' This case has been taken up afresh in pursuance of the orders dated 17-6-1976 and 26-1-1977 passed by the High Court in Writ Petition Nos. 2172/ 74 and 2325/74 and C. M. No,. 1/76 in Writ Petition No, 2325/74 directing the Member (Colonies), Board of Revenue to- pass a "speaking order" on the petition dated 20-1-1972 filed by Muhammad Siddique and others and also to examine the title and view point of Nawabzada Asghar Ali Khan, after hearing all the interested parties in accordance with law.
2. Brief facts are that Nawabzada Asghar Ali Khan, a refugee from non-agreed area filed a claim in respect of the agricultural property allegedly abandoned by him in India and obtained in lieu thereof an allotment of area equivalent to 19,259 P. I. Units in villages Kharianwala, Ammonki, Jhabbran, Dhilwan, Mukta and Bhatti Dhilwan, Tehsil and District Sheikhupura. On the promulgation of Martial Law Regulation No, 89/91, his entitlement was reduced to 3,673 P. I. Units which were adjusted in villages Bhatti Dhilwan and Dhilwan. The rest of the area which was declared as "surrendered" was allowed to be purchased by him after exercising option before 28-2-1962, on payment of price in installments at the rate of Rs, 10 P. I. Units. Nawabzada Asghar Ali Khan opted to purchase the "surrendered area" and paid two installments on 30-6-1962 and 31-3-1963. In the meanwhile, it appears, he entered into an agreement to sell the land with S. Nasir Ahmad Shah and others through their attorney, Karar Hussain Shah, but a dispute having arisen between them over the implementation of the agreement, a suit was filed in the civil Court which was decreed against him on 17-3-1966 restraining him from placing any encumbrance on the land in question and also from causing interference with the possession of S. Nasir Ahmad Shah etc. Subsequently, Karar Hussain Shah, attorney of S. Nasir Ahmad Shah etc. Applied to the Settlement Officer/Collector, Sheikhupura on 17-2-1969 for permission to deposit the remaining price of the land. The Settlement Officer referred the matter to the Board of Revenue who issued the following instructions to him vide memo. No, 691-69/733-GMB-III dated 5th April, 1969 :- " . . . It may be clarified that Government is apparently not bound by any decree of alienation if Government was not a party to it. In fact an optee purchaser cannot sell the land without proper sanction.
(2) There is no application from the optee purchaser to pay the outstanding instalments and apparently Karar Hussain has no locus stand'.
(3) You should, therefore, take a decision yourself under Law/Rules under intimation to Board of Revenue, leaving it to the aggrieved party to seek his remedy in Court."
' Subsequently on 3-9-1969 the Board of Revenue resumed the land on account of non-payment of instalments.
3. Thereafter the Board of Revenue revised its policy and allowed all the defaulting optee purchasers by general orders dated 1-6-1971 and 1-10-1971 to deposit the outstanding instalments by 30-6-1972. Taking advantage of this concession Nawabzada Asghar Ali Khan applied allegedly through his attorney, Muhammad Rashid to the Deputy Commissioner, Sheikhupura on 27-5-1971 and again on 24-11-1971 seeking his permission to pay the balance price, which was granted on 10- 12-1971. Thereafter another application was said to have been moved for the transfer of land in the names of Muhammad Siddique and others, upon which permission was accorded on 23-12-1971.
Muhammad Siddique and others then paid the money and accordingly orders for the transfer of land in their favour were passed by the Deputy Commissioner on 6-1-1972.
4. In the meanwhile Karar Hussain Shah attorney of S. Nasir Ahmad etc. Had also sought the permission of the Board of Revenue for the deposit of instalments on the basis of the decree dated 17-3-1966 obtained by them from the civil Court. The Board of Revenue thereupon passed the following order vide Memo. Dated 5-1-1972 : "The Board of Revenue in consultation with the Law Department, have decided that the vendees i,e, S. Karar Hussain attorney of Messrs Nasir Ahmad Shah etc. May be asked to deposit the unpaid instalments alongwith interest, penal interest within two months to get the conveyance deed and in case, they fail to do it, action may be taken for the resumption of the land."
