1. The petitioner alleging to be a bona-fide purchaser for value without notice of any alleged defect in the title of his vendor Shafi Ahmad son of Abdul Hameed, is aggrieved of the impugned order dated 31.10.1998, whereby the respondent/Member (Judicial-III)/Chief Settlement Commissioner, Punjab, declared the allotment of abovesaid Shafi Ahmad and the transaction following the said allotment, as null and void.
2. The relevant facts are that the abovesaid allottee Shafi Ahmad was a displaced person he was allotted and confirmed land measuring 240 Kanals 1 marlas on 16.5.1965 at RL-II Khata No, 274 of village Harbanspura, Tehsil & District Lahore, under the orders dated 13.8.1965, passed by Additional Settlement Commissioner. The said allottee sold the entire land to the petitioner for a consideration of Rs, 6,00,000/- vide sale-deed executed on 9.8.1986 and registered on 12.11.1986. The allotment of Shafi Ahmad was not reflected in the revenue record, the petitioner, therefore, in the first instance, applied, on 27.3.1994, to the Deputy Commissioner/District Collector, for the sanction of mutation.
2. The application was sent to the Revenue Officer concerned through ADC (G), Cantt. Lahore, who required copy of RL-II. the petitioner having misplaced his copy of RL-II, applied to the Member Board of Revenue/Chief Settlement Commissioner, Lahore, to issue certified copy of RL-II. The then Member/Chief Settlement Commissioner. Mr. Jewan Khan, vide his order dated 29.5.1994, directed the Deputy Secretary (S & R) to call for the concerned RL-II and issue a copy under the rules. The Deputy Secretary (S&R), Board of Revenue, Punjab, vide his order dated 9.10.1994, directed to Deputy Commissioner, Lahore, to produce the register RL-II, Khata No, 274, in the Court of Secretary (S&R) for inspection. The Secretary (S&R), Board of Revenue, Punjab, vide his order dated 10.11.1994, held that he had gone through the RL-II in original and that it was intact and there did not appear to be any forged entry in the same and directed the Deputy Commissioner, Lahore, to issue a copy of RL-II Khata No, 274, to the petitioner. After obtaining the copy of RL-II (copy attached), the petitioner applied to the Additional Deputy Commissioner (G), Lahore Cantt., vide application dated 28.12.1994, for the sanction of mutation in his favour on the basis of the registered sale-deed.
3. The Revenue Authorities, in due course, attested Mutations Nos, 11921 & 11922, respectively, in favour of the allottee Shafi Ahmad and then in favour of the petitioner, on 18.9.1995. It may however, be mentioned here that the Revenue Authorities sanctioned mutation of land measuring 94 kanals 12 marlas instead of 240 kanals 1 marlas, on account of the note given by the Patwari on the first page of Mutation No, 11921 to the effect that available Central Government land, according to the record, measured 94 kanals 12 marlas. The petitioner, therefore, submitted yet another application to the Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore, to make up the deficiency or allow alternate land because the rest of land was not available at the spot. Certain persons, occupying the land allotted to Shafi Ahmad, sold to the petitioner, filed a suit before the Civil Court at Lahore for cancellation of the sale-deed. Alongwith the suit, they filed an application for interim injunction. The suit was contested, where after an application for temporary injunction was dismissed by the Civil Judge on 23.11.1996. The suit was also dismissed for non-prosecution on 28.4.1998.
4. 3.One Muhammad Latif, applicant/complainant before the respondent, had also filed a civil suit, which was also dismissed. Thereafter, he filed an application before the respondent for holding inquiry and cancellation of allotment of Shafi Muhammad. The petitioner joined the proceedings and submitted his reply alongwith the relevant documents and also relied upon judicial precedents.
5. 4.During the pendency of the proceedings, the complainant Muhammad Latif alongwith his counsel appeared before the respondent, on 21.4.1998, and got recorded his statement to the effect that he did not want to follow his application. The respondent however, continued with the proceeding on suo moto side. On 5.10.1998, respondent received report from the Deputy Commissioner, Lahore, that the record pertaining to the concerned RL-II was burnt in the fire and, therefore the same could not be produced before him.
6. 5.The respondent, vide his impugned order dated 31.10.1998, declared the allotment made to Shafi Ahmad as null and void, as being outcome of fraud and fabrication as well as the transactions following the said allotment, as void and non-existence.
