Through this single order, I intend to decide titled, writ petition alongwith connected Writ Petition No, 79005 of 2017 as parties to the lis in both the writ petitions are same, common questions of law and facts are involved and arisen out of same impugned orders.
2. Through these writ petitions, the petitioners have challenged the validity of consolidated order dated 24.04.2017 passed by learned Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner/Administrator (Residual Properties) Notified Officer Punjab whereby cases titled "Muhammad Iqbal vs. The StatelBilqees Barkat etc." and ".Riaz Ahmad vs. The StatelBilqees Barkat etc." were allowed and allotment of land measuring 769-Kanals in favour of Sharaf Din vide Mutation No, 89 dated 24.02.1975 and all subsequent series of mutations were ordered to be cancelled.
3. Brief facts of the case as contended by the learned counsel for the petitioners are that a chunk of agricultural land measuring 769-Kanals against RL-H Khata No, 2 in Mouza Shivepura Kalan, Tehsil Cantt., District Lahore was allotted to Sharaf-ud-Din son of Muhammad Umar Qureshi against his alleged abandoned land in Mauza Jawaharpur and Jharera Dehli India and said allotment was confirmed by the competent authority on 24.05.1972. Said Sharaf Din allottee entered into an agreement to sell of the said land with Ch. Riaz Ahmad who filed suit for declaration and permanent injunction on 31.01.1974, which was decreed vide judgment & decree dated 28.01.1974 and said decree was given effect in revenue record through Mutation No, 89 dated 24.02.1975 in his favour. The said Riaz Ahmad further. sold the said land to Mst. Bilqees Barkat etc. the present petitioners through sale-deed No, 5759 Behi No, 1, Jild No, 203 dated 27.04.1977 and a Mutation No, 107 dated 18.06.1978 was duly sanctioned in favour of the petitioners. On the basis of Mukhbari applications one filed by Habib Khan and Muhammad Iqbal etc. the allotment of Sharaf Din was cancelled by the Chief Settlement Commissioner on 04.06.1978. The petitioners challenged said order through Writ Petition Nos,789-R/78 and 1052-R/78 and this Court vide order dated 10.11.1985 accepted the petitions, set aside the impugned order and remanded the case to the Notified Officer for decision afresh. In the post remand proceedings Respondent No, 1 vide order dated 24.04.2017 again cancelled the allotment made in favour of Sharaf Din (original allottee) as well as all the subsequent mutations and ordered the resumption of the said land in favour of the state.
Hence, these writ petitions.
4. Learned counsel for the petitioners submits that impugned order is illegal, coram-non-judice, without jurisdiction, based on misreading and non-reading of record, against the law and facts of the case; that Respondent No, 1/Notified Officer has no jurisdiction to cancel the allotment of Sharaf Din and all subsequent mutations; that order of the then Chief Settlement Commissioner dated 23.02.1978 still holds field and in the presence of the said order, impugned order could not have been passed which is illegal on the face of it; further submits that the petitioners are bona fide purchaser of the suit property and have protection under Section 41 of the Transfer of Property Act.
