Ch. Muhammad Masood Jahangir , J. The civil revision in hand and connected civil revisions No.98 as well as 99 of 2008 arising out of consolidated judgment have identical features of law and facts, hence for all intents and purposes, these are going to be decided by this single judgment. However , reference point will be instant file.
2. Brief facts of the case are that under 5 years Temporary Cultivation Scheme, tenancy rights of state land measuring 104 Kanals of Chak No.52-F were granted to Nehal s/o Kalu (Petitioner No.1 of civil revision in hand), whereas same rights with regard to 103 Kanals of the same revenue estate were awarded to Ali Muhammad (ascendant of civil revisioners No.1 to 8 of tagged civil revision No.98 of 2008) and tenancy rights with regard to area measring 80 Kanals, 8 Marlas were transferred to Ghualm Qadir (civil revisioner of connected civil revision No.99 of 2008) from 1975 to 1980 by the then Collector , Chistian. The said allottees, thereafter applied for conferment of proprietary rights, but the revenue field staff, during process apprised that the chunk of area involved herein was lying in prohibited zone, as such the Assistant Commissioner while submitting his reports to the District Collector opined that its proprietary rights could not be conferred, however just recommended for the extension of the lease term. It is matter of record that the said recommendations were kept dorm ant for more than a decade and on one fine morning, the clerical staff of the office of District Collector simply place d the files before the latter , who without consulting the report of A.C./Collector and going through the available record just in three words disposed of the cases pending before him.
Pursuant thereto, three conveyance deeds were attested within next two weeks in favour of the petitioners of all these cases. Anyhow , when the wrong doings and the anomalies surfaced, the successor of the earlier District Collector after having permission from his superior/commissioner reviewed order dated 30.08.1995 and also resumed the disputed area, besides the cases were forwarded to the BoR for the cancellation of conveyance deeds under section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912. The learned Member (Colonies), BoR vide order dated 29.09.1999 quashed these deeds forcing the civil revisioners of all the three files to institute declaratory suits to challenge the orders of the District Collector as well as action of apex forum on revenue side, but learned lower fora through its unanimous judgments dismissed the suits, which are the subject of lis in hand. Although, this Court earlier on 30.06.2017, while setting aside concurrent decree of the Courts below remanded the suits to the Civil Court for decision afresh, but on being assailed, the Hon'ble Supreme Court vide order dated 06.09.2018 remanded these cases to this Court for decision on merit.
3. Arguments heard and record thrashed with the able assistance of learned counsel for the parties.
4. The perusal of the plaint as well as evidence examined on behalf of the petitioners made it clear that neither they alleged nor tried to prove that the property allotted to them situated outside of the prohibited zone. The report of A.C./Collector , Chishtian (brought on record as Exh.P23) whereby the confer ment of proprietary rights was declined on such ground was also not assailed, meaning thereby , they directly or impliedly admitted the position that allotted property fell within the restricted limits. Even during the course of augments, Mr. Nadeem Iqbal Ch., Advocate for the petitioners was offered that matter might be remanded to the revenue/colony hierarchy to make a drill work at scene to ascertain, whether disputed property at the time of its allotment was yonder to the circle of prohibited zone, but he straightaway declined it, which further confirmed that conveyance deeds to the extent of land falling in prohibited limits were procured in connivance with the officials by practicing fraud through misrepresentation and it is settled law that fraud vitiates most solemn proceedings, moreover, any order/act obtained through fraud neither can be protected nor perpetuated. The law makers to deal with such like situation introduced section 30(2) in the Act, ibid, which emerges that "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 from 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 persons 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." The moment it was proved that conveyance deeds were attested with regard to area falling in prohibited zone, the better course for the allottees was to approach the BoR for some alternate land as per paras 2 and 3 of the instructions contained in Notification dated 04.05.1988, which for ready reference are reproduced as under:- "2. Allottees under Ejected Tenants Schem e or Grow More Food Scheme within the prohibited zone were asked to apply for alternate allotment by 30.6.1983, because no proprietary rights could be given in the prohibited zone.
