Syed SAIFULLAH Syed SAIFULLAH Versus BOARD OF REVENUE, BALOCHISTAN

SHAFIUR RAHMAN, J.---This judgment disposes of three appeals, the subject-matter of which is the same property and the matter has been dealt with in the High Court by two separate judgments arising out of two Constitution Petitions disposed of by a consolidated judgment, dated 30-12-1989 and a Civil Revision Petition disposed of separately on 24-4-1990.

2.The facts of the case in brief are that one Abdul Hakim Patel and Syed Hashmat Raza Abidi had verified claim awaiting their settlement. The appellant approached them, undertook to get their verified claim settled and in return was to have a share of 25% in the land allotted. Out of the combined allotment against the claims of both Syed Hashmat Raza Abidi and Abdul Hakim Patel he was to receive 25%, Abdul Hakim Patel 47.33% and Syed Hashmat Raza Abidi 27.67%.

3.On 11th of February, 1979, the Board of Revenue directed the Deputy Commissioner Quetta to make allotment against 923 P.I. Units to Abdul Hakim Patel against Khasra No.180 in the evacuee property of Thodoo Mall. In consequence, 131 rods 18 poles equal to 32 acre 3 rods and 18 poles, were allotted on 5-5-1979. A Committee examined all the irregular allotments under Martial Law Order No.16 as amended by Martial Law Orders Nos. 34 and 40 and reconstituted as Martial Law Order No.46 (hereinafter referred to as the MLO), and on its recommendation ultimately this allotment was cancelled. So was the allotment of Manzoori Begum in the same Khasra number from whom the appellant had purchased the land. By two separate constitution petitions, the appellant challenged the recourse to MLO, the cancellation of allotments made to Abdul Hakim Patel and Manzoor Begum from both of whom he derived interest in the land so dealt with.

4.The appellant also tiled a Civil suit on the basis of agreement with two claimants of agricultural land about his interest under the agreement in the allotments to be made to them and obtained a decree on 31-8-1988 which was maintained on appeal on 15-3-1989. In Civil Revision the Government was impleaded as a party and in view of the decisions given in the two Constitution Petitions, this Revision Petition was allowed and the suit dismissed. Hence, the three appeals.

5.The High Court held that the appellant had no locus standi to file the Constitution Petition as he was not himself the allottee and further held that the agreement with Mr. Abdul Hakim Patel and Syed Hashmat Raza Abidi amounted to champerty and was against public policy, and could not he enforced. The High Court further held that proceedings under MLO were not open to attack in view of the Provisional Constitution Order and finally no infirmity was found in the order of the Member, Board of Revenue, resuming the allotment.

6.Mr. Basharatullah, Advocate, the learned counsel for the appellant has contended that MLO was not attracted at all to the cases now under discussion because it was not State land which was involved. It was evacuee property which had vested in the Government for the purposes of rehabilitation/settlement and was different than State land simpliciter. Besides, according to him, the exercise of review or scrutiny by the authorities established under MLO was confined to the allotments made during the period 1-1-1972 to 4-7-1977. As the allotments in the case under consideration were made in February, 1979, or after, there was a jurisdictional defect in scrutinising them. It was further contended that the nature of taint which vitiated the allotments did not exist in these cases. As regards the locus standi of the appellant, he pointed out that these were valid agreements and conferred a locus standi on the appellant to seek appropriate remedy and additionally, he had that locus standi equipped as he was with a decree of Civil Court affirmed in appeal. He has placed reliance on Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 to support his contention.

7.About the, locus standi of the appellant and the jurisdictional defect in the order of the Member, Board of Revenue on the ground that the allotment was not covered by the period indicated in the Order (1-1-1972 to 4-7-1977), we are more inclined to agree with the contentions of the learned counsel for the appellant. We also do not propose to examine the larger question whether the agreement entered into by the appellant with Abdul Hakim Patel and Syed Hashmat Raza Abidi amounted to champerty and was against public policy or not in view of our decision in Dr. S. Jalil Asghar v. Messrs Atlas Industries and Trading Corporation and another 1984 SCM R 1. These appeals can be decided on a more certain and jurisdictional basis than on controverted questions of fact.

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 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.

9.We find, therefore, though for reasons somewhat different recorded by the High Court that the dismissal of the two Writ Petitions and the acceptance of the Revision Petition was the requirement of law and justified in the circumstances of the case. The appeals have no merit and are dismissed with no order as to costs.