P L D 2021 Lahore 130 (PLP)

CH. MUHAMMAD IQBAL, J.

Through this single judgment, I intend to decide the above titled writ petition along with connected Writ Petitions Nos. 2-R/2009, 125-R/2009, 150-R/2009, 115-R/2010, 121-R/ 2010, 126-R/2010, 127-R/2010, 128-R/2010, 129-R/2010, 130-R/2010, 131-R/2010, 132-R/2010, 35-R/2013, 66-R/2011 and No.87-R/2013 as common questions of law and facts are involved in all these writ petitions.

2. Through these writ petitions, the petitioners have challenged the vires of order dated 10.01.2009 passed by the Member (Judicial-V)/ Chief Settlement Commissioner, Board of Revenue, Punjab who declared alleged allotment in urban area in the name of petitioner Mohyudin Muhammad Khan situated at villages Kohar, Adjudhiapur, Gohawa, Keer Khurd and Bhekewal, Lahore as bogus, antedated and fabricated which was obtained against bogus urban claim and the said land was resumed in favour of the state.

3. Brief facts of the case, as mentioned in the Writ Petition No.11-R/2009, are that Mohyuddin Muhammad Khan son of Yousaf Muhammad Khan (petitioner) allegedly got verified claim in his name on the basis of which he secured allotment of land measuring 256-Kanals and 11-Marlas in Khata No.364 of Village Ajudhiapur, as well as in villages Gohawa, Kohar, Keer Khurd and Bekhewal etc., in urban area of Tehsil and District Lahore. Respondent Ghulam Rasool filed Mukhbari application on 19.06.1972 against the above allotment contending that the allottee has obtained the above said allotment fraudulently on the basis of fictitious/fake claim. During pendency of the said application, petitioner Mohyuddin Muhammad Khan filed Writ Petition No.162-R/ 1973 which was disposed of vide order dated 21.12.1973 with the direction to the Settlement Commissioner to decide the application on merits. Another Writ Petition No.1362-R/1976 was filed but the same was dismissed as withdrawn. In compliance of order passed by this Court, the Chief Settlement Commissioner/Notified Officer dismissed the Mukhbari application vide order dated 11.08.1977. Against the dismissal of Mukhbari Application, respondents Ghulam Rasool etc., filed Writ Petition No.1387-R/1977 which was dismissed by this Court. The above dismissal order passed by the learned Single Bench was assailed in I.C.A. No.118 of 1977 which was also dismissed. Against these dismissal orders, respondents Ghulam Rasool etc. filed Civil Appeal No.134/1984 which was allowed by the Hon'ble Supreme Court of Pakistan vide judgment dated 25.05.1991 and case was remanded to the Chief Settlement Commissioner, Punjab for fresh decision. In post remand proceedings, the Chief Settlement Commissioner sent reference to the Board of Revenue, Sindh at Karachi, for the verification of evacuee claim of Mohyud Din Muhammad Khan. In reply to that reference, a report dated 25.05.1992 was sent by the Secretary (S&R), Board of Revenue, Sindh at Karachi to the Chief Settlement Commissioner, Punjab. Being dis-satisfied with above report, respondents Ghulam Rasool etc., (informers/Mukhbars) requested for summoning of original record of the case. During pendency of the case before the Chief Settlement Commissioner Ghulam Rasool etc., (informers) filed Writ Petitions Nos.211-R and 22-R of 1994 which were disposed of by this Court vide order dated 14.12.2004. Thereafter, the Chief Settlement Commissioner on 26.08.2005 constituted an Inquiry Committee comprising Member (Judicial-I)/Notified Officer and Secretary (S&R), Board of Revenue to conduct a thorough examination of the record and submit report within one month. The said inquiry was pending when one member of committee (Member (Judicial-I), Board of Revenue), decided the main case by upholding the genuineness of allotment in favour of the petitioner vide order dated 25.02.2006. The Senior Member, Board of Revenue informed the Chief Settlement Commissioner with regard to the above illegality, who (CSC) after hearing the parties, declared the alleged allotments in favour of Mohyuddin Muhammad Khan, as bogus vide order dated 10.01.2009 and resumed the land in favour of the state. Hence, these writ petitions.

4. I have heard the arguments advanced by the learned counsel for all the parties in detail and gone through the record with their able assistance.

5. At the very outset respondent raised objection with regard to the maintainability of this petition as the same is filed on behalf of a dead person. Perusal of the record shows that the instant Writ Petition No.11-R/2009 was filed on 26.01.2009 on behalf of Mohyuddin Muhammad Khan by his general attorney namely Ch. Hakim Ali son of Bagh Ali through Muhammad Shahzad Shaukat, Advocate but as per record appended with the petition, the said petitioner Mohyuddin Muhammad Khan had died on 08.09.2006. Scanned copy of his death certificate is as under:-- Moreover Mr. Muhammad Shahzad Shaukat, Advocate filed an application (C.M. No.1/2010) on 30.04.2010 in instant Writ Petition No.11-R/2009 with the contention that petitioner Mohyuddin Muhammad Khan has died on 08.09.2006 and a request was made to bring on record his legal heirs, which application without issuance of any notice to the other side was allowed vide order dated 13.05.2010, which is as under:- "C.M.No.1 of 2010. This is an application for bringing on record L.Rs. of the petitioner.

