Lai Khan predecessor-in-interest of the petitioners was transferred land measuring 215 kanals I marla in Village Chathianwala, District Kasur which was confirmed on different dates.
2. Lai Khan was issueless. On 10-5-1977, he gifted away the entire land to the petitioners who are his real nephews. A mutation was also sanctioned in favour of the petitioners on 16-7-1977. Since then they are in cultivating possession. They installed a tube-well in 1978 and according to them, spent colossal amount in improving the land.
3. On 7-7-1980, respondent Col. M. A. Baig addressed a letter to the Chairman, Border Area Committee which is as follows :------ "I have come to know through a reliable source that the land particulars of which are given below is also in illegal possession of some indivia dual.
RL-11B Khata No. 39, 101-106. At present occupied by Lai Khan s/o Nazir Khan no Chattianwala, Teh. & Distt. Kasur.
I shall be grateful if appropriate action is taken for allotment of the same to me."
On receipt of this letter, respondent No. 1 issued notice to Lai Khan directing him to appear on 26-7- 1980. `The notice remained unserved. It was followed by another notice for 16-8-1980.
The petitioners on coming to know of the aforesaid notice; filed this petition in this Court challenging the vires of the notice. Their grievance is that respondent No. 1 was not competent to issue any notice to their predecessor-in-interest ; the proceedings to follow in pursuance of the notice would be coram non judice.
3. Learned counsel for the petitioners submitted that after the repeal of Rehabilitation laws specially the Displaced Persons (Land Settlement) Act, 1958, the question of allotment of land in favour of predecessor-in-interest of the petitioners could not be re-opened on any pretext. It was argued that the allottee had obtained permanent rights. Even, the land in dispute was confirmed in Consolidation Scheme as well. Hence, Lai -Khan was competent, in law, to dispose of the property in any way he liked. In support of this reliance was placed on the case of Abdul Kareem v. The Border Area Committee, District Kasur (1980 CLC 670).
Learned counsel also challenged the constitution of the Border Area Committee on the ground that there was no member of the Rehabilitation Commissioner in the Committee as required under para. 4 of the Martial Law Regulation No. 9. Last of all, learned counsel contended that the action of respondent No. 1 was mala fide because it was only due to the status and influence of respondent No. 2 that the case has been re-opened.
4. I had called for report and comments from respondent No. 1. Those have been submitted.
According to the report, the Border Area Committee started scrutiny under the provisions of M. L. R.
9 ; hence a notice was sent to Lai Khan in order to give him an opportunity to explain his position but he never turned up. Instead, the petitioners' filed this petition. The report further says that no order has so far been passed. Even the scrutiny has not yet been completed. There is no allotment in the register RL-11 of the Committee in the name of Lal Khan son of Nazir Khan. The entries at Khata No. 39/101-106 show an illegal allotment in the name .Of Lai Khan which is yet to be checked up.
The next point in the report is that the evacuee land-situated within the border belt does not become part and parcel of the pool of Provincial Govern--ment under the repealing statute of 1975 because the same had been put at the disposal of Border Area Committee on 20-3-1959 whereas the remaining evacuee lands were put in the pool of Central Government vide notifications dated 1-5-1959 and 8-6-1960.
6. Learned counsel for respondent No. 1 submitted that the judgment relied upon by the petitioners' counsel is not helpful to him because the Supreme Court has taken a contrary view. He relied on Muhammad Latif and 5 others v. Border Area Committee and 2 others (PLD 1978 SC 270). Relying on para. 4 of Martial Law Regulation No. 9 amended up-to-date by Punjab Ordinance (No. III) of 1981, learned counsel submitted that the Border Area Committee had been properly constituted and has the jurisdiction to re-open and scrutinize the allotment made in the name of Lal Khan.
7. I have also heard learned counsel for respondent No. 2 who sub--mitted that the documents placed on record' by respondent No. I show that the allotment in favour of Lal Khan was fraudulent.
Learned counsel submitted that the fraud is so evident that its details can be noted in the annexures attached with the petition.
Learned counsel laid stress on the point that the repeal of Displaced Persons (Land Settlement) Act did not affect the jurisdiction of the Border Area Committee. . He submitted that the matter stands settled by the decision of the Supreme Court in the case of Muhammad Latif and 5 others v. Border Area Committee and 2 others.
