' This case which was disposed of by my earlier order dated 19th October 1977, passed under Martial Law Order No, 14 has been taken up afresh in pursuance of the remand order dated 2nd May 1979, passed by Mr. Justice Gul Muhammad Khan, Judge of the Lahore High Court, in Writ Petition No, 382/79 with the direction to serve all the interested persons with notices, spelling out the precise allegations on which the case will be considered so as to enable them to defend it.
Notices were accordingly issued on 30th May 1979 to all the interested persons including the heirs of Mst. Fazal Bibi and all the vendees requiring of them to show cause as to why the allotment of land obtained in exchange by Mst. Fazal Bibi in Chak No, 73/RB and 266/RB, by fraud and misrepresentations, and the subsequent sale of the said land in violation of the conditions of the grant should not be cancelled. In response to these notices the petitioners appeared and were heard at a great length through their counsel.
2. The facts giving rise to this case briefly are that Mst. Fazal Bibi, an ousted from Gujranwala Cantonment was allotted the State agricultural land measuring 12} acres in Chak No, 77/GB, District Faisalabad on 17th March 1971, on the terms and conditions set out in the Government of West Pakistan memo. No, 174-69/113-CS II dated 18th January 1969. The possession of the land was delivered through her husband Muhammad Eoota, on 18th April 1971. Three years after she moved an application on 29th May 1974, through her attorney Sh. Muhammad Bilal, requesting for alietnaie land in Chak Nos. 73/R11 and 266/RB on the ground that her previous land in Chak No, 77/GB was `Sem' and `Thug' affected. Her request found favour with the Accountant, Colony Office, who hurriedly processed the case and proposed to ' the Deputy Commissioner/Collector to refer the case to the Board of Revenue for obtaining approval for the exchange. The Deputy Commissioner accepted this proposal and submitted it to the Board of Revenue for approval which was accorded on 23rd July 1974. The land in dispute was then allotted to Mst. Fazal Bibi on 31st July 1974 and its possession delivered on 2nd August 1974, through Sh. Karam Elahi allegedly her attorney.
3. Thereafter, a sale deed was executed by the Collector on 4th December 1974, in favour of the grantee after she had paid the entire price amounting to Rs, 26,874. The next day she sold all that land in favour of Sh. Karam Elahi (father of Sh. Muhammad Bilal attorney), Muhammad Shafi and Muhammad Nawaz petitioners by two oral sales witnessed by mutations dated 24th December 1974, through her attorney, Sh. Muhammad Dila], for a total sum of Rs, 1,32,874.
4. Subsequently, during the course of scrutiny of accounts Of sale of State land under Gujranwala Cantonment Oustees Scheme, the Auditor (Colonies), Board of Revenue found that the land in Chak Nos. 73/RB and 266/RB had been obtained in exchange, by fraud and misrepresentations and thereafter sold in favour of petitioners Nos. 2 to 4 in contravention of Condition No, 14 of the Statement of Conditions governing the allotments of the oustees of Gujranwala Cantonment Area Thereupon the Board of Revenue ordered the Collector on 12th April 1976, to resume the land in dispute. The petitioners challenged the resumption order by a civil suit on 30th July 1976, and obtained a temporary injunction against their eviction.
5. Meanwhile the Martial Law Administrator, Punjab, Zone 'A' issued Martial Law Order No, 14 empowering the Board of Revenue to cancel, notwithstanding any law, rule, order or decree of a Court to the contrary, any allotment of State land that :
(a) Had not been covered by any regular Scheme issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912.
' OR
(b) Had been obtained :
(i) By using official position or political influence, or
(ii) By means of fraud or misrepresentation of facts, or
(iii) In violation or relaxation of any law, rule, condition, policy instructions or orders.