5. Learned law officer assisted by the learned counsel appearing on behalf of the settlement department submits that allotment in favour of Sharaf Din and Dawood both sons of Muhammad Umer Qureshi was obtained on the basis of fraud, misrepresentation; that in compliance of direction passed by this Court in Writ Petition No, 789-R/78 the Chief Settlement Commissioner/ Notified Officer after hearing the parties passed the impugned order and no illegality has been committed; that Sharaf Din filed claim of the revenue estate of Jawaharpur and Jharera Tehsil and District Dehli, India which had already been acquired for establishment of Palumpur Airport etc. and compensation whereof had also been paid to land owners by the Indian Government in the year 1909 and property/land exclusively had stood vested with Federal Government; that the claim/allotment in favour of Sharaf Din and Dawood are fake, bogus, fictitious and based on fraud; further submits that the then Chief Settlement Commissioner through Memorandum dated 06.07.1972 restrained/banned the further allotment. Against the said stay. order one Qutab-ud-Din and 35 others including the petitioners and his brothers filed Writ Petition No, 458-R/72 which was dismissed by this Court. Feeling dis-satisfied an appeal was filed which was also dismissed and order impugned wherein were- upheld by Hon'ble Supreme Court of Pakistan vide judgment dated 02.07.1976 which is reported as 1976 SCM R 524; that in violation operative stay order allotment in favour of Sharaf Din was made; further submits that Mutation No, 89 dated 24.02.1975 was sanctioned after repeal of settlement laws against land measuring 769-Kanals, whereas the suit land had already been declared by Chief Settlement Commissioner as building site 1973, as such, Respondent No, 1 after considering all the submissions made by the learned counsels for the parties and perusing the record rightly passed order and no illegality has been committed.
6. I have heard the arguments of the learned counsels for both the parties at full length and gone through the record with their able assistance.
7. The whole controversy is centered around the genuineness or otherwise of claim and allotment of the evacuee land to Sharaf-ud-Din son of Muhammad Umar Qureshi who got allotted land measuring 769 Kanals in Mauza Shivepura Tehsil Cantt. Lahore against his! alleged claim of abandoned land in Mauza Jawaharpur and Jharera 1, Dehli India, details of allotted land whereof is asunder: Sr.No,Khasra No,Land MeasuringOwnership according to JamabandiRemarks K M 1 317 5 4 Balqees Barkat etc.Abadi 2 318 5 5 -do- -do- 3 323 13 19 -do- -do- 4 324 9 14 -do- -do- 5 325 7 1 -do- -do- 6 326 3 13 -do- -do- 7 343 5 15 -do- -do- 8 344 3 18 -do- -do- 9 345. 3 16 -do- -do- 10 346 5 2 -do- -do- 11 347 6 10 -do- -do- 12 348 7 7 -do- -do- 13 349 8 0 -do- -do- 14 350 14 18 -do- -do- 15 352 6 0 -do- -do- 16 353 6 9 -do- -do- 17 354 5 1 -do- -do- 18 356 4 15 -do- -do- 19 357 3 8 -do- -do- 20 358 6 19 -do- -do- 21 3599 0 -do- -do- 22 3607 14 -do- -do- 23 3619 18 -do- -do- 24 3624 10 -do- -do- 25 3637 1 -do- -do- 26 3M12 3 -do- -do- 27 3652 6 -do- -do- 28 36613 4 -do- -do- 29 36710 18 -do- -do- 30 3684 5 -do- -do- 31 3695 2 -do- -do- 32 3709 0 -do- -do- 33 3714 19 -do- -do- 34 3722 19 -do- -do- 35 37312 5 -do- -do- 36 37410 1 -do- -do- 37 3753 8 -do- -do- 38 3762 0 -do- -do- 39 3775 2 -do- -do- 40 3788 7 -do- -do- 41 3794 6 -do- -do- 42 3806 18 -do- -do- 43 3813 4 -do- -do- 44 382.4 2 -do- -do- 45 3839 3 -do- -do- 46 38517 19 -do- -do- 473868 18 -do- -do- 48 3876 2. -do- -do- 49 3887 14 -do- -do- 50 39210 3 -do- -do- 51 3938 19 -do- -do- 52 3942 10 -do- -do- 53 4435 6 -do- -do- 54 444 4 -do- -do- 55 4465 11 -do- -do- 56 44914 4 -do- -do- 57 45012 6 -do- -do- 58 4519 0 -do- -do- 59 45215 13 -do- -do- 60 4599 0 -do- -do- 61 46219 17 -do- -do- 62 46312 2 -do- -do- 63 4717 8 -do- -do- 64 4745 10 -do- -do- 65 4757 10 -do- -do- 66 4765 17 -do- -do- 67 4795 5 -do- -do- 68 4815 0 -do- -do- 69 48210 10 -do- -do- 70 .4856 8 -do- -do- 71 4865 8 -do-- - 72 4904 19 -do-- - 73 4915 10 -do--do- 74 49224 3 -do--do- 75 25515 15 -do-DHA 76 2566 6 - --do- 77 2577 10 -do--do- 78 4558 19 -do--do- 79 45610 14 -do--do- 80 46544 16 -do--do- 81 46641 2 -do--do- 82 4694 14 -do--do- 83 4706 13 -do--do- 84 4837 6 -do--do- 85 4849 19 -do--do- 86 46706 14 -do-- - After securing above allotment Sharaf Din alienated the said land to one Ch. Riaz Ahmad, who got incorporated the said land under the command of decree of Civil Court in the Revenue Record through Mutation No, 89 dated 24.02.1975. Whereafter said Ch. Riaz Ahmad further sold the land to the petitioners.