2. Application is allowed subject to all just and legal exceptions. C.M.No.2 of 2010.

3. Allowed subject to all just and legal exceptions." The legal heirs of the deceased petitioner stand arrayed as petitioners in the main writ petition, suffice it to say that the said application was allowed without issuance of notice and affording hearing to the adverse party and such acceptance of application does not extinguish the right of opposing party to raise objection on the impleading of the legal heirs rather in the said order, as legal term "subject to all just and legal exceptions" is used with purpose to preserve the right of opposing party who, if feels aggrieved of it may question the legality of said order whereas the unilateral acceptance of the application does not mean the merit decision of the impleadment of LRs rather the adverse party has the right to secure its reversal at subsequent stage of the proceedings. Reliance is placed on the cases titled as Ghulam Muhammad and another v. Irshad Ahmed and another (PLD 1982 SC 282), Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan and others (PLD 2011 SC 961), Qaid Jauhar and another v. Mst. Hajiani Hajra Bai and another (2002 CLC 551) and Lakhra Power Generation Company Limited (LPGCL) v. Karadeniz Powership Kaya Bey through Master of The Vessel and 4 others (2014 CLD 337). Further the acceptance of the application was subservient to "all just and legal exceptions" which neither cure the legal defect in the institution of the lis nor gives any right the successor in interest/descendants of the deceased to pursue the petition filed on behalf of a dead person. Admittedly the writ petitioner died in 08.09.2006 whereas the instant petition was filed in the year 2009 but till to-date the legal heirs have not independently challenged the impugned order of the Chief Settlement Commissioner dated 10.01.2009 before any competent forum which has attained finality against the alleged allottees as well as his legal heirs.

7. Furthermore Yasin Muhammad Khan Aqeel one of the legal heirs as well as attorney of the other legal heirs of the deceased petitioner unambiguously made a statement before this Court that they have never ever appointed Mr. Muhammad Shahzad Shaukat, Advocate in this case as their counsel whereas perusal of the record of this writ petition as well as application (C.M.No.1 of 2010) for impleadment of L.Rs. of the deceased petitioner show that the petitions were drafted, instituted and preliminary arguments were made by the above named learned counsel and the disowning the appointment of the said counsel at this stage dismantles the edifice of instant petition. Besides above after death of Mohyuddin Muhammad Khan (on 08.09.2006), the document of power of attorney executed in favour of Ch. Hakim Ali stand automatically abated whereafter no lis could be instituted by the said attorney on behalf of his principal. Reliance is placed on Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549). Admittedly the instant petition was filed on behalf of the Mohyuddin Muhammad Khan as a sole petitioner on the basis of defunct power of attorney whereas the institution of suit by/against only one dead petitioner/defendant as a whole is nullity in the eye of law and said lis is not further proceedable as the said flaw is incurable in nature. Reliance is placed on the cases titled as Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. (2001 SCMR 1), Muhammad Yar (deceased) through LRs and others v. Muhammad Amin (deceased) through LRs and others (2013 SCMR 464), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187). Reliance is also placed on a case cited as Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives v. Zari Taraqiati Bank Limited through Branch Manager (PLD 2007 Lahore 180) (D.B), wherein learned Division Bench of this Court held as under:- "In answer to the first part of the question, it may be held that according to the settled law, any suit or the legal proceedings, instituted against a dead person are nullity in law and in this behalf, we are fortified by the judgment of the Honourable Supreme Court, reported as Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1, which declares as follows:- "There is no cavil with the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant. The learned High Court rightly came to the conclusion that the suit of PICIC against deceased-Mst. Inayat Begum was incompetent and, therefore, nullity in law." As such it is observed that the instant petition (W.P.No.11-R of 2009) which is filed on the basis of defunct power of attorney on behalf of a dead sole petitioner is not maintainable.

8. Now adverting to the case of the subsequent vendees from Mohyuddin Muhammad Khan who are petitioners in the other Writ Petitions Nos. 2-R/2009, 125-R of 2009, 150-R/2009, 115-R/2010, 121-R/2010, 126-R/2010, 127-R/2010, 128-R/2010, 129-R/2010, 130-R/ 2010, 131-R/2010, 132-R/2010, 35-R/2013, 66-R/2013 and No.87-R/ 2013 who have challenged the vires of the impugned order of the Chief Settlement Commissioner dated 01.01.2009. It is appropriate to examine in detail the entitlement of alleged allottee as well as the legality of the allotment in favour of Mohyuddin Muhammad Khan before marching towards the rights of the subsequent purchaser.

