RUBINA HABIB Versus PROVINCE OF PUNJAB
CH. MUHAMMAD IQBAL, J.--- Through this single judgment, I intend to decide titled Writ Petition along with connected Writ Petitions Nos.2229/2013 and 37898/2015 as subject matter in these petitions is the same and arisen out of same impugned order as well as common questions of law and facts are involved therein.
2. Through these writ petitions, the petitioners have challenged the validity of order dated 30.04.2012 whereby the Additional District Collector, Lahore turned down the request of the petitioners.
3. Brief facts of the case are that Khawaja Habib Ullah predecessor-in-interest of the petitioners was allegedly having an evacuee claim of 1895 Urban P.I. Units including 535 Urban Garden Units, obtained the allotment of land measuring 620-Kanals situated in Mouza Harbanspura, Tehsil Cantt. District Lahore vide alleged allotment order dated 06.04.1973 passed in an Appeal No.241/1973 by the Additional Settlement Commissioner, Lahore.
Khawaja Habib Ullah, the alleged allottee filed application for implementation of his allotment order in the revenue record and simultaneously also filed Writ Petition No.113-R of 1992 for the said purpose. This Court vide order dated 13.07.1992 directed the respondents to finalize the case of his allotment. In compliance of above order of this Court, the then Chief Settlement Commissioner, Board of Revenue, Punjab vide order dated 10.08.1992 allotted the land measuring 620 Kanals situated in Mouza Harbanspura, Tehsil Cantt., District Lahore and mutation No.9983 dated 30.11.1992 was also incorporated in the revenue record.
The unauthorized sitting occupants of the above said land filed Writ Petitions Nos.114/1993, 214/1993 and 260/1993 challenging the order of the Chief Settlement Commissioner dated 10.08.1992. The said writ petitions were dismissed vide judgment dated 27.06.1994. Against the said order, unauthorized occupants filed Civil Petitions for Leave to Appeals Nos.988-L/1994, 989-L/1994 and 990-L/1994 which were dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 18.10.1995. A Civil Review Petition No.106-L of 1995 in C.P No.988-L of 1994 was also dismissed by the Hon'ble Apex Court vide order dated 11.01.1997. Another set of the unauthorized occupants filed Writ Petition No.4-R/1996 against the allotment of Khawaja Habib Ullah which was also dismissed on 27.10.1998. The said order was assailed before Hon'ble Supreme Court of Pakistan through Civil Petition No.166-L/1999 but the petition was dismissed as withdrawn vide order dated 24.05.2002. The allottee filed Crl. Org. No. 9-L/1997 in Crl. Petition No.106-L of 1995 for implementation of the order which was disposed of by Hon'ble Supreme Court of Pakistan vide order dated 03.12.1998.
4. The Province of Punjab through Chief Settlement Commissioner filed Writ Petition No.4-R/2002 against alleged allotment order dated 06.04.1973 as well as subsequent order dated 10.08.1992 and mutation No.9983 dated 30.11.1992 in favour of predecessor-in-interest of the petitioners but the said Writ Petition was dismissed as having been withdrawn on 15.09.2013. The District Officer (Revenue), Lahore vide order dated 03.11.2004 gave permission to review mutation No.9983 dated 30.11.1992 along with mutation Nos.5438, 5479, 5502, 5943, 5944, 5967, 6596, 9057, 11921 and 12936 of village Harbanspura. The allottee challenged the above said order in Writ Petition No.13004 of 2005 which were accepted vide order dated 19.12.2011 by setting aside order dated 03.11.2004, remanded the matter back to the DOR, to decide the same in accordance with law after hearing the petitioners and all other concerned. The Additional District Collector, Lahore vide order dated 30.04.2012 turned down the request of the petitioners through the impugned order dated 30.04.2012. Petitioners in Writ Petitions Nos.2229/2013 and 37898/2015 being subsequent purchasers from Khawaja Habib Ullah challenged the same impugned order dated 30.04.2012. Hence, these writ petitions.
5. Learned counsel for the petitioners submits that the revenue authorities have no jurisdiction to see the validity of the allotment order passed by the settlement authorities which has attained the status of past and close transaction; that the matter has been settled upto the Hon'ble Supreme Court of Pakistan, thereafter, impugned order passed by the Additional District Collector, Lahore is patently illegal; that allotment in favour of Khawaja Habib Ullah was not hit by notification dated 16.05.1973 (building site); that the impugned order is tainted with mala fide and ulterior motives, as such, liable to be set aside.
6. Learned law officer appearing on behalf of the respondents submits that order of allotment dated 06.04.1973 passed in favour of Khawaja Habib Ullah has not been got implemented within time that after about 19 years of passing the alleged allotment order a Writ Petition No.113-R of 1992 was filed for its implementation; that neither any order was ever passed by the competent authority nor this Court in Writ Petition No.113-R/1992 vide order dated 13.07.1992 directed the Chief Settlement Commissioner to necessarily allot the evacuee land to the petitioner rather it was only a direction to finalize the case of the allotment of the petitioners within next three months by taking into consideration all the objections of the settlement department. That the then Chief Settlement Commissioner misconceived the direction of this Court and made allotment in favour of the petitioners without probing the genuineness of the basic allotment order as well as the question of jurisdiction to allot the evacuee land in the year 1992 as settlement law were stood repealed on 01.07.1974; that consolidated judgment dated 27.06.1994 passed in Writ Petition No.147-R of 1993 was reversed by Larger Bench of the Hon'ble Supreme Court of Pakistan in its judgment titled as Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others (1997 SCMR 1635). The validity of the alleged allotment of Khawaja Habib Ullah was not discussed in the order dated 18th October, 1995 passed in C.Ps. Nos.988-L/1994, 989-L/1994 and 990-L/1994; that an inquiry was conducted regarding allotment of the petitioners predecessor and in the said inquiry report the inquirer observed and reported that neither any appeal was filed by allottee nor record of his said claim as well as order of authority rejecting his claim is available nor any order was passed in this regard; that order dated 06.04.1973 is a fake, fabricated, non-existent and forged one; that Anti-Corruption Department also investigated the matter and declared the allotment of the petitioners' predecessor as fake, forged and fictitious. Further submits that when basic order is a product of fraud, forgery, manipulation then any superstructure so constructed would automatically be collapsed as the fraud vitiates the most solemn proceedings and finally prayed for dismissal of these petitions.
