FATEH ALI Versus BORDER AREA COMMITTEE , Ch. Muhammad Nasir Ahmed

This judgment shall dispose of two writ petitions, viz. Writ Petition No. 118‑R of 1982 titled Ch. Fateh Ali v. Border Area Committee and another and Writ Petition No. 9‑R of 1982, titled Lt.‑Col. (Rtd.) Rehmat Ali v. Lt.‑Col. Abdul Jalil, Chairman, Border Area Allotment Committee and two others. In these two cross‑cases the dispute pertains to 144 Kanals and 13 Marlas of land situate at village Jamman Chandowal, Tehsil Narowal, District Sialkot, which has been allotted by the Border Area Committee to Lt‑Col. (Rtd.) Rehmat Ali on 21‑10‑1981. Ch. Fateh Ali son of Ali Gohar petitioner in Writ Petition No. 118/R of 1982 was in all allotted land equivalent to 1287 produce index units measuring 28 Acres and 3 Kanals in village Jamman Chandowal aforementioned, on 31‑8‑1952, as transpires from the contents of Annexure 'A' (copy. of R.L. II). Obviously, Martial Law Regulation 9 had not yet come into force. Nevertheless, after the coming into force of the said Regulation, as per entries of Annexure 'A', allotment in favour of Fateh Ali was scrutinized by the Border Area Committee on three occasions i.e. on 13‑6‑1960, 28‑10‑1961 and 9‑2‑1966. On all these occasions allotment of land in favour of Fateh Ali was confirmed. Rather on the last occasion, i.e. 9‑2‑1966 he was allotted some more area to make up the deficiency qua his claim, since after allotment of the land in favour of Fateh Ali in 1952, he continuously remained in possession of the land so allotted to him. Out of this land he also disposed of some land in favour of certain vendees. It has been alleged in Writ Petition No. 118‑R of 1982, that on 11‑11‑1981 Lt.‑Col. (Rtd.) Rehmat Ali alongwith police party came to the spot and wanted to dispossess the petitioner from 144 Kanals and 13 Marlas of land claiming that the same has been allotted to him. On that day, the petitioner learnt about the allotment in favour of Lt.‑Col. (Rtd). Rehmat Ali, On enquiry it transpired to him that vide order purporting to be dated 8‑10‑1970 land measuring 144 Kanals and 13 Marlas has been cancelled from his name by the Border Area Committee and subsequently on 21‑10‑1981, it has been allotted to Lt.‑Col. (Rtd.)Rehmat Ali, Fateh Ali filed a civil suit and obtained a stay order from the learned civil Court whereby status quo was ordered to be maintained.

Fateh Ali then submitted an application before the Border Area Committee contending that factually no order cancelling the land from his name has been made on 8‑10‑1970 and that thus ‑no land forming part of his allotment could be treated as having become available since 8‑10‑1970 and hence it could not be allotted to Lt‑Co'. Rtd. Rehmat Ali in October 1981. Fateh Ali thus requested the Border Area Committee to recall the order, dated 21‑10‑1981, whereby the land was allotted to Lt.‑Col. Rtd. Rehmat Ali.

After entertaining the application filed by 'Fateh Ali, the Border Area Committee initiated proceedings in regard to that application. Lt.‑Col. Rtd. Rehmat Ali thereafter filed Writ Petition No. 9‑R of 1982, whereby he sought issuance of direction against the Border Area Committee that it should not proceed with the review petition filed by Fateh Ali and that the said application should be dismissed by the Border Area Committee. As an interim relief it was prayed that during the pendency of the writ petition, the Border Area Committee should not take any action in the matter. In regard to interim relief it was directed on 6‑1‑1982, that the Border Area Committee may continue with its proceedings but no final order would be passed till the disposal of the writ petition.

2. Soon thereafter, Fateh Ali filed Writ Petition No. 118‑R of 1982, whereby it has been prayed that order, dated 21‑10‑1981, allotting land in dispute in favour of Lt‑Col. Rtd. Rehmat Ali may be declared as without lawful authority and that it be further declared that Fateh Ali was the owner of the entire land which was allotted in his name in 1952 Lt.‑Col. Rtd. Rehmat Ali mainly based his writ petition on the contention that no power of review vested in the Border Area Committee and that after the suit land having been allotted by the said Committee to him it was left with no jurisdiction to review its order of allotment. Fateh Ali conversely urged in his writ petition that order purporting to be dated 8‑10‑1970, cancelling

144 Kanals and 13 Marlas of land from his name was actually never passed. The Border Area Committee wrongfully acted upon an uncertified copy of that order which appeared to have been certified by Shams‑ud‑Din, Patwari as true copy of the original. It has been contended that in fact, order dated 8‑10‑1970 has no existence and, therefore, allotment of suit land in favour of Lt.‑Col. Rtd. Rehmat Ali could not lawfully be made on 21‑10‑1981 even without affording an opportunity of show cause to Fateh Ali who was already in possession of the said land as owner.

