This civil revision assails judgments and decree dated 6.10.1997 and 16.6.1998 passed by Civil Judge and District Judge, Toba Tek Singh, respectively, deciding the lis against the petitioners.
2. A short factual background of the case is that land measuring 100 kanals situated in Chak No, 319/GB Tehsil & District Toba Tek Singh was allotted in the name of one Sana Ullaha to whom proprietary rights were not conferred under Grow More Scheme of this land, which was held by him under lease. He on 17.4. 1971 moved as application for allotment of the land as Provincial Government had formulated another scheme for allotment of land to the persons, to whom land was not allotted under Grow More Scheme. Sana Ullah was allotted on 22.4.1990 again, 100 Kanals of land, price of which was deposited by him and the sale-deed in his favour was duly executed.
Allottee Sana Ullah sold this land, got by him on 22.4.1990 to one Fazal Din vide Mutation No, 693 sanctioned on 19.6.1993 and Fazal Din further sold this land to Walli Muhammad, Respondent No, 1, through a sale Mutation No, 1012 dated 26.6.1993. It so happened that Petitioner No, 2 on 23.8.1994, on the basis of some audit report, issued notice to Sana Ullah who did not appear before him, proceeded to cancel his allotment, without notice to, subsequent vendee,. purportedly exercising his jurisdiction under Section 16 of the Punjab Colonization of Government Lands Act, 1912.
Aggrieved of cancellation of land from the name of original allottee, Respondent No, 1 filed a suit for declaration with consequential relief of permanent injunction, in the Court of Civil Judge, Toba Tek Singh, asserting that Petitioner No, 2 had no lawful authority or jurisdiction to cancel the allotment, after allotment where under sale-deed had already been executed, after payment of price of land and that too, without notice to him who is the real owner. A permanent injunction was also prayed against the petitioners, restraining them from initiating proceedings under Section 30(2) of Punjab Colonization of Government Lands Act, 1912, and from interfering into his lawful possession.
3. The petitioners being defendants in the suit contested it and controverted the assertions made in the plaint, through their written statement. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. Learning trial Judge, who was seized of the matter, after due appraisal of the evidence on file, vide his judgment and decree dated 6.10.1997 decreed the suit of Respondent No, 1.
4. The petitioners aggrieved of the decision of the trial Court dated 6.10.1997, filed an appeal before the learned District Judge, Toba Tek Singh, but remained unsuccessful as their appeal was dismissed by him, vide his judgment and decree dated 16.6.1998. Thereafter, they came up in revisional jurisdiction of this Court against the concurrent judgments and decrees, as noted above, for their annulment.
5. Learned counsel for the petitioners submits that land allotted to Sana Ullah was within the prohibitory zone of two miles radius of the Municipal limits and thus, on an objection by the auditors, was rightly cancelled by Petitioner No,
2. He also contends that under Sections 16 and 30(2) of the Punjab Colonization Government Lands Act, 1912, this petitioner was competent to cancel the allotment obtained out of fraud and mis-representation. It is also the case of the petitioners that before cancellation of allotment a due notice was given to the original allotte, who himself opted not to appear in the cancellation proceedings and now it does not lie in the mouth of the respondents to say that no notice was given by Petitioner No, 2 before cancellation of land. He also attacked refusal to the petitioners, by the appellate Court, to produce copies of public record, byway' of additional evidence. Conversely, learned counsel for the respondents support judgments and decrees of both the Courts below and refuting submissions of the petitioners, urged that order of cancellation of allotment passed by Petitioner No, 2 on 23.8.1994 was patently illegal and void as the allotment was cancelled without any inquiry or investigation by Petitioner No, 2, himself. He also argues that order passed by Petitioner No, 2, manifestly shows that patwari circle was present with record before Petitioner No, 2 and transfer in favour of Respondent No, 1 through Mutation No, 1012 dated 26.6.1993 having duly been reflected in successive Jamabandis by that time but Respondent No, 1 was neither given any notice nor an opportunity of being heard before the passing of the order, impugned before the Civil Court. He also submits that notice by Petitioner No, 2 to original allotte is also fake because it was never served on him. According to his submissions, requirement, of notice and hearing, being a statutory requirement, could not have been waived or violated.
