GHULAM FATIMA Versus ADDITIONAL COMMISSIONER (REVENUE)
By this order I propose to dispose of W.Ps. Nos. 17‑R/86, 18‑R/86, 92‑R/86 and 101‑R/86 as common questions of law and facts are involved therein.
Writ Petition Nos. 17‑R and 18‑R of 1986 .
2. On 30‑6‑1964, Muhammad Sharif respondent No.2, was allotted land measuring 257 Kanals 7 Marlas whereas Muhammad Ibrahim respondent No.2, in the connected petition was allotted land measuring 317 Kanals 6 Marlas, situated in village Munawarpur, District Sialkot, by Ch. Islam‑ud‑Din, Deputy Settlement Commissioner (Lands), Sialkot. Mst. Ghulam Fatima petitioner herein, purchased the same from them. The sale thereof was given effect to in the revenue record through Mutations Nos. 317 and 316, respectively on 15‑2‑1966.
Writ Petition Nos. 92‑R and 101 of 1986 .
3. Muhammad Shafi and three others (respondents Nos. 2 to 5 in W.P. No. 92‑R of 1986) and Bashir Ahmad (respondent No.2 in W.P. No. 101‑R of 1986) refugees from Jammu and Kashmir got allotted against their verified claims at Khata No.144 of R.L.II, land measuring 120 Kanals 4 Marlas in village Chaprar Khan, District Sialkot and at Khata No.9 land measuring 26 Kanals 16 Marlas situated in village Sargpur, District Sialkot respectively. Sh. Abdul Latif petitioner in W.P. No. 92‑R of 1986 purchased land allotted to respondents Nos. 2 to 5 through Mutation No.1190 whereas Muhammad Ali and other petitioners in W.P. No. 101‑R of 1986 on 27‑9‑1981 through registered sale‑deed purchased land from Bashir Ahmad.
The land purchased by Ms. Ghulam Fatima and Sh. Abdul Latif was acquired by WAPDA for construction of Marala Barrage and its compensation amounting to Rs.19,441 and Rs.14,500 respectively was paid to them. The land purchased by Muhammad Ali etc. was not acquired and is in their possession eversince the same was allotted to Bashir Ahmad.
On 16‑8‑1969, the Additional Settlement Commissioner, Sialkot without associating the allottees/vendees cancelled the afore‑mentioned allotments of land. The allottees challenged that order through Settlement Revisions Nos. 207, 211, 204 and 190 of 1969 before this Court but the same were dismissed on 8‑7‑1970. Thereafter, they preferred appeals against orders of this Court before the Supreme Court, which were allowed on 5‑5‑1981 and the cases were remanded to the Authorised Officer designated as such, under the evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 for disposing of the same afresh according to law.
The relevant observation made by the Supreme Court in the aforesaid order is as follows:‑
"As there is a deprivation of vested right following the finding of fraud or false representation which is essentially one of fact, it can hardly be denied that such a finding cannot be reached without an inquiry in which there is full participation of the affected allottees. This necessarily means that he is allowed full opportunity to rebut the material collected against him and to lead his own evidence to negate the allegations of fraud or false representation. This requirement should, therefore, be deemed to be embedded in the provision and if an authority is needed, it will be' found in the cases of Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalnagar and others P L D 1964 SC 461 and Province of East Pakistan and another v. Nur Ahmad and another P L D 1964 SC 451."
It was further observed:‑
"Here what was required by the provision was that he should have been satisfied that the allotments had been obtained by means of fraud or false representation and this could not be achieved without holding an inquiry from which facts should have elicited which could satisfy his mind to hold so.
Accordingly we are satisfied that the cases of the appellants require re‑examination considering the manner in which the impugned orders had been passed."
On remand the cases were entrusted to the Additional Commissioner (Revenue) with powers of the Settlement Commissioner, Gujranwala, who vide order, dated 13‑11‑1985 cancelled the allotments of land by declaring them to be void. He further made observation in the impugned order to the effect that the amount of compensation paid to the allottees/transferees of the land be recovered from them. Hence these petitions.