Against the above as well as many other allotments, Habib Khan etc. filed Mukhbari applications and the then Chief Settlement Commissioner passed the injunctive order dated 06.07.1972 restraining all the wings of the Settlement as well as the Revenue department to make any further registration of claims, attestation of mutations, registries and any other sort of alienation of the evacuee lands. This order of the Chief Settlement Commissioner was challenged through filing W.P.No, 458-R of 1972, which was dismissed by this Court. The order of this Court was challenged before the Hon'ble Supreme Court of Pakistan through Civil Appeal No, 609/1975 which was dismissed by the Hon'ble Apex Court vide order dated 02.07.1976 maintaining the order passed by this Court as well as order of the Chief Settlement Commissioner dated 06.07.1972. After the conclusion of the proceeding against above said injunctive order, the Chief Settlement Commissioner allowed the Mukhbari application dated 29.06.1974 filed by Muhammad Iqbal etc. and cancelled the allotment of Sharaf-ud-Din vide order dated 04.06.1978. Present petitioners (Mst.
Bilqees Barkat etc.) challenged the said cancellation order through filing Writ Petition Nos,789- R/78 and 1052-R/78 on the ground of being a bona fide purchaser. The said writ petitions were accepted vide order of this Court dated 10.11.1985 and the case was remanded to the Member Board of Revenue/Chief Settlement Commissioner for decision afresh in accordance with law.
8. In the post remand proceedings, the entire matter was re-opened to investigate existence element of fraud, as well as the genuineness or otherwise of the claim and allotment of evacuee land in favour of Sharaf-ud-Din. It evinces from the record that the alleged RL-II Khata No, 2 appended with this petition was issued in the name of Sharaf Din on 09.05.1972 on the basis of his claim of being evacuee having abandoned the land in Mouzas Jawaharpur and Jharera Tehsil & District Dehli India. The said. RL-II Khata No, 2 according to available record has never been entered in the revenue record till 24.02.1975, whereas, for the first time the said allotment came on the record through a decree dated 28.01.1974 passed in a suit for declaration in favour of Riaz Ahmad, a subsequent purchaser from said Sharaf-ud-Din when it (decree) was incorporated in the revenue record through Mutation No, 89 dated 24.02.1975, in clear violation of the injunctive order of the Chief Settlement Commissioner dated 06.07.1972 as well as during the pendency of Writ Petition No, 458- R/1972 and even after the repeal of evacuee laws. Moreover, in order to ascertain the genuineness of the claim held by Sharaf-ud-Din in 01.07.1974, the judicial record of Writ Petition No, 444-R of 1978 was also examined and according to Gazette Notification dated 22nd December 1911 (appended with writ petition) the entire land of Mouza Jawaharpur and Jharera was acquired by the British Government of India for establishment of Palumpur Airport as Well Cantonment and Capital City of new Dehli India. The Chief Commissioner Delhi while exercising power under Section 3 (C) of the Act, XVII of 1887 Gazette Notification of India dated 15th March 1915 acquired entire land of Mouza Jawaharpur and Jharera as reflected at Serial No, 17 & 18 of he said notifications. For ready reference, notifications are as under: {IMAGE}} Since the issuance of the gazette notification supra the entire land of the said two Mouzas stood vested with the British Govt. of India leaving behind no private ownership in field, which has direct negative bearing upon the very status of the petitioners' predecessor-in-interest, who claimed to be an evacuee having abandoned his agricultural land in Mauza Jawaharpur and Jharera India.
