Briefly the facts are that petitioners claim themselves to be bona fide and lawful allottees of certain Government land since long and conveyance deeds had also been executed in their favour, where after, they were in cultivating possession of the said land. But, Respondent No. 5 moved an application to Respondent No. 3 District Officer (Revenue), Muzafargarh to the effect that Government land was wrongly allotted to the petitioners and others. Similar application was moved by the same Respondent No. 5 to Deputy District Officer (Revenue)/ Respondent. No. 4.
Pursuant to those applications, the District Officer (Revenue) ordered the Deputy District Officer (Revenue) to hold inquiry, which proceedings have been assailed through the instant writ petition.
2. Learned counsel for the petitioners submits that they were granted proprietary rights of the land given under temporary cultivation; that title deeds had already been executed in their favour by the revenue authorities and mutations against said deeds were sanctioned in the year 1986; that since then they are continuously cultivating the said land as owners in possession; that subsequently on the application submitted by Respondent No. 5 wherein it was alleged that the petitioners have obtained the proprietary rights of the said land by way of fraud, the Collector started inquiry against the petitioners, for which he had no authority, as the Civil Court is the forum in which the respondents can agitate their grievance; that when proprietary rights are given through title deeds the same cannot be withdrawn by way of impugned inquiry by the D.D.O(R); and that under Section 30(2) of the Colonization of the Government Lands (Punjab) Act, 1912, the Member Colonies, Board of Revenue, is the only authority to initiate inquiry on such type of complaint.
3. On the other hand, learned AAG contends that undeniably Member Colonies, Board of Revenue, is the authority to pass final order on such complaints after giving full opportunity of hearing to the parties but prior to passing of any order, inquiry can be conducted by the Collector concerned, as there is no bar for such inquiry; that according to Section 30(2), ibid it is for the Collector to hold inquiry or refer the matter to Member Colonies even without such inquiry; however, final order is to be passed by the Member Colonies.
4. After hearing the arguments of learned counsel for the parties and going through the record, without touching the merits of the case in depth, it is resolved that there is no dispute between the parties with regard to the authority of the Member Colonies to resume the land, subject to necessary condition precedent that tenancy rights, etc. had been acquired by means of fraud or misrepresentation, of course after adopting the procedure laid down in Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 and after affording the tenant/allottee reasonable opportunity of being heard. The moot point in this case is whether on any application, the Collector before referring the same to the Member Colonies, Board of Revenue, is authorized to conduct inquiry himself? Learned Law Officer while referring to the case 'Muhammad Akhtar versus Senior Member Board of Revenue, Punjab, Lahore" (2008 C.L.C. 825) and "Syed Mazhar Husthin Shah through L.Rs. versus Member, Board of Revenue, Punjab, Lahore and others" (2006 SCMR 959), contends that the Collector could inquire into the matter. The relevant portion from the cited case is to the effect "Board of Revenue was competent to cancel the allotment of land provided the tenant had acquired the land by means of fraud or misrepresentation; or was not eligible to have such rights for any reason." As observed above, the authority of the Board of Revenue to cancel allotment, of course subject to certain conditions, is not under challenge, as such, the cited cases are of no help to resolve the controversy involved herein.
5. Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 is reproduced hereunder for ready reference:-- "If at any time, 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 or 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 such land or pass such order as it may deem fit."
The above sub-section (2) was for the first time introduced in the statute book through Punjab Ordinance VII of 1978, for an obvious purpose that prior to that where a case of fraud or misrepresentation was detected, the Civil Court had been authorized to upset such bogus or illegal allotment, and by insertion of this sub-section (2), the authority has now been vested in the Member Colonies, Board of Revenue! o take up the matter and pass any order at any stage.
6. The letter and spirit of Section 30(2) of the Colonization of Government Lands Act, is to give discouragement to those allottees who acquired tenancy rights through fraud or misrepresentation by resuming the land allotted to them just after their fraud or misrepresentation is proved at any stage, even after the execution of the conveyance deed in favour of such allottees and its implementation in the revenue record. That is why the Member Colonies is empowered to cancel the allotment and resume the land immediately after the fraud, or misrepresentation, is proved. This provision clearly Indicates that no revenue officer except the Member Colonies is equipped with such powers and even the preliminary inquiry upon any complaint cannot be initiated by such Officer other than Member Colonies. The intention of the legislature to introduce the provision of Section 30(2) is, on the one hand, to safeguard the valuable property of the state from the hands of the usurpers who obtain the same fraudulently or by exerting undue influence, political or otherwise, and, on the other hand, to protect the rights of the genuine allottees by discouraging false and frivolous complaints against them. Unfortunately, it is a common trend in our society to involve genuine allottees in frivolous and baseless litigation either to blackmail them for getting monetary benefits or, to slake their animosity and rancor. People living in rural areas easily fall victims of these evils. The Member Colonies should be vigilant before initiating any action or inquiry on the complaint received by him, in this regard, and would be obligated to evaluate the genuineness of the complaint and also to ascertain whether the allegations, leveled in the complaint are supported by any documents or logical evidence so that no citizen is unnecessarily put to hardship.
