2003 PLP 1221 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

This petition is directed against judgment, dated 12-10-1999 passed by a learned Division Bench of the Lahore High Court, Lahore, in L.P.A. No.256 of 1969.

2. The petitioner was allotted the disputed evacuee land measuring 124 Kanals and 9 Marlas, situated within the border area of village Lakhuki, Tehsil and District Lahore, by order of the Assistant Rehabilitation Commissioner (Land), Lahore, under the Border Area Scheme, as a part of West Pakistan Rehabilitation Settlement Scheme.

3. The Border Area Committee (hereinafter referred to as the Committee) constituted under the West Pakistan Border Area Regulation, 1959 (M.L.R. 9 of 1959) (hereinafter referred to as the Regulation) confirmed the aforesaid allotment on 19-3-1962. Mutation No.1158 was attested by the Revenue Officer, on 28-3-1968, in favour of the petitioner.

4. The respondent No.3 made a complaint before the Committee that the petitioner's real name was Muhammad Shafi son of Dena who belonged to village Nakhnal, Tehsil Pasroor, District Sialkot. It was further alleged that the petitioner had obtained the allotment of the disputed property fraudulently under a fictitious name of Muhammad Sharit son of Din Muhammad by claiming to be a displaced person from District Amritsar (India). The Committee conducted a detailed scrutiny, recorded evidence of the parties and passed an order, dated 21-5-1968 for the cancellation of the allotment of the disputed property from the name of the petitioner. The Committee further allotted the same to the respondent No.3, an ex-service man, to the extent of deficiency of 12-1/2 acres.

5. The petitioner filed Writ Petition No.462-R of 1968 which was dismissed by a learned Single Judge of the High Court, by judgment, dated 27-5-1969 However, Letters Patent Appeal No.256 of 1969 was accepted by a learned Division Bench of the Lahore High Court, by judgment, dated 11-10-1980. The respondent No.3 filed Civil Appeal No.51 of 1981 which was allowed by this Court, by judgment, dated 11-5-1991 reported as Bhag Mal v. Muhammad Sharif and others (1991 SCMR 2118) and Letters Patent Appeal was remanded for a fresh decision. A learned Division Bench of the Lahore High Court. Lahore, by the impugned Judgment, dated 12-10-1999 dismissed the Letters Patent Appeal. Hence this petition for leave to appeal.

6. The leaned counsel for the petitioner argued that the petitioner being a displaced person, was duly allotted disputed evacuee property under the Border Area Scheme which was confirmed by the Committee, by order, dated 19-3-1962. The price of the land was also paid and mutation was sanctioned accordingly. Thereafter, the Committee was denuded of any power to review its earlier order of confirmation of allotment of the disputed property and to cancel the same. Reliance was placed on the case of Zaitoon Begum v. Ghulam Shabbir, Settlement Commissioner, Multan and another (1968 SCMR 611) and Syed Ali Iqtidar v. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 Lahore 274). The documents Exhs.P.I, P.II and P-III relied upon by the Committee were not proved in accordance with the provisions of the Evidence Act and the same were not confidence inspiring. In any case, the principles of the Evidence Act and the Civil Procedure Code were to be invoked by the Committee as rules of justice, equity and fair play. The learned counsel relied on the cases of Mir Salah-ud-Din v. Qazi Zaheer-ud-Din (PLD 1988 SC 221) and Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374). The proceedings before the Committee being quasi-judicial in nature were required to be taken in an objective manner. It was further submitted that the respondent No.3 failed to discharge, the onus of proving a fraud by adducing any cogent and reliable evidence which was necessary in view of the rule laid down in Ashan Ail and others v. District Judge and others (PLD 1967 SC 1567).

7. The learned counsel for the petitioner next contended that the provisions of Paragraph 10 of the Regulation as amended/ substituted by the West Pakistan Border Area Regulation, 1959 (Punjab Amendment) Ordinance No.III of 1981, operated prospectively and, therefore, the Committee was not empowered to re-open past and closed transactions. The jurisdiction of a quasi-judicial Tribunal, such as the Committee, was determinable at the commencement and not at the conclusion of the proceedings as held in the cases of Settlement and Rehabilitation Commissioner v. Munnu Khan (1973 SCMR 62) and Syed Ai Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 Lahore 274). It was submitted that this Court could re-examine and reappraise the entire oral and documentary evidence on record. The learned counsel lastly argued that the High Court was not justified in coming to a conclusion that the petitioner was not a refugee and the allotment of the land in his favour was vitiated by fraud.