3. Since the main controversy between the parties was that if actually land measuring 144 Kanals and 13 Marlas was cancelled from the name of Fateh Ali on 8‑10‑1970 and that whether the order dated 8‑10‑1970 was genuinely and actually passed by the Border Area Committee, vide order dated 6‑1‑1982 passed in Writ Petition No. 9‑R of 1982 and orders dated 22‑3‑1982 and 16‑10‑1982, passed in Writ Petition No. 118‑R of 1982, it was desired that the Border Area Committee can best answer the question that whether an order cancelling the land from the name of Fateh Ali was factually passed or not, by the Border Area Committee on 8‑10‑1970. The Border Area Committee enquired into this limited question referred to it by this Court and ultimately submitted its report, dated 18‑4‑1982, whereby it has been reported that the order, dated 8‑10‑1970, alongwith its file was not available in the record of Border Area Committee and that its entries are also not available in the registers which are available with the Committee. It has, however, been observed in the report:

"Possibility of this order either being misplaced or destroyed cannot be ruled out, conversely, the record of such an order may have been destroyed or taken away altogether by some interested party."

In its report the Border Area Committee conceded that the Committee while allotting land to Lt‑Col. Rtd. Rehmat Ali acted upon a copy which purported to have been signed by Shams Din, Patwari as true copy in 1972. The Committee in its report concluded:‑

" ..but BAC is not in a position to give clear cut findings whether this order was passed or not, as the BAC is not allowed to examine the record and go into the question of issuance of two entitlements and the allotments in the name of Fateh Ali son of Gohar Ali."

The record on which the Committee based its aforementioned report has also been requisitioned in this Court.

4. On behalf of Fateh Ali petitioner in Writ Petition No. 118‑R of 1982, it has been urged that:‑

(1) the order, dated 8‑10‑1970 has no physical existence. It has in fact been fabricated by some agency outside the Border Area Committee who may be interested for personal reasons;

(2) there is no evidence to suggest that any proceedings were ever initiated culminating into the order, dated 8‑10‑1970;

(3) the petitioner Fateh Ali even after 8‑10‑1970 till today continues to be shown as owner of the land in dispute in the record of rights, as transpires from the contents of Annexures 'B', 'B/1' and 'B/2' for the year 1979‑80. He has also been shown to be in continuous possession of the said land as appears from the contents of Khasra Girdawari entries for Kharif 80 to Kharif 81 viz. Annexure 'B/3';

(4) it has been admitted by the Border Area Committee in its report that in the relevant register there is no entry to the effect that ‑ any intimation regarding the cancellation of land on 8‑10‑1970. from the name of Fateh Ali was sent to the G. H. Q.

(5) there is nothing on the record to show that any intimitation in this behalf was sent to the Collector, A. C. or other revenue officials;

(6) no certified copy of the order, dated 8‑10‑1970 has been placed on the record. A copy which purports to have been certified by Shams Din, Patwari in 1972 has been acted upon by the Committee. The order purports to be in English while Shams Din, Patwari has certified in Urdu. NAKL MUTABIK ASL HAI This copy which was allegedly so certified by Shams Din, Patwari in 1972 has been utilized by Lt.‑Col. Rtd. Rehmat Ali in 1981;

(7) Shams' Din, Patwari after the registration of a criminal case against him and others made a statement before a Magistrate (Annexure 'I') under section 164, Cr.P.C. wherein he stated that he never came across order, dated 8‑10‑1970, but under coercion by Nazar Hussain and others he recorded on a copy that it was true copy of the original; and

(8) the alleged cancellation of land from the name of Fateh Ali has not been incorporated in. R.. L. II Register.