7. 6.The respondent has held (i) that had the allotment order on RLII, Khata No, 274, been genuine, the same would have been reflected in the revenue record but it was not incorporated in the revenue record for decades, (ii) that there was no evidence with the petitioner that settlement fee was ever deposited in 1965, (iii) that in the registered sale-deed, in favour of the petitioner, the total land allotted to Shafi Ahmad is mentioned as 23.1 kanals & 6 marlas, while the petitioner and the allottee accepted the revenue mutations only for 94 kanals 10 marlas, (iv) that two mutations, one in favour of the allottee and the other in favour of the petitioner, were sanctioned on the same day i,e, 18.9.1995, which pointed out an undue anxiety on their part and showed the mala-fide of the transaction, and (v) that the revenue mutation was sanctioned only for 94 kanals 12 marlas, because position on ground from 1965 to 1995 had totally charged and if it had been a genuine allotment, the allottee would have remained vigilent about his right and would not have allowed land to come under encroachment, unauthorized occupation etc. On the basis of above observations, the respondent concluded that the record of transaction was anti-dated and was liable to be declared void. He, however, conceded that since the original record of RL-II of Khata No, 274 had been destroyed in fire, physical examination of register RL-II could not be carried out by him and that he had examined the case on the basis of internal evidence".
8. 7.I have heard the learned counsel for the petitioner, the learned Legal Advisor representing the .respondent and have also seen the record, including the report and comments furnished by respondent.
9. 8.It is submitted by the learned counsel for the petitioner that the impugned order is arbitrary, whimsical against the record, it is speculative and based on the illegal assumption that since the allotment was not incorporated in the revenue record for a long time, therefore, the same was fraudulent, that the respondent has incorrectly held that the petitioner is content with the lesser allotment of 94 kanals 10 marlas and in fact the petitioner is still agitating for the waking up of the deficiency of 137 kanals 14 marlas, (reference in this regard is made to the petitioner's application , (copy, annexure-K) received in the office of respondent on 30.10.1995, vide Diary No 1564 (copy annexure-K/1), that the respondent, in the impugned order, has admitted that he had not seen the original record as the same was burnt and came to the impugned conclusion on the basis of "internal evidence", which terminology is not understandable, that the only record, which was available before the respondent, showed the genuineness of the allotment and that before the fire in the office of the Deputy Commissioner, Lahore, the genuineness of the transaction was examined by the Secretary (S&R), Punjab, Lahore, under the orders dated 29.5.1994 of the then Member, Board of Revenue/Chief Settlement Commissioner, Mr. Jewan Khan and it was found that the original RL-II Khata No, 274, was intact and did not contain any forged entry and, therefore, a certified copy of the said RL-II was issued to the petitioner on the basis of which the relevant entries were made in the revenue record through Mutations Nos, 11921 & 11922, whereby the land measuring 94 kanals 12 marlas (not the whole land) was firstly transferred in favour of the allottee and then in favour of the petitioner. It has further been argued that the impugned order is without jurisdiction because after the repeal of Settlement Laws with effect from 1.7.1974, vide Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), the Settlement Authorities have no jurisdiction to initiate any fresh proceedings and only the then pending proceedings were saved under Section 2(2) of the above Act, which proceedings stood transferred for final disposal to the Notified Officers, whereas in the instant case, no proceedings were pending before any Settlement Authorities on the relevant date i,e, 1.7.1974 and the impugned order has been passed on the basis of proceedings initiated by the complainant Muhammad Latif, vide his application dated 28.1.997. In the end, it has been submitted that the impugned order is without jurisdiction, also on the ground that it amounts to reviewing the order dated 29.5.1994, passed by the respondent's predecessor, under which the original record was checked by him, the allotment of Shafi Ahmad was found intact and correct and certified copy of RL-II, Khata No, 274, was issued to the petitioner. The learned counsel has also placed his reliance on Sher Afzal Khan and others vs. Haji Razi Abdullah and others (1984 SCMR 228), Nasim Ahmad and 4 'others vs. Deputy Settlement Commissioner, (Malik Shaukat Ali), Circle V, Farid Kot House Lahore and 4 others (PLJ 1986 Lahore 468), Sultan Hassan Khan and 2 others vs. Mst. Nasim Jahan and 17 others (1994 SCMR 150), Kareem Bux vs. P.O. Sindh and others (PLJ 1998 Karachi 765), Mst. Umar Bibi and another vs. Officer on special Duty, Central Record Office, Lahore and 3 others (PLD 1986 Lahore 109), Ghulam Muhammad vs. Sardar Muhammad Aslam Sukhera and 4 others (1993 MLD 423) and Nawabzada Zafar Ali Khan and others vs. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719).
