SYED AHMAD HUSSAIN SHAH (DECEASED) THROUGH LEGAL HEIRS Versus MIAN MA. RAZZA
The dispute, in this fiercely contested Constitution petition pertains to evacuee agricultural land measuring 570 Kanals 4 Marlas situated in Revenue Estate Raja, Tehsil and District Gujranwala and is between Syed Ahmad Hussain Shah/vendee, herein petitioner, from the original allottee Muhammad Din and Abdul Waheed Khan etc. herein respondents Nos.7 to 13 who are purchasers from Muhammad Mian, Fatima Begum and Fakhar Din, herein respondents Nos.3 to 6/informers.
2. The facts, briefly stated, giving rise` to this petition are: that one Muhammad Din respondent No.14 came to Pakistan as displaced person from the occupied State of Jammu and Kashmir and secured allotment of disputed land in lieu of his verified Claim Form No.14MI/56, by means of RL‑11 No.100 on 31‑7‑1962. The said allottee, thereafter' made the sale of land in dispute to the petitioner for a sum of Rs.9,000 by means of an oral transaction which was incorporated in mutation register and attested on 9‑9‑1962. This happened vide Mutation No.320. On 18‑1‑1974 about 13 persons including respondents Nos.3 to 6 filed an application under section 10/11 of Displaced Persons (Land Settlement) Act No.XLVII of 1958 (hereinafter shortly stated as Act) before the Addl. Settlement Commissioner, Gujranwala as delegatee of the Chief Settlement Commissioner, under section 10/11 of the Act. It was complained therein that Muhammad Din had secured allotment of land in dispute by practising fraud on the Settlement authorities. It was consequentially prayed that the allotment be cancelled and the land so resumed be allotted to the applicants. It seems necessary, at this stage, to note that another application by 200 persons was lodged before the same authority on 29‑3‑1974. Respondents Nos. 3 to 6 were applicants alongwith other persons in the said application too. Both of these applications were kept in cold storage by respondent No.1 without any further proceedings till 4‑7‑1978 when respondents Nos.3 to 6 submitted an application to respondent No.1, complaining therein that their information was not being attended to. It was prayed that these applications be separated and proceeding be commenced. In consequence of this application respondent No.1 separated the application of respondents Nos. 3 to 6 and started proceedings in order to inquire as to whether the allotment secured by Muhammad Din was fraudulent or not. After the inquiry, the learned Settlement Commissioner came to the conclusion that the allotment secured by Muhammad Din was without any valid entitlement. On this conclusion he accepted the application lodged by respondents Nos.3 to 6, cancelled the allotment in favour of said Muhammad Din and resumed the land in dispute. Resultantly, thereafter the land in dispute was allotted to respondents Nos.3 to 6 who spared no time to transfer the same in favour of respondents Nos.7 to 13. Feeling dissatisfied with the above order, the petitioner has filed the instant Constitution petition seeking declaration to the effect that the impugned order is without jurisdiction and without lawful authority.
3. That the narration of the case will not be complete without recording that the instant petition came up for hearing before me on 21‑7‑1991. After hearing the parties I accepted the petition by holding that the application filed by respondents Nos.3 to 6 was lodged after the Ist July, 1974 as prescribed in Evacuee Property and Displaced Persons Laws (Repeal) Act NOXIV of 1975 (hereinafter shortly stated as Act XIV of 1975), and therefore, could not be entertained by the Addl. Settlement Commissioner, Gujranwala. On this view, the proceedings from commencement to finish were declared to have been carried out without jurisdiction and were accordingly set aside. On 28‑7‑1991 C.M. No.267 of 1991, was instituted by respondents Nos.7 to 13 through their learned counsel Ch. Hamid‑ud‑Din, Advocate alleging therein that respondents Nos.7 to 13 were vendees from the informers/allottees, and were necessary parties; that their learned counsel was not present at the time of hearing and his presence was not correctly recorded; that Syed Jamshed Ali, Advocate, who was marked present on behalf of respondents Nos.7 to 13 was also not in attendance. Upon these facts, the recall of the order, dated 21‑7‑1991 was prayed for and rehearing, of the Constitution petition was asked. The learned counsel for the petitioner did not contest this position (most presumably in spirit of grace). Resultantly with concurrence of learned counsel for the parties, the order of this Court, dated 21‑7‑1991 was recalled and the case was set down for hearing on 29‑7‑1992, on which date the learned counsel for the parties addressed their arguments. The arguments advanced by the learned counsel for the petitioner can be conveniently summarised as below:
Firstly; that respondents Nos.3 to 6 had submitted an antedated application after the crucial date as prescribed in Act XIV of 1975 in collaboration with Mian MA. Raza, Settlement Commissioner (Land), Lahore/respondent No.1. On the strength of this argument it was contended that the proceedings `from inception to finish were wholly without jurisdiction and the impugned order merited to be struck down.
