2019 PLP 2476 (YLR)

CH. MUHAMMAD IQBAL, J.

Through this writ petition, the petitioners have challenged the validity of order dated 20.04.2010 passed by the Member (Judicial-V) / Chief Settlement Commissioner / Administrator (Residual Properties) Board of Revenue, Punjab whereby application of the petitioners for implementation of the civil court decree dated 26.06.2014 was dismissed by declaring the alleged allotment order dated 08.03.1973 passed by Mr. Zaka Ullah Naik as bogus and fabricated.

2. Brief facts of the case are that Azeem-ud-Din the predecessor-in-interest of the petitioners, resident of Chaman Chowk, Dera Ismail Khan, being an evacuee from Village Jawarpur and Jarara Dehli India allegedly got allotted land measuring 77 Kanals 14 Marlas and 4-Kanals 8-Marlas in village Davisabad, land measuring 18-Kanals 3-Marlas in Harbanspura and land measuring 48-Kanals 10-Marlas in Mouza Gohawa, Tehsil and District Lahore against RL-II at Khata No.213 of village Charar, Tehsil and District Lahore through order dated 08.03.1973. The above said allottee filed an appeal on the ground that land measuring 77-Kanals 14-Marlas fell underneath "Ghair Mumkin Pond (Talab) and "Abadi Deh" and requested for allotment of alternate land. The said appeal was accepted and as an alternate, the suit land was allegedly allotted to him by the Additional Settlement Commissioner (Lands) Lahore vide order dated 08.03.1973. The petitioners filed civil suit without impleading the Settlement Department as a party which was decreed by the learned Civil Judge, Lahore vide ex parte judgment and decree dated 26.06.2004 whereafter he filed application for implementation of the said ex parte judgment and decree. Respondents filed application under Section 12(2), C.P.C. with the prayer for the setting aside the ex parte judgment and decree dated 26.06.2004 which was dismissed for non-prosecution on 28.05.2009 and on the application for restoration under Order IX, Rule 9, C.P.C., the application under Section 12(2), C.P.C. was restored on 10.04.2010. But during the intervening period, when the petition under Section 12(2), C.P.C. was non-existing as being dismissed in default, petitioner again filed application for implementation of said decree. Respondent No.1 sent a reference seeking permission form the Board of Revenue vide letter dated 13.09.2005 for implementation of the decree of the Civil Court which was declined by the Board of Revenue vide letter dated 13.10.2005. The Member (Judicial-V) / Chief Settlement Commissioner/ Administrator (Residual Properties) Board of Revenue, Punjab after hearing the petitioners and perusing the record declared the alleged allotment order of the petitioner dated 08.03.1973 as bogus and fabricated. He also passed direction to his subordinates for resumption of the said land in favour of the State and same should be disposed of through public auction vide order dated 20.04.2010. Hence, this writ petition.

3. Learned counsel for the petitioners submits that the respondents are duty bound to implement ex parte judgment and decree of the learned civil court as no injunctive order has been passed against the said judgment; that the respondent filed application under section 12(2), C.P.C. which was dismissed in default, whereafter, application for restoration was filed; further submits that a direction be passed to the respondents to implement the civil court decree and also requested that order dated 20.04.2010 passed by Member (Judicial-V)/ Chief Settlement Commissioner/ Administrator (Residual Properties) Board of Revenue, Punjab be declared illegal and liable to be set aside.

4. Heard. Predecessor-in-interest of the petitioners namely Azeem-ud-Din son of Hussaini resident of Chaman Chowk, Dera Ismail Khan was one of those claimants whose claim pertain to villages Jawaharpur and Jharera, of Dehli, India. The British Government of India through Gazette Notification dated 22nd December, 1911 acquired the entire land of Mouza Jawaharpur and Jharera for establishment of Palumpur Airport as well Cantonment and Capital City of New Dehli India. The Chief Commissioner Delhi while exercis-ing power under Section 3(C) of the Act, XVII of 1887 issued Gazette Notification of India dated 15th March 1915 and acquired entire land of Mouza Jawaharpur and Jharera as reflected at Serial Nos.17 and 18 of said notifications. For ready reference, notifications are as under:- Since the issuance of the gazette notification supra the entire land of the said two Mouzas stood vested with the British Government of India leaving behind no private ownership in field w.e.f. 15.03.1915, which has direct negative bearing upon the very status of the petitioners' predecessor-in-interest, who claimed to be an evacuee having abandoned his agricultural land in Mauza Jawaharpur and Jharera in India. Despite being non-owner of above acquired land, he managed the verification of his claim and succeeded in obtaining allotment of impugned land. Another aspect of this case is that with regard to fraudulent allotments of 34 persons including the petitioners, an inquiry was initiated and Chief Settlement Commissioner passed restraining order dated 06.07.1972 against any further alienation or allotment to claimant from aforementioned villages. For ready reference injunctive order dated 06.07.1972 which is as under:- Habib Khan petitioner, through his counsel has submitted an application purporting to be under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 and under Section 14 of the Registration of Claims (Displaced Persons) Act, 1956, alleging that the claimants hailing from the revenue estates of Jawaharpur and Jharera, Tehsil and District Delhi, had obtained numerous allotments of agricultural lands, both urban and rural, under the Rehabilitation Settlement Scheme, by means of fraud and false representation, which are liable to cancellation. In this connection, it has been contended that the areas of both the abovementioned revenue estates stood acquired by the Government of India in the year 1908-09 and thereafter there existed no private ownership. It has been vehemently alleged that the claimants from these estates filed claims under Registration of Claims (Displaced Persons) Act, 1956 and by adducing false evidence and submitting, in respect of their claims, information which they know to be false or did not believe to be true and by fraudulently concealing and misrepresenting facts, for the purpose of making the claims which they know to be false, procured orders of verification which subsequently formed basis of Entitlement Certificates issued by the Central Record Office and in lieu which the alleged allotments of land had been confirmed. It has also been urged by the counsel for the petitioner that compensation under the Rehabilitation and Settlement Laws is only intended for persons who had actually suffered losses whereas in the case of persons from the revenue estates of Jawaharpur and Jharera, the position is quite different as they and their predecessors-in-interest had already received compensation at the time of acquisition by the Government of India. Prima facie, a case of fraudulent verification of claims and securing of allotments of land against the claimant is