Learned counsel for the respondents also elaborates his arguments by saying that under Section 16 of the Act, 1912, Petitioner No, 2 could only proceed against a tenant/lessee who had obtained tenancy through fraud and misrepresentation and in the case, like the one in hand, where a lawful allotment was made, price there under was paid and sale-deed was executed, he could not cancel the allotment for which purpose the petitioners had to file. a suit, if at all cancellation was inevitable. In support of his arguments, he heavily relied on a judgment in the cases of Government of the Punjab Province vs. Malik Harbhagwan and another (1940 P.L.R.529) and Anjuman Talim-ul- Islam (Regd.) Sheikhupura vs. Province of West Pakistan Punjab Province and 2 others (PLD 1983 Lahore 294). It is also the case of the learned counsel for the respondents that basis on which cancellation was ordered by Petitioner No, 2 was also not covered under Section 30(2) of the Act, 1912, yet in view of proviso to this provision of law powers of cancellation, vesting in Petitioner No, 2, could not have been, delegated to any of his subordinates. He in this behalf relied on the judgments in the cases of Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha Vs Muhammad Akram (PLD 1993 Lahore 114) and in the case of Muhammad Liaqat and 5 others vs. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953). It has also been contended that order of Petitioner No, 2 was violative of principles of natural justice as before passing it, Respondent No, 1 was not heard, and thus, was bad at law. He referred to the cases of Mst. Karim Bibi and another vs. Deputy Commissioner/Collector, Rahimyar Khan and 8 others (1999 SCMR 2774), Shameer and others us. Member Colonies Board and others (1994 CLC 904) and Mst. Hajran vs. Member, Board of Revenue, Lahore and another (1994 MLD 801).
6. I have anxiously considered the arguments of the learned counsel for the parties and have also examined the record appended herewith. Undeniably, land subject of allotment of Sana Ullah vested in Respondent No, 1 through two successive transactions and his name was duly reflected in the revenue record which was produced before the trial Court, in from of Jamabandi for the years 1993-94 (Ex.P.14) and khasra girdawari Ex.P.15 wherein Walli Muhammad, Respondent No, 1, is shown owner in possession. Petitioner No, 2 has noted in his order dated 23.8.1994, that patwari, Revenue Circle, is present with record but inspite of it, no kind of notice was given to him before passing an order, depriving him of his immovable property which was purchased by him for a valuable consideration from a lawful owner. Respondent No, 1 when purchased this land, no kind of proceedings for cancellation or otherwise, were pending. Respondent No, 1 had already deposited all the dues regarding land subject of this litigation. Section 30(2) of the Punjab Colonization Government Lands Act, 1912, reads as under: "Section 30(2): If, at anytime, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud of misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause pass an order resuming the land in respect of which proprietary rights have been acquired or reduced the area of such land or pass such order as it may deem fit."
7. Petitioner No, 2 had exercised its authority under the provision of law, above produce, it itself says that Board of Revenue may proceed for cancellation of tenancy rights obtained through fraud or misrepresentation, after giving such person a reasonable opportunity of showing cause but in the instant case no step in this behalf was taken by Petitioner No,
2. I had required, during the course of hearing, the learned counsel for the petitioners to show from his record any notice served on any of the respondents, including the original allotte Sana Ullah but he could not do so. In a similar situation where original lessee after payment of entire lease amount, sold her right to subsequent lessee, who onward sold those rights to another person but Board of Revenue after issue of suo- moto notice to the original lessee, cancelled transfer in favour of subsequent transferees, were declared as illegal, in the case of Mian Bashir Ahmad vs. The Government of Sindh through Chief Secretary, Sindh Secretariat Karachi and 3 others (1997 MLD 1847). Provision of notice of hearing before cancellation was a statutory provision and Respondent No, 2 a lawful transferee, held to be so concurrently by the two Court below, was entitled notice, as well as, hearing before order by Petitioner No, 2 and thus I conclude that this order was bad at law.