Further, under Section 2 of the Displaced Persons/Lands Settlement Act XLVII of 1958 only those refugees were considered to be genuine claimant who abandoned their urban/agricultural land in India as an evacuee w.e.f. 01.03.1947 to 15.06.1953, whereas, the land of petitioners' predecessor in Mouza Jawaharpur and Jharera (if any) on which basis Sharaf Din and others submitted their claims had already been acquired as back as in 19H much before the partition of the India and for both the above reasons, he (Sharaf-ud-Din) does not qualify as a genuine claimant, as such, foundation of theft" claim to be an evacuee having abandoned land in India stood frustrated and his claim in its generic was fake, fictitious and result of fraud, as he had not abandoned any land in the aforementioned Mouzas. Sharaf Din despite being cognizant of above facts got allotted land measuring 769-Kanals in Mouza Shivepura Kalan, Tehsil and District Lahore RL-II, Khata N2. 2 which (allotment) for the first time unearthed/reflected through Mutation No, 89 dated 24.02.1975. Against the bogus claims and allotments, one Habib Khan etc. instituted Mukhbari application to the then Chief Settlement Commissioner who passed an injunctive order dated 06.07.1972 which is as under: Habib Khan petitioner, through his counsel has submitted an application purporting to be under Sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 and under Section 14 of the Registration of Claims (Displaced Persons) Act, 1956, alleging that the claimants hailing from the revenue estates of Jawaharpur and Jharera, Tehsil and District Delhi, had obtained numerous allotments of agricultural lands, both urban and rural, under the Rehabilitation Settlement Scheme, by means of fraud and false representation, which are liable to cancellation. in this connection, it has been contended that the areas of both the abovementioned revenue estates stood acquired by the Government of India in the year 1908-09 and thereafter there existed no private ownership. It has been vehemently alleged that the claimants from these estates filed claims under Registration of Claims (Displaced Persons) Act 1956 and by adducing false evidence and submitting, in respect of their claims, information which they know to be false or did not believe to be true and by fraudulently concealing and misrepresenting facts, for the purpose of making the claims which they know to be false, procured orders of verification which subsequently formed basis of Entitlement Certificates issued by the Central Record Office and in lieu which the alleged allotments of land had been confirmed. It has also been urged by the counsel for the petitioner that compensation under the Rehabilitation and Settlement Laws is only intended for persons who had actually suffered losses whereas in the case of persons from the revenue estates of Jawaharpur and Jharera, the position is quite different as they and their predecessors-in-interest had already received compensation at the time of acquisition by the Government of India. Prima facie, a case of fraudulent verification of claims and securing of allotments of land against the claimant is --- Taking into consideration the material placed on record, the circumstances of the case warrant that all such allotments which have already since been confirmed against the disputed claims of person hailing from the revenue estates of Jawaharpur and Jharera, be not allowed to be disposed of by way of sale, mortgage, exchange, gift etc., or by any means whatsoever, and also further allotments of agricultural lands are stopped forthwith. I therefore order that the district authorities should stop further allotments of land against claims pertaining to the said revenue estates and the local field staff may especially be directed to withhold mutations regarding sale, mortgage, exchange, gift etc., regarding areas already allotted against such claim still further orders.
It is also hereby directed that complete details of all such allotments of land against these claims in all the districts of NWFP, Sindh Baluchistan and Punjab should be furnished by all the district authorities urgently, for taking further necessary action in the matter.
