1994 PLP 2158 (MLD)

The dispute in this petition pertains to land measuring 5 Kanals 8 Marlas bearing Khasra No.6548 situated in Kasur City. Sardar Chotay Khan, Predecessor-in-interest of the petitioners allegedly got allotted 4 Kanals and 2 Marlas of land out of the land of Khasra No.6548 from the Border Area committee on 23-12-1972. He, therefore, statedly obtained proprietary rights after making necessary payment on 22-1-1977 and Mutation No.2927 was sanctioned in respect thereof on 25-2-1977. The petitioners thereafter Purchased the said land from Sardar Chotay Khan vide registered sale-deed and sale Mutation No.3098 was also got sanctioned on 6-2-1978. The remaining land measuring 1 Kanal 6 Marlas of the said Khasra was statedly got allotted by one Mehraj Din alongwith other land on 30-12-1970. The proprietary rights, it is claimed, was obtained by making the necessary payment on 6-5-1972 and then this area measuring 1 Kanal 6 Marlas was purchased by the petitioners vide Sale Mutation No.3099, dated 6-2-1978. Respondents 3 to 6 entered into arena by making an application to the Deputy Settlement Commissioner under Scheme No.VI on 1-8-1976 seeking transfer of the land measuring 5 Kanals 8 Marlas of Khasra No.6548. The D.S.C. vide order, dated 4-8.1876 transferred the said Khasra as building site. The Border Area Committee however, cancelled the allotment including the land measuring 1 Kanal Marlas of aforesaid Khasra number obtained by Mairaj Din vide order dated 7-3-1978. Mairaj Din challenged this order in this Court by filing Writ Petition No.470/R of 1980, which was dismissed by this Court on 29-7-1992. With the cancellation of allotment of Mairaj Din, predecessor-in-interest of the petitioners, the rights in the land measuring 1 Kanal 6 Marlas cannot be claimed by the successors-in-interest, namely, the present petitioners. As regards the remaining land of Khasra Number 6548 purchased by the petitioners from Sardar Chotay Khan the plea taken by the learned counsel for the Border Area Committee was that the alleged allotment order, dated 23-12-1972 is forged and fictitious one as no such allotment order was made by the Border Area Committee on 23-12-1972 and that the signatures of the Member, Border Area Committee appearing on the Robkar produced on record are not genuine and in any case the said officer/Member was on leave from 20-12-1972 to 11-12-1972 and as such no question arises of making the allotment to the petitioners of land measuring 4 Kanals and 2 Marlas of Khasra No.6548. He added that as per copy of the allotment order dated 23-12-1972 which order otherwise is not available in the record of Border Area Committee, the land measuring 4 Kanals 2 Marlas of Khasra number in question appears to have been allotted in lieu of another land which had to be cancelled on account of double allotment. He explained that even a claimant cannot be allotted land situated within the border belt in the aforesaid manner under MLR

9. This order of allotment even on merits is illegal and nullity in law as only the evacuee land which was in possession of a claimant before the year 1952 could be allowed to be retained by him. On account of those reasons, learned counsel for the Border Area Committee argued that the deposit of sale price and sanction of mutation in' the Revenue Record are inconsequential and no right in the land in dispute can be claimed by the petitioners on account of purchase, sanction of mutation or deposit of sale price with the Revenue Authorities. 3, Learned counsel for the petitioners was unable to repudiate the aforenoted position obtaining under MLR 9 of 1959. He, however, argued that the allotment of land to respondents 3 to 6 by the Deputy Settlement Commissioner vide order dated 4-8-1976 and the documents got issued including the PTD were illegal and inconsequential to convey any title n the land to these respondents as the D.S.C. could not legally dispose of the land under the Displaced Persons (C&R) Act when the Khasra in dispute is situated within the border belt. This plea was also supported by learned counsel for the Border Area Committee. He submitted that the transfer order and subsequent proceedings by the Deputy Settlement Commissioner in favour of respondents 3 to 6 were nullity in law as this property was not available for transfer by respondent No.1 in favour of respondents 3 to

6. He also added that considering the age factor and signature of Muhammad Arif, the documents G/1 to P appear to have been obtained fraudulently.

4. These questions as well as the question whether the land in question is a building site and not urban agricultural land need to be examined. Learned counsel for respondents 3 to 6 controverted the aforenoted pleas and added that the petitioners have no locus standi to maintain the petition as the allotment on the basis of which right in the land was claimed has been shown to be bogus as well as illegal. The plea that the petitioners have no locus standi has got merit. The allotment allegedly obtained by Sardar Chotay Khan on the face of it is nullity in law as even a claimant under para. 55-A of West Pakistan Rehabilitation and Settlement Scheme or under MLR 9 of 1959 is not entitled to receive allotment of land which was not in his possession since before the prescribed date. The allotment even if made was inconsequential and nullity in law and no right as such in the said land can be claimed by the petitioners on account of sale-deed and sale mutation. The allotment order even if passed cannot be sustained in law. The petitioners who claim to be purchasers from the said allottee cannot maintain this petition.

5. The peculiar feature of this petition is that the Border Area Committee, respondent No.2, is also challenging the transfer of land measuring 5 Kanals 8 Marlas of the Khasra number in question obtained by respondents 3 to 6 from the Deputy Settlement Commissioner under Scheme VI framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The assertion of the Committee is that the proceedings in respect of transfer of property in dispute in favour of respondents 3 to 6 are illegal and without lawful authority and fraudulent and that this property was not available for transfer to anybody by the Settlement Authorities under Settlement laws in view of the entries of the Revenue. Record and that the Deputy Settlement Commissioner was not competent to allow transfer of the property in dispute as the same is situated within the border belt and that only the Border Area Committee is competent to deal with the property. It is, therefore, apparent that the very nature and status of the land of Khasra number in dispute is being challenged. The nature of the property as obtaining at the time of partition has not been established by producing relevant revenue and other record. A copy of the Jamabandi produced pertains to year 1965-66 and the Khasra Girdawaris pertain to the period from 1962-63 onwards. In these documents the nature of the land has been described as Ghair Mumkin Karkhana. As relevant material has not been placed on record and as the Border Area Committee itself is not petitioner before me. I do not deem it appropriate to determine this question. The Border Area Committee will be at liberty to proceed with the matter in accordance with law or institute proper in this behalf in case it is of the view that the transfer obtained proceedings 3 to 6 is illegal or without jurisdiction. Suffice it to say that it is only the land which falls to be dealt with under MLR.9 For the reasons given above and with the aforesaid observations the petition is dismissed with no order as to cost. A.A./K-147/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.