1987 PLP 1620 (SCMR)

SAAD SAOOD JAN, J.‑This appeal by special leave is from the judgment and decree dated 7‑7‑1976 of the Lahore High Court which reversed the judgments of the District Judge and the trial Court and decreed the suit of the respondents.

2. The respondents are the successors‑in‑interest of one Manzoor Ahmad who made an application to the Collector, Sargodha for the allotment of an Ihata situate in Chak No. 4/S. B. Tehsil Bhalwal. The Collector had the application publicised in the Chak presumably to find out if there was any objection to the allotment of the Ihata to Manzoor Ahmad or if there was any other claimant therefore. When he received no objection he allowed the application and directed that the Ihata be sold to him. In pursuance of this order Manzoor Ahmad deposited the sale price in the treasury. However, before a sale‑deed could be executed Ahmad Khan, predecessor‑in‑interest of the appellants, moved an application before the Collector alleging that Manzoor Ahmad had obtained the order of allotment by practising fraud. He alleged that before the order of transfer was made there had been no publicity in the Chak and that the reports in this regard submitted by the local officials were all fictitious. The Collector held an inquiry into the allegations made by Ahmad Khun and found substance in them. Accordingly, he withdrew his earlier order of transfer and cancelled the allotment. Manzoor Ahmad filed an appeal before the Additional Commissioner but without any success. He then filed a revision petition before the Board of Revenue which too met the same fate.

3. After having failed to get relief from the higher revenue authorities Manzoor Ahmad filed a civil suit for a declaration to the effect that he was the owner in possession of the Ihata in question and that the order of cancellation made by the Collector was illegal, void and ineffective. The suit was resisted both by the Collector as well as the appellants. To begin with, a number of preliminary issues were framed but they were all decided in favour of Manzoor Ahmad. Subsequently, issues on merit were framed. Both parties led evidence and after considering the same the learned trial Court held that the allegation of fraud stood established against Manzoor Ahmad and as the transfer had been obtained by fraud, no contract had come into existence between the Collector and Manzoor Ahmad for the sale of the Ihata. It also held that the question whether Manzoor Ahmad had been guilty of fraud or not was one to be decided exclusively by the authorities acting under the Colonization of Government Lands Act and that the Civil Courts could not sit in judgment upon their findings in this regard. Accordingly, it dismissed the suit. From the decision of the learned trial Court, Manzoor Ahmad preferred an appeal before the Additional District Judge, Sargodha. The learned Additions; District Judge agreed with the trial Court that the finding of the Colonization authorities on the question of fraud could not be challenged in civil Courts. He declined to examine the evidence in order to find out if the allegation of fraud had any substance and dismissed the appeal Manzoor Ahmad then preferred a second appeal in the High Court.

4. A learned Single Judge in the High Court took the view that the sale of the Ihata by the Collector to Manzoor Ahmad was a matter of contract and that the Colonization authorities were not competent to decide whether the sale was tainted with fraud or not. Apart from that, the Colonization of Government Lands Act under which the Collector had acted did not permit him to examine whether a particular transfer had been obtained through fraud. On the other hand, the learned Judge held, these allegations could only be raised in a civil Court. He therefore disagreed with the Additional District Judge that the latter had no jurisdiction to examine the finding of the Collector in this regard. He thought of remanding the case back to the Additional District Judge for recording his finding on the question of fraud but refrained from doing so on the ground that the proceedings had already been much delayed. He then himself examined the evidence and held that the allegation of fraud was not well‑founded as the witnesses produced by the appellants were not only interested but also inimical to Manzoor Ahmad. Accordingly, he accepted the appeal and decreed the suit.

5. The only questions that arise for consideration in this appeal are whether the learned Single Judge was right in holding that the Collector was not competent to examine whether the order of transfer of the Ihata had been obtained by practising fraud upon him and whether the Civil Courts had the jurisdiction to entertain the suit of Manzoor Ahmad. In this context it may be mentioned that the learned counsel appearing for the respondents did not contest the proposition that the Collector was competent to inquire into the allegation of fraud and if he found substance in it he could withdraw or cancel the order of transfer. He however contended that the Civil Courts had the jurisdiction to independently examine whether the allegation of fraud had been established and that the final decision in this regard lay with them.

6. It is difficult to accept the contention of the learned counsel for the respondents. Section 36, Colonization of Government Lands Act, ousts the jurisdiction of the Civil Courts in matters which fall within the competence of the Collector. It reads as follows:‑ "A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government, Board of Revenue or Collector or any other revenue Officer exercises any power vested in it or in him by or under this Act." The scope of the limitation placed by this Section on the jurisdiction of Civil Courts which are Courts of general jurisdiction has been considered in a large number of reported cases. Some of these are: Abdul Rab etc. v. Wali Muhammad etc. 1980 S C M R 139, Karim Dad v. Arif Ali and others P L D 1978 Lah. 679, Muhammad Shafi and 14 others v. Hayat Khan and 5 others (PLD 1978 Lahore 1228); Jiwana v. Mst. Sahbi (PLD 1954 Lahore 253), Sardar Habibullan Khan and others v. Province of West Pakistan (PLD 1967 Lahore 52), Muhammad Shafi v. Punjab Province through Collector, Vehari and others (1982 C L C 55) Jamal Din v. The Province of Punjab and others (1985 CLC 2387) and Muhammad Saleh and another v. Maher Shah etc. 1980 CLC

662. It is not necessary to notice these case separately for the proposition which clearly emerges from them is that the jurisdiction of Civil Courts would be barred only in cases where the Collector has acted within the limits of his power and has not violated the fundamental principles of natural justice.

7. In the case before us, as already mentioned, it was not disputed that the Collector was competent to hold an inquiry to find out whether the allotment of the Ihata has been obtained from him by fraud. That being so, he could not be said to have acted beyond his power when after holding such an inquiry he cancelled the allotment in accordance with the findings reached therein. It was not the case of Manzoor Ahmad in his plaint that he was not given an opportunity by the Collector of presenting his version or leading evidence in support thereof. He also did not allege that the order of the Collector was based on no evidence. In the circumstances his suit was clearly barred by Section 36, ibid.

8. For the reasons stated above, we accept this appeal, set aside the judgment and decree of the High Court and restore that of the trial Court. There would be no order as to costs. S.Q./B‑14/S` Appeal accepted.