' Notices were accordingly issued under the said Martial Law Order to Sh. Karam Elahi and his son Sh. Muhammad Bilal, attorney of Mst. Fazal Bibi, ceiling upon them to appear on 19th October 1977, and show cause why the allotment of State land obtained in exchange in the name of Mst. Fazal Bibi by fraud and misrepresentations and the subsequent sale of the said land in violation of Condition No, 14 should not be cancelled. The petitioners did not appear and resultantly an ex parte order was passed against them on 19th October 1977, cancelling the allotment and the sale of the land in dispute. Aggrieved by this order the petitioners filed a writ petition in the High Court on which the case has teen remanded for fresh decision after issuing notices to all the interested persons and hearing their objections against the proposed cancellation of allotment, as stated above.
6. It has been argued on behalf of Sh. Karam Elahi and other vendees that the case does not come within the ambit of Martial Law Order No, 14 inasmuch as the allotment had not been obtained by M. Fazal Bibi by using any official position or political influence or by means of fraud or misrepresentation of facts or in violation or relaxation of any law, rules, conditions or policy instructions. It was also submitted that Mst. Fazal Bibi being a genuine displaced person of Gujranwala Cantonment Area was rightly allotted the disputed land in lieu of her previous allotment in Chak No, 77/GB with the prior approval of the Board of Revenue; that the land in dispute was duly included in the Schedule which was got approved by the Board of Revenue ; that the price of the land as proposed by the Collector in his memo. Dated 30th August 1974, and approved by the Board of Revenue vide order dated 18th September 1974, was paid in full and the sale deed executed and registered on 3rd/4th December 1974, in favour of Mst. Fazal Bibi ; that after obtaining the sale deed, she became full owner of the land and thus ceased to be subject to any Statement of Conditions issued under the Colonization of Government Lands (Punjab) Act, 1912, barring, of course, the rights of Government as contained in Schedule II of that Act or any condition set out in the sale-deed itself; and that the Condition No, 14 imposing restriction on the transfer of the land by the grantee within a period of 10 years from the grant without the permission of Collector having not been incorporated in the sale deed, the alienation of the land by her in favour of the petitioners did not constitute any violation of the said condition.
7. The learned counsel for the heirs of Mst. Fazal Bibi. Have submitted that the land in dispute was rightly allotted to her as an oustee of Gujranwala Cantonment area, and that she had paid the entire transfer price and obtained the sale deed in which there was no condition prohibiting her to alienate the land within a period of 10 years from the date of grant without the previous approval of the Collector. It has been further submitted that Mst. Fazal Bibi had died but her heirs were not a party to the transfer of the land in favour of Sh. Karam Elahi, Muhammad Shafi and Muhammad Nawaz vendees and therefore they could not be penalized for any violation of Condition No, 14 and that if at all there was any such violation the part of the vendees then the sale made in favour of the vendees and not the sale made by Government in favour of Mst. Fazal Bibi should be cancelled.
8. I have given my careful consideration to these arguments and have also gone through the relevant record with the help of Rana Muhammad Sarwar, Auditor (Colonies), Board of Revenue. It appears from the record that an application was moved on behalf of Mst. Fazal Bibi on 29th May 1974, for the exchange of land on the plea that land previously allotted to her in Chak No, 77/GB was 'Sem' and `Thur' affected. Upon this, reports were obtained from patwaris of Chak Nos. 73/RB and 266/RB through Tehsildar, Jaranwala. The patwari of Chak No, 73/RB reported on 1-6-1974 that Killa Nos. 15, 16, 23, 24, 25 of Square No, 44 and Killa Nos. 12/1, 13/1, 14/1 of Square No, 45 measuring 61 kanals, 4 marlas, were available, although this land was under 15 years lease with one 1V1unshi son of Jhanda who had been depositing the lease money regularly. The area proposed by pat wari of Chak No, 266/RB was scratched from his report and substituted with the area of Square Nos. 97, 94 and 190 measuring 43 kanals, 8 marlas. Even the date of the report which was originally shown as 1st June 1974, was changed into 2nd June 1974. This interpolation which was not in the hand of the patwari was never questioned in the office of the Deputy Commissioner where the Colony Accountant examined the case. This official who happened to be the brother-in-law of Muhammad Nawaz, one of the subsequent vendees of the land in dispute, put up a note to the Deputy Commissioner wrongly stating therein that the land applied for exchange stood included in the Schedule of lands meant for oustees of Gujranwala Cantonment and as such it was a fit case for exchange which might be referred to the Board of Revenue for approval. Acting upon this misleading note the Deputy Commissioner sent the proposal to the Board of Revenue vide his memo. No, 524/M/ACTT (C) dated 24th June 1974. The case was then examined in the Board of Revenue in a haphazard manner and the requisite approval accorded on 23rd July 1974 per incuriam in complete ignorance of the policy instructions contained in Government Memo. No, 8232-79/ 1076-C1V dated 10th October 1970, which categorically prohibited any exchange on the ground of waterlogging and 'Thur.'