In view of this order of the Board of Revenue further action regarding execution of conveyance deed in favour of Muhammad Siddique and others in pursuance of the order dated 6:1-1972 passed by the Deputy Commissioner, Sheikhupura was stayed and they were asked to get the refund of the money deposited by them.
5. Aggrieved by the decision of the Board of Revenue, dated 5-1-1972, Muhammad Siddique etc. Alongwith Muhammad Rashid Attorney of Nawabzada Asghar Ali Khan made a joint representation on 20-1-1972 before the Board of Revenue praying that permission granted to S. Karar Hussain to deposit unpaid instalments be withdrawn. This request was rejected and the following orders were issued to the Deputy Commissioner vide memo. Dated 24-6-1974 :- "The Board of Revenue, Punjab is pleased to allow Messrs Nasir Ahmad Shah etc. Vendees of surrendered land under M. L. R. 89/91 in village Dhilwan, Tehsil and District Sheikhupura to clear all the outstanding instalments, with interest within a period of one month from the date of receipt of these orders.
(2) The vendees may therefore please be directed to clear all Government dues within the prescribed period."
' Subsequently, on the application of Nasir Ahmad etc. The Board of Revenue vide its order dated 7- 9-1974 further extended the period of payment of price.
6. Muhammad Siddique and others felt aggrieved by both the orders dated 5-1-1972 and 24-6- 1974 of the Board of Revenue and filed Writ Petition No, 2174 of 1974. Similarly Nawabzada Asghar All Khan also filed Writ Petition No, 2325/74 against the orders of Board of Revenue dated 5-1-1972, 24- 6-1974 and 7-9-1974. He also questioned the order dated 6-1-1972 of the Deputy Commissioner allowing Muhammad Siddique and others to purchase proprietary rights in the land. These writ petitions were disposed of by the High Court on 17-6-1976 with the direction that the Member (Colonies), Board of Revenue should summon all the interested parties and pass a "speaking order" after hearing all of them in accordance with law. Subsequently by an interim order dated 26-1-1977 passed in C. M. No, 1/76 in Writ Petition No, 2325/74, I. C. A. 138/76, it was further directed that while re-examining the entitlement of set of parties under the agreements to sell, the Board of Revenue should also examine the title and the view point of the appellant, namely, Nawabzada Asghar Ali Khan after ensuring his participation. Accordingly all the interested parties including Nawabzada Asghar Ali Khan were summoned and heard at length through their counsel. They were also allowed to place on record the written arguments in support of their respective claims.
7. The learned counsel for S. Nasir Ahmad Shah etc. Submitted that Nawabzada Asghar Ali Khan, optee purchaser entered into an agreement to sell the land with them on 9-7-1962, that subsequently he backed out from this agreement and they filed a suit against him and obtained a decree from the civil Court on 17-3-1966 restraining him from placing any encumbrance on the land and causing any interference with their possession, that on the basis of this decree they also obtained the permission of the Board of Revenue on 5-1-1972 to deposit the unpaid instalments and that this permission having never been revoked by any subsequent order of the Board of Revenue, it would be still valid and operative. The learned counsel further submitted that Nawabzada Asghar Ali Khan had subsequently entered into another agreement with Muhammad Siddique etc. And without disclosing the fact that the land had already been transferred by him through an earlier agreement in favour of S. Nair Ahmad Shah etc. Applied to the Deputy Commissioner, Sheikhupura and obtained his orders dated 10-12-1971 and 23-12-1971 for the deposit of outstanding amounts in lump and the alienation of land in favour of Muhammad Siddique etc. Thereafter, it was submitted, Muhammad Siddique deposited Rs, 2,673.80 as against the total price of Rs, 10,900 and then with the collusion of the dealing clerk, had a report submitted to the Deputy Commissioner wrongly stating that full price had been paid and thus obtained the order dated 6- 1-1972 for the purchase of proprietary rights in the land. The learned counsel, therefore argued that as the orders dated 10-124971, 23-12-1971 and 6-1-1972 had been obtained by fraud, misrepresentation and concealment of facts, they are void and of no legal consequence.