7. Heard.
8. The entire controversy in the instant lis is centered around the genuineness of the basic order dated 6.4.1973 of allotment of evacuee land in favour of Khawaja Habib Ullah as to whether the alleged order was ever passed in Settlement Appeal No.241/1973 or otherwise. Additional District Collector, Lahore vide order dated 30.04.2012 (impugned order) observed that order of allotment dated 06.04.73 is non-existent in the official record and review all the mutations sanctioned on the basis of the said order as the same was maneuvered and based on fraud. The petitioner claims that Khawaja Habib Ullah son of Sandoo was an evacuee, who was allegedly allotted land by the Chief Settlement Commissioner (Zakaullah Naik) in a pending Settlement Appeal No.241 of 1973 titled as "Khawaja Habib Ullah v. The Addl. Settlement Commissioner (Land), Lahore". From perusal of the said allotment order the specific whereabouts of primary authority through which the alleged claim of the petitioners' predecessor was refused are not available on the record as there is no any order mentioned against which the said appeal was filed before the appellate authority. No allotment order was ever passed by any competent authority and there is no any refusal order against the claimant on which basis (order) Appeal No.241/73 was filed and no order either in favour or against the petitioners was ever passed. It is worth mentioning here that the appellate authority has a jurisdiction only to accept or annul the order of lower authority but in the instant case neither description of claim nor impugned order was mentioned and no detail of any evacuee claim Form number, date of filing of the said claim, its verification and all other allied proceedings have been disclosed at any forum. Allegedly the allotment order is supposed to be passed on 06.04.1973 in appeal but since the date of alleged allotment order till the filing of Writ Petition No.113-R of 1992 no bona fide effort was ever made by the alleged allottee before any authority for implementation of his allotment and allottee remained dormant for a period of almost two decades and sensing the favourable atmosphere in Settlement Department he filed Writ Petition No.113-R in the year 1992 for implementation of order dated 06.04.1973. The said petition was disposed of vide order dated 13.07.92 with the following observation;
"2. In view of the statements made by the learned counsel for respondents Nos.2 and 3 and the respondents Nos.4, 5 and 6, and the Incharge Legal Cell, Settlement Department, a direction shall issue to respondent No.3 to finalize the case of confirmation of the land in question in the name of the petitioner against his verified claim, within next three months. Objection of the Incharge Legal Cell, if any, may also be taken into consideration by the Settlement Authority. With these remarks, this petition is disposed of."
Under the guise of above order the Chief Settlement Commissioner straightway passed the allotment order on 10.08.1992 without taking into accounts the factual and legal aspects of the matter and also got incorporated and sanctioned mutation No.9983 dated 30.11.1992 in favour of the allottee.
One Muhammad Latif filed application to the Executive District Officer (Revenue), Lahore for the verification of genuineness of allotment order dated 06.04.1973. On the said application an inquiry was conducted by the Deputy District Officer, Lahore Cantt., who recorded the statement of Ali Akbar Khan Ex.HUC (R) Office of Commissioner Lahore, Division Lahore Pervaiz Malik, Ex-Record Keeper Office of Commissioner Lahore and submitted report on 27.04.2005 categorically stating therein that the record of the appeal No.241/1973 is non-existent and the attested copies allegedly issued to allottee are also bogus. The said inquiry report is still in field. For ready reference, inquiry report and findings are reproduced as under:-
Earlier an inquiry regarding bogus as well as ante-dated allotment etc., was conducted by Mr. Asad Ali Shah, Member Board of Revenue who concluded the inquiry proceedings on 09.05.1983 and found 166 allotments of properties including the alleged allotment in favour of the present petitioners as bogus which findings are discussed in Para Sr.Nos.42, 43, 44 and 45 of the inquiry report, which is as under:-
From
The Secretary (S&R)
To
The Deputy Commissioner, Lahore.
Subject: ENQUIRY REGARDING BOGUS AND ANTE-DATED KHATAS/ALLOTMENTS ETC.-LAND FRAUD CASES.
Mr. Asad Ali Shah Member Board of Revenue (S&R)/CSC. Punjab.
Memo:
Kindly refer to the subject noted above.
Allotment of land against claims was banned by the Federal Government in May/June, 1973 but some unscrupulous persons managed to insert ante-dated Khatas in Registers R.L-II prepared under the forged signatures of the allotting authorities/those who had already retired and thus usurped valuable Government Land. Following allotments are under enquiry:-
Kh. Habib Ullah son of Samdoo
42. Charar. 340 Kanals.
43. Chugian Nagra. " 230 Kanals.
44. Begum Kot. " 120 Kanals.
45. Haloke. " 125 Kanals.
It has been brought to the notice of the Chief Settlement Commissioner/Member Board of Revenue (S&R) that the parties who had obtained bogus allotments are disposing of the land in their possession through sale/gift etc. This will make the matter even more complicated. It is therefore, requested that mutation of transfer of the said land involved and other similar cases should not attest. Copies of the record of rights/Jamabandi may also not to be issued without the prior permission of Deputy Commissioner till final decision of these cases. You are, accordingly requested to issue necessary instructions to the Revenue Officer under your control to ensure compliance of the order of the Chief Settlement Commissioner/Member Board of Revenue (S&R).