8. Petitioner No, 2 no doubt could proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Sections 16 and 30(2) of the Punjab Colonization of Government Lands Act, 1912, but not with regard to land permanently settled on the allottees. These provisions only related to tenancy/lessee rights which were not involved in the case in hand. The respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land and in such an eventuality their allotment could not have been cancelled. In the case of Malik Harbhagwan's case (supra) it was held that transfers, once made in favour of the respondent could not be cancelled. Similar view was taken in a case decided by this Court, relying on the judgment of malik Harbhagwan, supra, and it was held that Collector could see payment of purchase money and the fulfillment of -conditions of sale, before executing sale- deed in favour of the allottee but thereafter he ceases with any authority to intervene after conferment of proprietary rights even through there' has been breach of some condition of sale- deed. It goes without saying that proviso to Section 16 of the Act, 1912, which existed on the textbook earlier to 1978 conferring jurisdiction on Petitioner No, 2 to scrutinize tenancy/lessee rights under the Punjab Colonization of Government Lands Act, 1912, stood removed w,e,f, 3.3.1948 through Ordinance, XII of 1978. Case of the respondents, as observed above, did not relate to tenancy rights, thus, Petitioner No, 2 was not equipped with any authority to cancel allotment in favour of Sana Ullah, after receipt of price and execution of sale-deed.
9. Powers vesting in Petitioner No, 2 under Section 30(2) of Act, 1912, also did not give him any authority to cancel land of the respondent but those powers to resume even tenancy rights, are subject to certain prerequisites like fraud or misrepresentation. Assertions of fraud and misrepresentation are factual in nature, which require some basis and determination.
Undisputedly, power under Section 30(2) of the Act, ibid were given to Petitioner No, 2 as remarked above which could not have been delegated by him but he, admittedly, did not hold any inquiry and after passing the order of cancellation remitted the case to its subordinates for this purpose.
The course adopted by Petitioner No, 2 was not permissible under law. He had no concrete 'proof of fraud or misrepresentation and thus even if it be assumed that he had an authority to cancel allotment of the respondents, there being no proof of the pre-requisites, as noted above, his order resuming land of the respondents is void, on the face of it. Petitioner No, 2 having himself acted contrary to provisions of Section 30(2) of the Act, ibid, his order is ultra vires of this provision of law.
My this view, gets support from a judgment given by this Court in alike facts, in the case of Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha vs. Muhammad Akram (PLD 1993 Lahore 114). This Court in another case of Muhammad Liaqat and 5 others vs. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953) struck down the cancellation order passed under Section 30(2) of Act, 1912. In this case, allotment was made under Grow More Scheme and the allottee further sold those rights for a valuable consideration whereafter Board of Revenue determined that allotment was fraudulent and cancelled it and the purchaser was required to purchase this land on payment of market price, again, it was held that it was not open to the Board of Revenue to resume land which already stood vested in the purchaser.
In this case, after transfer of land, respondent, there over, have settled since their allotment. Land exclusively vested in them and could not have been cancelled or resumed by Petitioner No, 2.
10. The Petitioner No, 2, even on the basis on which he proceeded to pass the order dated 23.8.1994 that the allotment falls within the prohibitory zone of two miles of the Municipal limits, could not cancel it because once land was made available for allotment, it was transferred and it settled on the respondents, it would supercede all the notifications imposing such prohibitions.
Under law, presumption is that acts done by the statutory functionaries were done in good faith and in lawful manner, according to law application at that time. Under the principles of locus poenitentia, the petitioners were not justified to act in the complained manner to cancel land of the respondents.
11.The petitioners did not produce any evidence of any worth, showing drat cancellation order was backed by some lawful authority, had any justifiable basis and there had been any real fraud or misrepresentation or jurisdiction for the order impugned, passed by Petitioner No, 2, hence, both the courts below returned findings which are in consonance with the evidence on the file and the law, applicability. No misreading or non-reading of evidence was asserted or is proved, in absence of it, no interference in revisional jurisdiction of this Court is justified. Concurrent judgments of both the Courts below are not shown to have been tainted, with any illegality or irregularity. This revision petition has no merit in it and is, accordingly, dismissed with no order as to costs.