Shujaat Ali Khan, J: - Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the petitioners have groused against communication, dated 05.10.2011 (impugned letter) addressed by the Additional District Collector, Bahawalpur (respondent No.2) to the Secretary (Colonies), Board of Revenue, Punjab, Lahore whereby matter was referred for cancellation of Patta Malkiyat issued in favour of the petitioners.
2. Unnecessary details apart, the petitioners were allotted various chunks of land, described in Para No.2 of this petition, in November 2005, under Chief Minister's Programme for Allotment of Land to Landless Peasants of the Province, circulated through Notification, dated 01.09.2003. On payment of requisite dues, Pattas Malkiyat/Conveyance Deeds were issued in their favour and their names were incorporated in revenue record by way of sanctioning different mutations. Respondent No.2, through impugned letter, started proceedings for cancellation of allotment made in favour of the petitioners while exercising powers under section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 (the Act) aggrieved whereof the petitioners have filed instant petition.
3. The legal formulations put forwarded by the learned counsel for the petitioners are to the effect that after execution of Conveyance Deeds in their favour the District Collector/Additional District Collector became functus officio thus they could not move for cancellation of land allotted to the petitioners while pressing into service the provisions of section 30(2) ibid; that after grant of proprietary rights the petitioners have incurred considerable amount on the improvement of land in question and it would be unfortunate if they are deprived of the fruits of their hard-toil efforts; that impugned cancellation proceedings have been initiated on the ground that land allotted to the petitioners fall within the prohibited zone whereas land for allotment under the aforesaid Notification was earmarked by the then District Collector, after spot verification, and in case of any omission or commission on the part of competent authority the petitioners could not be penalized; that the impugned cancellation proceedings are conducted at the back of the petitioners, thus, they are being condemned unheard and that the impugned cancellation proceedings are violative of Article 10-A of the Constitution. In addition to his oral submissions, learned counsel has referred to the cases reported as Ilam Din v. Muhammad Din (PLD 1964 SC 842), Tehsil Municipal Administration (City) Ex-Municipal Committee Bahawalpur and another v. Ghazanfar Ali and another (Unreported order dated 04.03.2010 passed by apex Court of the country in Civil Appeal No.728-L/2006), Muhammad Asghar v. Member Board of Revenue and others (2009 MLD 1023), Abdul Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another (2006 CLC 543), Bashir v. The Province of Punjab etc. (NLR 2005 Revenue 52), Province of the Punjab through Collector, and 2 others v. Nazir Ahmad and 9 others (2004 YLR 1650), Muhammad Sharif etc. v. The Border Area Committee, Lahore etc. (NLR 2002 Civil 250), Anjuman Talim-ul-Islam (Regd.) Sheikhupura v. Province of West Pakistan Punjab Province and 2 others (PLD 1983 LHR 294), Mst. Khurshid Begum and 7 others v. Inam Rabbani and another (1979 CLC 570), Ali Muhammad v. Mst. Rabia Bibi and 3 others (PLD 1971 Baghdad-ul-Jadid 38), unreported judgment of this Court passed in W.P. No.419 of 2006 and Rehmat Ullah and others v. Muhammad Ismail and others (PLD 1958 W.P. (Rev.) 77).
4. Conversely, learned Additional Advocate General, while defending the impugned letter submits that since no adverse order has been passed against the petitioners, instant petition is premature; that the Collector enjoys power to cancel allotment in favour of the petitioners while pressing into service the terms and conditions of allotment; that in view of Clause 8 (xvi) of the Notification dated 01.09.2003 any person could file complaint before the District Collector challenging eligibility of any allottee and that the land having been fallen within the prohibited zone would be utilized for public purposes and it is settled principle of law that public interest should be given preference over the individual and that Constitutional petition is not maintainable against an investigation or mere issuance of notice, thus, instant petition merits dismissal. To fortify his contentions, learned Law Officer has relied upon the cases reported as Khalid Mehmood Ch. And others v. Govt. Of the Punjab through Secretary Livestock and Dairy Development (2002 SCMR 805), Virasat Ullah v.
Bashir Ahmad, Settlement Commission (Industries) and another (1969 SCMR 154), M/s Chakwal Textile Mills Ltd., Rawalpindi Road, Chakwal and another v. Director Social Security Rawalpindi and 2 others (2012 PLC 270), Muhammad Manzoor through Legal Heirs and others v. Province of Punjab through District Officer Revenue, Vehari and others (2011 CLC 1235), Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260), Niaz A. Baloch v. Chairman National Accountability Bureau and 2 others (2008 P.Cr.L.J.
