IJAZ AHMAD and others vs Mst. DEEBA NAWAZ and others
The petitioners, vendees of agricultural land purchased from an allottee in 1967, challenged an order cancelling the underlying allotment on the ground of fraud, passed without affording them an opportunity of being heard. The High Court dismissed their writ petition, holding that a vendee deriving title from a fraudulent allottee is not entitled to notice. Upon a petition for leave to appeal, the Supreme Court held that the rule denying notice to a vendee of a fraudulent allottee is not universally applicable and admits of exceptions. The Court noted that under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, persons in continuous occupation for four harvests preceding Kharif 1973 have a preferential right to purchase, which potentially conflicts with the rights of informants under section 14 of the Displaced Persons and Land Settlement Act. Consequently, the Supreme Court ruled that a pre-1973 occupant-vendee was entitled to notice to determine priority between competing statutory claims. The petition was accordingly converted into an appeal and the matter remanded.
- Whether a bona fide vendee from a fraudulent allottee is invariably not entitled to notice before the cancellation of an allotment?
- Does a person in continuous occupation of agricultural land prior to Kharif 1973 have a preferential right under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 over an informant obtaining cancellation for a fraudulent allotment?
- Whether failure to afford a hearing to an occupant-vendee of resumed land vitiates cancellation proceedings where competing statutory priority rights are involved?
- Section 3, Evacuee Property and Displaced Persons Laws (Repeal) Act 1975
- Section 14, Displaced Persons and Land Settlement Act 1958
- Section 2, Displaced Persons (Land Settlement) (Amendment) Ordinance 1974
- Section 2, Evacuee Property and Displaced Persons Laws (Amendment) Act 1973
ORDER
1. ' NASIM HASAN SHAH, J.---The petitioners are the vendees of the land situate in village Ladheke Cheema which was sold to them by one Abdullah for valuable consideration vide Mutation No,1908 (sanctioned on 30-1-1967) and according to petitioners they have been in possession of the said land since its purchase by them in 1967.
2. ' It appears that on the information furnished by certain informants the allotments made in favour of Abdullah in village Thatha Chinna as well as in village Ladheke Cheema, which are both situated in Tehsil Wazirabad District Gujranwala, it was found that these allotments were obtained fraudulently and were bogus allotments. They were, accordingly, cancelled and the land was allotted to the informants. Since, however the petitioners were not impleaded as parties in the proceedings resulting in the cancellation of these allotments the said orders of cancellation were, accordingly, challenged through a writ petition by the petitioners in the High Court. However, a learned Judge in the High Court rejected the contention raised on behalf of the petitioners that the order of cancellation of the allotments was bad on the ground that the petitioners were not heard before the same was passed on the reasoning that the whole affair of the allotment having been found to be fraudulent and bogus and it being established law that a vendee from the allottecs who has obtained it by fraud is not entitled to notice the failure to hear the petitioners was not fatal.
3. The aforesaid determination is questioned through this petition for leave to appeal.
4. ' We have heard Ch. Khalil-ur-Rchman, learned counsel for the petitioners who has challenged the correctness of the above finding of the learned Judge in the High Court in a detailed argument.
5. In our opinion the rule enunciated by the learned Judge in the High Court that a vendee from the fraudulent allottees is not entitled to notice though generally correct cannot be considered to be a rule of universal application and in certain circumstances and for certain matters hearing of the vendee of land from an allottee who has obtained the allotment of the said land through fraud will still be necessary. The present case appears to furnish one example of this exceptional situation.
6. ' Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) lays down, to the extent relevant, as follows:- "3. Transfer of property.--(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government on payment of such price as may be fixed by the ' Federal Government in consultation with the Provincial Government, for disposal--- (a)................................
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: ' Provided that agricultural land occupied by any person continuously for four harvests immediately proceeding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment had been passed against him in respect of such land."
7. ' According to the learned counsel, the petitioners were continuously in occupation of the land in dispute purchased from the allottee since 1977 and as such were entitled to be offered the same for sale and the allotment of it to the said informants is in violation of the right conferred on them by the aforesaid statutory provision.
8. ' On the other hand, on account of the amendment of section 14 of the Displaced Persons and Land Settlement Act by the Displaced Persons (Land Settlement)(Amendment) Ordinance, 1974, whereby subsection (2) of section 2 of the Amending Act has substituted, the existing provisions of subsection (1-A) were amended by the following new provision:- "(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973) any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled:-
(a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of such other land available for allotment in the same Province as he may choose; ' and
(b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."
9. ' The informants have been conferred the right to allotment of land resumed as a result of the information furnished by them.
10. The question which arises for consideration is as to which of the two in case of a competition between a person who is in occupation of the agricultural land bought by him from a fraudulent allottee before 1973 and still in his occupation and a person who furnishes information about the fraudulent or bogus allotment as a result whereof the allotment is cancelled, shall have priority in the matter of allotment of the aforesaid land.
11. ' A notice to the vendees, in such a case, appears to have been necessary, to determine this matter after hearing them and allow them an opportunity of showing that they were better entitled to allotment.