SHARAFAT ALI Versus DEPUTY COMMISSIONER/COLLECTOR, KASUR
1. I intend to decide Writ Petition No.3786 of 1990, Writ Petition No.6842 of 1990 and Writ Petition No. 6780 of 1990 by one consolidated judgment having similar facts and law arising out of the same impugned order.
2. The brief facts out of which these writ petitions arise are that petitioner Sharafat Ali migrated from India and submitted his claim form for the allotment of land being displaced person from India before the competent authority. The claim was verified allegedly from Central Record Room and Fard Haqiqat was issued in the name of the petitioner. The claim of the petitioner was adjusted at Khata No.49 of R.L.II Register of Village Bando Jewana, Tehsil Chunian and District Kasur. The competent authority allotted land to the petitioner Sharafat measuring 4218 Kanals and 16 Marlas which was confirmed in his name by the Settlement Authority vide order dated 30‑9‑1972 as is evident from Annexure 'A' attached with Writ Petition No.3768 whereas predecessor‑in‑interest of Muhammad Din etc. namely Allah Bakhsh was also refugee from India who also filed claim form of his agricultural land left by him in India. His claim form was also verified from the Central Record Office. Land measuring 1594 Kanals, 9 Marlas was also allotted and confirmed in the name of Allah Bakhsh against his verified claim at RL.II Khata No.50 in village Bandu Jewana, Tehsil Chunian, District Kasur, vide order dated 30‑9‑1972. Respondent Akbar Ali etc. with the connivance of the official of the Settlement Department removed the leaves/pages of R.L. II Register Khata Nos.48, 49 and 50 and replaced the aforesaid pages by fraud and were able to insert forged Khatas showing allotment in the names of Abdul Majeed and Kh. Moeen‑ud‑Din. These allotments were made in the names of aforesaid persons by the Settlement Department vide order dated 15‑12‑1972. Akbar Ali etc. had purchased the aforesaid land from Abdul Majeed and Kh. Moeen‑ud‑Din through Mutation No. 110 dated 16‑10‑1976. The petitioner came to know about the aforesaid fraud committed by the respondent Akbar Ali etc. submitted an application before the Assistant Commissioner Chunian who found both the Khatas prepared in the names of aforesaid Abdul Majeed and Kh. Moeen‑ud‑Din as forged after inquiry and proceeded to cancel the same as is evident from order dated 25‑3‑1975 and also order for the registration of a criminal case against the aforesaid person. The petitioners tried their level best for implementation of order dated 30‑9‑1972 but the same was not implemented by the respondents on the ground of various legal devices adopted by the respondents. One Zulfiqar Ali filed Mukhbari application against the same Khata of Abdul Majeed and Kh. Moeen‑ud‑Din on 14‑1‑1974 allegedly before the competent authority. The Mukhbari application filed by Zulfiqar Ali was accepted by the competent authority vide order dated 22‑4‑1976 Khata No.50 of RL. II was secured in the name of Zulfiqar Ali on 13‑7‑1976 on the basis of the order dated 22‑4‑1976. After the death of Zulfiqar Ali inheritance mutation was sanctioned in favour of Mehmood‑ul‑Hassan etc. on 21‑11‑1979. Subsequently the aforesaid land was purchased by Akbar Ali etc. vide Mutation No.70 dated 7‑1‑1982 as is evident from copy of R.L.II Khata No.50. Mutation of inheritance and sale mutation are attached with the writ petition as Annexures B, C and D. The petitioners filed another application before the Member, Board of Revenue on 10‑8‑1981 with the prayer that the annulment of forged and fabricated allotment and sale made by the respondents in favour of Akbar Ali etc. and seeking the implementation of their own allotment the Member, Board of Revenue directed District Collector to submit report. The District Collector submitted his report to the Member, Board of Revenue on 15‑3‑1983 which is attached as Annexure F with the writ petition. On the basis of the aforesaid report of the Deputy Commissioner the Member, Board of Revenue directed the Secretary (Rural) to submit his report who also found after inquiry that Mukhbari application filed by Zulfiqar Ali is result of fraud and mis?representation. The report of the Secretary (Rural) was approved by the Member, Board of Revenue and District Collector was directed to review the aforesaid mutation sanctioned in favour of Zulfiqar Ali and other respondents as is evident from Annexures G and H attached with the writ petition. The Deputy Commissioner also sent a report to the Martial Law Authorities on 10‑12‑1984 which reveals allotment in his favour by fraud and misrepresentation as is evident from Annexure "H" attached with the writ petition. On 2‑11‑1983 during Basta Partal it reveals that the land in question was surrendered land and could not be allotted against the claim. To this effect reference was made to the Colonies Department. Subsequently on the pointation of the petitioners the reference was submitted to the Secretary, S&R Punjab, Lahore for advice as is evident from Annexure ' K' attached with the writ petition. The Secretary (S&R) directed the Deputy Commissioner to take action in accordance with the letter dated 12‑6‑1983 as is evident from Annexure ' L' attached with the writ petition. The Deputy Commissioner had given permission to review the mutation sanctioned in the name of late Zulfiqar Ali vide order dated 25‑4‑1988. Akbar Ali etc. being aggrieved filed following two writ petitions:‑‑
