1992 PLP 2441 (CLC)

I.C.A. No.168/80 Lt.‑Col. Nisarul Haq Farooqi v. Sharif Ahmad Bhatti etc. I.C.A. No. 169/80. Lt.‑Col. Nisarul Haq Farooqi v. Barkat Ullah, etc. I.C.A. No.177/80. Maj.Gen. Aslani Beg v. Muhammad Wasi and Khurshid Ahmad, etc. I.C.A. No. 198/80. Border Area Committee v. Sharif Ahmad Bhatti and others. I.C.A. No. 168/80 was accepted and the case was remanded vide order dated 30‑4‑1991. I.C.A. No.169/80 was dismissed as withdrawn on 18‑10‑1980. I.C.A. No.177/80 was compromised as Havaidar Clerk Muhammad Wasi and Khurshid Ahmad respondents were given alternate land. It will, however, be noted that Lt.‑Col. Nisarul Haq Farooqi got the land cancelled from the name of Naik Barkat Ullah and got the same land allotted in his own name but by withdrawing the appeal, he withdrew the objection made against the allotment obtained by Barkat Ullah. The result of withdrawal of the appeal is that the order passed by the learned Single Judge holds the field and the order cancelling the land from the name of Barkat Ullah does not subsist.

3. It may also be noted that a Constitution Petition (W.P. 11624/80) was also filed by Naik Barkat Ullah and Sharif Ahmad Bhatti against the Member (Colonies), Board of Revenue and Nisarul Haq Farooqi, challenging the order dated 9‑9‑1980 passed by the Member (Colonies), Board of Revenue in this Court. The said writ petition was accepted. The impugned order was set aside and the case was remanded to the Border Area Committee to decide the same afresh after allowing adequate opportunity of hearing to the parties. The Border Area Committee was also a party to the said petition.

4. As regards the present appeal, it is pertinent to note that allotment in the name of Naik Barkat Ullah was cancelled by the Border Area Committee on the ground that he had failed to establish his eligibility for allotment of the land and the letter No.7778/818/WR‑1 dated 5‑4‑1972 was a bogus and fictititous document as the same was not issued by the G.H.Q. This document on the basis of which allotment was obtained, was declared bogus as the G.H.Q. had informed the Committee that the letter dated 5‑4‑1972 referred to above, was not issued by, it. This finding was, however, returned b y the Border Area Committee after rejecting the application of Naik Barkat Ullah to summon witnesses and requisition documents in order to prove that the letter dated 5‑4‑1972 referred to above was a genuine 1eqer and was issued by the competent officer of the G.H.Q. Learned counsel for the respondents produced before us a copy of the statement, made in another case, by the officer admitting that he had issued a similar letter making recommendation of allotment, though in the said case also a similar letter was issued by G.H.Q. stating that it had not issued the letter in question. He argued that had the documents been summoned alongwith the named witnesses, Naik Barkat Ullah would have also ‑established that the letter recommending his name for allotment was also issued by the competent officer and that the allotment obtained on the basis of said letter is genuine and legal.

5. Obviously the refusal to summon the documents and the witnesses by the Border Area Committee was arbitrary and illegal. The Border Area Committee has no authority to refuse to record the evidence which a party wishes to produce provided the evidence is relevant for the purpose of the matter under enquiry. The impugned order is thus liable to be quashed on this score alone. As the evidence was shut out by the Border Area Committee acting arbitrarily and illegally and as the other matter also stands already remanded to the Border Area Committee, it will be appropriate in the circumstances to remand this matter also for fresh decision in accordance with law. The Border Area Committee will of course summon the requisite documents and the witnesses and thereby allowing adequate opportunity to Naik Barkat Ullah to establish that the letter in question was issued by the G.H.Q., will determine the matter afresh.

6. The above‑stated course has to be adopted despite the view taken by the learned Judge in Chamber that as long as the registered sale deeds in favour of the petitioners/respondents subsist and mutations of sale in their favour exist, nobody can interfere in their rights and that if anyone is dissatisfied, that can ask the Provincial Government to get the registered sale deeds cancelled in appropriate proceedings from proper forum and that it would be for the Provincial Government to decide as to whether the facts justify such a recourse and law permits it to do so and whether it is available in the circumstances of the case, and that the proceedings before the Border Area Committee and the order impugned in the writ petition interfering in the rights of the petitioners/respondents are totally without lawful authority and of no legal effect, as the sale deeds were thereafter held to be ineffective in law by the Board of Revenue. The orders so passed . against the petitioners/respondents were then challenged in this Court in Writ Petition No.11624/80 and the said matter, as noted above, stands remanded to the Border Area Committee. Moreover, the allotment obtained by the allottee/respondent forms the foundation of their rights. In case the allotment is established to have been obtained on a genuine letter of the G.H.O. the question of cancelling the allotment would not arise with the result that the sale deeds executed and issued on behalf of the Provincial Government will have to be treated to have been issued validly and as such subsisting and thus effectively conveying the right, title and interest in the land in question in favour of the concerned Oarties.

7. Before parting with the judgment, we feel constrained to make note of the unfair attitude of the authorities in not giving the same treatment to Naik Barkat Ullah which has been meted out to others namely Havaldar Clerk Muhammad Wasi and Khurshid Ahmad. Havaldar Clerk Muhammad Wasi and Khurshid Ahmad have been allotted alternate land in order to secure the subsequent allotment obtained by General Mirza Muhammad Aslam Baig while Naik Barkat Ullah has not been allowed to retain the land despite the fact that Lt.‑Col. Nisarul Haq Farooqi had got his appeal (ICA‑169/80) dismissed as withdrawn. The double standard thus adopted by the concerned officers of the G.H ..Q., as well as by the Border Area Committee is not conducive in creating that spirit of object and willing subordination and co operation from amongst the Jawans and ranks to which attention of the superior Officers of the Army was drawn by the learned Judge in Chamber in his judgment. We would like to reiterate the same observations for consideration of the Officers of the Army with the hope that instead of making these officers to confront their own subordinates in Courts and before Judicial forums and locking them into litigation for years, they as well as the Border Area Committee would, instead of making the members of the Army and its officers an adversary to each other, act in manner which will promote discipline and readiness to offer sacrifices for each other and for the country. We hope that even now the authorities will find out a way to sort, out the matters between the parties amicably and honourably.

8. With these observations and in the circumstances noted above and finding no other alternative, we setting aside the impugned order of the Border Area Committee, remand the matter for fresh decision. No order as to cost. AA./B‑25/L Case remanded.