2007 PLP 1468 (MLD)

IQBAL HAMEEDUR RAHMAN, J.

Brief facts giving rise to this writ petition are that one Abdul Khaliq Siddiqui, a displaced person from India, was allotted land at Khata No.62 of Register RL-II and the same was also confirmed in 1963, The legal heirs of Abdul Khaliq Siddiqui sold the land to one Ali Muhammad son of Sharaf Din and Muhammad Khan son of Noor Muhammad. In this regard, a suit for specific performance was decreed by the learned Civil Judge, Sheikhupura, and the sale-deed was registered on 13-5-1987.

2. That on the application of respondent No.1, Rao Maqsood Ali Khan, the then Deputy Commissioner, Sheikhupura, passed an order on 1-2-1986 that the allotment of Abdul Khaliq Siddiqui is not valid. The said order of the Deputy Commissioner was challenged in revision petition by Ali Muhammad but the revision petition was dismissed by the Additional Commissioner on 27-6-1988. Ali Muhammad filed Writ Petition No. 118-R of 1988 wherein compromise was effected between Ali Muhammad (petitioner in the said writ petition) acid Rao Maqsood Ali Khan, respondent No. 1, whereby the land measuring 8 kanals 6 marlas comprising of square No. 17 killa No.6/2 measuring 1 kanal, square No.23 killa No.18 measuring 4 kanals 17 marlas, killa No.22/2 measuring 1 kanal 12 marlas, square No.29 killa No. 10/2 measuring 17 marlas would be retained by Rao Maqsood Ali Khan respondent No.1. because it was allotted in the name of his father Rao Mashooq Ali Khan and remaining land measuring 22 kanals 18 marlas would be deemed to be confirmed against the aforesaid Khata No.62 and party one would be deemed to be its owner. Therefore, the said writ petition was disposed of in view of the compromise vide order, dated 6-11-2000. Thereafter Rao Maqsood Ali Khan, respondent No. 1, moved an application to the Tehsildar Sheikhupura, praying that the order passed in Writ Petition No.118-R of 1988 may be implemented. Liaqat Ali son of Ali Muhammad also moved an application for the said purpose. It was during the pendency of these applications that it revealed from the revenue record that land comprising of square No.17 killa No.6/2 measuring 1 kanals, square No. 23 killa No. 18 measuring 4 kanals 17 marlas, Killa No. 22/2 measuring 1 kanal 12 marlas, square No.29 killa No.10/2 measuring 17 marlas, total land measuring 8 kanals 10 marlas is already entered in the name of legal heirs of Rao Mashooq Ali, father of respondent No.1 vide if mutation No.321, dated 8-10-1991 but the land in favour of Abdul Khaliq Siddiqui was resumed by mutation No.320 attested on 8-10-1991. Consequently, keeping in view the registered sale-decd and the judgment of this Court, dated 6-11-2000 passed in Writ Petition No. 118-R/88 Mutation No.1824 was sanctioned on 3-10-2001. Therefore, the petitioners purchased land measuring 8 kanals 3 marlas out of square No.7, killa No.22/2, square No.23 Killa No.12/2 square No.13 Killa No.1, 14/2 from Muhammad Khan son of Noor Muhammad for a consideration of 10,00,000 vide mutation No. 2193, dated 22-3-2004. Now on the implementation of the order of this Court passed in Writ Petition No. 118-R of 1988, dated 6-11-2000, respondent No.2 has issued memorandum, dated 27-12-2006, wherein .the Member/Chief Settlement Commissioner, Punjab allowed as under:-- "(a) As the land measuring 8 "kanals" 6 "marlas" was allotted to Rao Mashooq Ali Khan the .father of the petitioner and same was considered genuine by the District Collector, vide order, dated 1-12-1986. Neither the allotment at RL-II Khata No.7 nor the order of District Collector, Sheikhupura, dated 1-12-1986 was set aside by the Lahore High Court, Lahore vide order, dated 6-11-2000 passed in Writ Petition No. 118-R of 1988, therefore, .the said allotment is allowed to be incorporated in the name of the allottee after observing all the codal formalities. (b) The detail of the officials who arc involved for transfer of the said resumed evacuee land measuring 22 kanals 18 marlas in favour of Liaqat etc., be communicated with their present posting be sent to this office for information of worthy Chief Settlement Commissioner, Punjab. (c) The latest position of the enquiry proceeding against those officials be intimated.??????? (d) Criminal case be got registered against officials/beneficiaries and copy of F.I.R. be sent." Against the said memorandum, dated 27-12-2006, the petitioners have filed this writ petition.