9. In Sher Afzal Khan and others vs. Haji Razi Abdullah and others (supra), the PTD issued in favour of respondent remained in field until repeal of Settlement Laws under the abovesaid Act, XIV of 1975. It was held that it became past and closed transaction and the exercise of jurisdiction by Settlement Authorities, after coming into force of Repealing Act, in undertaking an inquiry in order to review and reopen such past and closed transaction was palpably coram non judice and wholly incompetent. In Nasim Ahmad and 4 others vs. Deputy Settlement Commissioner, (Malik Shaukat Ali, Circle V, Farid Kot House Lahore and 4 others (supra), assumption of jurisdiction by Deputy Settlement Commissioner, on the respondent's application dated 30.11.1980 for the declaration of PTD issued in favour of the petitioner as fake or forged and for the allotment of plot in question to respondent, was declared to be without jurisdiction, by a learned Single Judge of this Court, (Abdul Shakurul Salam, J., as he then was), on the ground that the relevant laws stood repealed w,e,f, 1.7.1974, under the above said Act, XIV of 1975 and it was further held that the Deputy Settlement Commissioner considering PTD issued in favour of the petitioner to be fake or forged document was to apply to Civil Court for necessary declaration. In Sultan Hassan Khan and 2 others vs. Mst.
10. Nasim Jahan and 17 others (supra), the respondent had filed a civil suit with the allegation that the petitioner's predecessor-in-interest had obtained P.T.D. in his favour on basis of forged documents and by practising fraud Department challenge did not succeed for want of jurisdiction. The suit was dismissed on the ground that the Civil Court had no jurisdiction. The District Judge affirmed the findings. The respondents filed a revision petition in the High Court, which was allowed and it was held that the Civil Court had the jurisdiction to entertain the suit. The Hon'ble Supreme Court held that the existing law i,e, Act IX of 1975, did not specifically bar the jurisdiction of the Civil Court, which had the jurisdiction to decide the question of fraud, forgery or misrepresentation and the leave was refused. In Kareem Bux vs. P.O. Sindh and others (supra), it was held that after the repeal of Evacuee Laws w,e,f, 1.7.1974, the Revenue Authorities had no jurisdiction under the Settlement and Rehabilitation Laws and no findings could lawfully be given be them with regard to legality or otherwise of allotment order issued in favour of claimant and that the order of Civil Appellate Court to the effect that the Assistant Commissioner had no jurisdiction to pass order against the allotment of claimant, was lawful and justified. In Mst. Umar Bibi and another vs. Officer on Special Duty, Central Record Office, Lahore and 3 others (supra), Officer on Special Duty Central Record Office, on Application by complainants alleging that the petitioners case was one of double allotment, issued a Robkar and concerned Revenue Officer initiated proceedings with regard to the cancellation of allotment of land made in favour of claimant/predecessor-in-interest of petitioners two decades before the repeal of Displaced Persons (Land Settlement) Act, XLVII of 1958. It was held that after the repeal of Settlement Laws, Officer on Special Duty had no jurisdiction or power either to entertain application with respect to a claim to move Revenue Authorities or Notified Officer to assume jurisdiction or to take action on basis of Robkar because no proceedings in respect of the allotment in dispute were pending before repeal of Evacuee Laws by Act XIV of 1975. In Ghulam Muhammad vs. Sardar Muhammad Aslam Sukhera and 4 others (supra), the petitioner was auction purchaser. The Settlement Authorities recommended cancellation of auction proceedings after repeal of Evacuee Laws. It was held that the Settlement Officials, after repeal of Evacuee Laws, had absolutely no jurisdiction in the matter for cancellation of property in question. In Nawabzada Zafar Ali Khan and others vs. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (supra), it was held by the Hon'ble Supreme Court that under subsection 2 of Section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), only such matters, which were actively pending consideration before the Authorities for final disposal or had been recommended by the High Court and Supreme Court, were to be finalized by the Notified Officers. The Settlement or Rehabilitation Authorities had no jurisdiction to entertain any fresh petition or representation, where question of entitlement concerning agricultural property was neither remanded by Supreme Court nor any such directions were made by the High Court, whereby Notified Officer on its strength could commence proceedings and any petition or representation filed with regard to matter, which otherwise stood finalized long back or even where aggrieved person might believe to have legitimate claim, could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority.
11. 10.The learned counsel representing the respondent while vehemently opposing the petition, has submitted that no land was validly allotted to Shafi Ahmad and therefore the registered sale-deed in favour of 'the petitioner is merely a piece of paper and no immovable property has been sold/transferred to the petitioner, that the Chief Settlement Commissioner/Member, Board of Revenue (S&R), Punjab, vide his memo. No, 1624/78/854-R(L), dated 19.6.1978, issued instructions that any allotment that had not been incorporated in the revenue record before coming into force of the Evacuee Property & Displaced Persons Laws (Repeal) Act, XIV of 1975, or within one year of the passing of the allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register RL-II and should be cancelled forthwith and in the instance case, the alleged allotment of 1965 was never incorporated in the revenue record and, therefore, the alleged khata is bogus and anti-dated, that the petitioner is neither claimant nor allottee, he is merely a vendee from the allottee, therefore, the writ petition is not maintainable, that the petitioner has remedy of civil suit for damages against his vendor and that the respondent, from the circumstances of the case, correctly held that the allotment was fraudulent and bogus.