Sd/- Secretary (S&R) Board of Revenue, Lhr
Regarding fraudulent allotments over 3000 Kanals of valuable evacuee land situated in urban area of Lahore against various bogus claims a criminal case FIR No.33/96 dated 4.4.1996 under sections 109/218/420/ 468/471, P.P.C. and 5(2) 47 PCA was lodged at Police Station Anti-Corruption Establishment Lahore Region, Lahore and an inquiry was conducted by the Assistant Director (Inv.). During the investigation of criminal case FIR No.33/91 (supra) the allotments of Khawaja Habib Ullah are also mentioned in Para-14 of the report. For ready reference, Para-14 whereof is reproduced as under:-
"14. The beneficiaries have already secured allotment of land to the extent of their verified claim in various villages. However, they managed to defraud the Government by way of concealing the fact of this allotment before the superior judiciary and managed to obtain double allotment of valuable land by preparing fictitious and fabricated judicial orders thereby causing substantial loss to the Government. The land so allotted to them is situated in Harbanspura which falls in urban limits and could not have been allotted to them against their claims of land in rural areas under the law. The role of Khawaja Habib Ullah is mentioned hereunder:- a. As per his claim verified by Dy. Claims Commissioner/ Lahore (25.7.1957) he was entitled for allotment of 435 Kanals and 12 marlas agriculture land and 25 kanals 5 marlas of garden in rural area. As is evident from the record he had secured allotment in various villages in satisfaction of his claim. It may be pertinent to submit that no land owner can retain land beyond 8000 Produce Index Units under MRI-115 and the holding of Khawaja Habib Ullah exceeds 15,000 Produce Index Units. b. The impugned order of Addl. Settlement Commissioner (land) Lahore passed on 28.9.1972 which has been made the basis of appeal before Mr. Zaka Ullah Naik, Ex-Addl: Settlement Commissioner (Revenue) Lahore does not exist in the Judicial Record Room as per statement of Mr. Muhammad Rafique, Record Keeper. c. The MISSAL of his case was never consigned to the Judicial Record Room as stated by the Record Keeper. Besides, no 'PESHI' Register or any connected document is available in the office of the Addl: Settlement Commissioner (Revenue) Lahore as stated by the concerned officials which could indicate that the cases/appeals were actually filed, heard and decided. d. Kh: Habib Ullah concealed the fact of his previous allotment before the Lahore High Court and connived with certain officials of the Revenue/Settlement Department who maintained silence to his advantage. Had the facts been placed on record, the situation would have been materially different and the High Court would not have passed the orders. e. Legal Cell of Board of Revenue had informed Ch: Talib Hussain, Member Board of Revenue that Kh: Habib Ullah had exhausted his entitlement and that he was not entitled to any further allotment. However, the Member Board of Revenue proceeded to make the allotment despite the observations of the High Court. Apart from this, in Writ Petition No.113/R-92, Mr. Justice Afrasiab had also directed the Settlement Authorities to take into consideration the observation of the Incharge of the Legal Cell which was not considered. f. Deputy Commissioner, Lahore A.D.C. (G) Lahore Cantt. etc., had also pointed out the following facts through written communication.
(1) Land in Harbanspura was not evacuee land and could not be allotted.
(2) Kh: Habib Ullah had obtained double allotment through fraudulent means.
The A.D.C (G) Cantt: had got cancelled the mutation of land on the advice of D.C. Lahore which was set aside by Additional Commissioner (Revenue) Lahore. g. Mr. Zaka Ullah Naik, Addl: Commissioner (Revenue) Lahore vide order dated 6.4.1973 and Ch: Talib Hussain Member B.O.R in order dated 10.08.1992 allotted 4 kanals land in village Harbanspura. However, Kh: Habib Ullah manipulated and .............in the said Khasra, mutated in his name in connivance with the Revenue officials.
The role of the remaining beneficiaries namely Siraj, Allah Dia and Pir Mohammad etc. is identical. However, they are being represented by their General Power of Attorney who are stated to be personal servants of late Mohammad Hayat and other influential persons. This aspect also requires further probe."
In the above said inquiries conducted by the Deputy District Officer (Revenue) Lahore dated 27.04.2015 and inquiry report of Member, BOR dated 09.05.1983 as well as the investigation report of the Anti-Corruption Department, the allotment of Khawaja Habib Ullah as well as initial order of the Settlement Commissioner are found bogus and non-existent in the official record, which reports have never been reversed by any competent forum.
9. Admittedly the Settlement Laws were repealed through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 with effect from 01.07.1974. The jurisdiction of the Settlement Authorities has been extinguished and certain limited powers were conferred to Notified Officer to decide only the actively pending proceedings or the matter remanded from the Hon'ble Supreme Court or a High Court. For ready reference, section 2(2) of the Evacuee Properties and Displaced Persons Laws (Repeal) Act of 1975 is reproduced as under:-
"2. Repeal of certain laws.---(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
The pending proceedings means only those proceedings which were actively and immediately pending before 01.07.1974 or those matter remanded by the Hon'ble Supreme Court or High Court. The Hon'ble Supreme Court of Pakistan in respect of the proposition regarding the pending proceedings has laid down in the case reported as Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing), Punjab, Lahore v. Akhtar Munir and 6 others (PLD 2003 SC 603) as under:-
"The facts leading to the filing of Writ Petition No.52-R of 1984 were that claim of the respondents were duly verified in District Rawalpindi but instead of getting the same settled in District Rawalpindi the respondents sought their transfer to Lahore on the ground that they had shifted to Lahore. The verified claims were allegedly misplaced either in the office of the Deputy Commissioner, Rawalpindi or Lahore in transit. The respondents have not cared to contest the appeal and it appears from the record that they had for the first time moved an application on 26-2-1976 with regard to the whereabouts of their claims as a result of which a duplicate entitlement certificate was issued on 22-11-1976. The case thus cannot be said to be actively pending consideration before the authorities concerned for final disposal within the contemplation of the principle enunciated in Zafar Ali Khan v. Chief Settlement Commissioner (1999 SCMR 1719). The conceding statement of the learned counsel for the department can have no bearing on the case in view of the observations made in Muhammad Ramzan v. Member (Revenue)/CSS (1997 SCMR 1635) that disposal of constitutional petition by the High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice and as such has no binding effect. The judgment dated 4-12-1991 vis- -vis this petition thus suffers from a jurisdictional defect and there is force in the contention that it is void ab initio being coram non judice."
