ZULFIQAR ALI Versus Mst. HASHMAT BIBI

1. In essence the point in issue in this matter is as to whether Fazal Karim son of Ali Muhammad Khan or Fazal son of Mallay Khan was really the allottee of the land. The Board of Revenue has through the impugned order dated 3‑5‑2001 recorded a finding and conclusion that it was Fazal Din who was allottee of the land. This order has been assailed through this petition by Zulfiqar Ali son of Fazal Karim. The background of the dispute briefly stated is as under:‑‑

2. Lot No.5 situated in Chak No.10/3‑I Shorkot, District Jhang was allotted by the Extra Assistant Colonization Officer in the year 1950. It was in the name of Fazal son of Mallay Khan. In the year 1980 an application was made by Fazal Din son of Mallay Khan to the Collector for enquiry and correction of the record detailing the circumstances and the background how the record was interpolated, to deprive him of the land comprising of plot No.5. An enquiry was ordered by the Deputy Commissioner, which was conducted by the Extra Assistant Colonization Officer (R), Jhang to examine the record and submit a report. The latter then conducted an enquiry and in his report dated 31‑8‑1982 observed "in the order issued under section 10(3) of the Colonization of Government Lands Act, originally the name of Fazal son of Mallay Khan was recorded which bears a thumb‑impression. Subsequently, the entry has been tampered with so as to read as Fazal Karim son, of Ali Muhammad Khan" and thus name of Fazal Karim continued on the record who later on joined with him his two sons Zulfiqar Ali petitioner herein and Muhammad Iqbal Javed. He has also observed that in the. year 1966 such a dispute had surfaced as to who was the real allottee. The Land Reclamation Officer's view has been noted in I the report that "land was actually in the name of Fazal son of Mallay and Fazal Karim was only managing the land on his behalf and he had got his two sons associated through misrepresentation. Similarly, Naib Tehsildar, Ahmadpur Sial also made such 'a report on 28‑2‑1966. No action appears to have been taken on these references". Inaction, on the part of Fazal Din for a long time in the matter, however, prevailed upon the enquiry officer despite the fact that the allotment was in the name of Fazal Din to report that "the claim of the petitioner is not fully borne out from the record, although in early years of allotment his name appeared here and there. It was Fazal Karim who reclaimed the area and faces litigation in different Courts and finally the allotment was restored in favour of his sons by the Member (Colonies); Board of Revenue. The petitioner, therefore, cannot be helped at this stage". The matter then came before the Deputy Commissioner/District Collector who in view of the report of the Extra Assistant Colonization Office (R), Jhang turned down the application of Fazal Din vide order dated 30‑12‑1984. An appeal was filed by Fazal Din which was dismissed by the learned Commissioner, Faisalabad Division, Faisalabad on 1‑2‑1‑1987, which order was assailed before the Board of Revenue, when on 3‑5‑2001 the learned Member (Colonies) accepted the revision petition filed by Faza. Din and came to the conclusion that 'the allotment of Plot No.5 was made in favour of Fazal son of Mallay Khan which merits to be restored in his favour and that the subsequent orders passed on the basis of fraud are without any legal footing and are also set aside.

2. In assailing the said order, it is contended by the learned counsel for the petitioner that the report of the Extra‑Assistant Colonization Office (R), Jhang has not been correctly appreciated by the learned Member, Board of Revenue who has interfered with the findings of the Deputy Commissioner and the Commissioner without any valid basis. According to him such a jurisdiction did not vest with the learned Member, Board of Revenue. It is contended that such a disputed issue of allegations and counter‑allegations of interpolation of record and fraud could not have been gone into by the Board of Revenue, which matter could appropriately have been dealt with in a proper suit before the Civil Court. It is further contended that long‑standing entries in the Revenue Record could not be interfered with. The learned counsel for Fazal Din supports the orders passed by the learned Member, Board of Revenue and contends that in a matter where fraud has been practised and record had been interpolated, the Member, Board of Revenue could exercise jurisdiction, which he did on the basis of the record, which was produced before and examined by him. It is contended that no sanctity can be claimed to an entry, which has no valid basis and that mere lapse of time would not validate something which was from its inception invalid.