3. It is contended on behalf of the petitioners that serious prejudice will be caused to the petitioners as they are bona fide purchasers of the land measuring 4 kanals 17 marlas and the same was mutated in their favour by respondent No.1 and others vide mutation No.2153, dated 8-1-2004 for a consideration of Rs.11,0U,000 and similarly, the petitioner purchased land measuring 8 kanals 3 marlas from Muhammad Khan son of Noor Muhammad, a co-sharer of Liaqat Ali etc., for a consideration of Rs.10,00,000 vide mutation No.2193, dated 22-3-2004 and, therefore, valuable rights have accrued in favour of the petitioners as the said mutations have not been challenged before any Civil Court; that the sale-deed exists in favour of Ali Muhammad and Malik Muhammad Khan and the same was registered under the direction of the learned Civil Judge and the judgment and decree of the learned Civil Judge is also holding the field and no application under section 12(2), C.P.C. has been moved that the said judgment and decree had been obtained through fraud and misrepresentation and it is the duty of the Patwari and the Revenue Officer to incorporate the same in the. revenue record, therefore, any criminal proceedings cannot be launched against the subsequent purchasers i.e. the petitioners; that under section 42 of the Land Revenue Act, revenue officer or the Patwari cannot question the decree of the civil Court and the registered sale-deed, because it is beyond the jurisdiction of the revenue hierarchy to refuse to implement the' order of the Civil Courts and High Court or to refuse to enter the salt-deed in the revenue and the same can only be challenged before the Civil Court and as the said mutations exist in favour of the petitioners, their rights are fully protected under section 41 of the Transfer of Property Act; that while issuing the impugned memorandum, no notice was issued to the petitioners and the petitioners have been condemned unheard and no reason has been given in the memorandum and rule 24-A of the General Clauses Act requires that before .passing an order, it should be a speaking one;' that the land had already been incorporated in the names of the legal heirs and there was no need of holding any inquiry; that respondents Nos. 2.and 3 assumed jurisdiction on the basis of a fact which does not exist; that even from the perusal of the impugned memorandum, it is apparent that respondent No.2 has directed the revenue authorities to implement the order, dated 6-11-2000 passed in Writ Petition No. 118-R/88 and if the above said order is already implemented how the criminal case can be registered against the officials and beneficiaries/purchases, therefore, the impugned memorandum is violative of principle of nature justice, illegal and without jurisdiction. Further, notified officer could only interfere in actively pending matters but in the instant case, the matter has been decided upto the level of the High Court in Writ Petition No. 118-R/88 and the compromise has not been challenged by the revenue authorities the order of this Court has become binding on them as Deputy Commissioner/Collector, Sheikhupura and Additional Commissioner (Revenue) Lahore Division Lahore were parties before this Court is Writ Petition No. 118-R of 1988 as respondents Nos.5 and 6 and that as the said mutations were catered in the revenue record on the basis of allotment made under the Rehabilitation and Settlement Laws and the orders were past and closed transactions, no action can be taken against the petitioners. In support of these contentions, learned counsel for the petitioners has placed reliance on Mian Dilawar Mahmood, Senior Advocate Supreme Court of Pakistan v. Member (Judicial-III)/Chief Settlement Commissioner Board of Revenue Punjab, Lahore 2004 CLC 1412, Government of Sindh v. Zafarul Islam and others (2002 SCMR 447), Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719) and Abdul Hameed, Ex-Patwari R/o Village Karbat, Tehsil Cantt. District Lahore acid others v. Member (Revenue BOR and 3 others 2005 SCMR 1617 = 2005 PLC (C.S.) 1367.

4. On the other hand, it has been contended. on behalf of respondents Nos. 2 and 3 that the compromise effectcd in Writ Petition No. 118-R of 1988 is not binding on respondents Nos. 2 and 3 as the land was resumed in favour of the Central Government and mutation No.134 was sanctioned on 23-6-1981 in favour of the Central Government; that in the order, dated 6-11-2000 passed in Writ Petition No. 118-R/88, it was observed that the parties have settled their dispute amicably and. petitioner and respondent No.1 have entered into a .compromise, whereas the order passed by the Deputy Commissioner Sheikhupura as District Collector, dated 1-12-1986 showing allotment in favour of Abdul Khaliq Siddiqui has been declared bogus and the land has been ordered to be resumed in favour of the State, the land measuring 8 kanals 6 marlas which was allotted at RL-II Khata No.7 was ordered to remain intact and the rest of the land will be resumed in favour of the Central Government and mutation No. 134 sanctioned on 23-6-1981 on the basis of RL-II Khata No.62 be reviewed and laud resumed in favour of the Central Government; that the compromise could not be made when the land had already been resumed in favour of the Central Government and the Settlement Department has no record of the allotment in favour of Abdul Khaliq Siddiqui and that respondents Nos. 2 and 3 were not party to the compromise as such the allotment of the land measuring 22 kanals 18 marlas claimed by the petitioners may kindly be declared bogus and the writ petition be dismissed.

