1990 PLP 1610 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑ Leave to appeal was granted to examine whether it was open to the High Court in the Constitutional jurisdiction to upset the finding of fraud arrived at by the Settlement authorities.

2. Mughali, the predecessor‑in‑interest of the appellants was allotted land on 6‑1‑1959. On 14‑12‑1959 the Deputy Settlement Commissioner passed an order on review whereby its allotment was partly reduced and it was given effect to in the remarks column of R.L.II Register. The land so resumed was allotted to one Khan Bahadur on 10‑10‑1960. Khan Bahadur being a refugee from a non -agreed area made a declaration of it under M.L.R. No.89/91 and surrendered this land which he was allowed to purchase. He then obtained the sanction of the Collector and sold it to the respondents. In the year 1979, instructions were issued by the Board of Revenue on the rehabilitation side whereunder a survey of available lands under the repealing of evacuee laws had to be undertaken and for that purpose allotments obtained on the basis of fraud and fabricated orders could be ignored and the area included and treated as available land for the purposes of dealing with them under the repealed laws. The appellants submitted an application invoking that provision and challenging the existence of the Order of the Deputy Settlement Commissioner whereby the allotment of Mughali was reviewed and after review allotment was made to Khan Bahadur and by the other orders that were passed against them. An enquiry was undertaken whereunder it transpired that the review order of Deputy Settlement Commissioner whereby the allotment of Mughali was reduced was not available and the result was that the Notified officer restored the allotment of Mughali treating the allotment of Khan Bahadur to be fraudulent as was the cancellation of the allotment of Mughali. This was challenged by a Constitution petition in the High Court which succeeded on the ground that there was no fraud and there was no jurisdiction of the notified authority to go into it.

3. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the appellants contended that the enquiry showed and the authority always existed for looking into the nullities like the one of cancelling the allotment of Mughali the predecessor‑in‑interest of the appellants. All the superstructures based on such nullity could not, therefore, stand.

4. It is not the case of any of the Settlement authorities that allotment to Khan Bahadur was fraudulent or surrender by him and sale of the land with permission of the Collector to someone else. As long as those orders existed the Notified officer had no authority under the law to interfere with them, he could not remove from the scene the effect or the order of the Deputy Settlement Commissioner which on enquiry was found to be non‑existent. The record fully reflected that order and its implementation over a course of twenty years without any objection from any quarters. The repealing law did not authorise the notified authority to exercise jurisdiction on such order and in this manner. He had jurisdiction over only pending cases and those remanded to him. He has in fact determined the validity and the effect of the order of the Deputy Settlement Commissioner on review mentioned in R.L.II. He could not have done so as the' matter was not pending before any Settlement authority when the evacuee laws were repealed nor was the matter remanded to him by any other competent authority. His action of sitting in judgment over the Deputy Settlement Commissioner's order was without jurisdiction and the High Court judgment for that reason is unexceptionable. The appeal is dismissed with no order as to costs. The appellants are, however, if so advised, free to pursue fraud, if any, according to law. A.A./A‑774/S Appeal dismissed.