Being aggrieved of the above said injunctive order, a Joint W.P.No, 458-R of 1972 was filed by Qutab-ud- Din etc. (including Sharaf-ud-Din Petitioner No, 6) which was dismissed by this Court.
Against the decision of the High Court, they (petitioners in W.P.No, 458-R of 1972) filed Civil Petition, which was converted into Civil Appeal No, 609 of 1975 and the same was dismissed vide order dated 02.07.1976 by the Hon'ble Supreme Court by upholding the order passed by this Court as well as the above quoted injunctive order of Chief Settlement Commissioner which is reported as Qutubuddin & Others vs. Sardar Hidayat Ullah Khan Mokal & another (1976 SCM R 524). In the said order, it was held as under: We have heard Mr. S.M. Zafar and find no merit in the contentions raised in support of the petition.
In case inquiries made by the Chief Settlement Commissioner reveal that fraud has been practised by the petitioners on the claims registering authorities or the Rehabilitation and Settlement Authorities the transactions by which verification of claims and allotments of land have been obtained will, in their entirety, become void ab initio and non set in law. The contention that under the Registration of Claims Act claims already verified cannot be reviewed has, therefore, no substance. Another aspect of the case is that writ jurisdiction cannot be invoked to provide a shield to orders of verification of claims obtained by fraud. The learned Judge, was, therefore, right in dismissing the writ petition on this short ground. On the contrary if it is found that no fraud has been practised and allotments have been obtained in due course of law then the inquiry shall automatically come to an end without resulting in irreparable loss to the petitioners. The prayer that no inquiry shall be held at all was, therefore, a tall claim which has been rightly rejected by the High Court.
Admittedly Chief Settlement Commissioner passed injunctive order on 06.07.1972 restraining all his subordinate wings in Revenue/ Settlement department to stop further proceeding or making any allotment qua the bogus claim including claim of the petitioners' predecessor which (order) remained upheld upto Hon'ble Supreme Court of Pakistan but during existence of said injunctive order of Chief Settlement Commissioner, Sharaf Din with the collusion of officials of revenue/settlement department and committing misrepresentation and fraud got allotted land measuring 769-Kanals in his favour and under the compromise decree of the Civil Court further alienated the said land through Mutation No, 89 dated 24.02.1975 in favour of Riaz Ahmad etc., in clear violation of the restraining order. The alleged allotment in favour of Sharaf Din was based on fraud and any further alienation to subsequent vendees Riaz Ahmad and sale-deed in favour of the petitioners on 27.04.1977 in the presence of restraining order dated 06.07.1972 carry no significance in the eyes of law. The settlement department circulated instructions notification on ,19.06.1978 furnishing guidelines to its subordinate authorities that any allotment remained unimplemented before repeal of Settlement Laws or within one year of the passing of allotment order the same should be deemed to be ante-dated and have been obtained by committing fraud in the record of Register RL-II and same should be cancelled forthwith.
From the perusal of order dated 06.07.1972 the then Chief Settlement Commissioner specifically stopped further allotment of land against the claim pertaining to Mouza Jawaharpur and Jharera and directed to the local field staff to withhold further making of any entry of any mutation regarding sale, mortgage, exchange, gift deeds etc., associated to the areas already earmarked under list of doubtful Monza Jaats. Moreover admittedly the claim of Sharaf Din No, 9282/139 equivalent to 7763 P.I.Us was initially issued for District Sukhar Sindh as per annexure-D appended with written arguments submitted by the petitioners before Chief Settlement Commissioner but there is no entry or any documentary proof available on the record that the said claim has ever been transferred from Sukhar to Lahore for its satisfaction. Further from the perusal of record, it reveals that the allotment of Sharaf Din for the first time brought on record on the basis of RL-II, Khata No, 2 through a consent decree dated 21.03.1974. From perusal of the file it reveals that neither RL-II nor there is any order passed by the competent authority to incorporate the alleged allotment in the revenue record is available on the file. Whereas 5 Mutation No, 89 dated 24.02.1975 was entered in the revenue record after repeal of settlement laws in 1974 which (alienation) is against law and instructions quoted above. Moreover, in the Register RL-II of Mouza Shivepur Kalan the name of claimant is also not available, which leads to an irresistible conclusion that the claim of Sharaf-udDin was absolutely bogus and non-existent in the said record.