8. On the other hand, the learned counsel for the respondent No.3 submitted that no finality was attached to the orders of allotment of the disputed evacuee property or its confirmation which had been procured by fraud, The respondent No.3, an ex-service man, was rightly found to be eligible for allotment of the land. He argued that this Court had already held in earlier round of litigation between the parties that the provisions of the Civil Procedure Code and the Evidence Act were not applicable to the proceedings before the Committee. There were concurrent findings of fact by the Committee and the High Court that the petitioner was not a displaced person but a local resident of District Sialkot who had obtained allotment of the property in question fraudulently under a false name. The Regulation was an independent piece of legislation which dominated all other evacuee property laws. He relied on the cases of Muhammad Latif and 5 others v. Border Area Committee and 2 others (PLD 1978 SC 270), Rehmat Ali v. The Border Area Committee and others (1998 CLC 112) and Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others (1986 SCMR 529). The learned counsel further submitted that the Committee was specifically empowered by the provisions of Paragraph 10 of the Regulation to scrutinize any allotment of evacuee land within the border belt. He relied on an unreported judgment, dated 20-11-2000 by this Court in the case of Naseeb Khan and another v. Border Area Allotment Committee and another (C.P.LA. No. 1021-L of 1999).

9. We have heard the learned counsel for the parties at length. The Committee, after appreciating and .evaluating the evidence of the parties, came to the conclusion that the real name of petitioner was Muhammad Shafi son of Dina, whose native place was village Nakhnal, Tehsil Pasroor, District Sialkot. It was further found that he had obtained the allotment of the property fraudulently under, a pseudo name of Muhammad Sharif son of Din Muhammad by claiming himself to be a displaced person. The findings of fact recorded by the Committee were upheld by a learned Single Judge, by judgment, dated 27-5-1969, and also by a learned Division Bench of the High Court, by the impugned judgment, dated 12-10-1999. The relevant paragraphs 5, 6 and 7 of the impugned judgment are reproduced below:-- "

5. It appears that some pieces of evidence commented upon by the Division Bench while recording judgment, dated 11-10-1980 and the Supreme Court in its judgment, dated 11-5-1991 were placed on the record of the Supreme Court and had not been remitted back. However, the learned counsel for the appellant has filed copies of the said documents as well as the evidence recorded by the Border Area Allotment Committee with the prayer that the same be read for the purpose of decision of this L.P.A. Learned counsel for respondent No.3 has no objection and consequently we have gone through the said record placed on the file by the learned counsel for the appellant. So far as the factual aspect of the case is concerned, we find that the learned Single Judge in Chambers considered each and every piece of evidence that was laid before the Border Area Allotment Committee. The objection of the appellant to the admissibility of the certificates issued by the Chairman, Union Council, Lumberdar and Chowkidar of village Nakhnal, has also been adequately dealt with in the impugned judgment. Needless to say that the reasoning given by the learned Single Judge in Chambers for rejecting the said objection stands upheld in the judgment, dated 11-5-1991 of the Supreme Court while holding that the provisions of Evidence Act and Code of Civil Procedure are not applicable to the proceedings before the said Committee and also advising that the matter be decided assuming that the said laws are not so applicable. In the said background we find that sufficient evidence was before the Border Area Allotment Committee to hold that the appellant was not a r6fugee and that he is not even Sharif but is Muhammad Shafi a local owning land in the said revenue estate of Nakhnal.

6. We therefore, are not inclined to interfere with the said findings of fact recorded by the Border Area Allotment Committee and upheld by the learned Single Judge in Chambers.

7. What remains to be seen is the question of validity of the findings on said fact vis-a-vis the transfer of said land in favour of the appellant. The argument of the learned counsel for the appellant has already been noted above. He vehemently insists that once the matter was subjected to scrutiny and thereafter the land was transferred' to the appellant, the said Committee had no jurisdiction to reopen the matter and to proceed to cancel the allotment. We are afraid the said argument of the learned counsel is without any force. Needless to reiterate the time honoured principle of law that fraud vitiates the most solemn proceedings. It has been found as a fact that the appellant was not a refugee. Learned counsel refer to para.55-A of the Rehabilitation and Settlement Scheme, 1956. This para. in fact incorporates the Border Scheme. Learned counsel submits that his client was entitled to the allotment of the land under said para, as he was a temporary allottee of the land in the said revenue estate of the Lakhuki. The precise contention is that his said entitlement could not be made a matter of scrutiny under the West Pakistan Area Regulation, 1959 (hereinafter referred to be as M.L.R. 9). The contention is without any basis. Learned counsel for respondent No.3 has drawn our attention to the case of Ch. Muhammad Saleem v. Fazal Ahmad and 2 others (1997 SCMR 315) wherein it has been held that the provisions of said MLR subordinate the provisions of said Rehabilitation Scheme by its incorporation in M.L.R.