. Taking into consideration the material placed on record, the circumstances of the case warrant that all such allotments which have already since been confirmed against the disputed claims of person hailing from the revenue estates of Jawaharpur and Jharera, be not allowed to be disposed of by way of sale, mortgage, exchange, gift etc., or by any means whatsoever, and also further allotments of agricultural lands are stopped forthwith. I therefore order that the district authorities should stop further allotments of land against claims pertaining to the said revenue estates and the local field staff may especially be directed to withhold mutations regarding sale, mortgage, exchange, gift etc., regarding areas already allotted against such claim still further orders. It is also hereby directed that complete details of all such allotments of land against these claims in all the districts of NWFP, Sindh Balochistan and Punjab should be furnished by all the district authorities urgently, for taking further necessary action in the matter. (emphasis supplied) Being aggrieved of the above said injunctive order, a Joint W.P.No.458-R of 1972 was filed by Qutab-ud- Din etc. which was dismissed by this Court. Against the decision of this Court, they (petitioners in W.P.No.458-R of 1972) filed Civil Petition, which was converted into Civil Appeal No.609 of 1975 and the same was dismissed vide order dated 02.07.1976 by the Hon'ble Supreme Court by upholding the order passed by this Court as well as the above quoted injunctive order of Chief Settlement Commissioner which is reported as Qutubuddin and others v. Sardar Hidayat Ullah Khan Mokal and another (1976 SCMR 524) wherein it is held as under:- "An inquiry has been ordered by the Chief Settlement Commissioner on a complaint made by Lal Din against Qutbuddin and 34 others, petitioners herein, that they have obtained numerous allotments of land on the basis of false and fraudulent claims. Pending the inquiry, the Chief Settlement Commissioner has, by order dated 6-7-1972 restrained the petitioners from disposing of the land obtained by them on allotment by sale, exchange or mortgage and directed that no more land will be allotted to them. The subordinate Rehabilitation and Settlement authorities have further been directed to furnish "forthwith" details of allotments obtained by the petitioners in N.W.F.P., Balochistan, Sindh and Punjab. The petitioners filed a writ petition in the High Court for quashing the order of the Chief Settlement Commissioner dated July 1972, on variety of ground which did not find favour and petition was dismissed with the remarks that there is no error of law in the order and it is not proper stage to interfere with the order of the Chief Settlement Commissioner. Against this order the petitioners seek leave to appeal. We have heard Mr. S. M. Zafar and find no merit in the contentions raised in support of the petition. In case inquiries made by the Chief Settlement Commissioner reveal that fraud has been practised by the petitioners on the claims registering authorities or the Rehabilitation and Settlement Authorities the transactions by which verification of claims and allotments of land have been obtained will, in their entirety, become void ab initio and non est in law. The contention that under the Registration of Claims Act claims already verified cannot be reviewed has, therefore, no substance. Another aspect of the case is that writ jurisdiction cannot be invoked to provide a shield to orders of verification of claims obtained by fraud. The learned Judge, was, therefore, right in dismissing the writ petition on this short ground. On the contrary if it is found that no fraud has been practised and allotments have been obtained in due course of law then the inquiry shall automatically come to an end without resulting in irreparable loss to the petitioners. The prayer that no inquiry shall be held at all was, therefore, a tall claim which has been rightly rejected by the High Court." (emphasis supplied) As per order dated 06.07.1972 the then Chief Settlement Commissioner specifically stopped further allotment of land against the claim pertaining to Mouza Jawaharpur and Jharera etc., and directed to the local field officials to withhold further allotment or making of any entry of any mutation regarding sale, mortgage, exchange, gift deeds etc., associated to the areas already earmarked under list of doubtful Mouza Jaats maintained in the Settlement Department. But in the existence of the above restraining order, the petitioners maneuvered and succeeded in obtaining the alleged allotment order dated 08.03.1973 from Zaka Ullah Naik in contravention of the above injunctive order, as such, alleged allotment order dated 08.03.1973 is bogus, false and ante-dated order which is conspicuously based on fraud and misrepresentation. It is well settled law that fraud vitiates the most solemn proceedings and any sandy castle so raised on the basis of such fraudulent transaction stood automatically dismantled and any benefit, right or title obtained by committing fraud wear no sanctity in the eyes of law and ill-gotten gain cannot be perpetuated. Reliance is placed on the cases of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) wherein the Hon'ble Supreme Court of Pakistan has observed that discretionary relief in writ petition cannot be granted to perpetuate the ill-gotten gains. For ready reference, relevant portion is reproduced as under:- " .it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justify-able, as the writ jurisdiction is not to be invoked in aid of injustice." Admittedly the jurisdiction of the Settlement Commissioner with regard to allotment to those claimants whose claim emanated from Jawaharpur and Jharera, Delhi, India was time being stipulated with prohibitory restrictions by the Chief Settlement Commissioner and the then Settlement Commissioner, Zaka Ullah Naik, was not holding any unbridled authority to pass allotment order in violation of the injunctive order of the competent authority, as such, the order of allotment dated 08.03.1973 was amounted to void ab initio. The Hon'ble Supreme Court of Pakistan in its judgment reported as Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) observed that any order passed by the authority without jurisdiction is void ab initio and the same never attained finality in the eyes of law and is liable to be ignored. Relevant text is as under:- "The order dated the 9th of May 1962, was void ab initio on account of want of juris-diction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored."