9. So far as the arguments of the learned counsel for the petitioners that vide order dated 23.02.1978 the then Chief Settlement Commissioner Ch. Muhammad Saddique has verified the claim in favour of Sharaf Din etc., which has attained the status of past and close transaction, suffice it to say that order of Chief Settlement Commissioner dated 23.02.1978 (if any) is passed in brazen violation of injunctive order dated 06.07.1972 which has never been reviewed subsequently by any competent forum rather this Court as well as Hon'ble Supreme Court of Pakistan already maintained the validity of the same. Moreover, in the year 1973 all Registers RL-II were sealed by the order of the competent authority which eradicate any possibility of further lawful allotment whereas all the Settlement Laws stood repealed w.e.f. 1st July 1974, as such, in the interregnum no allotment could have been made against any claim. Whereas, the order of the Chief Settlement Commissioner dated 23.02.1978 is absurd and sketchy in nature as no reason has been given with regard to element of fraud, entitlement of the claimant and no bona fide probe was made qua the each and every claim separately which vitiate the sanctity of the said order being perverse and against the record passed in derogation of judicial application of mind as well as the sacred principles of dispensation of justice. It can conveniently be said that the order of certification of the claim/allotment was obtained with mala fide and collusion of the Notified Officer. Further- the evacuee lands available in district Lahore stood declared as buildin ite with issuance of Notification dated 16.05.1973 and same could not have been allotted even against validated claim whereas the allotment against the claim of Sharaf-ud-Din was unveiled-through Mutation No, 89 dated 24.02.1975 entered clearly after the repeal of Settlement Laws Act, w.e.f. 01.07.1974. Which legal aspects have not even been discussed in the said order, as such, the order of CSC suffer from infirmities, perversity and illegality which has rightly been set at naught by his successor through the impugned order.
Even otherwise, vide Notification dated 16.05.1973, the Chief Settlement Commissioner notified the urban limits of Lahore as building site and the same stood excluded from the constituted compensation pool under Sections 4 & 5, of the Displaced Persons (Land Settlement) Act, 1958, as such, the land in question is purely a building site, therefore, the same was not available for allotment against outstanding verified claims and any mischief played in contravention of the above deserved immediate reversal. Reliance is placed on the cases reported as Ali Muhammad through LRs & Others vs. Chief Settlement Commissioner & Other (2001 SCM R 1822) & Muhammad Ramzan & Others vs. Member (Revenue) Chief Settlement Commissioner & Others (1997 SCM R 1635).
10. Undoubtedly Sharaf-ud-Din committed a glaring fraud and misrepresentation in obtaining the fraudulent claim as well as the allotment which gathers no sanctity in the eyes of law being void ab- initio and non-existent. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill gotten gain achieved by committing fraud cannot be validated under any laws. Reliance is placed on the cases of Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Muhammad Younus Khan & 12 Others vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar & Others (1993 SCM R 618), Lal Din & Another vs. Muhammad Ibrahim (1993 SCM R 710), Khair Din vs. Mst. Salaman & Others (PLD 2002 SC 677), Talib Hussain & Others vs. Member, Board of Revenue & Others (2003 SCM R 549), Khadim Hussain vs. Abid Hussain & Others (PLD 2009 SC 419), Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCM R 1097).
