1994 PLP 2437 (MLD)

Dispute in this case relates to only 11 Marlas of land comprising Killa No. 25 of Square No. 34 situate in Clfak No. 279/J.B., Tehsil and District Faisalabad but it has a background of protracted litigation. The land in dispute together with some other land was stated to have been allotted/confirmed to Faujdar Khan, father of Abdul Hameed, respondent No. 4 and grandfather of Tariq Mahmood, respondent No. 5 in lieu of his verified claim. It appears that a large tract of evacuee land around Faisalabad Town was exchanged with the State land elsewhere with a view to extending the municipal limits of the town. Allottees of the evacuee land affected by the said exchange approached this Court through different writ petitions. Faujdar Khan and his brother Ghulam Ahmad also filed W.P. 1734 of 1968. During the course of hearing of that petition, learned Assistant Advocate-General, on instructions from the Government, made a statement on 29-5-1970 that "although the evacuee land in dispute stands acquired for the purpose of the extension of Lyalipur Town, yet in the interest of the permanent settlement of claimants for urban agricultural land the Provincial Government is willing to surrender this land so as to remain part of the compensation pool". Learned Assistant Advocate-General, however, pointed out that the position stated by him did not hold good with regard to the entire area claimed in the said writ petition as only 32 Kanals and 3 Marlas were validly confirmed but no claim was available at the time of the confirmation of the remaining area. For further examination of this last point, the case was adjourned to 12th of June, 1970. On the adjourned date, Mr. Justice Anwarul Haq, the then Chief Justice of the West Pakistan High Court, disposed of W.P. No. 1734 of 1968 with the following order:-- "The learned Assistant Advocate-General has already conceded the claim of the petitioners with regard to 32 Kanals and 3 Marlas of land which, according to his instructions, stands validly confirmed in their names. The learned counsel for the petitioners has placed on the record a copy of R.L. II which shows that an additional area of 12 Kanals, 14 Marlas and 3 Sarsahis was also confirmed in favour .of the petitioners by an order passed on the 3rd of August, 1965. The learned Assistant Advocate-General is not in a position to accept the correctness of this claim at present. He suggests, therefore, that a conditional order may be made to the effect that this point may be verified by the Settlement Commissioner of the area concerned and if it is found that an additional area of 12 Kanals, 14 Marlas and 3 Sarsahis, besides 32 Kanals and 3 Marlas mentioned above, also stands validly confirmed in the name of the petitioner then that confirmation may also remain unaffected.

2. In view of the statement made by the learned Assistant Advocate-General, the writ petition is disposed of to the effect that 32 Kanals and 3 Marlas of land shall continue in the name of the petitioners as confirmed area under the Settlement Laws, whereas the case regarding the remaining area amounting to 12 Kanals, 14 Marlas and 3 Sarsahis shall be verified by a Settlement Commissioner having jurisdiction in the area and if it is found that this area also stands validly confirmed, as contended by the petitioners, then the same shall also be allowed to remain with the petitioners. The parties are left to bear their own costs."

2. It appears that the land in dispute measuring 11 Marlas was sold to the present petitioner by the Government of Punjab, Colonies Department, for residential purpose in June, 1987. On coming to know of this order, Faujdar Khan approached this Court in W.P. 124 of 1988 claiming that the land in dispute was validly confirmed in his name and, therefore, was not available for disposal or allotment to any other persons. This writ petition was heard on 20-6-1990 by a Division Bench of which I was a member. Colony Assistant submitted that the land in dispute had been sold out to Barkat Ali through a private treaty and he had already paid one instalment. Learned Advocate-General submitted that Faujdar Khan petitioner therein should appear before the Colony Assistant and satisfy him that the land in dispute was duly allotted/confirmed to him and if the Colony Assistant was so satisfied, he would take steps for cancellation of the sale made in favour of Barkat Ali respondent therein and ensure that the area in dispute remained transferred to Faujdar Khan. In view of the statement of the learned Advocate-General, W.P. 124 of 1988 was disposed of with the observation that the Colony Assistant shall also hear Barkat Ali before passing any order.

3. In pursuance of the order passed in W.P. 124 of 1988, the Colony Assistant, Faisalabad, after hearing both the parties and examining the relevant record including the grounds of W.P. 1734/R of 1968 and the order passed thereon held that the land in dispute i.e. Killa No. 25 of Square No. 34, formed the subject-matter of W.P, 1734/R of 1968 and, therefore by virtue of the order passed in the said writ petition on the concessional statement of the learned Advocate-General, the land in dispute stood validly confirmed/transferred to Faujdar Khan. The Colony Assistant also referred to the report dated 11-8-1970 of Raja Adil Khan, the then Colony Assistant wherein Killa No. 25 of Square No. 34 was taken to have been confirmed to Faujdar Khan on 28-2-1962 against his verified claim. The Colony Assistant thus came to the conclusion that the land in dispute has been duly allotted to Faujdar Khan and it was, therefore, not available as State land to be disposed of through private treaty. This was, vide order dated 22-9-1990. Petitioner prepared an appeal which was disposed of by the Commissioner, Faisalabad Division, by his order dated 4-2-1991 with the observation that the Colony Assistant had only submitted a report to the Board of Revenue against which no appeal was competent and the petitioner should have recourse to the Board of Revenue. Petitioner approached the Board of Revenue in revision which, too, bore no fruit and was dismissed by the learned Member (Colonies), Board of Revenue, vide order dated 30-5-1991 with the observation that "the Lahore High Court vide order dated 12-6-1970 held the allotment of impugned land in the name of Faujdar Khan to be valid subject to verification of allotment of additional land by Colony Assistant/Collector, Faisalabad. This order was complied with by the Collector who held the said allotment to be valid. The plea that the entries in favour of deceased Faujdar Khan were interpolated or not genuine cannot be taken up at this stage} specially when the matter was decided in favour of allottee by the High Court as early as 12-6-1970. Consequently I do not find that the Commissioner or this Court is competent to go into the issue afresh at this stage. The proper forum would again be the High Court." Taking this view of the matter, the learned Member cancelled the sale of the disputed land made in favour of the petitioner through private treaty.

