Nasir Saeed Sheikh, J.--This order shall dispose of Writ Petitions No, 58/R of 2008, 177/R of 2008, 178/R of 2008 and 71/R of 2009.
2. Briefly facts of the case are that the predecessor in interest of the petitioners of Writ Petition No, 71/R of 2009 Lt. Col. Haji Shuja ud Din Ahmad was allotted land measuring 429-Kanals 6-Marlas in two villages Mauza Pira Khana and Jalloke, Tehsil and Distt. Kasur under Border Area Scheme by the GHQ. The allotment was made in favour of the said Lt. Col. Haji Shuja ud Din Ahmad on 18.11.1961 by the Border Area Committee as per record of the Respondent No,
1. The precise bifurcation of the allotment of the said allottee is as follows:-- a.Mauza Jalloke, Tehsil Kasur 220-K 5-M b.Mauza Pira Khana, Tehsil Kasur.209-K 1-M Total land: 429-KanaIs 6-Marlas.
The allottee Lt. Col. Haji Shuja ud Din Ahmad is stated to have died in the year 1986. An application was made by his daughter on 28.04.2001 before the Border Area Committee for correction of the revenue entries with respect to the allotment made in favour of her father Lt. Col. Haji Shuja ud Din Ahmad contending that only 86-Kanals 13-Marlas area is reflected in the revenue record whereas the remaining allotted land measuring 342-Kanals 15-Marlas is missing in the revenue record.
Upon this application, the Border Area Committee held an inquiry and cancelled the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad on the ground that the cost against the allotment has not been deposited by the said allottee or his legal heirs.
3. The legal heirs of Lt. Col. Haji Shuja ud Din Ahmad instituted Writ Petition No, 58/R of 2008 against the order dated 21.04.2004 passed by the Border Area Committee cancelling the allotment of Lt. Col. Haji Shuja ud Din Ahmad on the ground that they were not heard before passing the order dated 21.04.2004 by the Border Area Committee.
4. The Border Area Committee in the first impugned order dated 21.04.2004 further observed that the land measuring 220-Kanals 5-Marlas situated in village Jalloke shown in the revenue record was further mutated to one Sep Ahmad Khan who in return sold the said land to Mazhar ul Hag petitioner of W.P. No, 177/R of 2008 through Mutation No, 222 dated 02.12.1981. The land measuring 209-Kanals 4- Marlas allotted to Lt. Col. Haji Shuja ud. Din Ahmad in village Pira Khana was later on mutated in the name of one Surakhru Khan to the extent of 123-Kanals 6-Marlas. The said Surakhru Khan is stated to have exchanged the said land with the land of one Ghulam Muhammad and the said Ghulam Muhammad stated to have sold the land to one Sher Muhammad. All these sales/exchange were effected without obtaining NOC from GHQ/Border Area Committee. The allotment in favour of Sep Ahmad Khan and Surakhru Khan were not found in Register RLB II of the Border Area Committee nor their allotment letters existed in the record, therefore, these were held to be bogus and were cancelled through the order dated 21.04.2004.
5. The vendees of both second allottees Sep Ahmad Khan as well as Surakhru Khan instituted Writ Petition No, 130/R of 2004 and 131/R of 2004 against the order dated 21.04.2004 in which writ petitions the order dated 21.04.2004 was declared to be illegal and without lawful authority as having been passed without hearing the subsequent vendees/writ petitioners vide order dated 29.10.2007. The case was remanded back to the Border Area Committee and was taken up again by the Border Area Committee/respondent and vide order dated 01.12.2008, the Border Area Committee again passed similar order holding the allotment of Lt. Col. Haji Shuja ud Din Ahmad as cancelled on the ground of non-payment of cost whereas the allotment in favour of the subsequent allottees Sep Ahmad Khan and Surakhru Khan were again held to be not genuine. The Border Area Committee also declared the allotment of second allottees Sep Ahmad Khan and Surakhru Khan as liable to be cancelled also due to the fact that subsequent sales/exchange by the said allottees were made without obtaining NOC from GHQ/ Border Area Committee.
6. The legal heirs of Lt. Col. Haji Shuja ud Din Ahmad have instituted Writ Petition No, 71/R of 2009 against the order dated 01.12.2008 whereas the vendees from Sep Ahmad instituted Writ Petition No, 177/R of 2008 and Muhammad Ilyas vendee from subsequent transferee of allottee Surakhru Khan instituted Writ Petition No, 178/R 2008 against the order dated 01.12.2008. All the above mentioned writ petitions have been heard together and are disposed of through the present order.
7. It is contended by the learned counsel for the petitioner of Writ Petition No, 71/R of 2009 that admittedly the first allotment exists in favour of Lt. Col. Haji Shuja ud Din Ahmad through an allotment letter dated 18.11.1961 which fact is supported by the record of Border Area Committee and is subsequently incorporated in the revenue record. The learned counsel argued that the daughter of original allottee Lt. Col. Haji Shuja ud Din Ahmad made an application before Border Area Committee contending that as only a portion of the original allotted land was duly entered in the revenue record whereas the remaining land measuring 342 Kanals 15-Marlas is not incorporated in the revenue record, therefore necessary orders for correcting the revenue entries in accordance with the original allotment in favour of Lt. Col. Haji Shuja ud Din Ahmad be passed. The learned counsel for the petitioners further argued that on this application, the Border Area Committee passed an order dated 21.04.2004 cancelling the entire allotment of land in favour of Lt. Col. Haji Shuja ud Din Ahmad. Learned counsel argued that firstly the order dated 21.04.2004 has been passed without any evidence and secondly this order was set aside by the Hon'ble High Court after hearing of Writ Petitions No, 130/R of 2004 and 131/R of 2004 vide order dated 29.10.2007. It is thus argued that the order passed by the Border Area Committee dated 01.12.2008 is absolutely illegal and without any lawful authority.
