1988 PLP 468 (MLD)

‑‑‑Art. 9‑‑Finality of order‑‑Finality under law attached to claim verification orders‑‑Finality so attached, held, could not be taken away at writ stage specially when Chief Settlement Commissioner refused twice to reopen matter. Muhammad Aslam for Petitioner. Khan Talib Hussain Baluch for Respondents. Dates of hearing: 15th, 18th, 23rd and 30th May, 1983. This Constitutional petition is directed against the order, dated 16‑10‑1982 of the learned Additional Settlement Commissioner (Lands) whereby the allotment in the name of the petitioner of the land in question was cancelled and the land was ordered to be resumed.

2. The facts necessary for appreciating the grievance of the petitioner and the protracted proceedings and litigation that he had to face since the allotment of land may briefly be stated. The petitioner filed claim for the land allegedly abandoned by him m India and the same was verified by the Claims Officer for 30 Bighas vide order dated 10‑10‑1959 on the analogy of Schedule V of the Claims Registration Act; 1956, under the instructions then prevailing, as Jamabandi for the village where the petitioner had abandoned the land was not received. In pursuant to the aforesaid verification order, the Central Record Office issued the necessary Entitlment Certificate FARD-E-HAQIQAT' in respect of 30 Bighas or for 525 Units in terms of Produce Index Units. This entitlement was reduced to 375 Units but on recalculation the entitlement certificate for 525 Units was restored and reverified under M L R

