2007 PLP 1445 (CLC)

MAULVI ANWARUL HAQ, J.

The land mentioned in para.2 of the plaint was allotted to Syed Akbar Ali Shah by the respondent No.2 on 30-8-1965. The said allottee died and was survived by a son namely Shabbir Haider and a daughter namely Mehmooda Begum. Mutation No.23.5 of inheritance was attested in their favour on 23-4-1997. Shabbir Haider proceeded to gift away his share in favour of his wife and two sons vide Mutation No.278 attested on 29-3-1994. On the same date vide Mutation No.279 Ashraf Begum one of the donees sold away land measuring 36 Kanals to petitioner No.1, while Sarfraz Ahmad and Ali Raja Haider, donees, transferred their share in favour of petitioner No.2 vide Mutation No.373 attested on 5-6-2000. The petitioner's have filed this writ petition being aggrieved of order dated 22-12-2005 passed by respondent No.2 (Annexure "E") whereby the said allotment in favuur of Syal Akbar Ali Shah has been cancelled on the ground that the said transaction made by son of the allottee and those. made by the donees of the said son arc void having been entered without prior approval of GHQ (Army).

2. The learned counsel for petitioners contends that the allotment having been matte to Akbar Ali Shah in the year 1965, the same could not have been cancelled with reference to the condition, which was imposed in the year 1981 vide Ordinance No. III of 1981, whereby Schedule III of West Pakistan. Border Area Regulations, 1959 was amended.

3. The learned counsel for respondents, on the other hand, contends that notwithstanding the fact that the said condition was added in the year, 1981 any transaction made by the allottee or his heir was to be Governed by the same. He has relied upon the case of Rehmat Ali v. Border Area Committee and another 1998 CLC 11 2.

4. I have given some thought to the said contention of the learned counsel for parties. Prima facie, Condition No. 11 requiring an allottee to obtain NOC from GHQ (Army) before alienating the allotted land was added in Schedule III in the said Border Area Regulation, 1959 vide Amendment Ordinance No.III of 1981 and applying the fundamental Rules it should not have retrospective effect. However, the said judgment being relied by the learned counsel for respondent fully supports his contention. I have examined the same and am in respectful agreement with the reasoning of his Lordship in the said dictum holding that an allottee in Border Area would be requiring prior permission of GHQ (Army) before alienating the allotted land so that the spirit and purpose of the said Regulations are made effective.

5. I, therefore, do hold that the allottee or his heir could not alienate the land without obtaining NOC from GHQ (Army). The matter, however, does not end here. A large number of cases have come up before this Court where 3rd- or 4th vendees, or sometime line is even longer, are trapped and bound to loose because of invocation of the said. condition No.11 . In the present case, itself, the allotment was made in the year 1965. The allottee died somewhere in the year 1992. No action was taken when his heir made girt or alienation and of course nothing happened when the present petitioners purchased the land, prima facie after paying consideration. Several years thereafter the petitioners are confronted with the said cancellation order. The purpose of Border Area Regulations, 1959 appears to be that the Army Authorities should be satisfied about the credential of a person, who on the basis of an alienation made by the allottee or his heir, enters into the land. To my mind such scrutiny may take place even niter alienation. The reason being that I have not been able to find out any criterion or anybody or authority in the said Statute through which respondent No.2 or the said authority can check the alienation itself. As noted by me above most of the times the citizens approached this Court, when they purchased the land from 2nd or 3rd transferee.

6. The respondents should give a thought to this matter so as to adapt some measure to check such alienation itself. Upon a query the learned counsel for respondents is unable to point out even a single instance where a Village Officer or a Revenue Officer has been hauled up and proceeded against for facilitating and ultimately effecting such alienation. The writ petition is accordingly dismissed. However, the petitioners, if so advised, may file an application within 30 days from today with the competent authority for a "NOC" for the said alienation in their favour so that after scrutiny appropriate orders, as are deemed fit by the authority, may be passed. The petitioners, if are in possession, shall not be disturbed till the decision of said application, if filed within the said period of time. A copy of this order shall immediately be remitted to the respondents. S.A.K./A-155/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.