Secondly; that the petitioner was neither impleaded as party in the petition nor was served with any notice. According to the learned counsel, the impugned order was passed without affording opportunity of hearing to the petitioner. Therefore the same was coram non judice being in violation of principle of natural justice that "nobody should be condemned unheard" embodied in section 11 of the Act.
Thirdly; that the allegations embodied in paras.7 and 13(a) were admitted in parawise comments furnished by the Secretary to the Board of Revenue on behalf of respondents Nos.1 and 2. On this ground it was claimed that the Court had no reason to ignore the aforesaid concessional parawise comments submitted on behalf of respondent Nos.1 and 2. Reliance was placed on Muhammad Siddique v. Settlement Commissioner etc. 1983 CLC 2550; Jamadar Khan Bahadur and others v. Saeed Ahmad and others 1990 SCMR 201(2); Hayat and others v. Amir PLD 1982 SC 167; Zohra Bibi and 6 others v. Additional Settlement Commissioner, Sheikhupura and 3 others 1983 CLC 768; Noor Muhammad v. Addl. Commissioner and others 1983 CLC 2531; Abdul Rab and others v. Addl. Settlement Commissioner/A.D.C.(G), Multan and others 1983 SCMR 1090 and Tharaj v. Addl. Settlement Commissioner 1985 CLC 1871.
4. On the contrary the learned counsel appearing on behalf of respondents Nos.7 to 13 supported the impugned order by raising following points:
(i) That parawise comments submitted by the Secretary to the Board of Revenue on behalf of respondents Nos.1 and 2, according to the learned counsel, were clearly erroneous and aimed to mislead the Court. According to the learned counsel, this statement was contrary to the facts which were: that two applications under section 10/11 of the Act, dated 29‑3‑1974 and 18‑1‑1974, were submitted. The application, dated 29‑3‑1974 was by 200 persons including respondents Nos.3 to 6 while application, dated 18‑1‑1974 was by number of persons including respondents Nos.3 to 6. The application, dated 18‑1‑1974 was separated, due notice was sent to the petitioner as well as to Muhammad Din who appeared before respondent No.1 and participated in the proceedings from beginning. to end.. The learned counsel stated that this was borne out by the impugned order. This being factual finding was not open to interference in Constitutional jurisdiction. Furthermore, the petitioner who was vendee from respondent Muhammad Din has no locus standi to challenge the impugned order.
(ii) That the concessional statement made by the representative of the Settlement Department in this Court on 20‑5‑1987 was also erroneous and aimed to mislead the Court. Elaborating further, it was submitted that the representative of the Department gave number of the QPR as 21947 which did not tally with the number of claim given in RL‑II. This circumstance, according to the learned counsel, belied the statement of representative of the Settlement Department. Seen from this prospective it was asserted that the statement of the representative of the Settlement Department was valueless.
(iii) That the learned counsel maintained that the impugned order was just and rendered after taking into consideration the whole facts of the case. According to him, Muhammad Din/original allottees had exploited his verified claim and secured allotment in three different revenue‑estates, namely, some unknown estate in Sialkot, then in Mauza Raja and Mauza Kollie. From the aforesaid events it was clear that the allotments secured by Muhammad Din were simply fraudulent. Such allotment despite the promulgation of Act XIV of 1975 were not immune from cancellation. Reliance was placed on S.K. Masood and 3 others v. Special Committee and others 199() CLC 1174; Muhammad Baran and others v. Member (S&R), Board of Revenue, Punjab and others PLD 1991 SC 691 and Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1.
Lastly it was stressed that Muhammad Din, original allottee had not assailed the validity. of the impugned decision. So petitioner/vendee has no locus standi to file this Constitution petition. Strength was sought from the judgment of the Supreme Court in CA. No.719/90.
5. The :learned counsel for respondents Nos.1 and 2 stated that he had instructions from his clients to own the parawise comments furnished by the Secretary to the Board of Revenue, Punjab, Lahore.