12. He has also placed his reliance on Muhammad Baran and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 Supreme Court 691), in which it was held by the Supreme Court that where the allotments relied upon made by the Settlement Authorities were illegal and without jurisdiction and 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 by its own order. High Court would not in exercise of its discretionary jurisdiction annul the order of the Board of Revenue, even though it was clearly without jurisdiction and that the Supreme Court is not bound to set aside the order of High Court, even if it suffers from an infirmity, which otherwise not only advances justice between the main parties but also is fair and proper, vis-a-vis the interest of innocent purchasers.
13. 11.Learned counsel for the petitioner, in rebuttal has submitted that the respondent's counsel has placed a wrong and illegal reliance on the above-mentioned memo/instructions, dated 19.6.1978, which were struc down by this Court in Ahmad Saeed vs. M.B.R., etc. (NLR 1997 Civil 453) a being illegal and without lawful authority and that the reliance of the respondent's counsel on Muhammad Baran and others vs. Membe (Settlement and Rehabilitation), Board of Revenue, Punjab and other (supra) is also of no help to respondent because in the said case, the finding of fraud and forgery recorded by the Board of Revenue were based on record, whereas in the instance case, no such record is available with the Board of Revenue.
14. 12.In my opinion, the impugned order is arbitrary, whimsical and speculative, it is not based on any evidence available on the record and the respondent has drawn wrong and illegal conclusions from the facts available on record. The respondent has attached illegal weight to the fact that the allotment dated 16.8.1965 was not reflected in the revenue record. The allotment was made at RL-II Khata No, 274 dated 16.8.1965 and it became final. It was made under the order dated 13.8.1965, passed by Additional Settlement Commissioner. A person does not cease to be an owner merely because the allotment in his favour was. never incorporated in the revenue record. At the most, it is a case of carelessness on the part of the allottee or negligence of revenue staff, which has no legal consequence under the . Settlement Laws. The presumption drawn by the respondent that the allotment would be presumed to be fraudulent because it was not incorporated in the revenue record is illegal. The instructions to this effect were issued by the, then Chief Settlement Commissioner, vide his memo dated 19.6.1978, which were struck down by this Court in Ahmad Saeed vs. M.B.R. etc., (supra), as being illegal and without lawful authority. It was held that "No such presumption' is provided in the statute i,e, the Displaced Persons (Land Settlement) Act (XLVII of 1958)" and "such a presumption being drawn against the deceased petitioner merely on the basis of the above said letter dated 19.6.1978 is illegal. The above-mentioned letter/instructions is ultra vires of the Displaced Persons (Land Settlement) Act, 1958. According to Section 15(3) of the Displaced Persons (Land Settlement) Act a displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a Scheme as defined in Clause (7) of Section 2, or by a Settlement Authority under sub-section (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government. This provision shows that if there is a valid allotment the same is permanent and can be cancelled only under any of the provisions as provided in the statute it-self and the statute does not provide anywhere that if the valid allotment of land is not incorporated in the revenue record due to the negligence of the revenue staff then the same shall be deemed to have been obtained through fraud on misrepresentation." Similarly under Section 16 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person was permanently settled under the said Act, vested absolutely in such person.
13. The respondent has acted illegally in concluding that the mutations in Questions Nos, 11921 & 11922 are mala-fide merely because the same were attested on the same day i,e, 18.9.1995. It is a matter of routine. If the ownership of the vendor is not incorporated in the revenue record, in that case the Revenue Officer firstly attests mutation in favour of the owner and then he attests the mutation in favour of the vendee, on the same day. Nothing illegal about it and it does not show any mala-fide. The respondent has again illegally and incorrectly concluded that the petitioner has accepted only 94-Kanals 10 malras out of total land measuring 240 kanals 1 marlas. The petitioner's Application, received in the office of respondent on 31.10.1995 for the making up of the deficiency or allotment of alternate land, is pending, which shows that the petitioner is still agitating for the transfer of the rest of the land. Even otherwise, this cannot lead to a conclusion that the allotment in favour of the petitioner's predecessor was fraudulent or bogus. There is nothing on the record to show that the settlement fee was not deposited in 1965. The land in dispute would not have been confirmed at RL-II, Khata No, 274 No, 16.5.1965 in the absence of the deposit of the same. No such evidence was available with the respondent to conclude the same.