9. The predecessor in interest of the writ petitioner Mohyuddin Muhammad Khan was allotted ex-evacuee land as expounded in para 12 of this judgment. Against the said alleged allotments, the respondents Ghulam Rasool etc. filed applications before the Settlement Authorities which were dismissed. Thereafter the writ petition as well as Intra Court Appeal of the respondents Ghulam Rasool etc. were also dismissed. The respondents assailed these orders before the Hon'ble Supreme Court of Pakistan through Civil Appeal No.134/1984 which was allowed vide judgment dated 25.05.1991 and the matter was remanded to the Chief Settlement Commissioner to enquire into the matter and decide the same in accordance with law, and held as under:- "

7. As the allegations made by the applicant in the Mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for proper inquiry. The Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka Ullah Naik before recording its finding on Mukhbari application. The appellants shall also have costs of these appeals." The matter remained pending before the Settlement Authorities and thereafter Chief Settlement Commissioner, in compliance of the aforesaid judgment of the August Court, vide order dated 26.08.2005, constituted an Inquiry Committee comprising Member (Judicial-I)/Notified Officer and Secretary (S&R) who shall thoroughly examine the record and submit its report. For ready reference, order dated 26.08.2005, passed by the Chief Settlement Commissioner, is reproduced as under:- In compliance of the judgment dated 25.05.1991 passed by the Hon'ble Supreme Court of Pakistan, the Chief Settlement Commissioner also recorded statement of Zaka Ullah Naik on 14.12.1992, which is reproduced as under:- Zaka Ullah Naik, in his statement reproduced above, did not acknowledge his signatures on Appeals Nos.14/1972, 72/1972, 7/1972. The said statement of Zaka Ullah Naik was never challenged by the alleged allottee, Mohyuddin Muhammad Khan, before any forum.

10. The Chief Settlement Commissioner / Member, Board of Revenue sent reference to the Board of Revenue, Sindh at Karachi in respect of verification of the claim of alleged allottee Mohy-ud-Din Muhammad Khan and vide letter dated 25.05.1992, the Secretary S&R sent reply which is as under:- "That the claim record relating to claim Reg. Nos.4538/IV and 6532/IV were checked and it was found that claim Reg. Nos.4538/IV was registered in the name of Mohyudin Muhammad Khan son of Yousaf Muhammad Khan and with the help of copies of Verification Order, the Register of Verified claims was checked and said claim was found to have been verified by Mr. Iqil Muhammad Jaffri, Deputy Claims Commissioner, Karachi, on 24.04.1995. It was further mentioned that the file of other claim bearing Reg. No.4538/IV in the name of Rashid Ahmad Ansari was available in the record but it was not found entered in the Register of Claims. The copies of the relevant entries of Register of Claims and Register of Verified Claims were also furnished showing that the claim of Mohyudin Muhammad Khan was found entered and verified in the said Registers. Similarly Mr. Zakaullah Naik, Ex-Settlement Commissioner (Land), Lahore, was also summoned and his statement was recorded on 14.12.1992 in which he clearly confirmed that the orders dated 29.05.1972 passed in the appeal of Ghulam Rasool etc. had actually been passed by him and he owned the order signed by him who had decided the appeal of the informers Ghulam Rasool etc. was also summoned and his statement was recorded on 14.12.1992 in which he clearly confirmed that the orders dated 29.05.1972 passed in the appeal of Ghulam Rasool etc. had actually been passed by him and he owned the order signed by him. It is to be mentioned here that Ghulam Rasool etc. had denied to have filed the said appeal and it was contended that the said appeal file had fraudulently been prepared and was bogus one." (emphasis supplied) In the above quoted text from the reply of Secretary S&R, Sindh it is evident that the claim Register No.4538/IV is available in the name of one Rashid Ahmad Ansari but under the grab of said claim Mohyuddin Muhammad Khan fraudulently got allotted ex-evacuee land in Lahore City on the basis of fraud and misrepresentation. Whereas there is no any claim in urban area situated in villages Kohar, Adjudhiapur, Gohawa, Keer Khurd and Bhekewal as per available record. The Chief Settlement Commissioner, Punjab deputed Sh. Ghulam Rasool, Naib Tehsildar for checking of original claim file in respect of alleged allottee Mohyuddin Muhammad Khan who submitted report as under:- "I told the Deputy Settlement Commissioner, Karachi, that Mohyudin Muhammad Khan has obtained land against the verification orders passed in claim case Reg. No.4538/IV Karachi. The said claim case is available in the Record Room. It is observed that one Rashid Ahmed Ansari son of Late Qasim Ali Sahib of Saharanpur, India, filed this claim on claim form bearing Machine No.269580 for a sum of Rs.42,000/under Schedule II and Rs.9260/under Schedule V which was registered at No.4538/IV. Subsequently, the name of Khurshid Ahmed Ansari was also added as a co-claimant by the then Claims Officer. The claim was finally verified by Mr. M.A.Rauf, Deputy Claim Commissioner, in Appeal No.451/V vide his order dated 23.07.1960 for a sum of Rs. 14596/under Schedule I and Rs.3877/8/under Schedule VI specifying the shares of the two claimants Rashid Ahmed Ansari and Khurshid Ahmed at Rs.9600/and Rs.4996 under Schedule I and Rs.2640/and Rs.1237/8/ under Schedule VI respectively. Mr.Rashid Ahmed Ansari has also been paid cash compensation to the extent of Rs.2489/only, against his C.P.II application No.4032 by cheque No.5002408 vide cheque slip No.730/B K-LI." The Deputy Settlement Commissioner, (Claims and Records) Karachi after obtaining the aforesaid report of Sh. Ghulam Rasool, passed order in respect of bogus allotment of urban evacuee lands bearing Claims 81-68 dated 09.08.1981. Further the Secretary (RS&EP), Board of Revenue, Sindh at Karachi wrote a letter dated 25th May, 1992 to the Secretary (Settlement and Rehabilitation), Board of Revenue, Punjab which is as under:- GOVERNMENT OF SINDH BOARD OF REVENUE (RS. AND EP BRANCH) 79-Pak. Secretariat, Karachi. SECY (RS&EP)/BOR/92-158 To The Secretary (Settlement and Rehabilitation), Board of Revenue, Punjab, Farid Kot House, Lahore. Subject: I) CIVIL APPEALS NOS. 134/84 AND 135/84 GHULAM RASOOL V. SETTLEMENT COMMISSIONER (LAND) ETC. II) BOGUS ALLOTMENT OF URBAN EVACUEE LAND ETC. IN THE NAME OF (1) MST. DHAPI (2) HUSSAIN SON OF SUMAR (3) MUHYUDDIN MOHAMMAD KHAN SON OF MOHAMMAD YUSUF. Please refer to your Memo Nos.1265 and 3181 dated 21.4.1992 and 17.5.1992, on the subject noted above received through Mr. Abdul Qadir, Assistant of your office.