In another case the Hon'ble Supreme Court of Pakistan has defined pending proceedings titled as Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob (PLD 2002 SC 5) which is as under:-
"The term "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases. Mere possession of any evacuee land as claimed by the respondent in Chak No.223/RB in the writ petition would not make his case, a case of pending proceedings within the contemplation of provisions of sections 2 and 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, the direction issued by the learned Judge of the High Court for allotment of the said land under the settlement laws to the respondent was violative of law which could not have been given, for under Article 199 of the Constitution, the High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law requires him to do whereas the direction issued in this case was to the contrary i.e., what law did not require him to do, he was ordered to do."
Reliance is also placed on the case reported as Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822) wherein the Hon'ble apex Court held as under:-
"41. In view of the aforesaid discussion we are persuaded to hold that the cases of the private parties are not covered by the expression "pending proceedings" in terms of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, they have no legitimate cause for transfer of the agricultural land situated around Faisalabad. Moreover, no land was available for transfer being evacuee agricultural land in view of the Notifications, dated 3rd January, 1958 and 16th May, 1973 issued by the Chief Settlement Commissioner respectively. The Chief Settlement Commissioner/Notified Authority had no jurisdiction/lawful authority to make the allotments in favour of private parties treating their cases to be pending. Similarly respondent Muhammad Waris and other whose case was discussed at length was not entitled for transfer of the property in his favour because admittedly their claim was allegedly verified on 26th January, 1991 much after repeal of evacuee laws/regulations by Act of 1975. As far as intervenors are concerned they may approach the concerned department in view of the observations of the High Court in Civil Revision No.1062-D of 1987, decided on 18-6-1990 and Writ Petitions Nos.2-R of 1989 and others decided on 20th June, 1990 for redressal of their grievance.
As a result of above conclusion Civil Appeals Nos.170 to 176, 185 and 1561 to 1566 of 1999 are dismissed with costs. Whereas Civil Appeals Nos.177 to 184 of 1999 are allowed with costs, as a consequence whereof the impugned orders operating against the appellants passed by High Court and Chief Settlement Commissioner/Notified Authority are declared as of no legal effect."
After issuance of notification dated 16.05.1973 by the then Chief Settlement Commissioner all unsatisfied agricultural urban land in entire Province of Punjab was declared as building site and same was excluded from the allotment against the evacuee claims under settlement and rehabilitation process. The vires of said notification came under judicial consideration and same was validated by the Hon'ble Supreme Court of Pakistan in Muhammad Ramzan Case (supra) holding as under:-
"It is noteworthy that after issuance of notification dated 16-5-1973 and promulgation of repeal Act, 1975 Chief Settlement Commissioner Punjab or Notified Officer did not possess any power to make allotment of any agricultural land in the urban areas of Punjab. No one in the Settlement Department was, therefore, competent to transfer or consent for giving any land much less an "alternate land" for adjustment of produce index units, specially when they did not even assert possession over any portion of such land. Additionally, by virtue of notification, dated l6th May, 1973 entire agricultural urban land was declared as "building sites" and subsequently on account of repealing enactment all unutilized properties by operation of law were transferred to the Government of Punjab in the consolidated pool, which could only be disposed of in accordance with procedure prescribed under regular schemes. Besides, none of the "building sites" could be legitimately transferred even under the scheme framed by the Punjab Government, except such portion upon which construction had been raised by the claimants and other adjoining land not exceeding three times the constructed area. Even under the scheme presently in force limit of granting agricultural urban land was considerably restricted. The "Notified Officer" flagrantly disregarding the law granted alternate land, to the claimant against verified produce index units which otherwise did not belong to Settlement Department. It is noticeable that "Notified Officer" had illegally assumed powers which were not vested in him. His conduct does not appear to be above board and is prima facie mala fide. This certainly called for probe and suitable departmental action against persons responsible for concealment of facts and wanton abuse of power by the then Chief Settlement Commissioner, (Ch. Talib Hussain)."
10. Under section 3 of the Evacuee Property (Displaced Persons) Repeal Act, 1975 all the declared urban property could only be disposed of under the Scheme to be framed by the Government and urban property could not be allotted against even genuine and verified claim. The question regarding the implementation of those orders which were passed before the Repeal Evacuee Laws in 1975, Chief Settlement Commissioner vide Notification No.1624/78/855/RL dated 19th June, 1978 decided that any allotment which has not yet been implemented in the revenue record before coming into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year thereafter the passing of allotment order, whichever is later, may be deemed to have been obtained through fraud by ante-dating the entries in the register R.L.II and same should be considered as cancelled forthwith, after hearing objections, if any, of the so-called allottee. For ready reference, notification whereof is reproduced as under:-
No.1624/78/855/RL
Office of the Member Board of Revenue (Settlement and Rehabilitation Wing) Punjab.
Dated Lahore the 19.6.1978.
From
Mian Waheed-ud-Din Rathoro, Secretary (Rural) (Settlement and Rehab. Wing) Board of Revenue Punjab.
To
1. All the whole time Settlement Commissioners (L) and Addl: Settlement Commissioners (L) Punjab.
2. All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab.
Subject: Allotment of resumed land to informers etc. Mr. A. K. Khalid, C.S.C./Member Board of Revenue (S&R) Punjab.
Memorandum:
The Chief Settlement Commissioner/Member, Board of Revenue (S&R) Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called allottee.
2. The Chief Settlement Commissioner/Member Board of Revenue(S&R) Punjab, has further been pleased to order that all cases where land has been resumed on 'Mukhbari' applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under section 14(1A) of the Displaced Persons (Land Settlement Act, 1958, read with section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
3. You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay.
Sd/-
SECRETARY (RURAL) (SETT. AND REHAB. WING)
BOARD OF REVENUE PUNJAB.