. Nevertheless, on receiving the approval from the Board of Revenue, the Collector passed two separate allotment orders on 31st July 1974. In these orders Killa Nos. 15, 16, Khasra Nos. 97 and 190 were wrongly shown against Chak No, 73/RB and Killas Nos. 15, 16, 17, 23, 24, 25, 12/1, 13/1 and 14/1 against Chak No, 266/RB. It is, however, strange that possession was obtained of the correct Killa numbers by Sh. Karam Elahi on 2nd August 1974. The error was detected on 3rd August 1974, when revised allotment orders were issued but no consequential orders permitting the delivery of possession were passed, under subsection (4) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912 in the absence of which the grantee could not be deemed to be a tenant or to have any right, or title in the land allotted to her.
9. Again, as it would appear from the record the land in dispute had not been included in the Original Schedule of lands reserved for oustees of Gujranwala Cantonment. Even in the supplementary schedule which was sent to the Board of Revenue on 7th May 1977, there appeared to be no mention of the land in dispute. This schedule was, however, got misplaced in the Board of Revenue with the collusion of some official there in order that the omission might not come to surface. Thereafter, a duplicate copy of the supplementary schedule was sent to the Board of Revenue on 13th June 1974, in which the land in dispute was shown at the bottom against Serial No, 10 of Jaranwala Tehsil. The fact that the duplicate copy supplied to the Board of Revenue is a carbon copy while the entry of the land in dispute is typed in original print manifestly shows that it has been forged subsequently on a blank space available at the bottom of the paper. Besides, the availability of the land in dispute being reported by the pat waris only on the 1st and 2nd June 1974, there could be no occasion for the entry pertaining to this land having found its way into the supplementary schedule sent earlier to the Board of Revenue on 7th May 1978. May be that some other land of equal area had been mentioned in the supplementary schedule which was subsequently deleted and instead the land is dispute inserted in the duplicate copy of the schedule. Be that as it may, the schedule was not approved by the Board of Revenue till 30th January 1975, which means that the approval for exchange accorded on 23rd July 1974, when the land in dispute had not yet been included in the schedule was not in accord with Condition No, 2 of the Statement of Conditions dated 18th January 1969, whereby only such land could be given to the oustees of Gujranwala Cantonment as stood duly included in the schedule of land reserves for them. Therefore, the allotment order passed by the Collector on 31st July 1974, in pursuance of the so-called approval of the Board of Revenue also suffered from same infirmity.
10. As regards the price of the land it was never got approved by the Board of Revenue and the Finance Department in accordance with Condition No, 6 of the Statement of Conditions and Entry No, 8(10, under the head "Disposal of Land", of the Delegation of Powers under the Financial Rules, 1962. The contention of the learned counsel that a proposal for the approval of price of land was sent to the Board of Revenue by the Deputy Commissioner ride his Memo. No, 1014-G/Acott. (C) dated 30th August 1974, on which the Board of Revenue accorded its approval on 18th September 1974, is not correct. This reference was actually made to the Board of Revenue for confirmation of sale by private treaty as required under Condition No, 9 and not for the approval of price of land in terms of Condition No,
6. According to the statement of conditions the confirmation of sale could be sought only after the price of the C land had been got approved by the Board of Revenue. The Deputy Commissioner, however, without observing these conditions, fixed the price, of his own, after obtaining reports from the pat waris. By doing so he did not seem to have looked into the fact that the land in if spate being recorded as "Banjar Qadeem" aid situated on the metaled road leading from Lahore to Faisalabad in the close vicinity of Khur1ianwala town could be utilized for building and commercial purposes and therefore, its price was not to be determined according to the formula applicable to the cultivated agricultural land of the surrounding chaks. The very fact that out of this land the petitioners had sold 1 kanal, 12 marlas in Chak No, 266/RB for Rs, 79,500 and 6 kanals, 11 marlas in Chak No, 73/RB for Rs, 96,000 for construction of shops indicates that the land had the D potential for commercial us e and could fetch lacs of rupees as against a paltry sum of Rs, 26,834, which was fixed by the Collector as the entire transfer price of the land. Here it may be pointed out that by selling the land in dispute for commercial/building purposes, the petitioners have committed a breach of Condition No, 7(k) of the Sale Deed dated the 3rd/4th December 1974, by which they were required not to use the land for any purpose other than agriculture for which it was granted and. Therefore, the land was liable to be resumed in terms of Condition No, 9 of the said Sale Deed.