2. The Claims record relating to the Claim Registration Nos.4538/IV and 6523/IV have been checked with the following results.

3. Claim Registration No.4538/IV is registered in the name of Mohyuddin Mohammad Khan son of Yusuf Mohammad Khan in the Registration Register of Claims (photo copy of the Register enclosed.

3. The original claim file Reg. No.4538/IV has not been consigned to Record Room. However, with the help of Photostat copy of verification order supplied by you, the Register of verified claims was checked and it was found that the said claim was verified by Mr. Aqil Mohammad Jaffary, Deputy Claims Commissioner, Karachi on 24.4.1959 as under:- Under Schedule-I Rs.96,000/- Under Schedule-II Rs.35,000/- Under Schedule-IV 172 Acres. Under Schedule-V 450.36 Acres. (Photo-stat copy of the Register of verified claim enclosed).

4. The file of other claim bearing Reg.No.4538/IV in the name of Rashid Ahmad Ansari son of Qasim Ali is available in the Record Room, but it has not been found entered in the Register of Claims.

5. A detailed report has already been sent to you vide this office letter No.68 dated 9.8.1981 (copy enclosed).

6. Original Claim file of Rashid Ahmad Ansari is sent herewith (6 + 49

Sheets). Claim Reg.No.6523/IV of Hussain son of Sumar. A detailed report in this respect has already been sent to you vide this office No.68 dated 9.8.1981 (copy enclosed). Photo stat copy of Register of Claims and Register of Verified Claims are enclosed herewith." Encls: As above. (GUL HASSAN CHANNA) Secretary (RS&EP) Board of Revenue Sindh, Karachi. The alleged allottee/petitioner (Mohy-ud-Din) also got allotment in different villages of Districts Muzaffargarh and Layyah on the basis of fraud and the Deputy Commissioner, Muzaffargarh after examining the record and inquiry, declared that the claim of petitioner Mohyuddin Muhammad Khan, alleged allottee, regarding rural land, is bogus who vide order dated 07.09.1995, cancelled the same. The Deputy Commissioner, Muzaffargarh also sent the case to the Deputy Director, FIA, Multan vide letter dated 07.09.1995 against the petitioner/alleged allottee, Mohyuddin Muhammad Khan, for the obtaining fraudulent allotment in Muzaffargarh and 43 other chaks/villages. For ready reference, aforesaid letter is reproduced as under:- From The Deputy Commissioner, Muzaffargarh. To The Deputy Director (F.I.A), Multan Region, Multan. No.113/HC(S) 7-9-1995. Subject: Fraudulent Transfer of Central Government Land in favour of Mohiyuddin Mohammad Khan. Memorandum. Mohiyuddin Mohammad Khan son of Yousaf Mohammad Khan resident of 23 Haiderabad Colony, Karachi was allegedly allotted 17384 units by the Central Record Office, Lahore [flag-A]. This claim was received by this office vide letter No.7/SC dated 01.03.1972 from the Additional Deputy Commissioner/ Additional Settlement Commissioner, Sheikhupura [flag-B]. Consequently, Mohiyuddin was allotted land in 43 villages of Muzaffargarh district from the period between 1972 and 1980 through Abdul Waheed {Mukhtar-e-Aam} and Niaz Ahmad Sheikh {Mukhtar-e-Khas}. On 8.1.1994, Mohiyuddin submitted an application [flag-C] through Niaz Ahmad requesting for confirmation of land in his favour in village Mondka. The enquiry conducted in pursuance revealed the following facts: a) Niaz Ahmad Sheikh had submitted an application on 21.2.80 [flag-D] for amendment in Naqsha Unit in 3 villages in which the Claim No. was not mentioned nor did the competent officer i.e. A.D.C[G] had passed any orders. Nevertheless, R-L II of these 13 muazas were called on 4.3.80 and the land was confirmed in favour of Mohiyuddin on the R.L-II's. This was done without changing the Naqsha Unit, which was a pre-requisite. It was recorded on the order sheet that "the file was presented today. In compliance of the orders in the mukhbari case dated 16.7.75, requisite entries have been made in the R.L II Registers". b) The details of the Mukhbari case are that an application dated 15.2.74 was submitted by Masooda Khanum and Mohiyuddin through Riaz Anwar [Mukhtar-e-Am] and Abdul Waheed [Mukhtar-e-Am] respectively [through the mukhtarnama of Abdul Waheed was registered in 1977] to the Deputy Commissioner, Muzaffargarh [Flag-E]. It was stated in the application that their balance claim units were pending in district Multan and Muzaffargarh. c) The application was decided in favour of the petitioners by the Additional Deputy Commissioner [Consolidation] vide his orders dated 16.7.75 [Flag-E] whereby land in 26 muazas was confirmed. Interestingly, allotment was decreed only in favour of Mohiyuddin and Masooda Khanum was ignored without assigning any reason. d) Quite apparently, the application dated 21.2.80 was processed in haste and without independently confirming the authenticity of the claim, favourable entries were ordered to be made in the Register R.L IIs.

