1988 PLP 2277 (CLC)

3. In February, 1984, Muhammad Hussain son of Muhammad Din, respondent No.2 (hereinafter referred to as the respondent) sent an application to the General Headquarters, Rawalpindi, claiming that he was allotted land under the Border Area Scheme as an ex‑serviceman in village Barka Khurd, Teshil Lahore and that during 1965‑War, he went to Gujranwala wherefrom he returned to his land 3/4 years later and it transpired that with the connivance of the village Patwari and other Revenue officials,‑ some, other person had fraudulently got allotted the land which had already been allotted to him. He, therefore, requested that his land be restored to him.

4. The Border Area Committee conducted detailed enquiry into the allegations contained in the application filed by the respondent. It transpired as a result of enquiry that the land allotted to Muhammad Hussain son of Nizam Din was duly allotted to said Muhammad Hussain and he had sold it in favour of the petitioners. It was further found that this land was on no occasion allotted to the respondent. It also transpired that the land allotted to the respondent was cancelled from his name, as he abandoned the allotment and went away. That land was, thereafter, ouly allotted .to other allottees. It was thus concluded that the said land could not now be allotted to the respondent, although on the availability of some other alternate land, General Headquarters could be moved for a fresh allotment. Thus, the application of the respondent was dismissed on 7‑4‑1986.

5. On the following day, i.e. 8‑4‑1986, the respondent submitted a fresh application before the Border Area Committee claiming himself to be an informant (Mukhbar) wherein he alleged that Muhammad Hussain son of Nizam Din was not an ex‑serviceman at all. He obtained the allotment fraudulently and that the allotment made in his name be cancelled and he be duly punished.

6. Pursuant to that application, a notice was directed to be issued to the petitioners to appear before the Border Area Committee for scrutiny of allotment in favour of Muhammad Hussain son of Nizam Din and for the disposal of the aforementioned application of the respondent. This notice has been assailed through the present Constitutional petition, as being without lawful authority and of no legal effect.

7. It has been urged that when once the Border Area Committee disposed of the application of the respondent and came to The conclusion that the allotment in favour of Muhammad Hussain son of Nizam Din was in order and that the petitioners were lawful vendees from the said allottee, the Committee could not entertain a fresh application on the second day of the earlier petition from the same person viz. the respondent, in his capacity as informant. It has been urged that the second application was barred on account of res judicata and, moreover, since the respondent has already been held to be 'not entitled to any allotment, be had no locus standi to question the allotment made in favour of the predecessor of the petitioners.

8. The respondent in his written statement has urged that the allotment made in favour of the said predecessor was based on fraud and that the fraud vitiates the most solemn act and, therefore, no protection was available to the petitioners on account of the previous decision of the Border Area Committee. It has further been canvassed that the present writ petition was premature as the Border Area Committee has only initiated enquiry and has not passed any adverse, order against the petitioners.

9. The contentions raised on behalf of both the parties have) been duly analysed and thoroughly considered. Admittedly, the Border Area Allotment Committee. has scrutinised the allotment in. favour of the predecessor of the petitioners. It has come to the conclusion that the allotment was in order and that the said allottee has further sold the suit land in favour of the petitioners by way of a registered sale‑deed which has also been subsequently incorporated in the mutation register. In the wake of this finding, no further enquiry is permissible. The plea of fraud was raised even in the earlier application of the respondent. On behalf of the respondent, reliance has been .placed on a photo copy of a certificate purporting to have been issued by some Officer of the General Headquarters. This is an undated certificate. It is to the effect that no living or serving army personnel with personal numbers less than thousands. is in the Pakistan Army. On the other hand petitioners have produced the original certificate dated 23‑2‑1987 issued by the Officer Incharge Records, Artillery Centre, Station Attock. The contents of this certificate show that Muhammad Hussain son of Nizam Din served in the Army from 1U‑7‑1922 to 2U‑5‑1946, whereafter he was transferred to pension establishment. The petitioners have acquired the suit land through a registered sale‑deed from a person who was duly allotted the land by the Border Area Committee and who was recorded at the time of sale as owner in the revenue records because in the meantime Muhammad Hussain son of Nizam Din had also obtained proprietary rights by depositing the prescribed sale price. In Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another P L D 1975 SC 450 it was held that when defect of jurisdiction was apparent on the face of record, High Court certiorari jurisdiction was attracted. In Abdul Karim .etc. v. Settlement Commissioner etc. P L D 1975 Lah. 937 it was. ruled that an informant having no vested right in property, did not have a right of appeal or revision even if allotment was found to be irregular. In Subedar Major (Retired) Gul Zaman v. The Settlement Commissioner/ Officer Incharge, Border Area Committee, Lahore PLD 1976 Lah. 1434, it was held that any functionary transgressing limits of law and exercising a power not vested in it, could be restrained in writ jurisdiction from acting in that. manner. In Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 SC 146 it was held that general principle of res judicata on the basis of decision in a Letters Patent Appeal was applicable to a subsequent writ petition. In Ghulam Dastgir etc. v. Muhammad Yar etc. P L D 1986 Quetta 19 it was ruled that 'when a judicial order was passed in accordance with the provisions of Ordinance whereby record was consigned to the record room, the earlier order could not be recalled under the provisions of section 21 of the General Clauses Act. The respondent has placed reliance on Ghias‑ud‑Din v. Iqbal Ahmad and 5 others P L D 1975 Lah. 780 wherein it has been ruled that fraud vitiates all solemn transactions and orders, but as already observed, in the present case there has been no fraud on the face) of the record, as the Border Area Committee recorded a positive' finding in this behalf while disposing of the earlier application of the respondent.

10. In the light of the facts of the present case, as detailed above, and in view of the judicial precedents quoted above,, it is concluded that the enquiry initiated by the Border Area Committee on the second application of the respondent, which has been filed only one day after the dismissal of his earlier application, is legally not competent and is also barred by the principle of the res judicata. In this view of the matter, the writ petition is allowed but no order is made as to costs. H. B. T./N‑140/L Petition allowed.