No.1624/78/855/RL dated 19th June, 1978.
A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land)) Punjab for information and necessary action.
Sd/-
SECRETARY (RURAL) (SETT. AND REHAB. WING)
BOARD OF REVENUE PUNJAB.
Under the command of the above notification the lawful allottees of the evacuee land were placed under obligation to get executed or implemented the allotment orders within the stipulated period of one year. Admittedly, in this case the original order was allegedly obtained by the allottee on 06.04.1973 in appeal but no diligent effort for its implementation was ever made by the allottee till filing of Writ Petition No.113-R in the year 1992 and no explanation has been furnished for intervening delay of two decades. The Chief Settlement Commissioner by misconstruing the order of this Court passed in W.P. No.113-R of 1992 illegally enlarged his jurisdiction and passed the fresh order of allotment dated 10.08.1992 in favour of the petitioners-claimants without seeking any report from the subordinate authority and addressing the objection of the concerned official of Record Room whereas he was devoid of any jurisdiction to make any fresh allotment after promulgation of Repealing Act, 1975. These orders were challenged by sitting illegal encroacher through various Writ Petitions which were consolidated with Writ Petition No.147-R of 1993 and through a consolidated judgment dated 27.06.1994 all the petitions were dismissed by this Court. Against the above said judgment, the sitting illegal occupants filed Petitions for leave to Appeals Nos.988-L/1994, 989-L/1994 and 990-L/1994 which were dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 18.10.1995. A Civil Review Petition No.106-L in C.P. No.988-L of 1994 was filed which also met with dismissal. The said consolidated judgment passed in Muhammad Ramzan Case (supra) again came under discussion of the larger Bench of the Hon'ble Supreme Court of Pakistan and it was declared therein that the Notified Officer has no jurisdiction to allot or transfer or grant any land against unsatisfied verified claims and the allotment made by Chief Settlement Commissioner/Ch. Talib Hussain were also declared as illegal. In the said judgment the notification of building site dated 16.05.1973 was also validated. The relevant text is as under:-
"23. Now carefully examining the details of each case in hand, it would be quite apparent, that specified land had been allotted to some of the appellants prior to the date of notification dated 16-5-1973 and they were unsuccessful in getting its possession and effecting mutation concerning the same in their favour. In majority of cases, applications seeking grant of "alternate land" were submitted to Chief Settlement Commissioner after repeal of evacuee laws, rather towards beginning of year 1992. In certain matters directions were also obtained from Lahore High Court for ensuring expeditious disposal of the grievances agitated by the claimants / respondents whose verified claims despite strenuous follow-up, had not been satisfied. In one of the cases when Writ Petition No.2523 of 1991 was filed before Lahore High Court the Settlement Department made categoric concession for providing alternate land to respondent Mirza Shamim Ahmed Baig and said petition was accordingly disposed of on 14th July, 1992. Therefore, it has to be seen that when claims were not satisfied or direction issued by superior Court regarding subject-matter which inherently suffered from want of jurisdiction, were not complied on concession for allotting alternate urban land to claimants against unsatisfied produce index units even it any concession was made by the Department, otherwise having no authority specially after repealing Act, could be legitimately sustained. The ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255 and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into "building sites" and consequently notification dated 16-5-1973 was valid. Therefore, on the issuance of said notification every agricultural urban land which had not been adjusted, allotted or utilized till then against verified claims ceases to be available for transfer. Additionally, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, became effective from the first day of July, 1974. Hence the status of evacuee property as existing on such date could not be changed or converted subsequent to promulgation of said enactment. The authority for disposal of the property or residual work was merely to be restricted to finalize rehabilitation process. Therefore, we find no difficulty in observing that when repealing Act was promulgated there did not exist any agricultural urban land, which could be adjusted against unsatisfied verified claims of produce index units. The claimants with unsatisfied entitlement could resort to any other remedy if available under the law, but were not entitled to obtain allotment of urban land in satisfaction of Pending units as alternate land/ measure or otherwise.
24. Besides, it was mandatory condition for grant or allotment of land that proceedings must be pending, which could be dealt with and finalized by the "Notified Officer" within the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters under consideration, claims of respondents had not been fully adjusted or lands allocated to them for being transferred in their favour was not available for one or the other reasons. Therefore, without much comments relying on the instructive observations in cases of Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCMR 732), Syed Saifullah v. Board of Revenue, Balochistan and others (1991 SCMR 1255) and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCMR 1358) we are inclined to hold that on the promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units."
As the pending Civil Appeals Nos.195 to 206 and 1049 to 1054/1995 were got deconsolidated from the civil petition of the encroachers and a Larger Bench consisting of 4 members of Hon'ble Supreme Court awarded hearing and dismissed these appeals vide order dated 11.01.1997 through landmark judgment (Muhammad Ramzan case supra). For ready reference, Para-22 of the judgment is reproduced as under:-
"22. Adverting to provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, it will be seen that section 3 regulates transfer or disposal of property which may be "available for disposal" immediately before the repealing Act. Besides, section 2(2) of the aforementioned enactment further controls and restricts the powers or jurisdiction exercisable by the 'Notified Officer' for regulating property or matters which may be 'pending' when evacuee laws were repealed. Evidently important feature 'for allotment of any land was subject to 'pendency of proceedings' and 'availability of land' pertaining to specific classification. This pendency of proceeding is not co-related with failure of authorities to satisfy any verified claim of a displaced person/claimant. The distinction between pendency of units/claims and "pending proceedings" have been discussed in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing) Chief Settlement Commissioner, Punjab Lahore v. Muhammad Mustafa and 74 others (1993 SCMR 732). It has also been specifically elucidated that neither nature of land could be converted, nor proceedings treated as pending even under direction of superior Courts if same tends to contravene existing law. The relevant observations are as under:-
"3 The learned counsel for the appellant has pointed out that the proceedings pending in the case could be taken only to be those instituted on an application under sections 10 and 11 of the Act and not the satisfaction of the pending claim as such. The application under sections 10 and 11 of the Act having not succeeded at any stage had concluded. If the respondents had succeeded in those proceedings, their entitlement under the law (Act XXXVI of 1974) could have extended to the resumed land to the extent of their claim pending for allotment and if the resumed land had already been allotted to some other person, the allotment to the extent of such land will be effected by way of choice from the available land for allotment in the same Province. Failing these two alternatives, they were entitled to cash award of such amount as the Chief Settlement Commissioner may decide. An unsuccessful informer could not claim these rights under the law.