2. After the enquiry report [Flag-F] on the application dated 08.01.1994 was received, the parties were called and after hearing them out, it was decided to confirm the authenticity of the claim from the office of A.D.C[G] Sheikhupura. It was confirmed to us by that office, vide letter No.4949/HC[S] dated 30.08.1995 [Flag-G] that letter No.SC/7 dated 1.3.1972 was never issued by that office. It was further clarified that on this date, only letter No.185 was issued to A.D.C[C], Lahore.

3. It is quite apparent that Mohiyuddin and his cohorts namely Niaz Ahmad and Abdul Waheed have perpetrated a fraud on the government and have fraudulently managed to get central government land in the following 43 muazas transferred in their favour through bogus allotment papers:

1. Maqsoodpur

2. Nohanwali 3.Bali Shumali

4. Khudai

5. Chak Aalidah

6. Gajjuwahin 7.Daulatpur

8. Basti Sabdila

9. Mondka

10. Mahra Faraz

11. Kari Ali Mardan 12.Bait Metla

13. Tibba Bhattian

14. Easan Mahar

15. Hajipur

16. Shahpur

17. Chabutra Kamal 18.Chabutra Adha

19. Fattu Fanaka

20. Mahboobwala

21. Mahra Nasheb

22. Mubarakpur

23. Umarpur

24. Bai Ria Ali

25. Bai Mathal Shah

26. Chattwain

27. Bait Zani

28. Rakh Kotla Gammu 29.Thal Jhandi

30. Mohan [Layyah]

31. Mahra Gharbi

32. Choubara [Layyah]

33. Mohammadpur

34. Basti Jhangar

35. Umarpur Janubi

36. Bait Jhook

37. Bali Janubi

38. Rakh Khokarwala

39. Gujrat [Layyah]

40. Palya Kalroo

41. Meharpur

42. Kunjhar Khas

43. Ayyab Arain The participation, active or docile, of government officials is also not ruled out, in carrying out this fraud. On the face of it, the following are deemed culpable:

1. Mohiyuddin son of Mohammad Yousaf Khan resident of 23 Haidarabad Colony, Karachi.

2. Abdul Waheed Khan resident of Muzaffargarh.

3. Sheikh Niaz Ahmad son of Nannu resident of Muzaffargarh.

4. Yar Mohammad, ex-Settlement Clerk, D.C Office, Muzaffargarh.

5. Abdul Hameed son of Haji Mohammad Saeed, ex-Ahlmad Settlement, D.C Office, Muzaffargarh.

6. Mohammad Nawaz, ex-Head Clerk Settlement, D.C. Office, Muzaffargarh.

7. Pehlwan Baksh, ex-Kanungo Settlement, D.C Office, Muzaffargarh.

4. It is requested that the matter may be investigated and cases registered against private persons/government officials found responsible under the relevant law. It may be noted that we have unconfirmed information that Mohiyuddin has also managed similar allotments in district Kasur and perhaps other districts of the Punjab. Deputy Commissioner, Muzaffargarh. Nos.114 to 117/HC[S] Dated 7.9.1995. A copy is forwarded to the Deputy Commissioner[Layyah], Assistant Commissioners of Muzaffargarh, Kot Addu and Alipur for information and immediate necessary action for cancellation of the allotments made in favour of Mohiyuddin in their area of jurisdiction and for resumption of the land in favour of the state, on which a report may be sent to this office within 15 days positively. Deputy Commissioner, Muzaffargarh. The Member (J-I)/ Notified Officer, Board of Revenue, Punjab (one of the members of the committee) vide order dated 19.03.2007 sent back the cases to the Chief Settlement Commissioner for reconstituting enquiry Committee. For ready reference, aforesaid order is reproduced as under:- CASE No.611 of 2005. Ghulam Rasool through legal heirs Mushtaq Ahmad Versus The State/Mohyuddin Mohammad Khan CASE No. 611-A of 2005. Ghulam Rasool through legal heirs Mushtaq Ahmad Versus Hussain Sumar etc. Present: Mr. Mushtaq Ahmad one of the legal heirs of the Petitioners. ORDER: The above title cases are pending in this court under the order of the Chief Settlement Commissioner dated 26.8.2005 whereby he constituted an enquiry Committee consisting of Member (Judicial-I)/Notified Officer and Secretary (S & R) and to submit recommendations on this account.

