1985 PLP 356 (SCMR)

MUHAMMAD HALEEM, C.J.-- These appeals, by special leave, arise from the common judgment of the Lahore High Court, Lahore, dated 25th of March, 1976, by which Writ Petitions Nos. 529 and 1338 of 1971, were dismissed. Leave to appeal was granted to consider: Whether on a true construction of rule 11 of the West Pakistan Land Reforms Rules, 1959, the Chief Land Commissioner could exercise his sun motu power of review after the expiry of nearly six years to set aside the orders passed by the Deputy Land' Commissioner dated 13th of January, 1964 and 19th of February, 1964, and that in doing so did he exceed the review jurisdiction) conferred by this rule? The appellants in Appeal No.73 of 1983 and Appeal No.74 of 1983, were shown as tenants in Form LC-IX to the extent of 2/7th share for Rabi 1959 in Khasra No.50/23-Min of an area measuring 2 Kanals and 10 Marlas in village Kotla Ahmad, Tehsil Rajanpur, District D.G.Khan. On this basis they became eligible to purchase the same Khasra number under the Sale Scheme. Thereafter on the basis of their status as purchasers under the Sale Scheme they also became eligible to get more area to upgrade their entitlement under the Upgrading Scheme. Accordingly, the first appellant was allotted 48 Kanals in Khata No.7 on 16-1-1961 and the second appellant was also allotted 47 Kanals and 3 Marlas in Khata No.6 on the same date under the Upgrading Scheme. This order was cancelled in review proceedings on 16th of April, 1964, as it was discovered that the entries in Form LC-IX "were fabricated and forged and had been made at the instance of the interested parties to clothe them with the status of sitting tenants. However, earlier to this order the appellants were allotted 2/7th share in the aforesaid Khasra number on 13th of January, 1964, which area, as earlier stated, measured 2 Kanals and 10 Marlas. None of these orders were placed on record. Again on 1st of April, 1964, the appellants succeeded in securing an allotment of 433 Kanals and 4 Marlas of land on the basis of some entries in Register LC-IX upgrading their area. This order of allotment was also cancelled by the Deputy Land Commissioner in review proceedings on 23rd of December, 1969. The second order of allotment was also not placed on record. The appellants appealed against the order dated 23rd of December, 1969, but did not succeed as it was dismissed by the Land Commissioner on the 5th of March, 1970. And as an argument was raised before him as to the legality of the allotment of 2/7th share in Khasra No.50/23-Min on 13th of January, 1964, of an area measuring 2 Kanals and 10 Marlas; the Land Commissioner duly exercised his sun motu revisional jurisdiction and set aside that order. The appellants went in revision before the Chief Land Commissioner who by his order dated 4th of May, 1971, dismissed it. The appellants next challenged the legality of these orders in writ jurisdiction before the Lahore High Court, Lahore. In Civil Appeal No.74 of 1983, the facts are common except that the Deputy Land Commissioner passed the impugned order on 20th of January, 1970, reviewing his earlier order dated 19th of February, 1964. Against it the appellants went in appeal, which was rejected on 5th of March, 1970. The revision too met the same fate as it was also rejected on 4th of February, 1971 by the Chief Land Commissioner. The orders are of the same kind as those impugned in Appeal No.73- of 1983. Before I dwell on the legality of the power of review exercised, it would be pertinent to refer here to the findings in regard to the nature of the entries in Form LC-IX. The first such order is that dated 23rd of December, 1969, passed by the Deputy Land Commissioner, D.G. Khan, by which. the order dated 1st of April, 1964, was reviewed, as by this order land measuring 433 Kanals and 8 Marlas was confirmed under the Upgrading Scheme in favour of the appellants Bashir and Nazir. He held that the entries in the Khasra Girdawari Register relating to Rabi 1959 harvest were manipulated by insertion of the names of these two appellants in Khana Khasht showing 50/23 (measuring 8 Kanals)", and on the basis of these bogus entries these appellants were "brought at serial No.l of Register LC-IX making them eligible tenants to purchase resumed land under the Sale and Upgrading Schemes"; and, accordingly, land measuring 2 Kanals and 10 Marlas proportionate to their shares in Khasra No.50/23 under the Sale Scheme was confirmed on 13th of January, 1964, in Khata No.74 of Register LC-IX and again on this basis the appellants got confirmed an area of 433 Kanals and 8 Marlas of resumed land by order dated 1-4-1964 in Khata No.19 of Register LC-XI-A of village Kotla Ahmad. It was further said