1463), Province of Punjab and 2 others v. Muhammad Shoaib and another (2006 CLC 1265), Tariq Mahmood v. Air Cdre. (R) Nayyar Q. Khawaja and 4 others (2003 P.Cr.L.J 1512), Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others (2001 PLC (CS) 939), Khawaj Din and another v. Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 7 others (1997 MLD 1047), Province of Punjab through Deputy Commissioner/Collector of Sargodha, District Sargodha v. Muhammad Akram (PLD 1993 LHR 114), Ahsan Saleem v. Government of the Punjab and others (PLD 1993 LHR 118) and Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance (1984 CLC 142).
5. I have heard learned counsel for the parties at considerable length in addition to scanning the documents annexed with this petition as well as those forming part of report and parawise comments in addition to going through the case-law sited at the bar.
6. The crux of the arguments of the learned counsel for the petitioners is that after having been declared as full-fledge owners upon issuance of Conveyance Deeds, the Additional District Collector has no authority to proceed against them in terms of section 30(2) ibid whereas learned Additional Advocate General has taken the stance that as per terms and conditions of allotment, the District Collector can scrutinize the allotment at any time and in case of any deficiency on the part of the allottees he can proceed against them. In this scenario, to resolve the controversy between the parties a perusal of section 30(2) of the Act is of paramount consideration, which for convenience of reference is reproduced herein below: - "30. Acquisition of proprietary right.
(1) Notwithstanding anything entered in any statement of conditions issued under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreements with, or under rules issued by the Provincial Government, has acquired proprietary right in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above mentioned Act; provided always that he shall in respect of such land be bound by the conditions set out in Schedule II of this Act and be bound by the other provisions of this Act applicable to proprietors of land.
(2) 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 which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit."
A cursory glance over the afore-quoted provision of law shows that power to look into allegation of fraud or misrepresentation or eligibility of any person, who was granted proprietary rights, vests with the Board of Revenue. Admittedly, the impugned cancellation proceedings have been initiated by respondent No.2, on the application of one Muhammad Afzal son of Barkat Ali, thus, the same cannot be blessed with stamp of authenticity.
7. It is imperative to note that allotment in favour of the petitioners has been recommended for cancellation on the ground that land allotted to them fall within prohibited zone.
There is no cavil with the proposition that land falling within prohibited zone is immune from allotment under any scheme, especially under the scheme announced in the year 2003. However, the said ouster clause is not applicable in the matter, under discussion, for the reason that the land, subject matter of instant petition, was allotted by the competent authority after due verification of its status through revenue field staff. Moreover, the question as to whether a piece of land falls within prohibited zone is to be determined from the date of allotment to any person under any scheme and not from the time of grant of proprietary rights. In this regard, I stand guided by the judgment of apex Court of the country reported as Province of Punjab through District Collector v. Ghulam Muhammad (1994 SCMR 975) wherein while dealing with the said query it has inter-alia been observed as under: - "2. The respondent/tenant had been allotted land on temporary cultivation scheme which had to be resumed and thereafter he was settled on alternate land. When the question of conferment of proprietary rights to such tenants arose, the respondent was held not entitled to it on the ground that his allotted land fell within the prohibited zone and secondly it was excluded from allotment on the basis of being a part of `KHUSK BIAS' river. On both these points the instructions of the Board of Revenue existed. As regards the prohibited zone, the instructions were that the distance should be measured as required when the allotment was made and not as when the proprietary rights are conferred. On this test, the allotment of the respondent was beyond three miles limits then applicable to him when he got the allotment but within five miles i.e., with the limits when he was to be given proprietary rights " (emphasis provided)
The afore-quoted observation of apex Court of the country leaves no ambiguity that the question as to whether a particular chunk of land falls within the prohibitory zone is to be determined according to the situation prevalent at the time of allotment. There is nothing on record to show that at the time of allotment in favour of the petitioners the land in question fell within the prohibited zone. Further, reply to ground (vii) in Report and Parawise comments, submitted by respondents No.2 to 6, clarifies the exact position which for facility of reference is reproduced herein below: - "(vii) The area of lots of the petitioners were not falling in prohibited zone at the time of allotment.
The same was included in prohibited zone later on."
The afore-quoted portion from the report and parawise comments is sufficient to conclude that at the time of allotment the land in question did not fall within the prohibitory zone rather it came under shadow of the same later on. The approach of the respondents towards cancellation of the land allotted in favour of the petitioners being violative of the law laid down by the august Supreme Court of Pakistan in the afore-referred case does not qualify the test of a bona fide order.