11. The grantee deposited the entire transfer price as fixed by the Deputy Commissioner in November 1974, and got a sale deed executed in her favour on 3rd/4th December 1974. On the very next day she transferred the entire land by two oral sale transactions in favour of petitioners Nos. 2 to 4 through her attorney, Muhammad Bilal son of Sheikh Karam Elahi in violation of Condition No, 14 which prohibited her to make such transfer within a period of 10 years from the date of grant without the previous sanction of the Collector. The mutations of these oral transactions were sanctioned on 24th December 1974, in contravention of Punjab Government Notification No, 15246- 74/2237-LRV dated 17th December 1974, by which all transactions of land were made compulsorily registerable under section 17 of the Registration Act, 1908.
12. Another interesting aspect of this case is that Sh. Muhammad Bilal and his father Sh. Karam Elahi both had been appearing as attorney on behalf of Mst. Fazal Bibi. There is, however, no original or a copy of the power of attorney available on the file to show as to who was the real attorney of Mst.
Fazal Bibi. The application dated 29th May 1974, on which the Collector passed the allotment orders on 31st July had been signed by Sh. Karam Elahi. However, no official of the Deputy Commissioner had raised any objection in this behalf or cared to get this anomaly removed. It was also alleged that 'Mst. Fazal Bibi had already died (although the exact date of her death is not known) before the sale deed was got executed by her attorney. If that was so and there seemed no reason why it could be otherwise in view of the circumstances under which the so-called attorney and the vendees were seen engaged in all haste to get the formalities of sale completed and the land transferred ;n their favour by oral transactions with the collusion of the officials of Deputy Commissioner's office and the revenue field staff, who on their part looked equally anxious for earliest disposition of land, no matter any rule, law, conditions or policy instructions violated. It may also be seen that after the death of grantee only her successors or permitted assigns could execute or admit the execution of the sale deed. Even when proprietary rights were acquired and held by any person other than rightful heirs of the deceased grantee in the presence of such heirs he was bound under the law to ensure for the benefit of the rightful heirs. In this case, however, the so-called attorney had worked only to ensure his own benefit by keeping all the rightful heirs of the deceased grantee off the scene.
13. Again, the right of an attorney to appear and fulfil any conditions of grant on behalf of the grantee of State land is also questionable. A grant/tenancy of State land is to be held subject to the conditions declared applicable thereto under section 10(d) of the Colonization of Government Lands (Punjab) Act, 1912. Such conditions are to be fulfilled by the grantee/tenant himself or in the case of his death or debility, by his successors or assigns as contemplated by the definition of "tenant" under section 3 of that Act or of "grantee" under clause 18(h) of the General Colony Conditions of 1938. As "grant" according to the conditions issued under the Colonization of Government Lands Act, 1912 is deemed to be transfer of the land within the meaning of Government Grants Act, 1895 and is governed by its provisions, therefore, any restrictions, conditions and limitations contained in any Statement of Conditions applicable to such grant shall, in view of section 3 of that Act, be valid and take effect according to their tenor, any rule or law, statute or enactment of the Legislature to the contrary notwithstanding. Thus, any person who is neither a grantee nor the successor or assign of such grantee cannot competent perform or fulfil on his behalf any act or condition which such grantee, his successor or assign is required by any provisions of the Colonization Act or by the Statement of Conditions of his grant, to perform and fulfil, notwithstanding the holding by such person of any power of attorney on behalf of such grantee, issued under the Power of Attorney Act, 1882. In the present case also. Sh. Muhammad Bilal and his father Sh. Karam Elahi being not the successors or assignee of Mst. Fazal Bibi were not competent to appear and perform any act on her behalf under the Colonization Act or under the Statement of Conditions on the authority of some powers of attorney allegedly executed in their favour.