11. The next argument of .the learned counsel for the petitioners that after the repeal of settlement laws on 01.07.1974 the Chief Settlement Commissioner has no jurisdiction to investigate the matter and cancel the allotment of Sharaf-ud-Din suffice it to say that admittedly, the evacuee laws were stood repealed with effect from 01.07.1974 thereafter the Chief Settlement Commissioner was vested with no authority to make any fresh allotment or entertain any claim whereas a limited jurisdiction was bestowed upon him only to conclude the pending proceedings before him or those matters which are referred to him by the Hon'ble Supreme Court or this Court as enunciated under Section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Section 2 (2) of the ibid. Act is reproduced as under:-- "2. Repeal of Certain Laws.
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the, officers notified as aforesaid."
In addition to the above, the Hon'ble Supreme Court of Pakistan in its latest judgment reported as Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore vs. Abdul Majeed & another (PLD 2015 SC 166) has held that the Chief Settlement Commissioner/Notified Officer is not competent to allot any fresh or alternate land to anybody. Further, in the instant case the inquiry proceedings against the genuineness of Sharaf-ud-Din claim were initiated on Mukhbari applications and injunctive order was passed on 06.07.1972 and all the evacuee lands in District Lahore were declared as building site in 16.05.1973 whereas the evacuee laws were repealed w.e.f 01.07.1974.
As the inquiry proceeding with regard to the commission of fraud were pending since 06.07.1972 before the repeal of evacuee law, as such, Chief Settlement Commissioner was well within jurisdiction to take cognizance of matter of commission of fraud under Sections 10 & 11 of the Displaced Land Settlement Act, 1958 as well as under Section 2(2) of Repealing Act 1975. Moreover, the allotment of Sharaf-ud-Din revealed through Mutation No, 89 dated 24.02.1975 after the repeal of evacuee laws on 01.07.1974 which (mutation) was got incorporated by practicing fraud in the settlement department and it is well settled law that the forum at which fraud has been committed, the same has the jurisdiction to investigate the said fraud and to undo the same under Section 21 of the General Clauses Act as well. Moreover, the matter was remanded by this Court to the settlement authority to determine the geniuses of claim, as such the Notified Officer was well within jurisdiction to decide the matter afresh.
12. So far as the argument of learned counsel that petitioner is bona fide subsequent purchaser and her rights are duly protected under Section 41 of the Transfer of Property Act suffice it to say that the petitioner herself stated that the sale-deed and sale mutation in favour of the petitioners were registered/incorporated in the revenue record merely on the basis of alleged Mutation No, 89 dated 24.02.1975. But from perusal of the said decree sheet, the details of the property and whereabouts of allotted land in Mouza Shivepura Tehsil Cantt., Lahore have not been mentioned and the petitioners have also not append any copy of plaint as well as judgment dated 28.01.1974 of the said suit with this petition. Further, a note dated 24.02.1975 has been given in the Mutation No, 89 merely mentioning the Khasra Nos,100-103, 115-117, 121-124-125-127, 129-130 of the land without any particular specification and measurement of land, which does not co-relate with the claimed Khasra Numbers by the petitioners, Moreover, the very claim as well as the allotment of Sharaf-ud- Din vendor has been declared as illegal and void ab-initio in the preceding paras as he procured the state land through committing a fraud and misrepresentation. Petitioner herself has committed default in making bona fide investigations qua, the genuineness of vendor's title as required under the principle of caveat emptor, therefore, the protection of Section 41 of the Transfer of Property Act, is not available to the subsequent vendees of the evacuee property as settled by the Hon'ble Supreme Court of Pakistan in a reported case titled as Talib Hussain & Others vs. Member, Board of Revenue & Others (2003 SCM R 549). For ready reference, relevant para is reproduced as under:
6. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under Section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in the judgments (1) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCM R 1027), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCM R 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 M LD 195). It is important to emphasis that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected.