9. Be that as it may, whether the case is adjudged on the basis of the said para. 55-A or the provisions of the said M.L.R. 9, the fact remains that the appellant has been found to be not eligible on the ground that he is not a person, who he posed himself to be and in fact is some one else. Consequently, there is no question of his holding a valid temporary allotment and he has been found as a fact not be a refugee. In view of the said findings of fact, the Border Area Committee was not only authorized to scrutinize the matter but, in our opinion, was bound to cancel the allotment in view of the mandatory provisions of paragraph 10 of the said M.L.R.

9. The learned Single Judge in Chambers has very rightly concluded that the basis of the ultimate transfer by the Border Area Committee is a valid allotment in favour of the proposed transferee and since there is no valid allotment in favour of the appellant, there is no question of any valid transfer of the said land in, his favour. In this view of the matter, the transfer in favour of the appellant was lawfully cancelled. So far as the subsequent transfer in favour of respondent No.3 is concerned, it is his case that he is an ex-military man and as such is entitled to the allotment of the land both under para.55-A of the Rehabilitation and Settlement Scheme as also the provisions of MLR

9. The transfer in his favour, therefore, has also been validly made by the Border Area Committee. This L.P.A. is accordingly dismissed with costs:

10. The learned counsel for the petitioners failed to persuade us that the findings of fact recoded by the Committee and the High Court could not possibly have been recorded on the basis. of the evidence of the parties. Ordinarily, it is not for this Court, in the absence of any exceptional circumstances, to substitute findings of fact recorded by the High Court on the basis of material on record.

11. We also notice that on the basis of an information provided by the respondent No.3, the Committee, for the first time, scrutinized the allotment of the evacuee property in dispute as required by the provision of paragraph 10 of the Regulation. It appears that the confirmation, dated 19-3-1962 of the allotment of the land to the petitioner was made by the Committee, as a matter of routine, acting on administrative side and there was 'no occasion to conduct any formal scrutiny or inquiry. In the case of Sardar Muhammad Muqeem Khoso v. President of Pakistan (PLD 1994 SC 412), the word "scrutinize" was interpreted to carry,, inter alia, the meaning of "look closely at, examine in detail". In the facts and circumstances of the present case, it could not be said that the Committee had passed its order, dated 21-5-1968 by way of review. Needless to say that the right of a party to claim a review of final judgment or order of a Court, judicial or a quasi-judicial tribunal, in-a substantive matter is not available in the absence of a provision in the relevant statute. See the cases of Hussain Bakhsh v. Settlement I Commissioner, Rawalpindi and others (PLD 1970 SC 1), Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 1472), National Bank of Pakistan v. Islamic Republic of Pakistan (1992 SCMR 1705), S. Sarwat Haider and another v. Central Board ,of Revenue and others (19$7 SCMR 899), S.A. Rizvi v. Pakistan Atomic Energy Commission (1986 SCMR 965), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) and Zaitoon Begum v. Ghulam Shabbir Settlement Commissioner, Multan and-another (1968 SCMR 611). However, the cases of fraud, mala fide and defect of jurisdiction generally stand on a different footing. It is well-settled that fraud vitiates the most solemn proceedings. Reference may be made to the cases of Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782), Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture and others (1993 SCMR 618), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710) and Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).

12. The jurisdiction of the Committee to scrutinize the allotment of evacuee property within a border area under the original or the substituted provisions of Paragraph 10 of the Regulation is not affected by any other law. In the case. of Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others (1997 SCMR 315) it was held that limitation and inhibition contained in West Pakistan Rehabilitation Settlement Scheme, 1956, could not control the provisions of the Regulation. The Committee was empowered to cancel an allotment of evacuee property in a border area which had been made by the Settlement and Rehabilitation Authorities. Also see the cases of Muhammad Latif v. Border Area Committee (PLD 1978 SC 270) and Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others (1986 SCMR 529).

13. This Court has already laid down in the earlier round of litigation, in the case of the respondent No.3, Bhag Mal (supra), that the Committee is not a Court and the provisions of the Evidence Act and the Code of Civil Procedure other than those mentioned in Paragraph 14 of the Regulation do not apply to the proceedings before it. The conclusions of fact arrived at by the Committee were concurred by the High Court to which no exception could be taken. No misreading or non-reading, of any material evidence, by the Committee or the High Court, was pointed out by the learned counsel for the petitioners. Needless to reiterate that a superior Court may decline to intervene, in the exercise of discretionary and equitable jurisdiction under Article 185(3) or 199 of the Constitution, where grant of relief would amount to retention of ill -gotten gains or would otherwise lead to injustice. Reference may be made to the cases of Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351). Raunaq Ali v. The Chief Settlement Commissioner (PLD 1973 SC 236) and Sharif Ahmad Hashmi v. Chairman, Screening Committee (1978 SCMR 367). This is not a fit case for grant of leave to appeal under Clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan.

14. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly. M.B.A./M-848/S Petition dismissed.