8. The main submissions made on behalf of Muhammad Siddique etc. Are that the Board of Revenue had held in its memo. Dated 5-4-1969 that the decree of the civil Court dated 17-3-1966 having been passed ex parte was not binding on the Government and had accordingly directed the Deputy Commissioner, Sheikhupura to take decision under the law and rules, leaving it to the aggrieved party to seek its remedy in the Court. In pursuance of this direction from the Board of Revenue, the Deputy Commissioner passed orders on 10-12-1971 and 23-12-1971, allowing Nawabzada Asghar Ali Khan and Muhammad Siddique etc. To deposit the outstanding instalments and acquire proprietary rights in the land. Muhammad Siddique accordingly paid the price on 54- 1972 and was allowed to acquire the proprietary rights on 6-1-1972. After the proprietary rights having been so acquired, it was submitted, the Board of Revenue could not review suo mow its earlier order dated 5-4-1969 and pass fresh orders on 5-1-1972 and 24-6-1974 permitting S. Nasir Ahmad Shah etc. To deposit the unpaid price of the land, moreso, when under para. 10 of the Scheme, it was the Collector and not the Board of Revenue who was competent to accord such permission and therefore the aforesaid orders of the Board of Revenue were without lawful authority and of no legal effect. It was also argued that if the orders of the Board of Revenue dated 5-1-1972 and 24-6-1974 were held to be without lawful authority then S. Nasir Ahmad Shah etc. Would automatically be thrown out of the cone leaving the arena entirely for Nawabzada Asghar Ali Khan and Messrs Muhammad Saddique etc. To fight out the duel ; and as the former had already transferred his rights in favour of the latter in pursuance of an agreement and with the prior permission of the Collector accorded under para. 10 of the Scheme, therefore the latter would be deemed to have validly acquired the proprietary rights in the land.
9. It has been submitted on behalf of Nawabzada Asghar Ali Khan that he opted to purchase the surrendered land before the target date of 28-2-1962 and also paid two instalments of price amounting to Rs, 4,360 and 3,910 on 30-6-1962 and 31-1-1963. Subsequently he defaulted in payment of instalments and the land was resumed on 3-9-1969. In 1971, the Board of Revenue relaxed its policy and allowed payment of defaulted instalments by 30th June, 1972. This concession was subsequently extended from time to time uptil 15th May, 1975. Taking advantage of this concession, Nawabzuta Asghar All Khan also applied to the Collector, Sheikhupura who allowed him to deposit the defaulted instalments vide order dated 10-12-1971. But in the meanwhile one Muhammad Rashid posing himself as general attorney of Nawabzada had moved an application on his behalf to the Collector on 24-11-1971 and succeeded in obtaining his order dated 23-12-1971 in favour of Muhammad Siddique for the deposit of the entire price-in lump sum.
Thereafter, it was submitted, Muhammad Siddique with the collusion of the dealing clerk got a misleading report submitted to the Deputy Commissioner wrongly stating that full price had been paid and thus obtained the order dated 6-1-1972 conferring proprietary rights on him. It was argued that since Nawabzada Asghar Ali Khan had never applied to the Collector for permission to transfer the land in favour of Muhammad Siddique etc. Nor the latter had paid the full price, therefore the order dated 6-1-1972 was void as being obtained by fraud, misrepresentation and in violation of para. 10 of the Scheme.