3. The order of allotment has not been placed on record, the same, however, had been perused and examined by the Member, Board of Revenue. He has come to the conclusion that the allotment was in the name of Fazal son of Mallay Khan. He has on a' quite minute examination of the record observed in paragraph 8 of the order, relevant portion whereof is reproduced, as under:‑‑

3. "A perusal of allotment order (Annexure P/1) shows that land in question was allotted to Fazal son of Mallay Khan; the predecessor‑in‑interest of the present petitioners: It is also crystal clear that the word "Karim' has been added after word Fazal and word 'All' has been added before Mallay in the parentage whereas the word `Mallay' has been interpolated as 'Ahmad'. The interpolation has been made with a different ink and pen. The original allottee Fazal son of Mallay had thumb marked the allotment order in token of acceptance of terms and conditions of the Scheme whereas the signature reading as has been added below the thumb‑impression while the word " has been added in different ink after the entries reading as. The date of allotment has been also interpolated. All these insertions and overwriting are very clear on the original allotment order, which is recorded in a different ink. The entries in the Khasra Girdawari also show the cultivation of Fazal‑ud‑Din son of Mallay Khan from Kharif 1952 to Rabi 1961. The name or allottee Fazal son of Mallay Khan has been entered in the "Faro Taqseem Arazai" for the year 1950‑51. "

4. Such is a finding recorded on due perusal of the record. It may be appreciated that even the Extra‑Assistant Colonization Officer (R) had noted in his report that the allotment order was in the name of Fazal son of Mallay Khan but the entry was tampered with "so as to read as Fazal I Karim son of Ali Muhammad Khan". It has also been noted that "lot No.5 stood allotted in the name of Fazal son of Mallay, but subsequent order of allotment in favour of Fazal Karim was not forthcoming". When the matter came before the Deputy Commissioner, it was noted by hint also that "in the allotment order under section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912 originally the name of Fazal son of Mallay Khan was recorded, which also bears a thumb‑impression. Subsequently the entry appears to have been tampered, so as to read as Fazal Karim". The learned Commissioner, however, dealt with the matter in somewhat different manner observing that "the appellant submitted an application in 1980 for the first time for the correction of the entries of the Revenue Record having remained silent for a period of about 30 years. It appears that either the appellant was not allottee of the land in question or he was not interested in the same". In such state of the record, which indeed explicitly showed the allotment of lot in the name of Fazal son of Mallay Khan, the learned Member, Board of Revenue was justified to record his conclusion on perusal and examination of the record by himself. He clearly arrived at the conclusion that fraud had been committed and record had been interpolated and tampered so as to convert the allotment order from Fazal son of Mallay Khan to Fazal Karim son of Ali Muhammad Khan. The allotment order, which was of immense importance, has not been annexed with the petition and thus an important piece of evidence has been suppressed from the Court. A photocopy of the same duly attested by the office of the District Collector has, however, been showed to me by the learned counsel for the respondents, the perusal whereof supports the finding recorded by the learned Member, Board of Revenue. The finding to the effect that the allotment was indeed in the name of Fazal son of Mallay Khan is fully supported and backed by the allotment order. No exception can, therefore, be taken to such a view taken by the learned Member, Board of Revenue.

5. The contention of the learned counsel for the petitioner that concurrent findings should not have been interfered with by the learned Member, Board of Revenue has no substance in the facts and circumstances of the case. As observed above even the enquiry officer (Extra‑Assistant Colonization Officer (R) had noted this fact as also the learned Deputy Commissioner that 'the original allotment was in the name of Fazal son of Mallay Khan', which entries had been altered by interpolations in the record. It was a clear case of fraud, fabrication anti forgery of record. Mere lapse of time and inaction on the part of Fazal would not have deprived or denuded the authorities, of the power to rectify their own record by taking corrective and remedial steps and undo an injustice. The learned Member, Board of Revenue being at the apex of the statutory hierarchy, exercising revisional jurisdiction could justifiably exercise his jurisdiction, in the peculiar fact and circumstances of the case. Even the intervening events and litigation to which Fazal Din was not party would not alter the reality. Fazal Din was the original allottee and fabrication was made in the record later on showing Fazal Karim as allottee, in place of Fazal. The truth having come to light there was no impediment in the way of Board of Revenue to remedy a wrong.

6. Challenge to such an order in writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by a person found to have interpolated and tampered the record cannot be countenanced nor the writ jurisdiction is meant for perpetuating fraud and forgery. Such a discretionary jurisdiction cannot be invoked for the retention of ill‑gotten gains. The contention of the learned counsel that the Board of Revenue instead of interfering in the matter should have directed the respondents to approach Civil Court stands negated by the conduct of the petitioner himself who instead of challenging the order of the Board of Revenue before the, Civil Court has invoked the writ jurisdiction of this Court.

7. Since the order passed by the learned Member, Board of Revenue has been found to be amply justifiable, it warrants no interference by this Court.

8. The petition accordingly is dismissed

9. H.B.T./Z‑121/L Petition dismissed