2. Writ Petition No.3467 of 1988 and Writ Petition No. 3812 of 1988.
3. The aforesaid writ petitions were accepted by this Court vide order dated 10‑10‑1988 and set aside the order of the Deputy Commissioner dated 25‑4‑1988 and also set aside the consequential order dated 11‑6‑1988 and remanded the case to the Deputy Commissioner to decide the case afresh after providing personal hearing to all the concerned. The Deputy Commissioner after remand passed the impugned order dated 17‑4-1990 against the petitioners, hence the present writ petitions.
3. The learned counsel of the petitioners submit that the impugned order is result of misreading and non‑reading of the record. They further submit that land in question was allotted in favour of the petitioner or their predecessor vide order dated 30‑9‑1972 by the competent Settlement Authority which was not cancelled till date. They further submit that land in lieu of Khata No.49 was not even cancelled and allotted to the respondents but the Deputy Commissioner in the impugned order cancelled the same without applying his mind. They further urge that land in question was initially got allotted by means of fraud in favour of Abdul Majeed and Kh. Moeen‑ud‑Din etc. and subsequently purchased by Akbar Ali and other respondents from Abdul Majeed and Kh. Moeen‑ud‑Din. Subsequently land was got allotted fraudulently in the name of Zulfiqar Ali who sold the same subsequently to Akbar Ali and other respondents. They further urge that land in question was surrendered land and could not be allotted to any person but this fact was not considered by the Deputy Commissioner in the impugned order. They further urge that Deputy Commissioner sent a letter to the Central Record Office to find out the entitlement of Zulfiqar Ali. The Central Record Office submitted report against Zulfiqar Ali but this fact was not considered by the Deputy Commissioner in the impugned order. They further urge that fraud has been committed by Akbar Ali etc. initially with the connivance of Abdul Majeed and Kh. Moeen‑ud‑Din with the active help of the official of the Central Record. Room. Subsequently they got allotment in favour of Zulfiqar Ali who was not entitled to the same. The Ahmad of the Settlement Department had given statement before the Deputy Commissioner that office of the Settlement Department did not receive Mukhbari application filed by Zulfiqar Ali but this fact was not considered by the Deputy Commissioner. They further urged that Zulfiqar Ali is Ex?-Military Personnel who got the allotment of land as non‑claimant in District Mianwali. They further urged that respondents got the allotment in the name of Zulfiqar Ali on 22‑4‑1976, after the repeal of the evacuee laws, therefore, order dated 22‑4‑1976 is nullity in the eyes of law. They further submit that the learned Deputy Commissioner did not take note of report of Central Record Office. They sum up their arguments that the learned Deputy Commissioner was erred' in law to decide the case against the petitioner on the principle of past and closed transactions by relying judgment of the Hon'ble Supreme Court in 1984 SCMR 228 (Sher Afzal Khan and others v. Haji Razi Abdulah and others). The judgment of the Hon'ble Supreme Court subsequently considered and laid down principle that the Settlement Authorities/Notified Officer has jurisdiction to look into the matter where the fraud has been committed. In support of their contentions they relied upon the following judgments:‑‑
4. Muhammad Hussain v. Assistant Commissioner and others PLD 1986 Lahore 116; Muhammad Baran v. Member, Settlement Rehabilitation, Board of Revenue PLD 1991 SC 691; Syed Wajid‑ul‑Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Ghafoor Bakhsh v. Haji Muhammad Sultan and others 2001 SCMR 398 and Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166.
