2001 PLP 636 (CLC)

4. Masetay Khan as well as Said and Munir, the present appellant/ petitioners claim to be allottees under Grow More Food Scheme of which proprietary rights were not given to them owing to the fact that the land under Grow More Food Scheme was situated within prohibited belt/ Charagah. They were declared eligible for alternate allotment and lot No.l, considered to be available as Baqaya Sarkar was allotted to the present appellant/petitioners by A.C./Collector vide his orders, dated 28‑5‑1974 and 21‑5‑1974 in favour of Masetay Khan, and Said son of Sher and Munir son of Noor respectively. A complaint was made to D.C./Collector to the effect that Said and Munir were never allotted any Grow More Food Lot in Chak No.210/EB. D.C./Collector after inquiry found out that no land was allotted to the petitioners under Grow More Food Scheme and as such they were considered not eligible for alternate allotment. D.C./Collector after obtaining permission from Commissioner reviewed the order of A.C./Collector and cancelled the alternate allotments of land in Chak No.40/WB vide his order, dated 28‑2‑1989. Against this order, the petitioners filed appeal before Additional Commissioner (Consolidations), Multan Division which was rejected on 25‑3‑1991. Against this order the petitioners filed revision petitions before Member, Board of Revenue which was decided on 17‑2‑1994. The following observation was made in this order:‑‑ "The perusal of Khasra Girdawari, Register Haqdaran Zamin and the Patwari's Report indicates that Khasras Nos.22/26‑27 measuring respectively 4 Marlas and 16 Kanals, 8 Marlas were Dora Chah (Nehri) Ghair Mumkin Abadi in 1974‑75 which have all along remained intact. The remaining land has been under self-cultivation of the petitioners who appear to have brought improvement in its quality. The petitioners have no case for restoration of the Grow More Food Lot. Their plea for being considered as temporary lessees makes moral sense. District Collector may verify and if he finds that the petitioners have been in self‑cultivating possession of the impugned land except Khasra Nos.22/26 and 27 and have all along been owners of less than 4 Acres; they may be deemed as temporary lessees upto Kharif 1994 provided they deposit the whole of the rent due from them for the period of their possession."

5. The learned counsel for Masetay Khan stated that during currency of status quo order granted by the High Court, D.G./Collector reviewed. the order of A.C./Collector after obtaining permission from Commissioner. The order is, therefore, not maintainable. It is contended by him that the petitioner Masetay Khan has all along been in continuous self‑cultivating possession of the land earlier allotted under Grow More Food Scheme and subsequently the one allotted as alternate land. It was argued that the Additional Commissioner did not consider the point of limitation. The appeal was filed before Additional Commissioner against the order, dated 8‑11‑1971 of D.C. /Collector with a delay of more than 7 years. As held in 1989 SCMR 864, it is duty of the Court to take cognizance of the delay, even though this issue may not be pressed by any of the parties. It is stated that Masetay Khan has spent money and energy and hard labour for development of the land ever since its possession was delivered to him after, allotment. It was averred that the present respondents had never been in possession of the land after its resumption in favour of the State. Even from the date of allotment of the land till the date of resumption, neither the respondents dug well nor developed the land in any way. This will be borne out, it was asserted, from the reading of the Revenue Record that the land continued to be Banjar Qadeem.

6. It is contended by learned counsel for Said, etc. petitioners that they were not heard by Additional Commissioner and as such were condemned unheard. He further stated that the petitioners Said, etc. should have been made a party before deciding the case in pursuance of the directions of learned Member, Board of Revenue, dated 17‑2‑1994.

7. It is averred that Additional Commissioner while setting aside the order of D.C./Collector, dated 8‑11‑1971 ought to have adverted his attention to other conditions covering the well sinking scheme such as digging of the well, bringing the land under plough to the extent of 90 per cent. These essential ingredients for maintainability of the grant were not taken into consideration by Additional Commissioner.

8. It is stated that in the presence of order of learned Member, Board of Revenue, dated 17‑2‑1994, Additional Commissioner was not competent to brush aside the order of alternate allotment made in favour of the present appellant/petitioners.