89. The land allotted in lieu of verified entitlement was confirmed in favour of the petitioner on 29‑2‑1960. The entitlement to receive allotment for 525 Produce Index Units was made subject‑matter of suo motu proceedings under section 10/11, Displaced Persons (Land Settlement) Act, 1958, but the same were dismissed by the then Deputy Settlement Commissioner West Pakistan, Lahore, vide order dated 5‑1‑1965. The . Deputy Settlement Commissioner in his order noted that as no special Jamabandi was supplied by India respecting the Lakkwali estate, the claim filed by the petitioner was verified by the Claims Officer after recording evidence on the analogy of Schedule V and an area of 30 Bighas of Barani land was verified in his favour. He further noted that Fard Hiqiyyat was issued accordingly to the petitioner. This order further narrates that the entitlement of the petitioner was firstly reduced to 375 P.I. Units and thereafter as "Chak Tashkhis" of the estate where land was abandoned was "Rohi". the entitlement in terms of P.I. Units of the area verified in favour of the petitioner under Schedule V, was calculated as 525 R.I. Units. The question of the entitlement of the petitioner was again raised in proceedings initiated under section 10/11 of the Act and the Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner vide order dated 25‑11‑1967 dismissed the proceedings observing that the matter having already been disposed of on the same facts, no further grounds were available for exercising jurisdiction. The informer who had initiated these proceedings filed Settlement Revision (S.R. No. 16/68) in the High Court against the order, dated 25‑11‑1967 but the same was dismissed in limine on 5‑2‑1968 by a Division Bench of this Court. Thereafter, another person, namely, Abdul Ghafoor, filed a petition under section 10/11 of the Act and after long‑drawn litigation the proceedings were dropped by Additional Settlement Commissioner with the powers of Chief Settlement Commissioner vide order, dated 17‑8‑1971, observing that in view of the judicial finding recorded earlier, the matter could not be reopened. It may be noted that these proceedings were also held on the basis of the application forwarded by the Martial Law Authorities and the plea that the matter having been sent by the Martial Law Authorities, the proceedings held were not subject to the provisions of the Displaced Persons (Land Settlement) Act, was repelled. Thereafter, Muhammad Aslam, respondent No.2, came on the scene, by moving an application against the petitioner before the Officer on Special Duty. Central Record Office raising the same very pleas which were raised by the other informers. This application was dismissed by the Officer on Special Duty Central Record Office vide order dated 29‑8‑1972 taking note of the fact that the claim form of the petitioner was verified by the Claims Officer on the analogy of Schedule `V'. He further directed that the entitlements of the petitioner should be corrected as he is entitled to 525 P.I.Units as against 375 P.I Units shown in the entitlement certificates earlier issued. Muhammad Aslam, respondent No. 2, then filed an application before the Chief Settlement Commissioner praying for reduction of units of Din Muhammad petitioner to those if any available m the special Jamabandi. Learned Chief Settlement Commissioner after obtaining a report by his order dated 16‑10‑1972 filed the application of Muhammad Aslam, respondent No.2, observing that entitlement of claimant Din Muhammad had been properly verified and the matter having already been examined and decided under section 10/11 of the Act, further interference was not called for. Muhammad Aslam respondent No.2, after keeping silent for about 7 years, filed an application on 18‑4‑1979 before the Superintendent of Police, Jhang, for the registration of a criminal case against Din Muhammad petitioner under section 420/468/471, P.P.C. on the ground that the petitioner never owned any land in village Lakkarwali and that he had obtained the land in Pakistan through fraud, misrepresentation and forgery. The Superintendent of Police, Jhang, obliged respondent No.2 by ordering registration of a criminal case and later the case was sent for trial before a learned Magistrate, Shorkot. The petitioner was convicted vide order dated 24‑2‑1981 on the basis that he had pleaded guilty during the progress of the trial. The petitioner challenged this order by filing a revision before the learned Sessions Judge, Jhang, protesting against his conviction and urging that he not pleaded guilty. The learned Sessions Judge set aside the conviction and remanded the case for fresh proceedings. In the meanwhile, Muhammad Aslam respondent No.2 submitted an application on 6‑4‑1981 before the Chief Settlement Commissioner for cancellation of the land allotted to Din Muhammad petitioner, inter alia, on the ground that Din Muhammad had now confessed his guilt before the Magistrate. The learned Member Board of Revenue, however, by his order dated 25‑5‑1981 dismissed the said application on the ground that the case of respondent No.2. had already been rejected by predecessor vide order dated 16‑10‑1972 and, as such, he had no case. The refusal so made by the learned Member Board of Revenue was assailed by Muhammad Aslam respondent No.2 by instituting a Constitutional petition (W.P. No. 352‑R of 1981). This Court vide detailed order dated 14‑12‑1981 dismissed the petition. In this order, the learned Judge traced the history of the proceedings initiated against the petitioner by respondent No.2 as well as by the former informants since the allotment made to the petitioner in the year 1960. The order passed by this Court was brought on record of this petition by respondent No.2 himself by filing it with his written statement. Despite dismissal of Settlement Revision by this Court, refusal of the various officers to interfere in exercise of powers vesting under section 10/11 of the Act, refusal made by the two Chief Settlement Commissioners on two different occasions, and dismissal of the constitutional, petition by this Court, respondent No.2 thought it advisable to submit an application to the Martial Law Authorities containing precisely the same pleas which had been repelled earlier many times. Any way, the application of respondent No.2 was forwarded by the S.M.LA. Office to the A.D.C. (G) Jhang, respondent No.l for comments. On receipt of this application, respondent No.l ordered summoning of register R.L. II of village Shorkot Janubi and the applicant before him i.e. respondent No.2 for 26‑8‑1982. On 26‑8‑1982, A.D.C. (G) respondent No.l recorded a note that the applicant had earlier also submitted an application laying information seeking cancellation of the allotment of the land on account of the fraud committed and on that application a report was called for from the Central Record Office and that in the report submitted it was stated that no Muslim held entitlement in village Lakkarwalr and that in the presence of the said report no further verification respecting the claim of Din Muhammad was required. It was further stated in the said note that Din Muhammad had also confessed his guilt before the Resident Magistrate on the basis of which he was convicted and that in view of Policy letter No. 766/79/2216-R(L) dated 5‑9‑1979, the claim of Din Muhammad is declared as non‑existent. It was added in this note that in this connection the applicant (respondent No.2) has also submitted an application at District level in which after summoning the respondent (the present petitioner) the land in question shall be cancelled. It was, thereafter, vide ex parte order dated 16‑10‑1982 that the allotment was cancelled precisely on the grounds recorded in the aforementioned note. This order recites that the petitioner did not appear despite repeated calls, that the notice sent was received back with the report that as the petitioner was not present in his house a copy of the notice was pasted on the outer door of his house.