It was next contended that the Border Area Committee had been properly constituted: In this sequence, learned counsel also referred to the amendment in para. 4 of Martial Law Regulation 9.
Learned counsel further submitted that this petition was premature. Petitioners bad no cause of action to invoke the writ jurisdiction of this Court. Nothing has been done so far against them. The mere issuance of notice did not bring the petitioners within the ambit of aggrieved person.
Reliance was placed on A. R. Niazi v. Pakistan and 4 others (P- L D 1968 SC 119).
7-A. First of all, I would like to deal with those contentions of the learned counsel for the petitioners which I think have no substance. For instance, the submission about the mala fides. Learned counsel for the petitioners has no been able to substantiate this contention. The mere fact that respondent No. 2 is an Army Officer and is serving in the Chief Martial Law Administrator's Secretariat would not per se establish the plea of mala fide. As has been held in the decided cases, it has to be established by means of reliable evidence. Learned counsel has failed to do so.
Even the other contention that the Border Area Committee was not properly constituted is without force because the counsel for the petitioners has not been able to successfully challenge its constitution.
Now I proceed to deal with the remaining submissions of learned counsel for the parties. The most crucial point in this case is whether the notice issued to Lal Khan by the Committee was with or without lawful authority. In this sequence, I would like to observe that the stance taken by both the respondents is that the allotment obtained by Lal Khan was by fraud. Incidentally, this is not the allegation in the letter, referred to before. The respondent's stance in his letter was that the allotment obtained by La1 Khan was illegal. Illegal allotment would not necessarily mean allotment obtained fraudulently. 1n case fraud was to be alleged then fraud should have been alleged.
Learned Judge in the case of Abdul Karim v. The Border Area Committee, District Ka.Sur has examined the legal, equitable as well as moral aspect and then struck down the order impugned before him. I have no other words to improve upon his observation. I have also very carefully gone through the judgment of the Supreme Court in the case of Muhammad Latif and 5 others v. Border Area Committee and 2 others and have taken note of the dictum laid down regarding the repeal of the Displaced Persons (Land Settlement) Act and its affect on Martial Law Regulation 9. With respect, I am of the view that the respondents cannot avail of the dictum because the facts of the case in hand are distinguishable from the one decided by the Supreme Court. In this case the confirmation of land in the name of, Lal Khan took place on different dates. It started in the year 1962 and finalised in 1972. No exception was taken to this. No one objected when the matter was examined in the Consolidation Proceedings in the year 1976. In the year 1977, the land was gifted to the petitioners. The transaction was by means of a registered deed which meant that it was open to anybody to take objection yet nothing happened. It was only on 7-7-1980 when respon--dent No. 2 addressed a letter to respondent No. 1 in which the allegation of illegal allotment was made.
I have no hesitation in holding that once the property was gifted to the present petitioners it ceased to be evacuee property for all intends and D purposes. Martial Law Regulation No. 9 has not given its own definition of evacuee property. According to para. 3 (d), evacuee property has the same meaning as in the Pakistan Rehabilitation Act, 1956 (XLII of 1956). Evacuee property, according to the Pakistan Rehabilitation Act, 1956, section 4, is defined as under; "(4) "evacuee property" means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes--;
(a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same ; or
(b) property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian ; or
(c) property belonging to any person who, after the eighteenth day of October, 1949, does or has done any of the acts specified in the next succeeding clause, or in which any such person has any right or interest, to the extent of such right or interest.
It is, therefore, obvious that after it bad been gifted it had no evacuee right or interest. For the foregoing reasons, I don't think there was any legal justification with respondent No. 1 to issue notice to Lai Khan who was completely divested of all interests in the property.
The persons actually aggrieved were the donees. They, as such, had every right to challenge the action taken by the Committee and were not obliged to wait till actual order against them had been passed. I am, therefore, of the view that even the dictum in the case A. R. Niazi v. Pakistan and 4 others referred to by the learned counsel for the respondent is not applicable in this case.
For the foregoing reasons, I accept this petition ; declare the notice issued by respondent No. 1 to be void ab initio and without lawful authority and as such of no legal effect. Parties to bear their own costs.