2013 CLC 1 (PLP)

IJAZ UL AHSAN, J.

The dispute relates to land measuring 101 Kanals, 1 Marla situated in Chak No.548/G13 Tehsil Tandlianwala District Faisalabad. Ghulam Ali and Muhammad Saeed were declared eligible for allotment of alternate land on 29-12-1981 on the basis that they were affectees of Mangla Dam. On 23-6-1983, alternate land was allotted to them under Grow More Food Scheme. Possession was delivered to Allah Yar, attorney of petitioners Nos.2 and

3. On 20-1-1984, petitioners Nos.2 and 3 entered into an agreement to sell with Muhammad Amir, respondent No.2 agreeing to transfer the property to him as soon as the proprietary rights in the property were granted to them. Possession of the land was also delivered to Muhammad Amir.

2. Subsequently, petitioners Nos.2 and 3 moved an application with the competent authority praying that the tenancy be transferred in favour of Jaffar Ali, petitioner No.1. On gaining knowledge of the said application, respondent No.2 filed a suit for declaration and injunction. The learned trial court granted injunction in favour of respondent No.2. In the meantime, on 10-1-2009, on the statement of petitioners No.2 and 3, the concerned EDO (R) transferred the tenancy in favour of petitioner No.1. Against the said order ROR No.245/2009 was filed with the Member Board of Revenue by respondent No.2. Vide order dated 24-7-2009, the Member Board of Revenue passed an order cancelling initial allotment in favour of petitioners Nos.2 and 3 inter alia on the following grounds:

(a) Allotment in favour of petitioners Nos.2 and 3 in the year 1983 was bogus. The signatures of the Colony Assistant on the allotment document were forged. (b) Property in question was in illegal occupation of Allah Yar, the attorney of the petitioners Nos.2 and 3. (c) The agreement with respondent No.2 did not create any rights. The learned Member Board of Revenue, therefore, passed an order of resumption of land in favour of the Government.

3. Petitioner No.3 filed a review application on 6-8-2009. Vide order dated 27-1-2010, the said application was dismissed.

4. The learned counsel for the petitioners submits that there was no evidence before the Member Board of Revenue ("MBR") on the basis of which he declared the allotment letter in favour of the petitioners as forged. He further submits that the MBR had no jurisdiction in the matter and in any event the exercise of jurisdiction by respondent No.1 was violative of provisions of section 30(2) of Colonization of Government Land (Punjab) Act, 1912.

5. The learned counsel for respondent No.2 submits that notwithstanding the order passed by the Member Board of Revenue, the rights of respondent No.2 arise out of an independent agreement to sell and could not have been defeated by virtue of the impugned order. He further submits that respondent No.2 has been non-suited without giving any express findings regarding the validity of the agreement in his favour.

6. The learned Addl. Advocate-General has made following submissions:

(i) The order passed by the Member Board of Revenue gives findings on the factual aspects of the matter insofar as he has found that the signatures of the Colony Assistant on the allotment document were forged. This matter requires a factual inquiry. Therefore, a civil court of competent jurisdiction is the correct forum to resolve this issue instead of this Court. (ii) This Court can only examine jurisdictional defects in exercise of its constitutional jurisdiction. It is not the case of any side that Member Board of Revenue did not have jurisdiction to pass the impugned order. (iii) Admittedly, respondent No.2 Muhammad Amir filed a suit for declaration and permanent injunction. The learned counsel for respondent No.2 admits that the said suit is still pending. Muhammad Amir had no right to approach Board of Revenue in view of the fact that he was admittedly claiming right on the basis of an agreement to sell, which does not confer any right of allotment. (iv) Petitioner No.1 Jaffar Ali got the tenancy right of the land in question transferred by virtue of an order passed by the EDO(R). He submits that the said transfer was illegal in view of the fact that the injunctive order passed in favour of respondent No.2/Muhammad Amir was still in field. Therefore, in view of the findings of the Member Board of Revenue that the initial allotment of leasehold rights in favour of petitioners Nos.2 and 3 was illegal, the entire edifice built on that basis came down and is non-existent. He submits that the rights of Jaffar Ali as well as Muhammad Amir emanate from the rights of petitioners Nos.2 and

3. If it is found that petitioners Nos.2 and 3 had obtained rights fraudulently, the rights in favour of petitioner No.1 Jaffar Ali and respondent No.2 Muhammad Amir would automatically stand extinguished.