8. The learned counsel for the Border Area Committee/ respondents has argued that it was the duty of the original allottee to have deposited the cost of allotted land and that having been not done, the Border Area Committee was justified in cancelling the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad.
9. The learned counsel for the petitioners in Writ Petitions No, 177/R of 2008 and 178/R of 2008 argued that the allotment in favour of the petitioners of the said writ petitions was incorrectly as well as illegally held to be fraudulent and bogus and that the predecessor of vendees of the original allottee Sep Ahmad Khan and Surakhru Khan were lawfully allotted the land by the Border Area Committee.
10. The learned counsel for the respondents controverted the . arguments of the learned counsel for the petitioners in Writ Petition Nos, 177/R of 2008 and 178/R of 2008 by arguing that admittedly, the land in question stood allotted to Lt. Col. Haji Shuja ud Din Ahmad in year 1961 whereas the petitioners of Writ Petitions No, 177/R of 2008 claimed the allotment in favour of their predecessor Sep Ahmad Khan on 04.05.1964 through a document Annexure "A" whereas the predecessor in interest of writ petitioner of Writ Petition No, 178/R of 2008 Surakhru Khan was mutated land measuring 123-Kanals 6-Marlas vide mutation 25.04.1973 from Surakhru Khan son of Fateh Khan and further that there is no document of allotment existing in possession of the petitioner of Writ Petition No, 178/R of 2008 showing the allotment in favour of Surakhru Khan son of Fateh Khan from Border Area Committee. The learned counsel for the respondent/Border Area Committee argued that the allotment in favour of all the original allottees of Writ Petitions No, 177/R of 2008 and 178/R of 2008 were rightly found to be bogus and resultantly cancelled.
11. We have considered the arguments of the learned counsels for the parties and have perused the record with their assistance. The crucial point which shall decide the fate of all these writ petitions is that admittedly the total land measuring 429-Kanals 6-Marlas was originally allotted in favour of Lt. Col. Haji Shuja ud Din Ahmad on 18.11.1961 which fact is borne out in the revenue record, a photocopy of which has been found by the Court in the said record. The allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad was first cancelled in the year 2004 when his daughter Mst.
Bushra moved an application for correction of revenue entries which did not correspond with the original allotted area. The Border Area Committee cancelled the original allotment of Lt. Col. Haji Shuja ud Din Ahmad on the ground that the said allottee had not paid the cost of the allotted land.
The learned counsel for the respondents was asked as to how much amount was determined by the Border Area Committee which has not been paid by the original allottee as per contention of the learned counsel for the Respondent No, 1/Border Area Committee? The reply of the learned counsel was fairly in the negative. He further argued that the cost of the allotted land is determined by the revenue authorities after the allotment is made by the Border Area Committee/GHQ. The learned counsel for the respondents was asked as to whether any document is present with him in his record to show as to how much amount has been determined by the revenue authorities which the original allottee Lt. Col. Haji Shuja ud Din Ahmad was expected to pay and has not been paid?
The learned counsel for the respondents was unable to refer to any such document wherein any such fact has been entered that any amount was due against Lt. Col. Haji Shuja ud Din Ahmad. The learned counsel for the respondents/Border Area Committee was asked as to whether any demand notice has been issued by the revenue authorities to the original allottee Lt. Col. Haji Shuja ud Din Ahmad or his successors. The learned counsel for the respondents stated that no such demand notice exists on the record of Border Area Committee nor he is able to refer to any such demand notice having been issued from the concerned revenue authorities. In view of the all the above circumstances, we are left with no doubt that the orders for cancelling the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad by the Border Area Committee firstly on 21.04.2004 and secondly on 01.12.2008 are both illegal and without any lawful authority as the same are not based on any lawful material so far these orders affect the allotment of Lt. Col. Haji Shuja ud Din Ahmad. Resultantly, both the said orders dated 21.04.2004 and 01.12.2008 to the above extent are declared to be passed without any lawful authority and are of no legal effect. The Writ Petition No, 71/R of 2009 is accordingly accepted in the light of observations made above.
12. The Writ Petition No, 58/R of 2008 has borne fruit in view of the order passed by this Court in Writ Petition No, 71/R of 2009 and is disposed of accordingly.
13. The effect of acceptance of Writ Petition No, 71/R of 2009 shall deprive the petitioners of Writ Petitions No, 177/R of 2008 and 178/R of 2008 of any locus standi to claim the land in question which originally stood allotted to Lt. Col. Haji Shuja-ud-Din Ahmad and which allotment admittedly remained intact till the year 2004 when it was first cancelled by the Border Area Committee through an order dated 21.04.2004 which order was also got cancelled by the petitioners of Writ Petitions No, 177/R of 2008 and 178/R of 2008 through an earlier order dated 29.10.2007 passed in Writ Petitions No, 130/R of 2004 and 131/R of 2004 by a learned single Judge of this Court. It is established that the land claimed by the petitioners of Writ Petition No, 177/R of 2008 and 178/R of 2008 stood first allotted to Lt. Col. Haji Shuja-ud-Din Ahmad and was no more available, therefore, the same could not have been allotted to the predecessor in interest of petitioners of Writ Petitions No, 177/R of 2008 and 178/R of 2008. The Writ Petitions No, 177/R of 2008 and 178/R of 2008 are accordingly dismissed and the orders dated 21.04.2004 and 01.12.2008 to the extent of declaring the allotment of Sep Ahmad Khan and Surakhru Khan as bogus and fictitious, are upheld. There shall be no orders as to costs.