4. The respondents/writ petitioners being unsuccessful in their application under sections 10 and 11 of the Act could not on the basis of either the repealing law or Act XXXVI of 1974 seek benefit of allotment from an available land. It is only on their being successful in their application that they could claim adjustment against the resumed land or the other alternative available land. The pendency of the claim itself did not amount to pending proceedings. In congested Districts, there was a ceiling on allotment 'and whatever units were left unsettled, beyond the ceiling, had to be taken out and settled in some other District. One could not keep the excess units in the District and then claim that it remained pending so far a settlement in that District was concerned.
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6. On examination of the facts of the cases and the law laid down therein we find that none of them deals with the situation like the present one i.e. an informer being unsuccessful and yet succeeding in getting a direction from the High Court. Where the direction given by the High Court is manifestly against the law it cannot be allowed to remain."
In the afore-quoted pronouncement it is expressly observed that after repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1975, the Notified Officer is denuded from any power to make fresh allotment order against even the verified claim or Produce Index Units. It is interesting that the petitioners filed application seeking alternate land against balance Produce Index Units and Member, Board of Revenue and the then Chief Settlement Commissioner (Talib Hussain) vide order dated 07.11.1992 allotted alternate land measuring 133-Kanals 5-Marlas situated in village Ammar Sidhu without taking into account the provision of law which shows his collusiveness with allottee's. The Hon'ble Supreme Court of Pakistan with regard to poor conduct and integrity of the said Notified Officer (Ch. Talib Hussain) has observed in Muhammad Ramzan case (supra) as under:- "it is noticeable that "Notified Officer" had illegally assumed powers which were not vested in him. His conduct does not appear to be above board and is prima facie mala fide. This certainly called for probe and suitable departmental action against persons responsible for concealment of facts and wanton abuse of power by the then Chief Settlement Commissioner, (Ch. Talib Hussain)."
11. As far as the arguments of the learned counsel for the petitioners that order of Chief Settlement Commissioner dated 08.10.1992 was upheld by the Hon'ble Supreme Court of Pakistan vide order dated 18.10.1995 whereafter the matter cannot be reopened by the Revenue hierarchy. A bare perusal of the judgments passed by this Court as well as Hon'ble Supreme Court of Pakistan the appeals filed by the Government of the Punjab as well as by the private persons were accepted to the extent that land subject matter in the above cases were not available for transfer either as urban or as an rural agricultural land as all the lands/properties fall within the municipal limits of Lahore which had been declared as building sites. In the said verdicts neither genuineness of alleged allotment of the petitioner was discussed nor judicially adjudicated, rather only the rights of the sitting occupants were determined. As the genuineness of claimants' allotment orders was not decided in the said proceedings, as such, stance taken by the learned counsel for the petitioners that the allotment of the petitioners was upheld upto the Hon'ble Supreme Court of Pakistan is misconceived and accordingly repelled. The Hon'ble Supreme Court of Pakistan in last paragraph of Muhammad Ramzan case held as under:-
"29. As a sequel to above discussion we are satisfied that the orders passed by the 'Notified Officer' which have been impugned in all these appeals suffered from total lack of jurisdiction and were coram non judice. Private appellants who have been objecting to the adjustments of respondents' claim had ostensible cause, reasonable justification and fear of being prejudiced, therefore, in all fairness were aggrieved party as held in the case of Fazal Din v. ٴ Lahore Improvement Trust, Lahore, and another (PLD 1969 SC 223). The High Court, therefore, ought to have interfered with the illegal orders passed by Chief Settlement Commissioner, purporting to exercise powers of Notified Officer.
In view of our above conclusions, the appeals filed by Government of Punjab as well as by the private persons are accepted to the extent that the lands which were subject-matter in the above cases were not available for transfer either as agricultural urban land or as agricultural land since all these lands were within the Municipal limits of Lahore and were declared as building site in view of the notification dated 16.5.1973 issued by the Chief Settlement Commissioner under the provisions of Displaced Persons Land Settlement Act, 1958. It is, however, left open that if any of the appellants in Civil Appeals Nos. 1049 to 1054 of 1995 was entitled under the Scheme framed after repeal of evacuee laws, the same may be agitated if so available under the law before the authorities concerned. There will be no order as to costs."