5. So far as arguments of the learned counsel for the petitioners that direction be passed to the respondents to implement the judgment of the civil court dated 26.06.2014 suffice it to say that admittedly civil court has no jurisdiction to intrude in the realm of the settlement department which (settlement department) has the exclusive jurisdiction to adjudicate the matter and decide the same. The remedy before civil court is barred under Section 41 of the Pakistan Administration of Evacuee Property Act, 1957 and Sec-tions 22 and 25 of Displaced Persons (Land Settlement) Act, 1958 and even if any decree passed by the Civil Court, that would be without jurisdiction and nullity in the eyes of law or void ab initio and same is inexecutable. Reliance is placed on the case titled as Muhammad Sadiq (decd.) through L.Rs and others v. Mushtaq and others (2011 SCMR 239) wherein the Hon'ble Supreme Court has held as under:- ".... There is no denial of the fact that the remedy before the Civil Court availed by the petitioners was clearly barred under section 41 of the Act, 1957 as well as under the provisions of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958. Not only this, but the suit instituted by the petitioners was also hopelessly time barred, as the suit land was provisionally allotted to the respondents/their ancestors in the years 1952/53, and thereafter the whole process of such transfer in their favour was completed much before the repeal of the Settlement laws.

5. This being the correct factual and legal position, the order of rejection of plaint passed by the revisional Court was-based on proper application of relevant provisions of law, and thus unexceptionable. The High Court in exercise of its jurisdiction under Article 199 of the Constitution, while examining the grievance of the petitioners, has rightly upheld the findings of the revisional Court against the petitioners regarding rejection of plaint in the suit, being barred under-above referred provisions of Act XII of 1957 and Act XLVII of 1958." In another case titled as Nasir Fahimuddin and others v. Charles Philips Mills and others (2017 SCMR 468), the Hon'ble Supreme Court of Pakistan held that civil court has no jurisdiction, especially where no attempt had been made to challenge the PTDs before the concerned Settlement Authorities. In another case titled as Ghulam Rasul and 5 others v. Jannat Bibi and 11 others (1990 SCMR 744) the Hon'ble Apex held as under:- "Leave to appeal has been sought by the petitioners against the order of a learned Single Judge of the High Court who vide impugned judgment, dismissed the civil revision filed by the petitioners against the judgment of the District Judge, Faisalabad, who while accepting the appeal filed by the respondents, set aside the order and decree passed by the Civil Judge, Faisalabad in favour of the present petitioners on 7-5-1985, regarding the disputed property, the detailed facts of which are given in the plaint. Primarily, the suit was barred by provisions of the special law governing such transfer and thus the suit property transferred to Hakim Ali and after the issuance of P.T.O. and P.T.D. in his name the last order passed on 24.9.1957 by the Settlement Authorities shall be deemed final. Even under section 25 of the said Act, the Civil Courts have no jurisdiction to correct the orders of the Settlement Authority which ended in finality. The suit of the plaintiffs/petitioners was incom-petent and therefore, the order passed by the appellate Court has rightly been upheld by the High Court. The petition has no merit and is accordingly dismissed." Moreover, this Court has already decided the case of Mst. Bilqees Barkat and others v. Member Board of Revenue J-V/CSC and others (2018 YLR 829), which claim was also pertaining to Mouza Jawaharpur and Jharera, Delhi, India and dismissed the petition.

6. Learned counsel for the petitioners has failed to point out any perversity illegality or any jurisdictional defect in the impugned order calling for any interference by this Court in its constitutional jurisdiction.

7. In view of above, this writ petition is dismissed being misconceived and devoid of any merits with costs. ZC/M-115/L Petition dismisse