5. On behalf of Lt.‑Col. Rtd. Rehmat Ali it has been urged that the order, dated 8‑10‑1970 is not in the air only. As a matter of fact, Fateh Ali obtained land in excess of his entitlement. There were two sons of Ali Gohar with the name of Fateh Ali from different wives. His brother got allotted land in Jaranwala Tehsil but Fateh Ali son of Ali Gohar defrauded the Rehabilitation Authorities and got allotted the entire land in his own name in village Jamman Chandowal. When this excess allotment came to the notice of the Border Area Committee it cancelled the land in dispute. In this behalf reliance has been placed on the statements of Muhammad Bashir and Ch. Nasrullah Naib‑Tehsildar of the office of C.R.0., who disclosed about the total entitlement of sons of Ali Gohar and one of them having got allotted land in Jaranwala Tehsil. Statements made by Nazar Hussain, Patwari and some other revenue officials have also been referred to, who appeared before the Border Area Committee and stated about the cancellation of land from the .name of Fateh Ali. It has also been urged that after making statement under section 164, Cr.P.C. Shams Din, Patwari has again sworn an affidavit that the said statement was made by him under duress and that, in fact, he genuinely certified in 1972 that the order, dated 8‑10‑1970 which was produced by Lt.‑Col. Rtd. Rehmat Ali before the Border Area Committee was true copy of the original. Reference on behalf of Lt.‑Col. Rtd. Rehmat Ali has also been invited to statement of one Muhammad Bashir, clerk of late Abdul Hamid, Advocate, who stated that, in fact, late Abdul Hamid, Advocate obtained the copy of the order in 1972 through him as he wanted to get the cancelled land allotted. He also disclosed that at the behest of late Abdul Hamid the land in dispute was cancelled from the name of Fateh Ali by the Border Area Committee, through order, dated 8‑10‑1970. Reliance on behalf of Lt.‑Col. Rtd. Rehmat Ali has also been placed on the contents of report No.112 of Roznamcha Waqiati, dated 11‑11‑1970 and report No. 232 of Roznamcha Waqiati, dated 28‑2‑1971. It is alleged that there is some indirect reference to the cancellation of land from the name of Fateh Ali in these reports.

It has further been contended on behalf of Lt.‑Col. Rtd. Rehmat Ali that Fateh Ali defrauded the Rehabilitation Department and the Border Area Committee by obtaining allotment of land much in excess of his entitlement. He has, therefore, not come to the Court with clean hands and is thus not entitled to any relief in exercise of writ jurisdiction. In support of this contention reliance has been placed on Kanwar Muhammad Mehboob Ahmad Khan and others v. Ahmad v. Ahmad and others 1987 S C M R 750, Muhammad Hussain v. Sheikh Muhammad Tufail and others 1981 S C M R 677 and Haji Muhammad Usman v. Yousuf Ali Muhammad Bhai 1986 C L C 380.

It has also been urged that Fateh Ali is not an aggrieved person, because land only in excess of his entitlement has been cancelled. He is, therefore, not entitled to any relief in writ jurisdiction. Reliance has been placed on Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income‑tax, Lahore Range, Lahore, and 7 others P L D 1978 SC 151. It has been pleaded that, as a matter of fact, the cause of justice could not be served by issuing the writ in favour of Fateh Ali as he obtained the land in excess of his entitlement which he is selling and eating away. He cannot and should not be allowed to retain ill‑gotten gains. Reference in this behalf has been made to Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 SC 413, Muhammad Siddique v. Mst. Hawabai and 5 others 1986 C L C 54, Noor Ahmad v. Chief Settlement and Rehabilitation Commissioner and others 1975 S C M R 529. Sved Mukhtar Hussain and 2 others v. Punjab Labour Appellate Tribunal and another P L D 1979 Lah. 748 and Syed Abdullah Shah and 3 others v. Abdul Ghaffar Khan and 2 others P L D 1985 Quetta 152.

It has also been maintained on behalf of Lt.‑Col. Rtd. Rehmat Ali that through his writ petition, Fateh Ali has sought relief against the allotment of land to Lt.‑Col. Rtd. Rehmat Ali, but he has not said a word about the order of Border Area Committee, dated 8‑10‑1970 in his relief, the High Court has no suo motu power to grant it which has not been prayed for. To support this contention Akhtar Abbas and others v. Nayyar Hussain 1982 S C M R 549, Haji Muhammad Sadiq and others v. Khairati 1984 C L C 2238, Ghulam Nabi aad another v. Khairat and others 1984 C L C 2145 and Mst. Nuseeran v. Additional District Judge P L D 1985 Kar. 335 have been cited.

It has also been urged that Fateh Ali filed a civil suit and obtained a stay order. He cannot, therefore, invoke the writ jurisdiction of this Court after having gone to the civil Court. Reliance has been placed on Hassan Din Chishti v. Chief Engineer WAPDA 1970 S C M R 58 Haji Dossa Limited and others v. The Federal Government of Pakistan and another 1986 C L C 1193, Muhammad Zahoor and another v. Lal Muhammad and 2 others 1984 S C M R 1284, Muhammad Sharif and another v. District Judge, Sahiwal and others P L D 1981 SC 571 and Muhammad Hussain v. Registrar of District Gujranwala and 2 others P L D 1982 Lah. 163.