As the predecessor-in-interest of the petitioners obtained state land through practicing fraud and misrepresentation and the Notified Officer has reversed/undo the same which even if it is presumed that order has no consonance with the law even then this Court can refuse to grant the sought for relief and can decline to interfere in that erroneous order in its constitutional jurisdiction on the sole grounds of unclean hands of the petitioner's predecessor as held in the case reported as Muhammad Baran & Others vs. Member (Settlement and Rehabilitation), Board of Revenve, Punjab & Others (PLD 1991 SC 691) the relevant portion is reproduced as under: Assuming for the sake of arguments advanced that the Board of Revenue passed an illegal order as no proceedings were then pending and even if such order would have been without jurisdiction, in the circumstances of this case, the High Court after correctly stating the legal position could withhold the relief in its entirety and could also dismiss the Writ Petitions filed by the appellants as they had soiled hands.
Further, the petitioners have purchased the land during the pendency of the inquiry proceedings in the settlement department initiated since the year 1972 qua the bogus, fraudulent claims and allotments without making any investigation into the title and claims of the vendors, as such, she is precluded to claim better title or any protection of being bona fide purchaser as per law and it is settled law that any infirmity or flaw in the title of the vendors the same always travels with the property and the subsequent purchaser is debarred to claim better title than that of the vendors. A subsequent purchaser has to sail and sink with the original vendors, therefore the petitioner is disentitled to claim any better right in the said property and the prayer of the petitioner in these writ petitions be considered as declined.
13. Further, with regard to disposal of state land, the Chief Settlement Commissioner after the repeal of evacuee laws under Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 is not competent to conceive any fanciful procedure at his own whim and caprice to doled the valuable state land upon the cherished person through any private treaty rather is under strict obligation to be loyal to the benefit of the state and show extra ordinary care and caution while dealing with disposal of the state assets and also to protect and preserve the state assets from the clutches of fraudulent vultures. Moreover, there is no provision in the law or in the scheme for the sale of state land through any private treaty and no policy exists in which the notified officer is shown competent to dispose of the evacuee property through any private understanding rather it is mandatory that any disposal of state land as well as its letting or leasing out shall be made through transparent, unrestricted public auction to fetch the maximum price as laid down in a recent judgment reported as American International School System vs. Mian.
Muhammad Ramzan & Others (2015 SCM R 1449), wherein the Hon'ble Supreme Court of Pakistan has held that under Paragraphs 1(d), 11, 12 and 30 of the Scheme for Management and Disposal of Available Urban Properties, 1977, the evacuee urban properties shall be disposed of (if needed) through unrestricted public auction. As there is no provision in the Evacuee Laws after Repeal Laws to sale the Evacuee land through private treaty and a glorified modus oprandi of its (state land)
Disposal/Sale through unrestricted public auction has finally been accepted as suitable for the best interest of the state as discussed in the case of Muhammad Din & Others vs. Ghulam Muhammad Naseem Sindhu & Others (PLD 1991 SC 1) and in C.P. No, 709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab & 2 Others vs. Sagheer Muhammad Khan & Others, where the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after the Repeal Act, the property be disposed of through open auction, the relevant portion thereof is reproduced as under: "7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in Para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms."
Furthermore, the urban property has already been declared as building site vide notification dated 16.05.1973 and the urban evacuee property only could be disposed of through an in unrestricted open auction as prescribed in Para 11 of the Scheme for the Management. and Disposal of Available Urban Properties of 1977 framed under "Section 3 of the Evacuee Properties & Displaced Persons Laws (Repeal) Act No, XIV of 1975 as settled by the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Ramzan & Others vs. Member (Rev.) CSS & Others (1997 SCM R 1635).
14. As such the Chief Settlement. Commissioner/Notified Officer has applied his judicious mind to each and every piece of Settlement as well as revenue record and rightly passed the 'impugned order which does not suffer from infirmity or any illegality calling for interference through these constitutional petitions, as such, both these petitions are hereby dismissed in limine being devoid of any merit.