12. So far as the arguments of the learned counsel for the petitioners that Province of Punjab through Chief Settlement Commissioner filed Writ Petition No.4-R of 2002 against order of allotment passed by the settlement commissioner dated 06.04.1973 as well as the subsequent order dated 08.10.1992 and the said writ petition was dismissed as withdrawn whereafter the said allotment has attained finality and settlement authorities are precluded to assume the jurisdiction to re-open the past and closed matter suffice it to say in this regard that the collusiveness of the Secretary Settlement with the petitioners is abundantly clear from perusal of record of Writ Petition No.4-R of 2002 which reveals that said writ petition was filed by the Chief Settlement Commissioner through Ch. Mushtaq Masood, Advocate (deceased) who wrote letter to the Chief Settlement Commissioner while returning the brief with the remarks that the case may be entrusted to some other competent learned counsel as he has been forced to withdraw from the above cases. Said letter dated 27.05.2002 is scanned as under:-
After issuance of the above letter the appearance of original learned counsel to pursue the case was dispensed with by the department and an application (C.M. No.3/2003) in Writ Petition No.4-R/2002 for withdrawal of writ petition was filed by Ch. Muhammad Zakriya Khalil Advocate along with affidavit of Kh. Habib Ullah the claimant allottee respondents of the said writ petition. The petition, power of attorney as well as affidavit appended in support of application for withdrawal of writ petition are scanned hereunder:-
It is worth mentioning here that Writ Petition No.4-R of 2002 was filed by Province of Punjab through Chief Settlement Commissioner whereas application (C.M. No.3 of 2013) for the withdrawal of the Writ Petition was filed by the Secretary (S&R), Board of Revenue, Punjab, Lahore with an affidavit of Khawaja Habib Ullah attested by the Oath Commissioner on 13.09.2013 whereas the Secretary (S&R) in any capacity was not authorized to withdraw the writ petition. The affidavit of Kh. Habib Ullah appended with withdrawal application shows that he was influential person and was collusive with the Secretary Settlement Department. All these facts suggest that application was filed by an unauthorized person with inter se collusiveness of predecessor in interest of the present petitioners who succeeded in getting withdrawal of Writ Petition No.4-R/2002 just to perpetuate the alleged fraudulent allotment. Mere withdrawal of the writ petition against the alleged allotment in favour of the petitioners could not validate the allotment of the petitioners. The Hon'ble Supreme Court of Pakistan in a latest case reported as Province of the Punjab through Collector Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) resolved this controversy and held that rejection of plaint does not operate as res judicata, against the plaintiff as well as the defendant. For ready reference relevant portion of the said judgment is reproduced as under:-
12. The argument that when in another litigation between Mst. Sairan and the respondents, the issue about the memorandum banning allotment of land in possession of the Forest Department has been decided, the appellants who were party thereto could not raise it again is misconceived, firstly because the litigation referred to above ended up in rejection of plaint, and since rejection of plaint does not operate as res judicata, against the plaintiff in the subsequent suit, it cannot operate as such against a party who was defendant; and secondly because all the Courts in the said litigation having focused on the question of title between the rival claimants decided the question of title only, without attending to the question of law and the judgments rendered in the cases of Muhammad Ayub and others v. The Province of Punjab and Province of Punjab v. Muhammad Mahmood Shah (supra). Therefore, reference to the previous litigation would not be of any help to the respondents.
The genuineness of the allotment of allottee Kh. Habib Ullah came under adjudication before the Additional District Collector, Lahore and the petitioners filed application for setting aside the review order passed by the Additional District Collector, Lahore but subsequently abandoned the said proceedings of their own without any legal justification whereas the above proceedings culminated into passing of the impugned order whereby the allotment of the petitioners was declared as fake, fictitious and result of fraud and order regarding the review of mutation was maintained. It is settled law that revenue functionaries are not bound to implement the order which are void or per incurium, coram non judice and passed without jurisdiction or obtained on the basis of forged, false, fictitious and fabricated documents as held by Hon'ble Supreme Court of Pakistan in the case titled as Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore v. Akhtar Ali Khan and others (2007 SCMR 459). There is no any order passed by the competent authority on which basis the petitioners may claim their allotment, as such, the alleged order passed by the Notified Officer in the year 1992 is without jurisdiction as the evacuee laws were repealed w.e.f. 1.7.74. In addition to above vide notification dated 16.5.73 all the agricultural urban land has been declared building sites which could only be disposed of the relevant Scheme framed under section 3 of the Displaced Persons Act, 1975. Reliance can also be placed on the cases reported as Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Khair Din v. Mst. Salaman and others (PLD 2002 SC 677), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Khadim Hussain v. Abid Hussain and others (PLD 2009 SC 419), Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). In another case titled as Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another (PLD 2015 SC 166) the Hon'ble Apex Court has observed that after the promulgation of repealing Act, 1975, the Notified Officer has no authority to make a fresh allotment of available evacuee land. The relevant test is as under:-
"15. The Repealing Act, 1975 does not vest the Notified Officer with any authority to make a fresh allotment of available (evacuee) land. This disability includes the power to allot alternate land. The said limitations on the powers of the Notified Officer are discussed in Saifullah v. Board of Revenue (1991 SCMR 1255). In Muhammad Ramzan v. Member (Rev.)/CS (1997 SCMR 1635), as follows:-
"(8) With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had taken place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact."
In case titled as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449), the alleged allotment made in 1992 by the then Notified Officer (Talib Hussain) was declared bogus by Larger Bench of Supreme Court of Pakistan observing that any public functionary, how so high ever it may be, is subservient to the Constitution and law and has to act within the precincts assigned by the Constitution and law framed holding as thereunder:-
"It may be observed that the Government has no unfettered authority to dole out any property in any manner on its own whims and fancy. Indeed, the Government functions and operates through different instrumentality under well guarded rules and procedures and in accordance with law. This Court, at page 1661 in the case of Muhammad Ramzan (ibid) held as under:-
"8. With the repeal of the Evacuee Laws in 1975, the unalloted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact."
The Hon'ble Supreme Court of Pakistan in a recent judgment reported as Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd and others (2016 SCMR 222) observed that when a matter is re-opened the Additional Settlement Commissioner was/is empowered to re-examine all the facts pertaining to the title of the parties from the very inception and to decide the matter according to available record as per law and similarly in the instant case the matter was referred back by this Court to the District Officer (Revenue) to afford hearing to the parties and decide the same on merits, as such, he was fully competent to investigate the whole case as an adjudicating forum. Reliance in this regard is placed on the following judgments of the Hon'ble Supreme Court of Pakistan as well as of this Court:- i) In Custodian of Evacuee Property, Lahore v. Syed Saifuddin Shah (represented by his heirs) (PLD 1981 SC 565). ii) In Shamrooz Khan v. Muhabbat Khan and another (1989 SCMR 819). iii) In another judgment reported as Syed Wajihul Hassan Zaidi v. Government of the Punjab and others (PLD 2004 SC 801). iv) A Division Bench of this Court in a case reported as Muhammad Baqir v. Haji Shokat Ali and 3 others (2005 CLC 1106).