9. It is stated by learned counsel for the respondents that the land was allotted to Falak Sher son of Lakhu and Waryam son of Muttali, predecessors‑in‑interest of the respondents under well sinking scheme. It was a permanent scheme. This land, therefore, was not available for allotment under Temporary Cultivation Lease Scheme or alternate allotment under Ejected Tenants Scheme. This probably was not made known to learned Member when he passed the order whereby Said etc. were deemed to be lessee of the land as alternate allotment under Grow More Scheme. It is stated that after allotment of the land to the respondents in the year 1961, they dug the well in the year 1963‑64 in Khasra No.20/ 13 min. They with hard labour brought the allotted land under plough. It is stated. that without affording opportunity of hearing to the respondents, the order, dated 8‑11‑1971 was passed by D.C./Collector as no notice was issued or served upon them. He also stated that the present petitioners were not eligible for alternate allotment since they were never allotted any land under Grow MoreFood Scheme. Through fraud and forgery, they succeeded in obtaining alternate allotment. It is stated that the present petitioner did not challenge order, dated 27‑6‑1978 of Additional Commissioner. It is stated that when the present petitioners fled appeal before Additional Commissioner and revision petition before the learned Member, Board of Revenue, they did not implead the present respondents as party. It is stated that the fraud having been perpetrated by the petitioners upon the revenue/colony authorities in obtaining alternate allotment illegally was proved even at the level of Board of Revenue. They, therefore, are not eligible to retain the land in question. 10.‑ Patwari is present with record. I have given careful consideration to the arguments of the parties and examined the record. After resumption order of 1971, there is a note on the Jamabandi of 1971‑72 that the land has been cancelled from the name of the respondents and has been resumed in favour of the State under orders of D.C./Collector. Jamabandi of 1975‑76 does not carry any remarks that the land is with the respondents. In this Jamabandi, the land has been shown as Baqaya Sarkar. In the column of remarks of a subsequent Jamabandi there is a mention that the land has been allotted to the petitioners as alternate land under Grow More Food Scheme. Jamabandi for the year 1995‑96, carry the entry of the present appellant/petitioners as

12. At page 3 of the impugned order of Additional Commissioner (Revenue), Multan Division, dated 10th April, 1996, it is mentioned that "alternate allotment made to Masetay Khan in lieu of Grow More Food Scheme has been determined to be illegal. and fictious. This determination has attained .finality. Masetay Khan's possession on the land is, therefore, illegal.

13. In the order, dated 25th of March, 1991 of Additional Commissioner (Consolidations), Multan Division on the appeal filed by Said ‑son of Sher and Munir son of Noor, it was observed:‑‑ "In this case the appellants have failed to prove beyond a reasonable doubt that any allotment was made under Grow More Food Scheme in the names of the appellants in Chak No.210/EB, Tehsil Vehari. On the other hand; there are clear indications that alternate allotment of land was obtained by the appellants with the connivance of the officials concerned through misappropriation of facts and fraud. This allotment is, therefore, ab initio void and cannot be filed by Said son of Sher, etc. in the Board "The perusal of the record shows that on receipt of a complaint District Collector had himself conducted the enquiry. The statement of Muhammad Sarwar Ali Shah, Patwari of Chak No.210/EB had been recorded. Patwari had categorically stated that Said and Munir did not have any allotment in Chak No.210/EB under Grow More Food Scheme. It had also been brought out that copy of the Khasra Girdawari produced by the petitioners at the time to alternate allotment was a forged document. The petitioners have not been able to produce any evidence to support their contention about the valid allotment in Chak No.210/EB. The structures built upon fraud and misrepresentation cannot be legitimised only because lot of time has gone by. Having discovered that the allotment had been obtained by the petitioners through fraud and misrepresentation, District Collector had no option except to seek the permission from the Commissioner for review of the alternate allotment and subsequent cancellation thereof."

15. It does not require further discussion that both Masetay Khan and Said and Munir were not allotted any Grow More Food Scheme lots in Chak No.210/EB. They had fraudulently obtained alternate allotments in connivance with the Revenue functionaries in Chak No.40/WB. As held by my learned predecessor, structure build on fraud and misrepresentation cannot be legitimized with the passage of time. He nevertheless took a lenient view and deemed the unauthorized possession of the subject land as temporary lease upto Kharif, 1994 subject to the condition that the petitioners would deposit the whole of the rent due from them for the period of their possession. This can only be interpreted to mean that instead of Tawan he allowed them to pay rent of the land and that too till the year 1994. No right other than this could accrue from the order of the learned Member, Board of Revenue. It has been a settled principle of law that fraud vitiates the most solemn proceedings. A person appearing before a Court with unclean hands cannot press into service legal technicalities to support his unworthy cause. Both the appellants/petitioners having played fraud in obtaining the alternate allotment, have no case, notwithstanding the legal technicalities that they have raised in their pleadings. The appeal and revision petition are devoid of any legal or moral force and as such are dismissed. Resultantly, the impugned order of Additional Commissioner (Revenue), Multan Division, dated 10th April, 1996 will hold the field. H.B.T./33/Rev. Appeal and revision dismissed.