8. Admittedly, impugned cancellation proceedings have been initiated on the application of one Muhammad Afzal S/o Barkat Ali, R/o Chak No.21/FW, Tehsil Hasilpur, District Bahawalpur. The Hon'ble Supreme Court of Pakistan in the case of Member (Colonies)Board of Revenue and others v.
Ghulam Muhammad and another (2003 SCMR 1931) has finally put to rest the question regarding powers of the Collector to cancel land allotted to a person by way of execution of Conveyance Deed, on general complaint of anybody. While dealing with the issue, under discussion, the apex Court of the country has laid law to the following effect: - "4. We have considered the contentions and have gone through the documents appended with this petition. It is reflected from the perusal thereof that the respondents were allotted disputed land under Fifteen Years Scheme in the year 1971. They were handed over the possession through Rapt No.47 dated 12 10 1972. The cancellation was made through an order dated 6 7 1977 by the Deputy Commissioner having no jurisdiction simply on the ground of general complaints. Said order was set aside by the Additional Commissioner and the case was remitted to the Assistant Commissioner/Collector for reconsideration. This remand order was even upheld by the learned Member, Board of Revenue through his order dated 29 5 1983.
5. In the process of remand the Assistant Commissioner with the powers of Collector minutely considered the case of the parties. He came to a definite conclusion that the allotment of the respondent was genuine and valid. This determination has not been even interfered by the learned Member, Board of Revenue. The respondent was simply ousted that subsequently on 2.12.1985 the disputed land was allotted to the petitioners under Atomic Energy Oustees Scheme. However, in spite of the said allotment the possession, of the disputed land remained with the respondents. It is also reflected from the record that at the time of issuance of notification entitling the respondents to secure proprietary rights the disputed land was not included in any permanent scheme. The respondent in spite of the fact that his allotment was determined as genuine and valid has been embroiled in uncalled for litigation for the last about three decades "(emphasis provided)
Afore-quoted portion from the judgment of august Supreme Court of Pakistan affirms the view that a Collector cannot cancel land allotted to a person under the Act while dealing with general complaint. Thus, the impugned order, when visualized in the light of the fact that at the time of allotment the land in question did not fall within the prohibited zone, does not qualify the test of valid order.
9. Learned Additional Advocate General has repeatedly argued that impugned cancellation proceedings have been initiated by respondent No.2 while exercising powers conferred under Notification, dated 01.09.2003, coupled with terms & conditions of the Conveyance Deed. A perusal of Conveyance Deed shows that under clause 11(f) thereof arbitration has been provided and if respondent No.2 was of the opinion that there was some irregularity or illegality in issuing Conveyance Deed in favour of the petitioners he could press into service the said clause. Further, respondent No.2 has recommended for cancellation of land allotted to the petitioners which provide them a valid cause of action and it would be unfair if impugned cancellation proceedings, which otherwise are violative of terms & conditions of the Conveyance Deed, Notification dated 01.09.2003 and verdict of apex Court of the country, are allowed to continue.
10. It is important to observe over here that land allotted to a person under the Act can only be cancelled by the Board of Revenue when it is established that the same was immune from allotment on account of having been earmarked for any public purpose. The said situation came under discussion before apex Court of the country in the case reported as Rehmat Ali v.
Muhammad Ramzan through Legal Heirs (2001 SCMR 1283) relevant portion whereof is reproduced herein below: - "7. The case law and the provisions of section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, cited by the learned counsel for the appellant are not relevant and applicable to the facts of the present case. From the narration of facts it is crystal clear that the land in dispute was reserved for permanent settlement of the Islamabad oustees. The respondents had paid the entire price and the Deed of Conveyance was also registered in their favour. Even, the record does not show that the land in question was ever allotted to the appellant under the Grow More Food Scheme. The contentions of the learned counsel for the appellant are not tenable. It is borne out from the record that after the allotment of land to Muhammad Ramzan, the predecessor in interest of the respondents, had been dragged unnecessarily by the appellant in this litigation. Further remand of the case as observed by the Member, Board of Revenue, without any allotment order in favour of the appellant, as discussed above, would be an exercise in futility."(emphasis provided)
If we adjudge the act of respondent No.2 towards cancellation of allotment in favour of the petitioners, on the touchstone of the afore-quoted judgment, the answer in definite is that the impugned cancellation proceedings are wholly untenable for the reason that there is nothing on record to show that the land allotted to the petitioners was earmarked for any public purpose excluding it from allotment under the Act coupled with the fact that at the time of allotment in favour of the petitioners the same did not fall within the prohibited zone.
