ABDUL KHALIQ through Muhammad Zaman Versus MEMBER (JUDICIAL-V) BOARD OF REVENUE

AMIN-UD-DIN KHAN, J.--- Through this single judgment I intend to decide the above captioned writ petition as well as Writ Petitions Nos.53-R of 2010 and 58-R of 2010, as the impugned order in all the three petitions is the same which was passed in CSC Case No.30 of 2004 titled " Abdul Khaliq and Kafayat Ullah v. Wajid Ali Khan and others " dated 31.12.2009 by the Member (Judicial-V) Board of Revenue/Chief Settlement Commissioner/Notified Officer, Punjab, whereby it was ordered that the land shall be restored in favour of the State.

2. The petitioners of Writ Petition No.40-R of 2010 claim to be the purchasers of land from Sheikh Maqbool Elahi who is purchaser from Nazeer Hussain son of Shams-ud-Din who claims to be the purchaser from Wajid Ali Khan the original allottee. Whereas the petitioners of Writ Petitions Nos.53-R of 2010 and 58-R of 2010 claim to be the purchasers from Mukhbirs.

3. The brief and relevant facts are that the land measuring 706-kanals 16-marlas was allotted to one Wajid Ali Khan under RL-II No.385. An application for Mukhbari under sections 10 and 11 of the Displaced Persons Land Settlement Act was allegedly filed on 29.03.1974. Vide order dated 12.09.1978 Mukhbari application was accepted and the land was cancelled from the name of allottee and allotted to the persons mover of Mukhbari application by Mr. M. A. Razzaq, Settlement Commissioner (Land) with the powers of Chief Settlement Commissioner (Lands) Punjab Lahore. The purchasers from Wajid Ali Khan filed Writ Petitions Nos.590-R of 1979 and 559- R of 1979, which were accepted by this Court vide order dated 30.01.1985 and matter was remanded to the Board of Revenue/Chief Settlement Commissioner. The Settlement Commissioner (Land) again vide order dated 21.05.1991 declared the allotment in favour of Wajid Ali Khan as bogus. Even the Settlement Commissioner (Land) noted that the learned counsel representing Wajid Ali Khan made a statement accepting the allotment as bogus one. The vendees from Wajid Ali Khan again challenged this order of Settlement Commissioner (Land) through Writ Petition No.108-R of 1995, which was accepted by this Court on 05.08.1998 and matter was again remanded. After remand the Settlement Commissioner (Land) dismissed the proceedings for non-prosecution on 27.05.2000 and the application moved for restoration was also dismissed on 29.06.2000, which order was challenged through Writ Petition No.150-R of 2000, which was accepted and matter was once again remanded. The Settlement Commissioner (Land) again vide order dated 23.07.2003 declared the allotment of Wajid Ali Khan as bogus one. This order was again challenged through Writ Petition No.123-R of 2003, which was accepted and matter was once again remanded through order dated 27.02.2004. After remand by this Court Chief Settlement Commissioner (Land) ordered through decision of CSC Case No.30 of 2004 that not only the allotment was bogus but the application for Mukhbari was also bogus one, therefore, ordered for restoration of land in favour of the State. Hence, these three petitions.

4. Learned counsel for the petitioners have attacked the judgment impugned through the petitions on various grounds that they have not been properly heard. Further that one of the counsel raised the objection that the matter has been decided by the Member (Judicial-IV) Board of Revenue, who was not Notified Officer for Gujranwala. Stated that as per their information and copy of notification available with them Member II is the Settlement Commissioner for Gujranwala Division, therefore, they have stated that the order impugned is null and void in the eye of law and pray for acceptance of these petitions. Learned counsel in support of their arguments have also relied upon the judgments reported as " Phullan (deceased) through his Legal heirs and others v. Muhammad Sarwar and 2 others " (1992 CLC 1975) and " Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others " (PLD 1992 Supreme Court 531).

5. On the other hand, learned counsel representing the Settlement Department has argued that it was a remand case by this Court, therefore, the objection that the Chief Settlement Commissioner was not Notified Officer for the area is absolutely frivolous objection, as none of the parties has challenged the order passed by this Court dated 27.02.2004 in Writ Petition No.123-R of 2003 whereby the matter was remanded to the Chief Settlement Commissioner. Further that the petitioners before this Court are purchasers from the allottee or from the Mukhbir, they have absolutely no right to challenge the order passed by the Chief Settlement Commissioner.

6. I have heard the learned counsel for the parties at full length and also gone through the record as well as the case law referred to by the learned counsel for the parties.

7. The finding of fact that in previous round of litigation learned counsel for the original allottee i.e. Wajid Ali Khan filed written application mark 'A' and made a statement whereby the Additional Commissioner Revenue with powers of Settlement Commissioner (Land) vide order dated 21.05.1991 in remand case No.ACR/G6/40 of 1989 remanded in Writ Petition No.590-R of 1979 declared the allotment at Khata RL-II No.385 as bogus. Against this finding of fact, which has been confirmed through the impugned order in these petitions, there is nothing on record. I am of the considered view that shelter of Section 41 of Transfer of Property Act, 1882 is not available to a vendee from the allottee whose allotment subsequently stood cancelled on the basis of fraud. In this context, reliance is placed upon the judgment of august Supreme Court of Pakistan reported as " Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others " (PLD 2003 Supreme Court 132). For ready reference Para 6 of the judgment is reproduced as under:-

"6. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in the judgments (1) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasis that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected."

Further light can be taken from the judgments reported as " Gul Muhammad and others v. The Additional Settlement Commissioner and others " (1985 SCMR 491) and " Ejaz Ahmad Khan v. Chahat and others " (1987 SCMR 192). Moreover, no benefit can be derived by a person claiming proprietary rights in a particular property based on fraudulent transaction as it is well settled that fraud if established on record is sufficient to vitiate most solemn proceedings. Reliance can be placed upon the judgment of august Supreme Court of Pakistan reported as " Khair Din v. Mst. Salaman and others " (PLD 2002 Supreme Court 677).

8. It is clear now that the finding of fact recorded by the Chief Settlement Commissioner that the land allotted to the original allottee i.e. Wajid Ali Khan was cancelled and even the same was admitted as bogus by his counsel as noted supra. The purchasers from the said allottee, whose land was cancelled on the basis that the allotment was fraudulent, have no right of confirmation of their sale if there is any right in their favour, they can sue their sellers for compensation and in the land they have no right.

So far as the finding of fact recorded by the Chief Settlement Commissioner that initiation of Mukhbari application was fraudulent and antedated as well. Against this finding of fact there is absolutely no evidence available on the file produced by the petitioners who claim to have purchased the property from Mukhbirs after allotment of land in their favour. None of the petitioners is the original allottee or original Mukhbir. They are subsequent transferees. They have no right to challenge the same. Even otherwise for invoking the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners are required to show some jurisdictional defect committed by the courts/forums below but no such defect has been highlighted in the impugned judgment/order nor I have seen any irregularity or infirmity therein.

10. For the foregoing reasons I am constrained to hold that there is no substance in all the three writ petitions, therefore, stand dismissed.

MH/A-31/L Petitions dismissed.