15. In fact, no record, whatever, was placed before the respondent, on the basis of which it could be concluded that the allotment in favour of Shafi Ahmad was liable to be declared as void. The relevant record, as admitted by the respondent in the impugned order, was destroyed in fire. The impugned order is, therefore, based on surmises and conjectures.
16. 14.Furthermore, the Settlement Laws were repealed with effect from 1.7.1974, vide Evacuee Property and Displaced Persons Laws (Repeal) Act, XIV of 1975 and under Section 2(2) of the abovesaid Act, only those proceedings were saved, which were pending, immediately before the appeal, before the Authorities, appointed under the repealed Laws or which may be remanded by the Supreme Court or High Court after such repeal and all those proceedings stood transferred for final disposal to the officers notified by the Provincial Government. In the, instant case no such proceedings in regard to the allotment of Shafi Ahmad were pending before any Authority immediately before the abovesaid repeal i,e, 1.7.1974. The present proceedings commenced before the respondent, for the first time, pursuant to the application dated 28.1.1997, filed by Muhammad Latif who later on withdrew from these proceedings, vide his statement dated 21.4.1998. The impugned order is, therefore, without jurisdiction.
17. 15.The original record of allotment of Shafi Ahmad, before it was destroyed in fire, was checked by the Secretary (S&R), Board of Revenue, Punjab, under the orders dated 19.5.1994 of the then Chief Settlement Commissioner, Mehar Jewan Khan, and was found to be in order, the original RL-II of Khata No, 274 was found to be intact without any forged entry in it, hence directions were, issued to the Deputy Commissioner, Lahore, to issue certified copy of RL-II to the petitioner, which was duly supplied to the petitioner, copy of which is available on the record, therefore, the entries in the said RL-II shall be presumed to be true unless proved to be otherwise through evidence. In the instant case, the respondent did not hold any inquiry/investigation, did not record any evidence and no such evidence was produced before the respondent, which could lead to the conclusion that the entries in the abovesaid RL-II were bogus, fraudulent and forged. In the absence of any record, respondent should have taken off his hands from the matter in dispute because the Settlement Laws stood repealed and could have issued directions to his office to approach the Civil Court for necessary declaration, if, and when any such record surfaced, which could prima-facie show that the allotment in favour of Shafi Ahmad was fraudulent, as held in Nasim Ahmad and 4 others vs. Deputy Settlement Commissioner, (Malik Shaukat Ali, Circle V, Farid Kot House Lahore and 4 others (supra). Reliance of the learned counsel for the respondent on Muhammad Baran and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (supra), is of no avail. In that case, fraud and forgery was exposed by the Board of Revenue on the basis of record, after the repeal of Settlement Laws, and although the order of the Board of Revenue was without jurisdiction, the High Court refused to exercise its discretionary jurisdiction as otherwise the impugned order advanced justice. In the instant case, the impugned order is not based on any record. The rule reiterated in Muhammad Baran and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (supra) by the Hon'ble Supreme. Court becomes operative only, if the without jurisdiction order passed by the forums below, promote justice and not otherwise. In the instant case, the impugned order is not only arbitrary and without jurisdiction but has also promoted injustice because the allotment made as far back as in 1965 and again verified, under the orders of Chief Settlement Commissioner in 1994, has been cancelled and declared as void without any reason or justification. The impugned order therefore, has to be set aside as without jurisdiction.
18. 16.The argument that petitioner is merely a vendee and cannot invoke Constitutional jurisdiction, has also no force. The petitioner being a vendee from allottee, has a vested right in the land purchased by him and can validly invoke the Constitutional jurisdiction to protect his property. It is not petitioner's case that even if the allotment in favour of the vendor Shafi Ahmad is fraudulent or fake, he, is entitled to hold on to the land purchased by him because he is a bona-fide purchaser without notice. The case of petitioner is that allotment in favour of Shafi Ahmad was genuine and a valid title in the land in dispute has been transferred to him through a valid sale.
19. 17.In view of the above-mentioned, the writ petition is accepted and the impugned order is set aside. No useful purpose will be served in remanding the case to the respondent for fresh decision, in accordance with law, after recording the evidence because after the destruction of the record in the famous fire, the records have been gradually reconstructed and had there been anything against the allottee, in the records, the same would have been referred and produced before me, but till date no material against the allottee has been referred or produced and the remand, therefore, would merely prolong the agony of the petitioner. There is, however, no order as to costs.