4. The learned counsel of the respondents submit that Writ Petitions Nos.3768 of 1990 and 6842 of 1990 are liable to be dismissed as both the writ petitions were filed by Sharafat Ali. This fact was taken note of by this Court as is evident from the interim orders passed in Writ Petition No.6842 of 1990. Petitioner Sharafat Ali was directed to enter appearance alongwith his Identity Card vide order dated 25‑1‑1999. The order dated 25‑3‑1999 reveals that Mrs. Azra Nasreen daughter of Rasool Baksh entered appearance in Court on 25‑3‑1999. Mrs. Azra Naseem had taken stand that Sharafat Ali was not son of Rasool Bakhsh who had already expired. This Court directed to S.P., Kasur to enquire into the credibility of the stances put up by the parties. The S.P. concerned submitted report before this Court on 21‑5‑1999 as is evident from order dated 27‑5‑1999. They further submit that interim report of S.P. concerned reveals that Mst. Azra Parveen was unable to prove that Sharafat deceased was her brother. Similarly Sharafat Ali could not produce any document about his claim. Sharafat Ali who filed Writ Petition No.3786 of 1990 had given his power of attorney in the name of Shazada Hassan Akhtar Durani son of Shahzada Sultan Mehmood Durani as is evident from Annexure D/ 1. The address mentioned in the title of the writ petition Annexure B/1 and Annexure T/1 at pages 28 and 31 respectively Sharafat Ali has mentioned different address. Similarly Sharafat Ali in Writ Petition No.6842 of 1990 mentioned different address in the title of the writ petition whereas address mentioned in his National Identity Card No.340‑89‑5280 is entirely different. They further submit that Form 'B' of the National Identity Card reveals that father of Sharafat Ali and Sharafat Ali are Pakistani. therefore, question of allotment of the evacuee land in their names is not sustainable in the eyes of law. They further submit that Sharafat Ali in this writ petition had given power of attorney in the name of Barkat Ali. They further urged that they did not place on record any final order passed by the competent authority in their favour. They further submit that petitioners approached this Court with unclean hands and concealed material facts from this Court, therefore, writ petitions are liable to be dismissed. In support of their contentions they relied upon the following judgments:‑
5. Saif Ullah Khan and others v: Settlement Commissioner and others 1982 SCMR 853; 1990 PCr.LJ 226; Wajid Ali and others v. Board of Revenue, Punjab and others PLD 1982 Lahore 716 and Malik Muhammad Asif v. Province of Sindh and others 1990 MLD 2192.
6. They further urged that Deputy Commissioner had found in the impugned order that no element of fraud and forgery could have been proved with regard to the entitlement in favour of Zilfiqar Ali after proper appreciation of evidence and this Court has no jurisdiction to disturb the finding of fact of the tribunals below on question of fact. In support of their contentions they relied upon the following judgments:‑‑
7. Mst. Ghulam Fatima and another v. Border Area Allotment Committee and others 1982 CLC 2217; Abdul Majid v. Mehmood Qureshi and others TLR 1982 SCJ 570; M/s. Bakhsh Textile Mills Ltd. v. Pakistan and others 1982 SCMR 497 and M.E. Patel v. Tejamul Hussain 1982 CLC 2239.
8. They further submit that Deputy Commissioner has passed the order after applying his conscious mind, therefore, writ petitions are liable to be dismissed. In support of their contentions they relied on Mst. Majida Begum v. Settlement Commissioner, Lahore (1986 CLC 2314). They further urged that Deputy Commissioner has jurisdiction to pass order rightly or wrongly and this Court has no jurisdiction to set aside the same. In support of their contentions they relied on Abdul Ghani v. Mst. Zahida Begum etc. (PLD 1982 Lahore 401). They further submit that competent authority had declared that the land in question was not surrendered land vide letter dated 7‑11‑1978 and order dated 3‑3‑1979. They further urged that basic order in favour of Zulfiqar Ali dated 22‑4‑1976 was not challenged by the petitioners and the. petitioners had only challenged the consequential orders, therefore, the writ petitions are liable to be dismissed. They further urged that Member, Board of Revenue had declared the property in question of the Provincial Government vide letter dated 30‑12‑1985. The learned counsel of the respondents further submit that petitioners filed three applications one after the other in which petitioners were directed by the competent authority to file Constitutional petition for the redressal of their grievance but the petitioners did not file any writ petition for redressal of their grievances. The competent authority did not pass any final order in their favour. They filed applications after repeal of the evacuee laws. Petitioners are estopped to file these writ petitions on the well‑known principle of waiver and estoppel.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to highlight legislative history of the Repeals of the Settlement Laws to resolve the controversy between the parties:‑‑
9. The Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (Ordinance XV of 1974) came into force at once and had taken effect on the first day of July, 1974. Subsequently the same was repealed .by Evacuee Property and Displaced Persons Laws (Repeal Act, 1975 (Act No.XIV) 1975 came into force at once had taken effect on the first day of July, 1974.
