2010 PLP 1192 (CLC)

SAYED ZAHID HUSSAIN, J.

Bashir Ahmed, respondent, No.9 herein, had been allotted land measuring 840 Kanals, 14 Marlas situated in Mauza Manjpur Tehsil and District Gujranwala, in the year 1964. The petitioners herein, are vendees of land measuring 271 Kanals, 18 Marlas sold to them vide sale-deed dated 5-5-1967 which was given effect in the Revenue Record and Mutation No.7 was attested on 28-11-1967. It was at the initiative of one Bagh son of Mara that an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was filed alleging that the allotment- so obtained was result of fraud and fabrication. The matter was enquired into at the level of Settlement Commissioner who cancelled the allotment and ordered its allotment to the informers. This was vide order dated 4-7-1978. Writ Petition No.628-R of 1979 was filed by the vendees thereagainst which was accepted vide judgment dated 15-7-1991 that the petitioners who were vendees from the allottee had been condemned unheard and the matter was remitted to the learned Notified Officer. It is in pursuance of the remand order that the Notified Officer passed order dated 8-11-1995 which has been assailed through this petitioner under Article 199 of the Constitution.

2. The learned counsel contends that there were certain additions in the Mukhbari application filed by Bagh, not only some of the applicants, but also the respondents therein were added later on by making interpolations. It is contended that clear findings should have been recorded by the Notified Officer about the maintainability thereof. In the alternative it is contended that the petitioners who were vendees since long (before the reappeal of law) were entitled to purchase the land in terms of section 3 of Act XIV of 1975. The learned counsel for respondents Nos. 2 to 8 as also the learned counsel for the Department contended that there is a definite finding that Bashir Ahmed, the allottee, had no claim, he had left no land in India and that his allotment was based on forged and fraudulent documents. According to them, the land was rightly cancelled from his name and allotted to Khair Din, the predecessor-in-interest of respondents Nos.2 to 8.

3. Original record is present which has been examined in the presence of the learned counsel for the parties and indeed it was offered for inspection to the learned counsel for the petitioners as well. There is no doubt whatsoever that Bashir Ahmed from whom the petitioners had purchased the land in dispute, had no claim whatsoever and had manoeuvred the allotment on the basis of forged and bogus document. The land was thus, rightly cancelled and resumed from him. The contention of the learned counsel for the petitioner as to some interpolations in the Mukhbari application loses its significance in view of the fact that it was a fraudulent transaction and authority concerned had all the legal and lawful power to go into the question of the validity of the allotment in view of the allegations of fraud and record findings on the basis of the relevant record available before him. Reference may be made to The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Muhammad Baran and others v. Member Settlement and Rehabilitation, Board of Revenue, Punjab and others PLD 1991 SC 691.

4. It is, however, to be considered that the petitioners have claimed to be in continuous possession of the land so purchased by them from Bashir Ahmed. Proviso to section 3 (1)(b) of Act XIV of 1975 lays down that agricultural land occupied by a person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land." It is obligatory for the Authority concerned in terms of the above law to have first offered for sale to such person so much of the land as would not exceed the subsistence holding by taking into consideration the land already held by him. This provision was construed in Lt. Col. Rtd. Munir Hussain and others v. The Chief Settlement Commissioner/Member Board of Revenue and others 1987 SCMR 1240 wherein contest was between the vendees in possession and the informers who had unsatisfied claim. It was held that the person in occupation of the land had first to be offered for sale the land in terms of the above mentioned provision of law. It is, however, to be examined by the Authority concerned as to whether the petitioner fulfilled the criteria for the purchase of land and how much. This aspect of the matter will have, therefore, to be considered by the Authority concerned by perusing the relevant record produced before it. In case the petitioner is found entitled to purchase some land, the same will be excluded from the allotment of Khair Din, the predecessor in interest of respondents Nos. 2 to 8 and the balance will be left to remain with them. This petition is disposed of with the above observation that the Notified Officer concerned will decide the entitlement of the petitioners in terms of S.3 (read with proviso) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It is stated by Mr. M.Z. Khalil, Advocate that the matter will have to be sent to the Member Board of Revenue/Chief Settlement Commissioner who is also the Notified Officer under the law for further proceedings in the matter. Let the parties enter appearance before him on 29-5-2002. No order as to costs. S.A.K./F-34/L Case remanded.