6. The contentions raised on behalf of Fateh Ali and also on behalf of Lt.‑Col. Rtd. Rehmat Ali have been thoroughly considered and fully analysed. The learned counsel for the Border Area Committee has also been heard. Obviously, this Court in exercise of writ jurisdiction cannot enter into realm of facts. It cannot, therefore, enter into enquiry and record a positive finding about the genuineness or otherwise of the order, dated 8‑10‑1970. It has, however, come on record that the order, dated 8‑10‑1970 is not available in original with the Border Area Committee. There is neither any entry in any record of the Border Area Committee to suggest that this order was ever made. A copy of this order which purports to have been attested by Shams Din, Patwari in 1972 .has been utilized by Lt.‑Col. Rtd. Rehmat Ali in 1981, when land has been allotted to him at the back of Fateh Ali. The Border Area Committee in its report has expressed doubt that may be some interested party has taken away the order and its record after taking into consideration the statements of Shams Din and Nazar Hussain Patwaris. Shams Din, Patwari has made contradictory statement in this behalf. Before the Magistrate he stated that actually his signatures were obtained under coercion about the correctness of the copy. Subsequently he stated that he genuinely certified the copy. Nazar Hussain deposed about reports of Roznamcha Waqiati, but he admitted that uptil now he and other Patwaris have recorded Fateh Ali to be the owner in possession of the land in dispute.

Regarding the fact that Fateh Ali has obtained land in excess of his entitlement, it may be observed that such a finding can only be recorded by a competent authority after affording an opportunity of show cause to Fateh Ali, but there is nothing on the record to suggest that this has ever happened. It cannot, therefore, be said that he fraudulently obtained the allotment of land in excess of his entitlement or that he has not come to the Court with clean hands. In this view of the matter, the authorities relied upon by the learned) counsel for Lt.‑Col. Rtd. Rehmat Ali are not attracted to the facts of this case.

Regarding the plea that after once having recourse to the civil Court, Fateh Ali could not legally invoke the writ jurisdiction of this Court, it may be observed that it has already come on record that after filing an application before the Border Area Committee that it should recall its order of making allotment of suit land to Lt.‑Col. Rtd. Rehmat Ali, Fateh Ali withdrew his suit filed by him before the civil Court and thus when he filed Writ Petition No. 118‑R of 1982 his suit was not pending before the civil Court. In these circumstances, there was no legal bar to the filing of the writ petition by him.

This is true that in Writ Petition No. 118‑R of 1982, Fateh Ali has challenged the allotment of the land in dispute in favour of Lt.‑Col. Rtd. Rehmat Ali and has not directly sought any relief regarding order, dated 8‑10‑1970, but the fact remains that his writ petition is based on the contention that the order, dated 8‑10‑1970 has no factual existence. It was never passed. On the basis of the fabricated copy of the order, in 1981, Lt.‑Col. Rtd. Rehmat Ali obtained the allotment of the suit land. By no stretch of imagination land once allotted to a person can be re‑allotted to another person unless the allotment already made in favour of the first allottee is lawfully cancelled. To determine the validity or otherwise of the allotment made in favour of Lt.‑Col. Rtd. Rehmat Ali, it is, therefore, essential to find out that if the allotment of land in dispute from the name of Fateh Ali wad, in fact, cancelled, vide order which purports to be dated 8‑10‑1970.

As already observed that this Court cannot enter into realm of facts, because it is for the Border Area Committee to come to the positive conclusion that if actually the land in dispute which stood allotted to Fateh Ali was, in fact, cancelled from his name in accordance with law on 8‑10‑1970. It has also been noticed that the Border Area Committee has mentioned in its report that since the Committee could not examine the entire record as the same was with the Special Judge, Anti‑Corruption and, therefore, it could not record a positive finding. It has further been noticed that the army as also civilian members of the Border Area Committee in existence in October, 19701 are luckily alive and their attendance can be procured without undue, delay and expense but they have not been examined by the Border Area Committee to ascertain from them that if actually they passed the order, dated 8‑10‑1970 cancelling allotment of the land in dispute from the name of Fateh Ali.

7. In the light of what has been discussed above, Writ Petition. No. 118‑R of 1982 is partly allowed and the case is remanded to the Border Area Committee with the direction that after further enquiry the Committee should record a positive finding about the factual existence of the order, dated 8‑10‑1970 and thereafter consider the claim of Lt.‑Col. Rtd. Rehmat Ali for the allotment of land in dispute in his favour. Consequently, Writ Petition No. 9‑R of 1982, filed by Lt.‑Col. Rtd. Rehmat Ali is dismissed. There shall be no order as to costs in both the cases.

M. Y. H. /F‑73/L Case remanded.