It is proved on record that the order dated 06.04.1973 passed in Appeal No.241 of 1973 is non-existent. The concerned official with whose signatures on the attested copy of the above allotment was prepared and issued appeared before the inquiry officer and denied their signatures as well as issuance of the copies. The record of the said order is neither available in the said appeal nor said order was ever passed whereas no reference is made to the basic order on which basis the alleged said appeal or order was passed and if the foundation is non-existent then all superstructures so constructed shall automatically collapse, as such, it can conveniently said that order of allotment dated 06.04.1973 is non-existent and is result of fraud, which dismantle the complete edifice of the petitioner's claim. Reliance is placed on the cases titled as Syed Ansar Raza Zaidi and others v. Chief Settlement Commissioner and others (2007 SCMR 910) and Tufail Muhammad through LRs v. Messrs Siddique Textile Mills Ltd. and others (2009 SCMR 1091). As in three successive inquiries conducted by the settlement department, Anti-Corruption department and by the Deputy District Officer the genuinity of allotment of petitioner propositus was found fraudulent and same factum also stood established from the available record as such the fraudulent allotments wear no sanctity in the eyes of law. It is well settled law that fraud vitiates the most solemn proceedings and any castle so raised on the basis of such fraudulent transaction stood automatically dismantled and any benefit, right or title obtained by committing fraud cannot be validated under any laws. Reliance is placed on the cases of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) wherein the Hon'ble Supreme Court of Pakistan has observed that discretionary relief in writ petition cannot be granted to perpetuate the ill-gotten gains. For ready reference, relevant portion is reproduced as under:-
".....it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice."
The Hon'ble Supreme Court of Pakistan in its judgment reported as Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) observed that any order passed by the authority without jurisdiction is void ab initio and the same never attained finality in the eyes of law and is liable to be ignored. Relevant text is as under:-
"The order dated the 9th of May 1962, was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored."
Admittedly petitioner's propositus filed W.P. No.113-R-1992 for implementation of order of his allotment dated 6th of April 1973 but he made deliberate concealment of material facts regarding the report of the member Board of Revenue dated 9th May 1983 whereby his allotment was declared as bogus, which report has never been challenged before any forum and had the said factum narrated in the W.P. No.113-R of 1992, the position would altogether be different and it can conveniently be said that petitioner committed misrepresentation of the material facts which amounts to commission of fraud. This Court has the jurisdiction to withhold the exercise of its jurisdiction against the erroneous order of the authority as the petitioner has come to this Court with unclean/soiled hands. Reliance on Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) wherein it was held as under:-
"Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter "was clearly without jurisdiction."
As result of the above it can conveniently be held that the original allotment order dated 6.4.1973 is fake, fictitious, non-existent and based on fraud which dismantle the entire superstructure of order dated 10.08.1992 as well as mutation No.9983 dated 30.11.1992 thereupon, as such W.P. No. 12168 of 2012 is hereby dismissed.
13. As regards the claim of the petitioners in W.P. No. 2229 of 2013 and W.P. No. 37898 of 2015 who claim to be the bona fide purchasers and have protection of law under section 41 of Transfer of Property Act, suffice it to say that it is settled law that a purchaser is saddled with extraordinary responsibility of taking care and caution to deeply scrutinize the genuineness or originality or legality of the title of the vendor before entering into the transaction of purchasing the land under the principle of caveat emptor subject to incidence of sections 10 and 11 of Transfer of Property Act and if any infirmity or deficiency subsequently emerges in the title of the vendee that shall always travel with the land and purchaser is precluded to raise plea of protection under Section 41 of the Transfer of Property Act rather they have to face the rigors of their own negligence for non-conducting a bona fide and reasonable investigation into title of the vendor under the principle of Caveat Emptor. Reliance can be placed on the case reported as Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489). Since the alleged allotment of Khawaja Habib Ullah was declared as bogus and mutation of allotment has been reviewed whereafter vendees have no independent right, title or interest in the allotted land and they have to soar and sink with the title of the original allottees, as such, it is clear that no protection is available to the petitioners under Section 41 of the Transfer of Property Act as settled by Hon'ble Supreme Court of Pakistan in a reported case titled Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199) held as under:-
" Since, an allotment of land is subject to the provision of sections 10 and 11, every purchaser from a allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us."
In another case titled Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), the Hon'ble apex Court held as under:-
"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."
In a case titled Abdul Hamid v. M.B.R. and others (1994 CLC 1160), this Court held as under:-
"4. The learned counsel for the petitioners has contended that all the petitioners are bona fide purchasers for value of the land from the transferee and they are entitled to retain the same. It is not disputed that transfer in favour of Noor Muhammad was found to be fraudulent. Not only that it was further found by the Notified Officer that Noor Muhammad, the real claimant, A was not traceable and some other person had obtained allotment by impersonating him. As the vendor of the petitioners had no right in the land, he could not pass any title to the petitioners and they have no consequently legal right to retain the land (See Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491) and Manzoor Hussain v: Fazal Hussain and others (1984 SCMR 1027)."
This Court in a reported case Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner (Lands), Lahore Division and another (2002 YLR 3268) has observed that "since an allotment of land is subject to the provision or sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of bona fide purchaser as envisaged in section 41 of the Transfer of Property Act. His remedy is not against the Department but "against the vendor". In another case titled as Rasheed Ahmad and 2 others v. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala and others (2007 CLC 1801) the learned Division Bench of this Court held as under:-
"8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under section 41 of the Transfer of Property Act. We respectfully follow the above view.
14. Learned counsel for the petitioners has failed to point out any perversity illegality or any jurisdictional defect in the impugned order calling for any interference by this Court in its constitutional jurisdiction.
15. For what has been discussed above, these writ petitions are devoid of any force and the same are hereby dismissed.
MH/R-8/L Petitions dismisse