' HAFIZ ABDUL REHMAN ANSARI, J.---Through this constitutional petition the petitioner Mrs. Kishwar Ashraf wife of Ch. Muhammad Ashraf has assailed order dated 27-8-2009 passed by Senior Member Board of Revenue, Punjab, Lahore. The petitioner is aggrieved of the impugned order dated 27-8-2009 passed by the learned Member Board of Revenue mentioning her land measuring 20 Kanals situated in Khata No,400/3273, transferred in her name vide Mutstion No,1078 dated 14-11-1997, is included in the notice issued under section 30(2) of Colonization of Government Lands Act 1912 to Jaffar Ali etc. On 9-3-1999 from whom the petitioner claims that she is a bona fide transferee through some exchange of land from one of the respondents Jaffar Ali etc. On this ground order dated 24-8-2009, passed by Senior Member Board of Revenue may kindly be declared as illegal, void ab initio, without jurisdiction, without lawful authority and having no legal effect, hence the same may kindly be set aside/ quashed in the interest of justice.
2. This case has a checkered history. Brief facts of the instant case are that land in dispute measuring 20 Kanals falling in Khata No,400/3237 claimed by the petitioner's brother in her name through some exchange of land from one of respondents Jaffar Ali Shah etc. Is a part of land which was originally allotted to the forefathers of Jaffar Ali Shah etc. Under Peasant Grant Scheme in the area irrigated from Lower Bari Doab Canal. The original allottees have been cultivating and improving the same since its allotment in 1916; that land measuring 204 Kanals 12 Marlas attached with the Shrine of Shah Madar of Chak No,96/6-R was given under the administration of Auqaf Department vide notification dated 19-10-1960. Joat Ali Shah the Manager/ Matwali of the said shrine in the Court of Civil Judge Sahiwal which was dismissed. The appeal in the High Court was also dismissed as is evident from the orders passed by this Court dated 12-3-1970 in F.A.O. No,51/62 in these proceedings the notification dated 19-10-1960 was assailed, as such, notification dated 19- 10-1960 referred above attained finality.
3. Thereafter Jafar Ali Shah etc. Successors-in-interest of Joat Ali Shah who claims that this land was allotted to their forefathers Yaqeen Ali Shah succeeded to acquire proprietary rights of the land measuring 160 Kanals and 15 Marlas as allottees as Dakheel Kar vide District Collector order dated 17-9-1995 and subsequently obtained conveyance deed of the said land. On pursuing the matter by the Auqaf Department Government of Punjab (Muslim Auqaf) the District Collector, Sahiwal vide his order dated 23-6-1998 concluded that the above named persons Jafar Ali Shah or his predecessor-in-interest Joat Ali etc. Obtained the proprietary rights as well as conveyance deed issued on 22-11-1995 in their favour was through concealment of facts and through fraud and as such the case for cancellation of the conveyance deed in the name of Jafar Ali etc. Was referred to the Board of Revenue Punjab, Lahore for its cancellation who was the competent authority. On the other side Jafar Ali etc. Including the present petitioner tried to take shelter on one pretext or the other to get favourable verdict in their favour from the Civil Court for which they badly failed on all forums up to the honourable Supreme Court of Pakistan. In the whole litigation during this interregnum period the rights of Auqaf Department to lease out the impugned land in occupation of the Auqaf Department was also assailed and in this regard Jafar Ali etc. Including the present petitioner failed and even the honourable Supreme Court of Pakistan did not accept any of their right or claim on this land. As a consequence of failure of Jafar Ali Shah etc. In the civil litigation their right or claim on this land was turned down and the right of Auqaf Department to hold this land, administer this land and leased it out was confirmed.