4. Learned counsel for petitioners contended that the Settlement Commissioner held no independent inquiry nor summoned Mr. Islamuddin, Deputy Settlement Commissioner to verify, whether the allotments of the land in question made by him were genuine, despite a specific request made in this behalf by the petitioners. It was also submitted that no objection was ever raised regarding the validity of the claims against which the land in dispute was allotted. Learned counsel referred to the statement of Mr. Islamuddin recorded pursuant to proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, wherein he deposed that the allotments of the lands in question made by him were valid. It was argued that the learned Settlement Commissioner repeated the objections, raised about the validity of the allotments of the land in question by the Additional Settlement Commissioner in his order, dated 16‑8‑1969 which stood already set aside by the Supreme Court. It was thus contended that a period of over three decades had elapsed when some of the petitioners had received paltry amount of compensation in lieu of the land acquired by WAPDA. It was also submitted that the respondent in exercise of his purported jurisdiction under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 had no valid authority to direct recovery of the compensation paid by the WAPDA to the allottees/vendees. Even otherwise, it will be a matter of hardship, if the same is recovered at this stage for legally untenable reasons. It was lastly contended that the impugned order is in violation of the mandate of the Supreme Court.
5. Ch. Muhammad Nazir Ahmad, Advocate, representing the Settlement Department was unable to support the impugned order. He had to concede that no independent inquiry was conducted by the Settlement Commissioner nor Mr. Islamuddin, Deputy Settlement Commissioner, who was an important witness was summoned to verify, whether the allotments of the lands in question made in favour of the allottees were genuine. He also could not deny the factum of the acquisition of the land by WAPDA and compensation thereof received by the allottees/transferees.
6. I have considered the contentions raised by learned counsel for the parties. Undoubtedly the Settlement Commissioner on remand did not hold inquiry to verify whether the allotments of the land in question, were procured fraudulently by the allottees and in this way, acted contrary to the mandate of the Supreme Court, whereby he was directed to do so. He also did not appreciate the statement made by Mr. Islamuddin, Deputy Settlement Commissioner, in proceedings before the Additional Settlement Commissioner, to the effect, that the allotments in question, made by him were genuine and that the claims were validly transferred to the estate by him. He brushed aside his statement merely because the proceedings in which he made the statement were manoeuvred by the allottees/vendees after the allotments in question, stood already cancelled. He made reference to no documents, from the record, on the basis whereof, he made such observation in the impugned order.
It is also noteworthy that Muhammad Shaft etc. respondents in W.P. No. 92/R of 1986 and Bashir Ahmad respondent in W.P. No. 101/R of 1986 being refugees from Jammu and Kashmir State, were A allotted land in dispute against their verified claims in 1964, the allotments could not have been cancelled in 1969 as the lands had already gone out of the compensation pool. The Settlement Commissioner did not advert to this aspect of the case. As aforesaid the land allotted to Muhammad Shafi etc. was purchased by Sh. Abdul Latif and had been acquired by WAPDA whereas the land allotted to Bashir Ahmad was purchased by Muhammad Ali and another in 1981. The vendees of land allotted to Jammu and Kashmir refugees, therefore, were equally protected particularly when no challenge was thrown to the validity of the claims against which the allotments were made by the Deputy Settlement Commissioner. The entries in the revenue record and the uncontroverted contention advanced by learned counsel for petitioners, the land purchased by Muhammad Ali and another was never acquired by WAPDA, nevertheless, in the impugned order, the same was shown to have been acquired and a direction thus made for recovery of the compensation from the allot tees/transferees. This indicates that the Settlement Commissioner did not apply his mind to the documents on record and passed the impugned order in haste.
Ordinarily, I would have remitted these cases to the Settlement Commissioner, for fresh decision, but I have not adopted that course, primarily for the reason that most of the land had since been acquired for construction of Marala Barrage and is no more with the allottees/ vendees as also, to save the parties from third round of litigation.
For the distinguishable features of these cases, highlighted above, in my view, it would not only be a futile exercise but a matter of hardship for the petitioners if these cases are remanded for further probe as to whether the allotments obtained in 1964 were fraudulent or otherwise. Accordingly, I declare the impugned order, qua the petitioners, having been passed, without lawful authority and of no legal effect. In the result, these petitions are allowed with no order as to costs.
H . B . T . / G‑127/ L Petitions allowed