5. On behalf of respondent No. 1, it has been argued that Settlement Department is not a party; that other persons cannot enter into a compromise when the land has been resumed in favour of the Central Government; that there is no dispute that respondent No.1 had sold land measuring 4 kanals and 17 marlas to the petitioners and there is no allegation against respondent No.1 in the writ petition nor any relief has been sought against respondent No.1 and, therefore, he should be deleted from the array of the 'respondents. It is further pointed out that the inquiry is still pending and no final order has still been passed and this writ petition is pre-measure, as such the same be dismissed.

6. I have heard learned counsel for the petitioners as well as the respondents and perused the impugned memorandum along with the material available on the record.

7. The land was allotted to one Abdul Khaliq Siddique, a displaced person from India at Khata No.62 of Register RL-II and the same was confirmed in 1963. His legal heirs sold the same to one Ali Muhammad and Muhammad Khan. In this regard, a decree for specific performance was passed by the learned Civil Judge, Sheikhupura and the sale-deed was registered on 13-5-1987.

8. The allotment of Abdul Khaliq Siddiqui was declared invalid by the Deputy Commissioner Sheikhupura vide order, dated 1-2-1986 on the application of respondents No.1, Rao Maqsood Ali Khan. The said order was challenged by Ali Muhammad by way of revision petition which was dismissed. Therefore, Ali Muhammad filed writ petition No. 118-R of 1988, wherein a compromise was effected between Ali Muhammad end respondent No.1 and the said writ petition was disposed of vide order, dated 6-11-2000. Both the parties filed applications for implementation of the order, dated 6-11-2000 passed in Writ Petition No. 118-R of 1988. It was during the pendency of these applications that the land was entered in the revenue record in the names of both the parties. Therefore, the petitioners purchased the land measuring 8 kanals 3 marlas from Muhammad Khan, co-sharer of Liaqat son of Ali Muhammad for consideration of Rs. 10,00,000 vide mutation No.2193, -dated 22-3-2004 and the land measuring 4 kanals and 17 marlas from respondent No.1 and others for a consideration of Rs.11,00,000 vide mutation No.2153, -dated 8-1-2004. The said mutations have not been challenged before any Civil Court. Therefore, the valuable rights have accrued in favour of the petitioners and the same are fully protected under section 41 of the Transfer of Property Act. The sale-deed exists in favour of Ali Muhammad and Malik Muhammad Khan and the. same was registered under the direction of the learned .Civil Judge and the judgment and decree of the learned Civil Judge still holds the field and no application under section 12(2), C.P,C. has yet been moved that the said decree has been obtained through fraud and misrepresentation. Therefore, the judgment and decree regarding the registration of the sale-deed passed by the learned Civil Judge has attained finality and under section 42 of the Land Revenue Act, it is the duty of the revenue hierarchy to implement the order of the Court and the revenue state cannot go beyond. the decree and is bound to give effect to it unless it is set aside or varied by competent Court and in this respect reliance is placed upon Abdul Hameed's case 2005 SCMR 1617 = 2005 PLC (C.S.) 1367. As the entries in the record of rights had been made on the basis of allotment made wider the Rehabilitation and Settlement Laws and the orders were past and closed transaction, no action can be taken against the petitioners, who .are bona fide purchasers. In this respect reliance is placed upon Government of Sindh v. Zafarullah Islam and others (2002 SCMR 447). Notified Officer can only interfere in actively pending matters but in the instant case, the matter has been decided upto the level of the. High Court in Writ Petition No. 118-R of 1988 and the compromise effected between the parties has not been challenged by the Deputy Commissioner/Collector, Sheikhupura, and the Additional Commissioner (Revenue), Lahore Division, Lahore, who were parties in the said writ petition as respondents Nos. 5 and 6, they never objected to the compromise in Court at that the time nor challenged the same before any forum, therefore, the order, dated 6-11-2000 passed in Writ Petition No. 118-R of 1988 has become binding on them as well. The contention of learned counsel for the respondents that respondents Nos. 2 and 3 were not party in Writ Petition No. 118-12 of 1988, as such the allotment of land measuring 22 kanals 18 marlas claimed by the petitioners on the basis of -the compromise is bogus has no force as the Deputy Commissioner Sheikhupura was grayed as respondent No.5 as District Collector and Additional Commissioner (Revenue), Lahore Division, Lahore, as respondent No.6 in Writ Petition No. 118-R of 1988. That at the time of passing of order, dated 6-11-2000 in Writ Petition No.118-R/$8, they were fully represented and no objections were raised by them in the Court nor they challenged the same any further, hence respondents Nos. 2 and 3 shall be deemed to be party to the compromises arrived at between the parties.

9. In view of the above circumstances and relying upon the authorities cited by learned counsel for the respondents, I am of the view that respondent No.2 was not justified in issuing memorandum, dated 27-12-2006. As such, this writ petition is accepted and the impugned memorandum, dated 27-12-2006 is set aside. M.B.A./M-347/L???????????????????????????????????????????????????????????????????????????????? Petition accepted.