4. Learned counsel for the petitioner contended that petitioner is a bona fide transferee of 20 Kanals of land vide mutation No,1078 dated 14-11-1997. Learned counsel further contended that predecessor-ininterest of respondent Joat Ali Shah, the original allottee of dic land in dispute was granted proprietary rights much earlier in 1922. He further contended that when the matter was subjudiced before the District Judge Sahiwal about the notification issued on 19-10-1960 in favour of Auqaf Department. Learned counsel further contended that the Member, Colonies, Board of Revenue, issued notices to Jafar Ali etc. Under section 30(2) was illegal and without jurisdiction as this section was amended. The provision under section 30(2) of CGLA Act 1912 is not applicable in this case as this provision is inserted in the Statute book through Ordinance No,XII of 1978. Section 1(2) of the Amended Ordinance speaks its application on or from 3rd March 1948. He argued that even under this provision initial tenancy rights if obtained through misrepresentation or fraud, could be called in question. He made reliance on Abdul Rashid's case 2006 CLC 1748. He submitted that till 1995 the ownership of the property remained in the name of Province of Punjab and Auqaf Department made no effort if they have any claim in the property to get it transferred in the name of Auqaf Department. A copy of Sanad Haqooq Dakheel Kari of 1920 and Farad Taqseem appended at page 6 speaks that the tenancy rights were awarded to Yaqeen Ali Shah in 1920 under Peasant Grant Scheme which has the force of law as held in Muhammad Aslam v. Muhammad Akram etc. Law Notes 1968 Lah. 176), PLD 1968 Lah. 1155, Muhammad Rafique v. Hashmat Ali PLD 1992 SC 37 and Muhammad Khan v. Province of Punjab 2007 SCM R 1169. He also contended that the claim of the parties was adjusted in suit titled Barkat Ali etc. v. Province of Punjab in which issues Nos. 3 and 4 were framed regarding legality of the order of grant of proprietary rights dated 17-9-1995 and issuance of conveyance deed in the name of Jafar Ali etc. And it was held through final judgment and decree dated 2-12-2004 by the Additional District Judge that the same were legal and in accordance with law. Neither the Auqaf Department nor the Province of Punjab had challenged these findings. Therefore, the provisions under section 30(2) of the Colonization of Government Lands Act 1912 has no application in this case and hence the impugned order dated 27-8-2009 passed by respondent No,1 is coram non judice, nullity in the eyes of law and without jurisdiction.
5. On the other hand learned counsel for Auqaf Department fully supported the judgment dated 27-8-2009 passed by the learned Member, Board of Revenue. He contended that question with regard to notification issued in favour of Auqaf Department in 1960 was assailed through a civil suit before the District Judge Sahiwal and the suit was dismissed on 12-3-1970, against which FAO No,51/62 was filed which was also decided against Jaffar Ali or son of Yaqeen Ali etc. And that the order passed in FAO was not assailed in the Supreme Court. The present writ petitioner is a transferee of land measuring 20 Kanals which is also included in the Notification dated 19-10-1960 in favour of Auqaf Department. As the grant of proprietary rights by the revenue authorities of District Sahiwal and later on the basis of that conveyance deed executed in favour of Jaffar Ali etc. Are declared got fraudulently and with the connivance of revenue authorities. The learned counsel contended that Member, Colonies, Board of Revenue rightly issued notices to Jaffar Ali etc. For cancellation of the proprietary rights and conveyance deed executed in favour of Jaffrar Ali etc. On the recommendation of District Collector Sahiwal vide his order dated 23-6-1998 passed in case No,174-C/97 titled Chief Administrator Auqaf etc. v Jaffar Ali; proceedings were initiated on the application of Auqaf Department. The arguments advanced by the learned counsel for Auqaf Department much clarify the facts of the case, which are helpful to adjudicate this matter. He submitted that order passed by Member, Board of Revenue, needs no interference. When the foundation from whom present petitioner Mst. Kishwar Ashraf exchanged the land cannot stand on sound footing the structure on that foundation will also collapse.
6. I have heard the learned counsel for the petitioner at length and the learned counsel for the respondent Auqaf Department.
7. The judgment delivered by the Member, Board of Revenue is elaborate, convincing, based on sound and cogent reasons. Learned Member, Board of Revenue, has discussed each and every aspect of the case since then case has a checkered history. A notification dated 19-10-1960 was issued by the Auqaf Department which became subject of civil litigation between the Auqaf Department and Yaqeen Ali Shah predecessor of Jaffar Ali Shah etc. Successors of original allottee but no favourable findings ever came in favour of Jaffar Ali etc, or in favour of their predecessor. At one stage Jaffar Ali etc. Maneuvered proprietary rights in their favour of the land in dispute and also maneuvered conveyance deed in their favour with the connivance of the revenue officer District Sahiwal and with their connivance Member, Colonies rightly issued notices under section 30(2) to plaintiffs as this provision of law empowers the Member, Board of Revenue to cancel the grant of rights based on fraud and misrepresentation obtained through concealment of facts.
Present petitioner is a transferee through exchange of land from Jaffar Ali etc. The foundation of Jaffar Ali etc with regard to land in dispute is shaky based on fraud and mis-representation as Jaffar Ali etc. Had not obtained the proprietary rights and had not fairly, honestly got executed conveyance deed in their favour. So any subsequent transfer from Jaffar Ali etc. Of the land in disputes cannot sustain. If the foundation is weak and is likely to be collapsed the structure built thereon must collapse. I am fortified of the view taken by the honourable Supreme Court of Pakistan in "Muhammad 'Tariq Khan v. Muhammad Sarwar Aami" 2007 SCM R 818 (m)) where basic order is without lawful authority then superstructure built thereon would fall on the ground automatically. The same view is adopted in case titled "Muhammad Hassan v Muslim Commercial Bank Ltd." 2003 CLD 1693 (d) no superstructure or legal rights could be based upon foundation which was void in nature.