3. This order dated 16‑10‑1982 is under challenge in the present petition. It was argued that after repeal of Settlement Laws, the application of respondent No.2 could neither, be entertained nor the land in dispute which absolutely and permanently vests in the petitioner could be resumed, as at least four times earlier the applications submitted under section 10/11 of the Displaced Persons (Land Settlement) 'Act were dismissed. It was further contended that the petitioner was admittedly not served personally and even on the basis of the report submitted, the petitioner could not be proceeded ex parte. It was also submitted by the learned counsel that the order has been based on some report of the Central' Record 'Office: and on the order dated 24‑2‑1981 of the Resident Magistrate. Both these grounds were not available as no fresh report was called for from the Central Record Office by respondent No.l and the report earlier submitted by the Central Record Office .had been rejected and the entitlement of the petitioner was confirmed by the various officers. The order of the Resident Magistrate was non‑existent as the same was set aside by the learned Additional Sessions .Judge on 16‑2‑1982 i.e., prior to the passing of the impugned order. It was further argued that respondent No. 1 acted in a most arbitrary and reckless manner in passing the impugned order. He, therefore, asked for awarding of special costs against the respondent.

4. The Additional Deputy Commissioner (G) Additional Settlement Commissioner (Lands), respondent No.l, was asked to arrange representation, vide order dated 18‑5‑1983 indicating that in case the application is granted, he may be personally burdened with costs. Ch. Muhammad Nazir Ahmad Legal Advisor Settlement Department, who appeared on his behalf, stated that the order of this Court was conveyed to respondent No.I. He also filed the parawise comments submitted by respondent No.l to the writ petition in Court. Learned counsel further stated that on 30‑5‑1983 respondent No.l came to attend the Court personally but the case was not fixed for hearing on that day and today he has sent Abdul Khaliq Shahid HAC, D.C. Office, Rang as his representative. In the comments the position taken is that according to the report of the Central Record Office in village Lakarwali there was no land of Muslim owners and that according to the instructions of the Board of Revenue this village Lakarwali was declared as non‑existent and hence the petitioner had no claim whatsoever, to be satisfied by allotting land It is also stated in para 10 of the parawise comments that the petitioner also made confession before the trial Court and was convicted though the conviction was set aside in appeal on legal grounds but the case is being tried afresh. It is further stated therein that the petitioner was summoned but he intentionally did not appear. As to the authority to pass the impugned order, the position taken in para 11 (a) is that propriety of allotment orders can be challenged and enquired into on the ground of fraud/forgery as is provided in the above‑referred to memo., dated 5‑9‑1979 of the Board of Revenue, Punjab, Lahore. However, Ch. Muhammad Nazir Ahmed, learned counsel for respondent No.1, states that according to the prevalent latest instructions, the matter could at. best be referred to the Member (Settlement) Board of Revenue who may be, if deems it necessary order initiation of legal action for recovering the land got allotted through fraud and forgery, but the respondent in no case had the power or authority to order cancellation of the allotment and resumption of the land in question. He states that though he is not in a position to defend the impugned order, yet this Court may not interfere in exercise of constitutional jurisdiction as allegations of fraud and forgery have been made.

5. Learned counsel for respondent No.2 argued that as the allotment was obtained fraudulently and without entitlement, the petitioner is not entitled to invoke constitutional jurisdiction of this Court and that substantial justice having been done the petition merits to be dismissed. He further argued that the petitioner is being prosecuted under section 420/468/471, P.P.C. for having committed fraud and for having obtained allotment on forged entitlement, on the complainant submitted by respondent No.2 to the Superintendent of Police. Jhang, and that the impugned order having been passed on the basis of the application submitted to the Martial Law Authorities, this Court has no jurisdiction to interfere.