that as a result of the forgeries committed, the Patwari. Halqa Kotla Ahmad, was dismissed vide Collector's order dated 1st of April, 1969, and his appeal was also dismissed by the Commissioner In a nutshell the finding was that the appellants "fraudulently" obtained allotment in collusion with the Patwari who has since been dismissed, Accordingly, the order dated 1st April, 1964, allotting the land was set aside. In the appellate order dated 5th of March, 1970, passed by the Land Commissioner, it was said: "This history of this case ( and I am afraid that history of a large number of similar cases in Dera Ghazi Khan District) clearly goes to show that the field staff have acted completely against the spirit and intention of Land Reforms Legislation. It was not the intention of Land Reforms Legislation to recognise as tenants, joint cultivation of in infinitesimally small areas like two Kanals. A tenancy, in fact, does not legitimately exist in such a small area. It is mostly a bogus activity of the field staff who managed to enter cultivatory possession of some people, of course, with ulterior motives and under the incentive bribe, in any available column in the Khasra Girdawari Register. Such persons whose rights were created fraudulently were held to be tenants eligible to acquire their tenancies. The so-called tenancies were in fact too small to be of any benefit. The main rule was to make them qualified for the Upgrading prize under the Upgrading of holding. They could get from 100 to 400 Kanals of area at cheap r9tes on the strength of being "tenants" of the surrendered land even though the so-called tenancy was 2 Kanals "joint" cultivation." In conclusion, he upheld the order of the Deputy Land Commissioner, and also exercised his suo motu revisional power to cancel the entry in Khasra No.50/23 relating to the original allotment of 2/7th share totalling 2 Kanals and 10 Marlas as being fictitious. The Chief Land Commissioner, West Pakistan, Lahore, in revision also confirmed these orders for the reasons given by the Deputy Land Commissioner and the Land Commissioner. Before the High Court it was urged that the order dated 23rd of December, 1969, was passed without giving a reasonable opportunity to the appellants as they were neither allowed to engage any lawyer nor to lead evidence. This contention was rightly repelled on the ground that no such plea was taken before the Deputy Land Commissioner nor was any ground to this effect taken in the memorandum of appeal before the Land Commissioner. The next submission related to the legality of the order dated 23-12-1969 as according to it the exercise of power meant: "it amounted to sitting in review of an earlier order passed on 13th of January., 1964"; but as the order, dated 13th of Jaunary, 1964 was not produced the High Court held that it was not possible to accept the bare contention raised before it. Again it was urged that the order dated 13th of January, 1964, became final, and, therefore, could not be reviewed. This contention was also repelled on the ground that the order dated 13th of January, 1964, was set aside by the Land Commissioner in the exercise of his suo mote jurisdiction and as such its legality cannot be doubted. Another added reason was: Moreover, if entries in LC-IX were forged they could not have formed basis for any order much less the order dated 13-1-1969 and we on our part are not prepared to attach any importance to the same in the exercise of our jurisdiction under the Constitution so as to perpetuate a fraud." The conclusion on fraud is beyond doubt established, which is equally applicable to the facts of the other case which disentitles then appellants in that appeal to hold on with the allotment. Accordingly, in our view, the observations of the High Court clinch the issue as the constitutional jurisdiction could not be exercised in aid of fraud. In this background, the exercise of review power even though invoked after long delay cannot suffer from any legal defect as fraud vitiates all solemn proceedings and any benefit taken hereunder cannot be allowed to be retained. We are also satisfied that there is no time limit in the matter of suo motu exercise of review power. This is clearly obvious from the case of Nawab Haji Khair Muhammad Khan v. The State P L D 1966 S C 604, and the question does not need any further examination. Accordingly, there is no merit in both the appeals which are dismissed with costs. Criminal Misc. No.63-R of 1983 in Civil Appeal No.73 of 1983 and Criminal Muse. No. 64-R of 1983 in Civil Appeal No.74 of 1983, in view of our above-said conclusion, have become infructuous and are dismissed as such. M.Z.M.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.