8. In the beginning one of the legal heirs of Yaqeen Ali Shah, namely, Joat Ali Shah who claimed the original allottee of the land in dispute under the Peasant Grant Scheme filed civil suit before the learned District Judge Sahiwal with regard to the Notification dated 19-10-1960 issued by Auqaf Department with regard to the property in dispute suit was dismissed on 25-1-1962 and this order of District Judge, Sahiwal was assailed in FAO No,51/62 in the Lahore High Court Lahore. The order dated 12-3-1970 passed in FAO No,51/62 attained the finality with regard to the land subject of the Notification dated 19-10-1960 of the Auqaf Department. The start of order dated 12-3-1970 highlights this aspect of the case which is reproduced below:-- "Joat Ali Shah has appealed the order dated 25-1-1962 passed by the learned District Judge, Montgomery, (now Sahiwal), whereby he dismissed his application made under section 7 of the West Pakistan Waqf Properties Ordinance 1959 for a declaration to the effect that the taking over of the property by the Chief Administrator of Auqaf, allotted to Khanqahs Shahmadar and Roshan Shah, situated in Chak No,90/6-R, Tehsil and District Sahiwal, was illegal and void as it was not Waqf property."
' And this FAO was dismissed vide order dated 12-3-1970 which was not further assailed in the Supreme Court. Subsequently another attempt was made by Jaffar Ali etc. Successors-in-interest of Yaqeen Ali Shah filing a civil suit for permanent injunction against the Auqaf Department. The order passed in Civil Revision No,135-D/98 indicates that it was filed against rejection of plaint under Order VII of Rule 11 of C.P.C. Filed by Jaffer Ali etc. Against Auqaf Department perhaps the petitioner has not appended deliberately copy of suit, application and rejection order of the plaint.
This order passed in C.R. No,135-D/98 is reproduced as under:- "After arguing the case at some length, the learned counsel for the petitioners submits that if this Court is of the view that the order whereby the plaint has been rejected and appeal has been dismissed in accordance with law, instead of rejecting the plaint of the petitioners under Order 7 Rule 11, C.P.C., the plaint may be sent to the appropriate forum for adjudication.
' I am afraid, the request of the petitioners cannot be acceded to as in the present plaint, the plaintiffs have not challenged the Notification dated 19th of October, 1960 issued by the Chief Administrator Auqaf; while for approaching under section 11 of the Punjab Waqaf Properties Ordinance 1979, the petitioners have to challenge the notification issued by the Chief Administrator Auqaf, hence, this revision petition is disposed of and the order of the Courts below are maintained.
However, as the petitioners had been granted proprietary rights and also Patta Malkiyat has been issued in the year 1995 by the District Collector, therefore, the petitioners may approach the District Judge to challenge the notification under section 11 of the Punjab Waqf Properties Ordinance, 1979.
' With the above observations, the civil revision is disposed of."
' It manifests that suit filed by Jaffar Ali Shah against Auqaf Department in that plaint was rejected and appeal was dismissed vide order dated 13-12-2001. Against this order of Lahore High Court, CPLA No,2689-L of 2001 was filed in the honourable Supreme Court of Pakistan which was later on withdrawn on 5-10-2004. As such, the predecessors of Yaqeen Ali Shah failed to get any favourable findings in favour of them from the competent Civil Court. After failure of that Jaffar Ali Shah etc. Manoeuvred the proprietary rights in their favour and got conveyance deed in their favour through concealment of facts committing fraud as is evident from the order of District Collector, Sahiwal dated 23-6-1998 which reads as under:-- "Ch. Sadiq Rafi Advocate for the petitioner argued that 204 Kanals land situated in Chak No,90/6-R was allotted to Joat Ali Shah as Dakhilkar under section 3 Act 5 CGL, 1912. The Auqaf Department carried out survey in the year 1960 and land measuring 42 Kanals 17 Marlas was taken over by the Auqaf Department vide Notification No, 3 (252)- Auqaf-60, dated 19-10-1960 issued under section 6 of West Pakistan Waqaf Properties Ordinance. Section 7 of the Ordinance empowers the Administrator Auqaf to determine and settle the issues and bars the jurisdiction of Civil Court. The Notification is final and no "Parcha Dakhal" is required under this Act. Being Local, Special and Later Law over-rides the General Law and the possession was taken over by the Auqaf Department under the same Act/provision. He further argued that father of defendant's availed opportunities of appeal in every available Forum up to the High Court. Order of the High Court dated 12-5-1970 has attained finality, wherein Notification of the Administrator Auqaf was upheld. In the Revenue Record i,e, Jamabandi, the entry regarding possession of Auqaf Department is still continuing from 1960 in Column No,4 of the Jamabandi. The same has not been challenged under section 53 of Land Revenue Act, 1967. Coirection was never sought from the District Collector to correct the entry in the Revenue Record. The respondents were fully aware of the interest of the Auqaf Department in the property. This