11. It is very sorry state of affairs that on the one hand respondent No.2 has started proceedings for cancellation of land allotted in favour of the petitioners on the ground that the same fall within the prohibited zone and on the other while filing report and parawise comments alongwith other respondents, he has adopted the plea that at the time of allotment in favour of the petitioners the land in question did not fall within the prohibited zone. The inconsistent attitude of the respondents smacks some foul play on their part which being against the spirit of principles of good administration cannot be approved of rather deserves to be deprecated with full vigour. If the public functionaries, who otherwise are supposed to minimize the agonies of the citizens while performing their duties within the four corners of law, are allowed to use their portfolios to multiply the miseries of the masses then our social set up is bound to be ruined and our solidarity as a nation would be at stake.
12. Now coming to the case-law cited by the learned Additional Advocate General I am of the view that the same is not applicable to the facts and circumstances of the instant case inasmuch as in the case of Khalid Mehmood Ch. And others (supra) the order of this court dismissing a writ petition being premature was upheld by the Hon'ble Supreme Court on the ground that aggrieved persons approached this court without awaiting the fate of matter after submission of their replies to the Show Cause notices whereas in the instant case the controversy revolves around the powers of respondent No.2 to move for cancellation of allotment made in favour of the petitioners. Likewise, in the cases of Virasat Ullah, M/s Chakwal Textile Mills Ltd., Rawalpindi Road, Chakwal and another, Mughal-e-Azam Banquet Complex, Niaz A. Baloch, Tariq Mahmood and Muhammad Akhtar Sherani and 35 others (Supra) the disputes pertained to notices issued by different government functionaries whereas in the instant case the dispute does not relate to any notice. Had respondent No.2 issued any notice to the petitioners the matter would have entirely been different.
As far as the case of Muhammad Manzoor through Legal Heirs and others (Supra) is concerned, controversy in pith and substance was regarding power of the Civil Court to entertain a suit against an order passed by the revenue authorities exercising powers under the Act whereas in the instant case the preposition is entirely different. Insofar as the case of Province of Punjab and 2 others (Supra) I have noted that in the said case allotment was cancelled on the basis of fraud, forgery and fabrication whereas there is no such allegation against the petitioners that at the time of allotment of land in their favour they either played any fraud or succeeded to get allotment on the basis of bogus documents or they were ineligible to apply under the aforesaid scheme. Now coming to the case of Muhammad Mahmood Ali (supra) I am of the view that the same is poles apart from the facts and circumstances of the present case for the reason that in the said case it was held that in the wake of alternate remedy writ petition was not maintainable whereas in the case in hand no remedy is available to the petitioners against the order impugned in the petition.
In the case of Khawaj Din and another (Supra) this Court has held that investigation in a criminal matter cannot be interfered by this Court in exercise of its Constitutional jurisdiction whereas no question regarding investigation or probe is involved in the present case. Moreover, there was allegation of fraud in the said case which is not position in the case in hand. Insofar as the case of Province of Punjab through Deputy Commissioner/Collector of Sargodha, District Sargodha (Supra) is concerned, instead of lending any support to the respondents, the same goes against them for the reason that in the said case order of the Board of Revenue exercising powers under section 30(2) of the Act was set aside on the ground that allegation of misrepresentation or fraud on the part of the persons allotted land under the provisions of the Act was made out. As far as the case of Ahsan Saleem (Supra) is concerned, same revolves around the provisions of West Pakistan Maintenance of Public Order Ordinance 1960 and other statutes and has no remotest relevancy with the preposition involved in this petition.
13. The learned law officer has emphatically argued that the instant petition is not proceedable for the reason that the petitioners would be at liberty to challenge final order in appropriate proceedings. There is no cavil with the preposition that proceedings pending before an executive authority cannot be thwarted at its inception depriving the said authority to arrive at a conclusion but at the same time when an act of the executive offends against vested right of a party the same can be challenged before this court while invoking its Constitutional jurisdiction.
14. As a necessary corollary to the discussion made in the fore-going paragraphs, I have no hesitation to hold that the impugned cancellation proceedings initiated by respondent No.2 are wholly untenable. Consequently, instant petition is accepted, impugned letter is set aside and the cancellation proceedings are quashed, being void ab-initio, leaving the parties to bear their respective costs.
15. Before parting with this order it is observed that if the land in question is needed for any public purpose the respondents can utilize the same for the said purpose after adopting due process provided under the law.