10. As to the decree of the civil Court dated 17-3-1966, it was submitted that the same was passed ex parte and therefore not binding on Nawabzada Asghar All Khan. It was further submitted that no rights could pass on the basis of this decree in favour of S. Nasir Ahmad Shah unless proprietary rights in the first instance had been conferred on Nawabzada Asghar Ali Khan or permission to sell such rights had been duly obtained from the Collector in terms of para. 10 of the Scheme. It was also argued that the order dated 5-1-1972 which was passed by the Board of Revenue on the basis of this decree but without any formal request from Nawabzada Asghar All Khan, permitting Karar Hussain Shah attorney of Nasir Ahmad Shah to deposit the price of the land, was without lawful authority and of no legal consequence. In the same manner, the orders dated 23-12-1971 and 6-1- 1972 of Deputy Commissioner, Sheikhupura transferring the land in favour of Muhammad Siddique etc. On the applications of Muhammad Rashid who did not hold any power of attorney from Nawabzada Asghar Ali Khan were also without jurisdiction. Lastly it was argued that since Nawabzada Asghar Ali Khan had opted for the purchase of the surrendered land before the target date, that he had paid two instalments and subsequently had been allowed by the Deputy Commissioner under the revised policy to deposit the balance price, vide order dated 10-12-1971 therefore he could lawfully claim, to the exclusion of other claimants, to purchase the land after payment of defaulted instalments.
11. After having carefully considered these arguments and on perusing various orders passed from time to time by the Board of Revenue and the Deputy Commissioner, Sheikhupura and the relevant law, Policy instructions and conditions governing the lands surrendered under M. L. R. 89/91, I have formed the view that no optee purchaser could transfer his rights in such lands without the prior permission of the Collector unless and until he had first paid the entire price and acquired proprietary rights, in accordance with paragraph 10 of the Scheme, and since the provisions of the Colonization of Government (Lands) Punjab Act, 1912, were also applicable, in view of paragraph 12, to the transfers made under the said Scheme, therefore any transfer of or charge created in the land by any sale, exchange, gift, will, mortgage or other private contracts without the consent, in writing, of the competent authority was void, and if any transferee had obtained the possession of the land he was to be ejected, in terms of section 19 of that Act. In this view of the matter the transfer made by Nawabzada Asghar Ali Khan in favour of S. Nasir Ahmad Shah etc. Through an unregistered agreement deed dated 9-7-1962 without obtaining the permission of the Collector and without acquiring the proprietary rights was void and of no legal effect. Also, the decree dated 17-3-1966 obtained from the civil Court on the basis of an agreement which was not registered in terms of section 17 of the Registration Act, 1908 could not operate to create any title or rights in the suit land in view of section 49 of the said Act.
12. Again, as the optee purchaser like any other purchaser from Government of land would not be deemed to be a tenant of "surrendered' land, within the meaning of section 15 of the Colonization of Government Act, until he had paid the full amount of the purchase money with an interest due thereon and also fulfilled the other conditions of his grant, therefore, none of the rights or interest vested in him from Government of land would be attached or sold in execution of a decree or order of any Court or in any insolvency proceedings, in view of section 18 of that Act, nor such land could be resumed from him until he had been required by a written notice under section 24 to state his objections against the intended resumption of his tenancy. In_ this view of the matter, it was not competent to the Board of Revenue to have passed the orders dated 5-1-1972 and 24-6-1974 in execution of an ex parte decree of the civil Court permitting S. Nasir Ahmad Shah to pay the unpaid instalments without hearing the objections of Nawabzada Asghar Ali Khan, the optee purchaser, who under the revised policy had become entitled to pay up the defaulted instalments uptil 15th May 1975.