2. It is pertinent to point that Member (J-I)/Notified Officer for Lahore and Faisalabad), is working in the judicial capacity and he is not supposed to indulge in executive matters. Under the above circumstances, the cases are sent back to the Honourable Chief Settlement Commissioner, Punjab, for reconstituting enquiry Committee on the executive side. Parties are directed to appear before the Chief Settlement Commissioner, Punjab, on 6.4.2007. Announced 19.3.2007 MEMBER (J-I) NOTIFIED OFFICER BOARD OF REVENUE, PUNJAB. The proceedings in respect of inquiry were pending before the said Committee and on one fine morning, the Member (Judicial-I), Board of Revenue/Notified Officer maintained the validity of alleged proposal/ allotment in favour of Mohyuddin Muhammad Khan on 25.02.2006, whereafter he (the Member (Judicial-I), Board of Revenue) withdrew himself from proceedings of Inquiry Committee on 19.03.2007 and sent back the matter to the Chief Settlement Commissioner, which shows that the order dated 25.02.2006 is an antedate order. The Member (Judicial) whimsically and arbitrarily assumed the jurisdiction beyond his mandate, as being member of the inquiry committee, he had limited authority only to submit report to the Chief Settlement Commissioner but what he did was beyond his vested jurisdiction at the relevant point of time.

11. Moreover with the promulgation of The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all the settlements laws stood repealed retrospectively w.e.f 01.07.1974. Under section 2 of the Act ibid a limited jurisdiction was available with the Notified Officer to decide only the "pending proceedings" as well as the matter remanded by the Hon'ble Supreme Court or by High Court. According to the above enactment neither any provision is available for allotment of evacuee land against unsatisfied pending units nor Notified Officer was conferred with any jurisdiction to allot or transfer land or grant alternate land after repealed evacuee laws in 1975, as such, the order dated 25.02.2006 is without authority, illegal and void and passed in violation of the order passed by the Hon'ble Supreme Court of Pakistan. Furthermore, the Member, Board of Revenue while dismissing the petition of Mushtaq Ahmad etc. against the petitioner wrongly presumed the order dated 08.02.1972, passed by the Settlement Commissioner as the "original allotment order" whereas the Settlement Commissioner, through order dated 08.02.1972 (the validity of which will be discussed in succeeding part of this judgment) only made proposals for certain Khasra Numbers in favour of the Mohyuddin Muhammad Khan. With regard to the jurisdiction of the Notified Officer after repeal of evacuee laws in 1975, the Hon'ble Supreme Court of Pakistan in the case titled Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another (PLD 2015 SC 166) has conclusively held that the Chief Settlement Commissioner / Notified Officer is not competent to make any fresh or alternate allotment of land against unsatisfied pending units to any person in lieu of any belated claim. Relevant portion of said judgment is reproduced as under:- "

15. The Repealing Act, 1975 does not vest the Notified Officer with any authority to make a fresh allotment of available (evacuee) land. This disability includes the power to allot alternate land. The said limitations on the powers of the Notified Officer are discussed in Saifullah v. Board of Revenue (1991 SCMR 1255). In Muhammad Ramzan v. Member (Rev.)/CS (1997 SCMR 1635), as follows:-- "(8) With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact." Reliance in this regard is placed on Bashir Ahmad and others v. Punjab University Academic Staff Association and others (1991 SCMR 377), wherein the Hon'ble Supreme Court of Pakistan has held as under: "The order dated 25.03.1974 passed in favour of the predecessor-in-interest of the petitioners was challenged through Writ Petition No.402-R of 1976 by the Punjab University Academic Staff Association and the University of the Punjab whereby the informants were allotted the land becoming available by the setting aside of the allotments to Badar-ul-Hassan and Qureshi Mahmud Ahmad on 10.4.1974 as the land had in the meanwhile been sold to the University Authorities on 29.3.1974 under section 10(2) of the Displaced Persons (Land Settlement) Act, 1958. It was alleged that the Additional Settlement Commissioner (respondent No.2) was incompetent in law to make the allotment to the informants as the land in question had been declared as a building site by the Notification, dated 16th May, 1973. This writ petition was allowed by the impugned judgment of the High Court dated 6.4.1988. Hence this petition for leave. Mr. Shahzad Jehangir has been heard on behalf of the petitioners, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16.5.1973 declaring the urban lands within the Municipal limits etc. as 'building sites' no allotment of such lands on the basis of the claimants units, whether urban or rural, could be made". Reliance is also placed on the case titled as Mirza Zafar Ali and others v. Lahore Cantonment Cooperative Housing Society Limited (2005 SCMR 985). In another case titled as Member, Board of Revenue, Punjab, Lahore v. Rafaqat Ali (1998 SCMR 2596) the Hon'ble Supreme Court has held that the Act XIV of 1975 became effective from the 1st day of July 1974, therefore, the status of evacuee property as exist on such date could not be changed after promulgation of said enactment and the Chief Settlement Commissioner was denuded of any authority to make any allotment against unsatisfied pending units. Reliance is also placed on the cases titled as Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others (1997 SCMR 1635) and Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822).