7. I have heard the learned counsel for the parties and gone through the record. The rights of petitioner No.1 and respondent No.2 emanate from the right, title and interest of petitioners Nos.2 and

3. It is an admitted fact that petitioners Nos.2 and 3 were found entitled to allotment of alternate land vide order dated 29-12-1981 in lieu of their land, which came under the Mangla Dam Scheme. Consequently, vide order dated 23-6-1983, land measuring 101 Kanals, 1 Marla situated in Chak No.548/GB, Tandlianwala District Faisalabad was allotted to them under the Grow More Food Scheme. Possession was also delivered to the attorney of petitioners Nos.2 and

3. Petitioners Nos.2 and 3 entered into an agreement to sell with Muhammad Amir, respondent No.2 and agreed to transfer the rights in the property in his favour as soon as proprietary rights were granted to them under the law. However, it appears that subsequently petitioners Nos.2 and 3 also moved an application that the tenancy be transferred in favour of petitioner No.1. Litigation inter se the parties was already pending before the learned subordinate courts when the tenancy was transferred by the EDO(R) in favour of petitioner No.l.

8. Respondent No.2 Muhammad Amir filed an ROR before the Member Board of Revenue alleging that he was in possession of the property in question, the tenancy was transferred during pendency of a restraining order in his favour passed by a court of competent jurisdiction and was therefore, liable to be set aside. In deciding ROR the learned Member Board of Revenue recorded a finding that the allotment in favour of petitioners Nos.2 and 3 in 1983 had been undertaken on the basis of a bogus document. Although he recorded other findings but his findings on fraud have been the focus of the arguments addressed by the learned counsel for the petitioner. The question requiring determination by this Court is whether in recording findings of fraud the learned Member Board of Revenue acted within jurisdiction and in a lawful manner. The response to the said question has to be in the negative for the following reasons:

(i) Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 is significant in this respect. It provides that in case the Member Board of Revenue is satisfied that a person has acquired tenancy rights by means of fraud, he may after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which the proprietary rights have been acquired. It would be useful to reproduce the provisions of section 30(b) for ease of reference:

30(2) If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights from any reasons whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduced the area of such land or pass such order as it may deem fit." It is not denied by any of the parties that provisions of section 30(2) were not duly followed by the Member Board of Revenue. This fact is also evident from a perusal of the impugned order. (ii) The impugned order as well as the revision petition filed by respondent No.2 indicates that none of the parties alleged fraud in the matter. The said question was taken note of by the Member Board of Revenue himself. He did not lack jurisdiction to examine the question of fraud. However, in case he was satisfied that fraud has been committed, he was required to follow the provisions of section 30(2) ibid, confront the parties, give them reasonable opportunity to defend themselves and thereafter pass an appropriate order. The parties were never confronted with the question of fraud. The learned Member Board of Revenue unilaterally and in isolation, considered the question of fraud and passed the impugned order directing resumption of the land in question. This constitutes an illegality in exercise of jurisdiction and is fatal to the impugned order. (iii) As far as the question of fraud is concerned, this Court is of the opinion that the petitioners as well as respondent No.2 have been condemned unheard and have been presented with a fait accompli without having been given a reasonable opportunity to present their point of view. Had they been provided an opportunity to defend themselves, interest of justice would have been better served and the learned Member Board of Revenue would have had a more wholesome view of the, facts and circumstances on the basis of which he could have passed a more reasoned and legally sustainable order. This having not been done, the requirements of administration of justice have not been fulfilled.

9. For reasons recorded above, this petition is allowed. The impugned order of the learned Member Board of Revenue dated 24-7-2009 is hereby set aside. The matter is remanded to the learned Member Board of Revenue with the direction to confront the petitioners as well as respondent No.2 with the allegations of fraud, grant them reasonable opportunity of showing cause to present their point of view as envisaged by section 30(2) and other relevant provisions of the Colonization of Government Lands (Punjab) Act, 1912 and thereafter pass an appropriate order in accordance with law. The petitioners as well as respondent No.2 shall appear before the Member Board of Revenue on 26-9-2012, whereafter he shall proceed with the matter as expeditiously as possible.

10. Petition allowed in the aforenoted terms. MH/J-22/L Case remanded.