7. It is also equally true that state land, at a large scale is in the unlawful possession of the grabbers/squatters with backing of both lower and higher staff of the revenue department.
Whenever, fraudulent allotment is detected, no action is taken against the delinquent of their false reports on the basis of which such type of allotments are made. The MBR is duly bound to pass strict orders against the delinquent staff, fixing liability upon them so that corrupt and dishonest, elements are discouraged before reaping the harvest of their unlawful and morally deprecated acts. It is painfully observed that delinquents are only transferred as a mark of punishment. In my view, such type of punishment, is based on mala fide and is awarded just to complete the formalities. Need not to emphasise, such type of delinquents deserve no leniency but should be awarded exemplary punishments in accordance with law and all the loss of the Government in regard to fraudulent allotment be recovered from them. Section 30(2) empowers the Member Colonies to this effect.
8. Furthermore, as shall be seen from the above reproduced provision, the word "Collector" does not figure anywhere. With this back-ground, the argument of learned Law Officer that the Collector could inquire into matter before referring the matter to the Member Colonies, Board of Revenue, is nothing but fallacious. On the contrary, this Court in the case "Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha versus Muhamamd Akram" (PLD 1993 Lahore 114), has in unambiguous terms held as under:- "Board of Revenue being empowered to resume such land, inquiry resulting in the resumption order must be conducted by the Board of Revenue itself'.
In the above referred case this Court laid down that Board of Revenue exceeded its powers, where, instead of holding inquiry itself, it based its order on the oral statements of the Secretary, Town Committee and Patwari which were not relevant. It, thus becomes evident from the above quoted case law that only the Board of Revenue itself is authorized to hold an inquiry and insofar as the authority of the Collector is concerned. I am of the view that initiation of proceedings by the Collector before referring the matter to the Board of Revenue, would not be just and proper, rather it would amount to illegal assumption of jurisdiction by him.
9. In the instant case, the allegations leveled against the petitioners are that when the leasehold rights were given to them they were minors. It is an admitted fact that Respondent No. 5 is also the resident of the same locality where the petitioners live. He was fully aware of each and every transaction of allotment to the petitioners; right from the beginning till the date of initiation of the complaint. In this situation, question arises as to why he remained silent for such a long period of 22 years. It is also noted that he did not annex any document in support of his allegations. He filed complaints before DDOR and DOR simultaneously and the latter without applying his mind over it, passed an order to initiate inquiry. The hastiness of the DOR for initiating inquiry proceedings, on such type of complaints, speaks of his irresponsible behavior as well as mala fide on his part as he was not empowered to hold inquiry in such like cases where on the basis of leasehold rights, proprietary rights were given to the allottees through registered conveyance deeds and implementation in the revenue record through various mutations has been made since long, prior to promulgation of amendment in Section 30(2) in 1978. As such, this is a close and past transaction which can normally be reversed through the Civil Court. However, the MBR is empowered to pass any order, at any time, even in such close and past transactions, but this does not mean that the MBR would proceed in an ordinary manner. He is to deal such cases with full care and caution and adopt all measures as discussed above. No other revenue officer except MBR is empowered to hold inquiry and pass order for resumption of land in cases of close and past transactions. If any complaint is lodged to any other authority in the revenue hierarchy, it can only act as a Post Officer and its primary and foremost duty is only to transmit the same to the Member Colonies, Board of Revenue for appropriate orders and it is only the Member Colonies alone either to inquire into the matter himself or entrust the inquiry to any of his subordinates, and then the Member Colonies on receipt of such inquiry report, would finally decide the issue after affording opportunity of hearing to all the concerned. Since Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, is a special law, it obviously would supersede the general law and according to this section all powers vest in Member Colonies, Board of Revenue to pass any order at any time, if any forgery or misrepresentation in the allotment/leasehold rights is detected, even after registration of conveyance deed and its implementation in the revenue record.
10. The upshot of the above discussion is that the proceedings of DDOR and DOR on the complaint of Respondent No. 5 are set-aside by declaring the same illegal and without jurisdiction. The matter is referred to the Member Colonies, Board of Revenue, for passing appropriate orders in accordance with law while exercising his powers under Section 30(2) of the Colonization of Government Lands Act, 1912, by observing all the above guidelines. With above observations the writ petition is disposed of.