10. It is admitted fact that Zulfiqar Ali filed Mukhbari application on 1‑7‑1974 as is evident from para. 2 of the impugned order. The question arose whether the order passed by the Settlement Authority in favour of Zulfiqar Ali was valid or not. In view of the aforesaid repeal of the Settlement Laws, the learned Deputy Commissioner did not give any finding qua this question. In this view of the matter the question still remains as to whether the property after the repeal of Settlement Laws could be or is to be disposed of under the new law and scheme made thereunder or under the unamended Settlement Laws. It would seem to be appropriate that the case is re‑examined on facts and law applicable in the first instance by the relevant authority/Notified Officer and for this reason notwithstanding the order passed if any by the Settlement Authorities this case is remitted to the Deputy Commissioner/Notified Officer for fresh decision in accordance with law. It is better and appropriate to reproduce the operative pare of the order of Deputy Commissioner, Kasur dated 17‑4‑1990 to resolve the controversy between the parties:‑‑
11. "After giving anxious thought, I am of this view that I can look into this controversy as directed by the Honourable High Court.
12. So, I have examined the entire record and heard the parties at length and came to the conclusion that no element of forgery would have been proved with regard to the allotment in favour of Zulfiqar Ali as held throughout in the previous orders passed by my learned predecessors and I am also fortified by the dictum laid down by the highest authority of the Supreme Court reported in 1984 SCMR 228, in which the learned Judges of Supreme Court held that exercise of jurisdiction by Settlement Authorities after coming into force of Repealing Act, in undertaking an inquiry in order to review and reopen past and closed transactions would be palpably coram non judice and wholly incompetent. Another authority referred 1984 SCMR 403 directs that the allegation of fraud and misrepresentation is not available after repeal of Evacuee laws.
13. Besides this Sharafat Ali and others are estopped from re-agitating this issue again and again by their acts and conduct otherwise there will be no end to this controversy. The Authority of the Supreme Court 1987 SCMR 2027 holds that an allottee cannot be vexed twice on the same ground and the learned High Court has held the similar views in cases 1986 CLC 2130, 1985 MLD 2084, 1986 CLC 2194, 1986 MLD 1028 and 1988 MLD 468. As a result of the above discussion, I hold that party No. 1 Sharafat Ali and others cannot re?open this matter and allotment in favour of Zulfiqar Ali should remain as it is."
14. The aforesaid operative part reveals that the learned Deputy Commissioner did not decide the case after proper appreciation of evidence on record. Ch. Abdul Rehman Ahlmad admitted in his statement that there is no entry qua the Mukhbari applications. It is better and appropriate to reproduce the relevant portions of evidence of Ch. Abdur Rehman, Ahlmad and report of Officer Incharge, Central Record Room:‑‑
15. Relevant portions of evidence of Abdur Rehman, Ahlmad:‑‑
16. Portion of report of Incharge, Central Record Room:‑‑
17. The aforesaid operative parts of the record clearly reveal that the impugned order was passed without advertising to the evidence on record. The petitioners' counsel submitted that land in question was surrendered land and could not be allotted to any person whereas the learned counsel of the respondents submit that land in question was not surrendered land. It is pertinent to mention here that Deputy Commissioner in the impugned order did not give any finding qua this fact. This fact brings the case in the area that neither the petitioners nor respondents approached the relevant authorities or this Court with clean hands. Both the parties are wanted to usurp or grab the State land by all means. In this view of the matter I set aside the order and remand the case to the Deputy Commissioner/Notified Officer to decide the case afresh after providing proper hearing to all the concerned as per principle laid down by the Hon'ble Supreme Court in Dildar Khan and 5 others v. Hamid Ali and 22 others (1993 SCMR 1887) and Muhammad Baran's case PLD 1991 SC 691. He is also directed to look into the matter which of the Sharafat is a genuine person in case he finds any one of them is a fictitious person then he shall take criminal action against him and also report the matter to the competent authority for the said purpose.
18. In view of what has been discussed above these writ petitions are accepted in the aforesaid terms. The learned Notified Officer/Deputy Commissioner shall decide the case afresh without being influenced by the observation of this Court. Parties are at liberty to raise all legal and factual objections before the Notified Officer. Since the controversy is pending adjudication between the parties since 1990 he is directed to finalise the matter preferably within six months after receiving the order of this Court. Parties are directed to appear before him on 2‑4‑2001. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law
19. Q.M.H./M.A.K./S-215/L ???????????????????????????????????????????????????????????????????? Case remanded.
20. ???????????????????????????????????