6. From the above narration of facts, circumstances of the case and the points urged by the learned counsel for the parties, the questions emerging for consideration are:
(1) Whether the application filed by respondents Nos. 3 to 6 dated 18‑1‑1974 was ante‑dated and manipulated into the record in collaboration of Mian MA. Raza, respondent No.1, and so the proceedings from commencement to‑finish by him were wholly without jurisdiction.
(2) Whether the impugned order was just, fair and merited to be maintained despite the advent of Act XIV of 1975.
(3) Whether the petitioner/vendee had locus standi to file the instant Constitution petition:
6A. After hearing the learned counsel for the parties at considerable length and having gone through the record of the case, I am not persuaded to take a different view from the one I had taken in my order passed on 21‑7‑1991. In the said order I had found that the application, dated 18‑1‑1974 was in fact manipulated in record as a result of collusion between respondents Nos.3 to 6 and respondent No.1. The view was based upon the parawise comments furnished by the Secretary to the Board of Revenue, Punjab, Settlement Wing. From the perusal of this report it becomes evident that respondents Nos.] and 2 had admitted the allegations contained in para. 5, 6, 10, 11 and 13(a). It will he useful to reproduce para. 13(a) of the petition and its reply in parawise comments as follows:
Para No. 13(a) of W.P.Para 13(a) of Parawise Comments.(13) . . . . . . . . .(13) Legal.(a) That the alleged Mukhbari application filed by Bagh Ali son of Mara through Sarwar son of Bagh Ali resident of Ghulamwala, Tehsil and District Gujranwala was directed against the allottee Akbar Ali son of Bahadur Ali Khan. This alleged application was forged and replaced by another by interpolating the names of more than 200 persons as applicants and more than two hundred persons as respondents. This was done long after the repeal of the Evacuee Laws with a view to fraudulently involve the petitioner as well as hundreds of other innocent allottees and purchasers to snatch their valuable land. The application Annexure `E' has been apparently separated from that forged. application of Bagh Ali v. Akbar Ali which is the basis of proceedings, against the petitioner. There being no validly , pending application and. proceedings on the day the Repeal Act came into force, the proceedings conducted by respondent No.1 are without jurisdiction and nullity.(a) The contention appears to be correct. The original mukhbari application on the basis of which this file was constructed is apparently a doubtful one."
7. The question for decision is that what is the value of this admission by I the Secretary to the Board of Revenue. It is settled position of law that admission by the official of the Government is binding on the Government when it is made by such official in discharge of his official duties and the Court is entitled to render a decision on the basis of such admission under Rule 6 of' Order XII, C.P.C., if the. same is clear, unambiguous and is beyond doubt. It is true that the Court might dispense with the admission and ask the parties to, lead evidence in support of their respective pleas yet this is not rule of thumb. Reference be made to decision of Division Bench of the Dacca High Court reported as Maulvi Salamat Ali Khan v. A.R. Muhammad Siddique PLD 1952 Dacca 137 which was rendered after the review of the case‑law on the subject It was held that:
"Therefore, we are of opinion that on the clear and unambiguous admission the learned subordinate Judge was entitled to exercise his discretion and to enter a judgment for the admitted amount. Further, having regard to the facts and circumstances of the case we cannot say that the discretion of the learned Subordinate Judge was wrongly exercised."
Guided by the principle noted above ,.I have no hesitation in coming to the conclusion that the admission contained in parawise comments filed by the Secretary to the Board of Revenue is clear, unambiguous and free from any doubt. The accused delinquent officer has been proceeded against departmentally and had been sent back to his home. From this event, I have no difficulty in accepting this admission. The upshot of this admission is that the application, dated 18‑1‑1974 was submitted after the crucial date specified in Act XIV of 1975. From the said date i.e. 1‑7‑1974 all the evacuee laws were crazed from the statute book and authorities functioning under the Settlement Laws became denuded of their authority. In view of this, respondent No.1 had no authority to initiate proceedings on an ante‑dated application and render impugned decision. Accordingly the impugned decision is found to have been passed by respondent No.1 without any lawful authority and it is declared as such.
8. Having dealt with the first question, I am not inclined to deal with the remaining questions. The contention that the allotments secured by Muhammad Din were without entitlement as this can be examined by the competent authorities in consonance with the rule laid down in K.S. Masood and 3 others v. Special Committee and others 1990 CLC 1174.
In the light of the foregoing discussion, this writ petition succeeds. The impugned order is hereby set aside leaving the parties to bear their own costs.
A.A./A‑217/L Petition accepted.