4. Feeling aggrieved the petitioner has approached this Court through this Constitutional petition seeking the following relief:-- " .. it be declared that Faujdar Khan and his successor-in-interest got the land measuring 11 Marlas forming part of Killa No. 25, Square No.34, Chak No. 279/JB, Tehsil and District Faisalabad, transferred in his name in a fraudulent manner and further that he obtained orders/judgments in Writ Petition No. 1734/68 and W.P. 124/88 and by misrepresentation and fraud. It be further declared that the orders dated 22-9-1990 passed by the Colony Assistant, order dated 4-2-1991 passed by the Commissioner, Faisalabad Division, Faisalabad and order dated 30-5-1991 passed by the Member, Board of Revenue, having been passed without any lawful authority to do so and of no legal consequence. It be further directed that the transfer of land aforementioned in favour of the petitioner by the Member, Board of Revenue vide order dated 7-6-1987 still holds the field and as such the petitioner is the lawful vendee of the property in question. It is also prayed that in the alternate it be declared that Mutation Nos.10434 and 10435 had been cancelled without having any lawful Authority to do so and that even otherwise the petitioner is the-lawful owner of the property having purchased the same from Muhammad Siddique and Mst. Sabira Begum who had purchased the same from Umar Din who had purchased the same from Faujdar Khan. It be also directed that the respondents who are legal heirs of Faujdar Khan are bound by the orders passed by this Hon'ble Court. It is further prayed that it be ordered that the possession of the petitioner over the land in question shall not, in any manner, be disturbed and ad interim order to the above effect be also passed."

5. I have heard the learned counsel for the parties and have also examined the record produced. by the Colony Assistant. Learned counsel for the petitioner contended that the land in dispute comprising Killa No. 25 of Square No. 34 was never allotted/confirmed to Faujdar Khan, the predecessor-in-interest of respondents No. 4 and 5, at the relevant Khata of Register RL-II wherein the said Killa number was got subsequently inserted. Learned counsel, however, could not controvert the finding of the Colony Assistant recorded in his impugned order that the land in dispute was included in 32 Kanals and 3 Marlas of land which by order dated 12-6-1970 passed in W.P. No. 1734/1968 was declared to have been validly confirmed to Faujdar Khan. It may be noted that W.P. No. 1734 of 1968 was disposed of with the observation that 32 Kanals and 3 Marlas of land shall continue in the name of the petitioner i.e., Faujdar Khan as confirmed area under the Settlement Laws. That being so, the Colony Assistant basing himself on the aforementioned order passed in W.P. No. 1734 of 1968 as also on an earlier, report of his predecessor dated 11-8-1970 rightly held that he was satisfied that the land in question had been duly allotted to Faujdar Khan and it was, therefore, not available for disposal as State land through private treaty to the present petitioner. No interference with the impugned finding of the Colony Assistant is, therefore, called for at this belated stage and that, too, in Constitutional jurisdiction of this Court. The learned Member, Board of Revenue also proceeded on correct premises in holding that the petitioner's plea that the entries in favour of Faujdar Khan were interpolated or not genuine could not be taken up at this stage specially when the matter had been decided in favour of Faujdar Khan by the High Court as early as 12-7-1970. Needless to observe that the order passed by this Court more than two decades ago on the concessional statement of the Law Officer of the province cannot be re-opened/reviewed in these proceedings. 6, Learned counsel for the petitioner also sought to contend that the land in dispute was not an evacuee property but was owned by the Provincial Government and, therefore, it could not have been disposed of as evacuee property and allotted to Faujdar Khan against' his claim. Learned counsel made a grievance that this point was raised before the authorities below but they failed to attend to it and gave no determination as to the status of the land in dispute. I have gone through the orders passed by the authorities below. They do-not show that the petitioner had agitated the aforementioned point as such before them. Be that as it may, the contention that the land in dispute was not an evacuee property appears to have no substance on merits. Order dated 29-5-1970 passed in W.P. No. 1734 of 1968 leaves no room for doubt that the land in dispute was part of the evacuee land which was acquired for the purpose of the extension of Lyallpur Town in exchange for the State land but the Provincial Government in the interest of the permanent settlement of the claimants for urban agricultural land agreed to surrender it so as to remain part of the compensation- pool. The matter in any case stands concluded by the orders dated 29-5-1970 and 12-6-1970 passed in W.P. No. 1734 of 1968.

7. Petitioner has also made .an alternative claim that he had purchased the land in dispute from Muhammad Siddique and Mst. Sabir,a who had purchased it m one Umar Din to whom it had been sold by Faujdar Khan and, therefore, he was the lawful owner thereof. This claim has not .been accepted by the learned Member, Board of Revenue as no proof in support thereof was adduced by the petitioner. Be that as it may, this being a disputed question of fact requiring a factual enquiry for its determination, it cannot be gone into in these proceedings. It appears that the mutations based on the alleged sales were rejected by the Revenue Authorities but the petitioner did not agitate the matter any further in appropriate proceedings.

8. As regards the petitioner's prayer for declaration that the orders/judgments passed in W.P. No. 1734 of 1968 and W.P. No., 124/1988 were obtained by fraud and misrepreseritation; suffice it to observe apart from what has been said above that no such relief can be granted in Constitutional jurisdiction.

9. Upshot of the above discussion is that I find no merit in this petition which is hereby dismissed but with no order as to costs. A.A /B-128/L Petition dismissed.