if any could be given, would be given to, the assertion of the depart, supported by copy of notice placed on file, on the legal principle of presumption of regularity to the official acts and specially in the absence of any rebuttal on the part of Muhammad Raft allolttee.

13. The protection under section 41 of the T.P. Act or on the basis of its principles is also not available to the subsequent transferees who are the petitioners in the writ petitions which is not applicable in respect of the evacuee property. Reliance can be placed on Bashir Ahmed and others. v. Additional Commissioner with powers of Settlement Commissioner (1993 SCMR 1199), Manzoor Hussain. v. Fazal Husssain and others (1984 SCMR 1027) and Ghulam Muhammad and others. v. The Additional Settlement Commissioner and others (1985 SCMR 491).

14. In 1984 SCMR 1027 while referring to other case‑law, it was observed chat allotment is in the nature of grant subject to provision of section 10 and exclude the applicability of section 41 of T.P. Act and the sale may be for value and bona fide but not protected under section 41 of T.P. Act. On the former it was observed:‑‑ "Since the allotment of land is subject to the provisions of sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 every purchaser from an allottee is to be saddled with knowledge that the transaction of purchase is subject to the incidence of those sections and thus he cannot raise the plea of protection on the principle of section 41 of the T.P. Act. His remedy is not against the department but against the vender." In the result, all the four writ petitions, being devoid of any merit, are hereby dismissed, with no order as to costs. AA./1740/P Petitions dismissed.