14. The argument that on completion of the purchase and execution of the sale deed, the grantee ceases to be governed by any condition not actually set out in the deed itself or in Schedule II of the Colonization of Government Lands (Punjab) Act, 1912 may have been valid if section 30 of that Act had not been amended, with effect from 3rd March 1948, by Punjab Ordinance No, XII of 1978 published in extraordinary issue of the Punjab Gazette dated 14th June 1978. Through this amendment a new subsection (2) bas been added to section 30 of the Colonization of Government Lands Act,_1912, whereby the Board of Revenue has been empowered to resume any land, notwithstanding the acquisition of proprietary rights or with terms and conditions of any agreement with or rules issued by the Provincial Government, if any person had acquired tenancy rights in respect of such lard by means of fraud or misrepresentation or was not eligible to have such rights for any reason Whatsoever. Therefore, after coming into force of this amendment all the rulings and case law accumulated so far on the subject and even paragraph 155-A-of the Departmental Instructions contained in Punjab Colony Manual (1933 Edition) providing that after execution of the conveyance deed the parties cease to be governed by any conditions incompatible with those actually incorporated in the instrument itself have been completely washed away and can no longer be invoked in aid against any land being resumed on the ground of fraud, misrepresentation or ineligibility.
15. Similarly, under the Martial Law Order No, 14 as subsequently amended by Martial Law Order No, 125, any allotment of State land made after 1st January 1972, can, notwithstanding the acquisition of proprietary rights in such land, be cancelled by the Board of Revenue if the allotment of such land :- "(a) Had not been covered by any regular Scheme issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912; or
(b) Had been obtained ;
(1) By using official position or political influence, or (ii) By means of fraud or misrepresentation of facts, or Oil) In violation of relaxation of any law, rule, conditions, policy instructions or orders.
16. In view of what has been discussed above it has become abundantly clear that the allotment of land in dispute had been obtained in the name of Mst. Fazal Bibi by fraud, misrepresentation and concealment of fact and also in violation of conditions and policy instructions with the collusion of Colony Accountant, Faisalabad who happened to be the brother-in-law of Muhammad Nawaz, one of the vendees and also with the connivance of the revenue field staff and the officials of the Board of. Revenue. Had the true facts, rules and relevant policy instructions been placed before the Collector and the Board of Revenue, they would never have allowed the allotment of the land in dispute, in exchange, to Mst. Fazal Bibi or have omitted to incorporate in the sale deed, Condition No, 14 of the Statement of Conditions by which the grantee was required not to alienate the land within a period of 10 years from the date of grant without the previous sanction of the Collector.
Thus the allotment and sale obtained in the name of Mst. Fazal Bibi by fraud, misrepresentations and in violation of conditions and policy instructions being void ab intio is liable to cancellation. In the same manner all subsequent transactions including the transfer of land in favour of petitioners Nos. 2 to 4 which flowed from the fraudulent and void allotment of Mst. Fazal Bibi are also void and unsustainable.
17. In the result I would order under Martial Law Order 14 as reconstituted by Martial Law Order No, 125 read with subsection (2) of section 30 of the Colonization of Government Lands (Punjab) Act, 1912 that the allotment and sale of land in dispute in Chaks Nos. 73/RB and 266/RB made in favour of Mst. Fazal Bibi and the subsequent transfer by her of the said land in favour of Sh. Karam Elahi, Muhammad Shafi and Muhammad Nam an through mutations dated 24th December 1974, be cancelled and possession thereof be resumed immediately by the Collector.