fact was suppressed/concealed and conveyance deed was thus obtained mala fidely. Learned counsel further argued that even on the application for issuing conveyance deed, the copy of Jamabadi attached by Joat Ali Shah clearly shows that Auqaf Department's name has been entered in the column of "Cultivator" of jamabandi along with the name of Joat Ali Shah. The Auqaf Department should, therefore, have been made a party in the proceedings, but the same was not done. Even the mutation executed after obtaining the conveyance deed dated 31-12-1995 shows the entry of Auqaf Department therein. It was added that a civil Suit was filed on 1-9-1996 by Joat Ali Shah etc; to obtain orders to refrain Auqaf Department from leasing out the land. The property described in that suit is 34//1-18, 23/2, 24, 25, and 35//5-6-15/2, 16, 25, 27 and 28. This belied the contention of Joat Ali Shah that the area mentioned in the Notification is not the area allotted to Joat Ali Shah and mentioned in the conveyance deed. Two suits filed by Auqaf Department and Joat Ali Shah were rejected on the basis of the decision of the High Court dated 12-5-1970, wherein it was held that the property is Waqaf property in view of principle of Res judicata. In reply to the Civil suit Joat Ali Shah cannot be rescinded by the either of the party and the rights have accrued in favour of the respondents. This principle of law has been enunciated by the honourable Supreme Court in case reported in PLD 1969 Supreme Court Page 407. The District Collector has excluded the area which is under Shrine in his order dated 17-9-95. No appeal, revision or review has ever been instituted against the said order and the same has attained finality. The appeal is now time-barred and review can only be made by the District Collector who issued the orders. The appeal too does not lie after issuance of Conveyance Deed. He further argued that under section 30(2) of Colonization of Government Lands Act, 1912, cases can only be referred to the Board of Revenue under the statute but ingredients of fraud and mis-representation have not been mentioned in the application."
9. That the contention of the learned counsel for the petitioner that Member, Board of Revenue has not jurisdiction to issue notice under section 30(2) of Colonization of Government Lands Act 1912 in fact Member, Colony, Board of Revenue, did not issue notice on his own after proper probe and inquiry District Collector Sahiwal in case No,174-C/97 titled Chief Administrative Auqaf v. Jaffar Ali etc. Had recommended the proceedings under section 30(2) of Colonization of Government Lands Act, 1912 for elucidating the same. Last para of the order dated 23-6-1998 passed by learned District Collector, Sahiwal is reproduced.
"Under the above mentioned circumstances I have come to the conclusion that the respondents succeeded in getting the conveyance deed issued in their favour on 22-11-1995 by way of concealment of the facts. In view of the stay order issued by honourable High Court, Multan Bench, Multan, the Board of Revenue may like to cancel the sale-deed after hearing the parties, as required under section 30(2) of Colonization of Government Lands Act, 1912."
' Leaving aside lengthy arguments of learned counsel of petitioner, on different aspects of this case, the question which needs to be adjudicated at the first instance is in notice dated 14-11-1997 issued by Member, Board of Colonies under section 30(2) of Colonization of Government Lands Act, 1912, it is alleged, that Jaffar Ali etc, including the present petitioner, it was asserted the petitioner and others, Jaffar Ali etc. Obtained proprietary rights of land, in the possession of the petitioner and Jaffar Ali etc. Through fraud, misrepresentation and through concealment of facts, as a consequence of which conveyance deed was also obtained like this. Present petitioner is a transferee from Jamat Ali etc. If the conveyance deed in favour of Jaffar Ali etc., proprietary rights obtained through concealment of facts, goes, the consequence will be any such transfer from Jaffar Ali etc. will also automatically collapse; If proprietary rights obtained by Jaffar Ali etc. Are based on fraud; then subsequent transfer from Jaffar Ali etc. Will also be hit. The principle is that if the basic order is without lawful authority, then superstructure built on it would have to fall on the ground automatically. The question whether this Court sitting in writ jurisdiction can decide whether conveyance deed was obtained through fraud or misrepresentation, serious factual controversy is involved to settle this issue, which can only be adjudicated upon after recording of evidence of both the parties, in constitution petition. This question of alleged fraud cannot be adjudicated in writ jurisdiction. It is held in "Jan Muhammad through Mubarik Ali and others. v. Nazir Ahmad and others" 2004 SCM R 612, that fraud could always be challenged before Civil Court.
Parties could not be left out without any relief. Civil Court had got jurisdiction in such matter.
10. In the light of above discussion I would not like to interfere in writ jurisdiction in this matter. The petitioner is at liberty to avail any other appropriate remedy for relief. This writ petition is dismissed with no order as to costs.