13. As regards the claim of Muhammad Siddique etc. It will be seen that they purchased the land in Mauza Dhilwan, to the extent of 8225 P. I. Us. Through an agreement allegedly executed by Nawabzada Asghar Ali Khan on 22-5-1971. Subsequently on the application of Muhammad Rashid who posed himself as attorney of Nawabzada Asghar All Khan, the Deputy Commissioner, Sheikhupura vide his order dated 23-12-1971 allowed Muhammad Siddique etc. To deposit the purchase price. On 5-1-1972, it was reported by the Settlement Clerk that Muhammad Siddique had made the entire payment of his 1/8th share in the purchased land. Thereupon the Deputy Commissioner passed an order on 6-1-1972 allowing Muhammad Siddique to acquire proprietary rights in the land. In this connection I have seen all the relevant orders, particularly the report submitted by the Deputy Commissioner in his memo. Dated 24-5-1974 which shows that Muhammad Siddique paid only Rs, 2,010 together with Rs, 663.80 on account of interest as against Rs, 10,900, the actual price of the 1/8th share purchased by him. This means that as against the toto amount of Rs, 10,900 plus interest and penal interest, Muhammad Siddique had deposited only Rs, 2,673 and an amount of Rs, 8236.20 plus interest was still due from him. However, Muhammad Siddique in collusion with the Settlement Clerk manipulated a report on 5-1-1972 saying that he had deposited the entire price of his share. On the basis of this misleading report, the Deputy Commissioner passed an order on 6-1-1972 granting him proprietary rights in 1/8th share purchased by him. This could not done by the Deputy Commissioner in view of the prohibition contained in C paragraph 10 of the Scheme and the Government of West Pakistan' Letter No, 1502- 64/1019 G. M. B. III, dated 25-6-1964, by which a claimant had been debarred from alienating a part of the land purchased b him in the same village, it is, therefore, obvious that these orders had been obtained by fraud and misrepresentation of facts and were therefor void and unsustainable. It will also be seen that the alleged agreement dated 22-5-1971 was made in favour of 4 persons but strangely enough permission was granted only to Muhammad Siddique to pay the price to the extent to 1/8th share purchased by him. Even that much price was not paid in full and the proprietary rights were acquired in violation of paragraph 10 of the Scheme. Again, while according permission on the application dated 24-11-1971 made by Muhammad Rashid on behalf of Nawabzada Asghar Ali Khan, the Deputy Commissioner had not insisted on production of a registered power of attorney authorising the applicant to act as attorney on behalf of Nawabzada Asghar Ali Khan. No permission affecting immovable property could be granted on a simple application moved by a third person who was not holding any effective authorization on behalf of the optee purchaser. Therefore, unless and until Nawabzada Asghar Ali Khan himself had applied for permission, the Deputy Commissioner bad no right to accord such permission.
14. From what has been stated in the preceding paragraphs it has become abundantly clear that the orders dated 10-12-1971 and 23-12-1971 passed by the Deputy Commissioner, Sheikhupura according permission to Muhammad Siddique etc. For the deposit of outstanding amounts in lump sum and his subsequent order passed on 6-1-1972 allowing Muhammad Siddique to acquire proprietary rights in 1/8th share of the land purchased by him in village Dhilwan were without lawful authority and of no legal effect. In the same manner the orders of the Board of Revenue dated 5-1- 1972, and 10-7-1974 granting permission to S. Nasir Ahmad Shah etc. To deposit the unpaid instalments on the basis of ex parte decree which stood vitiated by section 19 of the Colonization Act and paragraph 10 of the Scheme were also void and ineffectual. It was also not within the powers of the Board of Revenue to have afforded any relief to Muhammad Siddique etc. On their petitions dated 20-1-1972 and 10-4-1974, without obtaining the consent of the optee purchaser which had not been forthcoming in this case. These petitions stand disposed of accordingly.
15. As a result of the above, I am inclined to hold that Nawabzada Asghar Ali Khan could rightly claim immunity against all such orders as were passed in his absence and without affording him an opportunity of hearing both by the Board of Revenue as well as by the Deputy Commissioner, Sheikhupura. Therefore, his rights to purchase the 'surrendered land' under the general relaxation given by the Board of Revenue during the pendency of these proceedings are still intact and he can competently acquire proprietary rights in the land after payment of full price in lump sum with interest and penal interest. However, after he has acquired proprietary rights in the land he would be free to deal with it as he liked and if there was any agreement between him which implied his obligation to transfer the land to any person claiming under that agreement he could be called upon to transfer ".-he land to such claimant.
16. Consequently I would order that Nawabzada Asghar Ali Khan be allowed to deposit the unpaid instalments with interest and penal interest within a period of two months failing which the land shall stand resumed without any further notice.