12. When all these illegalities came to the knowledge of the Senior Member, Board of Revenue/Notified Officer, he wrote letter dated 24.11.2006 to the Chief Settlement Commissioner to look into the matter and decide the same. Thereafter, keeping in view the illegalities/fraud found in the order dated 25.02.2006, Member (Judicial-V)/Chief Settlement Commissioner, Board of Revenue, Punjab took cognizance of the matter, passed the impugned order dated 10.01.2009 and after declaring the following allotments as bogus and on the basis of fraud, resumed the land in favour of the state: Name of Village Khata RL-II No. Date of allotment Area allotted K

M Kohar 59 16.02.1972 22-10 -do- 60 08.02.1972 178-08 Ajudhiapur 364 08.02.1972 256-18 -do- -do- 05.02.1972 -do- -do- Nil -- 112-05 Gohawa 37 11.02.1972 272-12 Keer Khurd 77 11.02.1972 66-00 Bhekewal 901 12.02.1972 08-00

13. In view of the aforementioned record, it is established that the petitioner/alleged allottee obtained the alleged allotment/proposal on the basis of fraud and it is settled law that fraud vitiates the most solemn proceedings and any structure so raised on the basis of such fraudulent transaction stood automatically dismantled and any benefit, right or title obtained by committing fraud wears no sanctity in the eyes of law and ill-gotten gain cannot be perpetuated. In a case cited as The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) 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 of judgment (supra) 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 justifiable, as the writ jurisdiction is not to be invoked in aid of injustice." Reliance is also placed on the cases titled as Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993).

14. The alleged allottee obtained allotment of land on the basis of alleged order dated 02.02.1972 passed by the Additional Settlement Commissioner (Lands), Lahore to the extent of 1/4th share of his claim whereas he has not appended the said order with instant petition nor produced before this Court. Further no such order is available on record which means that the alleged order dated 02.02.1972 was not passed by any authority. The alleged allottee filed appeal against the order dated 02.02.1972 before the Additional Commissioner (Lands), Lahore Division. Under the guise of above order dated 02.02.1972, the Additional Commissioner (Lands), Lahore Division, straightway proposed land for adjustment/satisfaction of remaining 3/4th share/claim of the petitioner vide order dated 08.02.1972 without taking into account the factual and legal aspects of the matter. The relevant portion of the aforesaid order dated 08.02.1972 is reproduced as under:

9. The appellant has mentioned that the following Khasra Nos. may be allotted in satisfaction of his claim:- Khasra Nos.119 to 123, 126, 127, 129, 1126/130, 1127/130, 134 to 136, 149 to 155, 158, 159, 164 to 167, 169, 171 to 181, 183 to 186 and 310, 410-min, 411-min, 471-min, 472, 474 measuring about 372 kanals 5 marlas situated in Mozia Ajudhiapur, Tehsil and District Lahore, Khasra Nos.7 to 14, 115, 116, 118, 119, 130 to 133, 138, 141, 148, 149, 151, 82, 84, 86, 91/2, 269 measuring 190 kanals 10 marlas situated in Mozia Kuhar, Tehsil and District Lahore, Khasra Nos.209 to 210, 310, 211, 212, 215, 216 and 86 measuring 61 kanals 16 marlas, situated in Mozia Keer Khurd, Tehsil and Distt. Lahore and Khasra Nos.834 to 839, 843, 765, 766, 799, 782, 783, 786, 787, 821, 826, 827, 829, 830, 811, 812, 814 to 816, 800 to 803, 805, 828, 882 to 884, 885, 889, 887, 888, 890, 862, 868, 848, 849 to 852, 909 to 914, 215 measuring 338 kanals situated in village Gohawa, Tehsil and District Lahore. The land against these Khasra No. shall be proposed on high priority basis to the extent of 3/4th of the total entitlement subject to the condition that this allotment does not impinge upon the right of any other claimant in the locality." (emphasis supplied) It is worth mentioning here that the appellate authority has a jurisdiction only to accept or annul the order of lower authority/forum but in the instant case neither description of claim nor impugned order was mentioned and no detail of any evacuee claim form number, date of filing of the said claim, its verification and all other allied proceedings have been disclosed at any forum. The aforementioned fraudulent proposal in favour of the alleged allottee Mohyuddin Muhammad Khan was challenged by the respondents (Ghulam Rasool etc.) through Mukhbari application on 19.06.1972 with the contention that Mohyuddin Muhammad Khan, fraudulently got verified claim in his name and on the basis of said proposal, he secured allotment of land in different villages. Prima facie order dated 02.02.1972 is non-existent in the official record and all the subsequent proceedings have been conducted on the basis of said non-existent order (dated 02.02.1972), as such, it can conveniently be held that a visible fraud has been committed with the ex-evacuee land.

15. 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 portion of the judgment (supra) is reproduced as under:- "The order dated the 9th of May 1962, was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored." Reliance is also placed on the cases titled as Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Khair Din v. Mst. Salaman and others (PLD 2002 SC 677), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Khadim Hussain v. Abid Hussain and others (PLD 2009 SC 419) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).

16. From the perusal of the aforesaid order, even if it is presumed that the order dated 08.02.1972 was passed by Zaka Ullah Naik, Additional Commissioner, even then he has made only proposal for allotment but never passed any straightway order of allotment in favour of the predecessor in interest of the petitioner, as such, all the subsequent events in respect of mutations/alleged allotments in favour of Mohy-ud-Din, automatically dismantled his claims and if the foundation is non-existent then all superstructures so constructed shall automatically collapse. Reliance is placed on the cases titled as Syed Ansar Raza Zaidi and others v. Chief Settlement Commissioner and others (2007 SCMR 910) and Tufail Muhammad through LRs v. Messrs Siddique Textile Mills Ltd. and others (2009 SCMR 1091)