6. There is no merit in the submission of the learned counsel for respondent No.2. It appears that the application submitted to the Martial Law Authorities was forwarded to respondent No.1 for comments. The respondent No.l in his capacity as Additional Settlement Commissioner submitted comments as is apparent from the Note dated 26‑8‑1982, (a photo copy of which was filed by respondent No.2 with C.M. No.1239/82) and then on 16‑10‑1982 passed the impugned order. It is, however, apparent that respondent No.] while passing the impugned order has not acted under any Martial Law Regulation or Order, and even in the comments submitted, respondent No.l has neither taken any such position nor he was vested with any such power. As regards the pending criminal prosecution, learned counsel fairly and frankly conceded that on the complaint of respondent No.2 no criminal prosecution could legally be launched against the petitioner. He also conceded that on the basis of the allegations made in the complaint, criminal proceedings could only be ordered by the Chief Settlement Commissioner and none else. In view of above, pendency of criminal prosecution is of no consequence. The mala fides of respondent No.2 is apparent as in the application submitted by him he intentionally did not mention the orders successively and repeatedly passed against him, so that the hidden hand operating for him may not face difficulty in achieving the desired objective. Respondent No.2 is thus guilty of abusing the process of law. Since 1972 he moved various authorities and Courts, including the High Court but failed, and ultimately in 1982 he succeeded in obtaining an order from respondent No.l This order was passed without providing a proper opportunity to the petitioner to present his case. Respondent No.l acted in most unreasonable and arbitrary manner and the fact that he had no mind to administer justice and to act in accordance with law, is apparent from the very note recorded by him after receiveing the application of respondent No.2 from the office of Sub‑Martial Law Administrator. In the note dated 26‑8‑1982 he observed, inter alia, as under:‑ The mind having been so made up, the issuance of the notice was a mere formality as the result of the said application had already been determined and intimated. Even the notice which was sent, was admittedly not served on the petitioner personally. The affixation of notice on the outer door of the house under the circumstances does not amount to proper service. Respondent No.l acted in haste in proceeding ex parte against the petitioner. Be that as it may, as conceded by his learned counsel, he could not have passed the order of cancellation of allotment and resumption of land after many years of the repeal of Evacuee Laws. Even under the prevalent instructions, such an order cannot be passed by these officers and they, as conceded by the Legal Advisor of the Settlement Wing may at best refer the matter to the Chief Settlement Commissioner for initiating proper legal action in accordance with law before competent forum so as to have the allotment transfer orders set aside. Even under the instruction dated 5‑9‑1979, no case of fraud or forgery can be made out so long as the order dated 10‑10‑1959 of the Claims Officer subsists and holds the field. It is not disputed that finality under law attaches to the claim verification orders, and the finality so attaching cannot be taken away at this stage specially when twice the Chief Settlement Commissioners have refused to reopen the matter. The most distressing feature of the case is that the proceedings conducted and the notice issued were merely a show put up to satisfy the formality of law. By issuing notice, respondent No.l did not intend to decide the application on merits acting reasonably and fairly as any authority or officer invested with statutory power is expected to do. Respondent No.l before issuing the notice to the present petitioner had not only made up his mind but had also expressed the decision that he would take. (See note dated 26‑8‑1982 attached with C.M. No. 1239/83). Such a conduct of an officer invested with judicial or quasi‑judicial powers is most reprehensible. The exercise of authority in the manner indicated above cannot be countenanced in a civilized society. The order so passed had the effect of rendering the orders of the Chief Settlement Commissioner as well as of this Court redundant. It is, therefore, a fit case where respondent No.l should be burdened with special costs.

7. For the reasons given above, this petition is accepted, the order dated 16‑10‑1982 of respondent No.l is hereby declared to have been passed without lawful authority and hence of no legal effect. Respondents Nos.l burdened with special costs of Rs.1,000 and Rs.2,000 respectively. M.Y.H./2023/L Petition accepted.