17. The land in question is an urban evacuee property. The alleged allotments are shown as to have been confirmed in 1972 whereas these were not implemented in the revenue record and the mutations were entered after lapse of three/four years of passing of the alleged order proposing allotment of land. The revenue record appended with this writ petition shows that the allotment was made on the basis of an order dated 10.02.1973 whereas no such order dated 10.02.1973 is available on the record. When the basic order is non-existent then all the subsequent proceedings propounded thereof is devoid of any legal sanctity. Further the Chief Settlement Commissioner vide Notification No.1624/78/855/RL dated 19th June, 1978 decided that any allotment which has not yet been given effect in the revenue record before coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or within one year after passing of allotment order, whichever is later, such allotments may be deemed to have been obtained fraudulently by ante-dating the entries in the register R.L.II and should be considered as can-celled forthwith, after hearing objections, if any, of the so-called allottee. For ready reference, aforesaid notification is reproduced as under:- No.1624/78/855/RL Office of the Member Board of Revenue (Settlement and Rehabilitation Wing) Punjab. Dated Lahore the 19.6.1978. From Mian Waheed-ud-Din Rathoro, Secretary (Rural) (Settlement and Rehab. Wing) Board of Revenue Punjab. To

1. All the wholetime Settlement Commissioners (L) and Addl: Settlement Commissioners (L) Punjab.

2. All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab. Subject: Allotment of resumed land to informers etc. Mr. A.K. Khalid, C.S.C./Member Board of Revenue (S&R) Punjab. MEMORANDUM: The Chief Settlement Commissioner/Member, Board of Revenue (S&R) Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called allottee.

2. The Chief Settlement Commissioner/Member Board of Revenue (S&R) Punjab, has further been pleased to order that all cases where land has been resumed on 'Mukhbari' applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under section 14(1A) of the Displaced Persons (Land Settlement Act, 1958, read with section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

3. You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay. Sd/- SECRETARY RURAL) (SETT: AND REHAB. WING) BOARD OF REVENUE PUNJAB. No.1624/78/855/RL dated 19th June, 1978. A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land) Punjab for information and necessary action. Sd/- SECRETARY RURAL) (SETT: AND REHAB. WING) BOARD OF REVENUE PUNJAB.

18. Keeping in view the aforementioned facts and circumstances of the case, it can conveniently be held that the Chief Settlement Commissioner rightly cancelled the alleged allotments made in favour of Mohyuddin Muhammad Khan being based on fraud and forgery and resumed the land in favour of the State through the impugned order which does not require any interference by this Court.

19. As regard the claim of the petitioners (the subsequent purchasers from Mohyuddin Muhammad Khan) is concerned, they claim to be the subsequent bona fide purchasers and also claim protection of law under section 41 of the Transfer of Property Act, 1882 and suffice it to say that it is settled law that a purchaser is saddled with extraordinary responsibility of taking care and caution and to a deeply scrutinize the genuineness or originality or legality of the title of the vendor before purchasing the land under the principle of caveat emptor subject to the incidence of sections 10 and 11 of Transfer of Property Act, 1882 and any infirmity or deficiency in the title found later shall always travel with the land and purchaser is precluded to subsequently raise plea of protection available under section 41 of the Act ibid rather he has to face the rigors of his own committed negligence for non-conducting a bona fide and reasonable investigation into title of the vendor under the principle of Caveat Emptor. Reliance is placed on the case titled as Muhammad Yamin and others v.. Settlement Commissioner and others (1976 SCMR 489). Since the alleged allotment of Mohyuddin Muhammad Khan has rightly been declared as bogus by Chief Settlement Commissioner, which order is hereby upheld by this Court, whereafter vendees/petitioners have no right, title or interest in the demised premises as they have to soar and sink with the alleged original allottee, as such, it is clear that no protection is available to these petitioners under section 41 of the Act ibid, as settled by Hon'ble Supreme Court of Pakistan in a case titled as Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199) as under:- " Since, an allotment of land is subject to the provision of sections 10 and 11, every purchaser from a allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us." In another case titled as Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), the Hon'ble Apex Court held as under:- "It is important to emphasis that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected." Further reliance is placed on a case titled as Abdul Hamid v. M.B.R. and others (1994 CLC 1160), wherein this Court held as under:- "

4. The learned counsel for the petitioners has contended that all the petitioners are bona fide purchasers for value of the land from the transferee and they are entitled to retain the same. It is not disputed that transfer in favour of Noor Muhammad was found to be fraudulent. Not only that it was further found by the Notified Officer that Noor Muhammad, the real claimant, A was not traceable and some other person had obtained allotment by impersonating him. As the vendor of the petitioners had no right in the land, he could not pass any title to the petitioners and they have no consequently legal right to retain the land (See Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491) and Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027)." This Court in a case titled as Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner (Lands), Lahore Division and another (2002 YLR 3268) has observed that "since an allotment of land is subject to the provision or sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of bona fide purchaser as envisaged in section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. In another case titled as Rasheed Ahmad and 2 others v. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala and others (2007 CLC 1801) the learned Division Bench of this Court held as under:- "

8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under section 41 of the Transfer of Property Act. We respectfully follow the above view."

20. The Chief Settlement Commissioner, after minutely perusing the record and hearing the parties, rightly passed the impugned order which does not require any interference. 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. 21 In view of above, these writ petitions are hereby dismissed being devoid of any merit. MH/M-163/L Petition dismissed.