A number of such allottees have already obtained alternate allotments but quite a large number of them are still occupying the land originally allotted. Actually most of them have not even bothered to apply for alternate allotment within the time allowed.
3. As earlier stated no proprietary rights are to be given within Municipal Limits/prohibited zone. Allottees under the two schemes can at best be treated as lessees under the Temporary Cultivation Scheme provided they have paid all Government dues and are eligible for such leases. In order, therefore, to finalize this outstanding issue, it has been decided that:-
(a) The Present occupants of State land situated within the urban limits or prohibited zone who were allotted such lands under the Ejected Tenants or Grow More Food Scheme and who had applied for alternate allotment by 30.6.1983 should be shifted subject to eligibility and availability of State land, outside the prohibited zone by 30.6.1989. If alternate land is offered but an allottee does not avail himself of the opportunity and continues to occupy the originally allotted land he will be treated as an unauthorized occupant and dispossessed accordingly .
They will be charged market rent/T awan for the period of unauthorized occupation from 1.7.1989 to the date of ejectment;
(b) Allottees, who cannot be provided with alternate land, will be considered as lessees under temporary cultivation scheme subject to eligibility . If such lands are required for public purpose, these shall be got vacated by the Collector after observing due formalities and after permitting the regular lessee to harvest the standing crops unless required immediately for a Government project. In such a case reasonable compensation for the standing crops will be assessed by the Collector and paid to the lessee by the acquiring agency . If rent etc. is due from the lessee, it will be the first charge on the amount of compensation assessed.
It is also important to note that much prior to the order dated 21.08.1995, when the District Collector granted proprietary rights to the allottees, the BoR vide instructions dated 15.10.198 0 had directed all the Deputy Commissioners in the Punjab as follows:-
3. You are, therefore, requested to call upon all such allottees, by written notices, to apply to the Collector before the 31 March, 1981, for the allotment of alternative land outside the prohibited zone, failing which their existing tenancies within the prohibited zones, will be resumed without providing them any alternative State land elsewhere. Those who apply within the stipulated time should be given alternate allotments out of the baqia State land or the, land that may be surrendered or become available as a result of termination or resumption of temporary cultivation leases in terms of clause 13 of Government Notification No.3215-79/3973-CL-II dated the 3rd September, 1979. All such allotments should be finalized within a period of three months ending 30th June,1981 under intimation to the Board of Revenue.
4. Where any allottee fails to apply for alternative land in response to the notice given to him under para 3 above, his tenancy in the prohibited zone may be resumed after hearing his objections, if any,in accordance with section 24 of the Colonization of Government Lands (Punjab) Act,1912.
But, the District Collector without having gone through these instructions, which otherwise were highlighted before him by his subordinate, proceeded to confer the proprietary rights in grave miscarriage to said instructions.
5. In the light of above facts, this Court is of the firm view that nobody can be given proprietary rights of the area falling in the prohibited zone, but the BoR through its various directions was eager to accommodate the allottees, who fell within the restricted limits, obviously the allottees were also bound by the conditions of the allotment as well as the instructions issued time and again by competent forum to regulate the policy of allotments. Thus, the conveyance deeds of the petitioners having been attested in disregard of the prevalent instructions did not display its authenticity or genuineness. In as far as the stance of Mr. Nadeem Iqbal Ch., Advocate that the area in dispute in two cases had already been further transferred and they being bona fide purchasers were immune from the mischief of section 30(2) is unfounded because if the conveyance deeds in favour of the original allottees lost its efficacy , then its outcome would be that any alienation from them to the subsequent transferee must automatically collapse on the principle that if the basic act is without lawful authority , then superstructure built thereupon cannot stand. The next emphasis of learned counsel for the petitioners is that learned Member without providing chance of audience fell in error to cancel the conveyance deeds, suffice it to say that the District Collector also without fixing the case in Peshi merely on the basis of the report of the A.C./Collector while bypassing the standin g instructions granted the proprietary rights, whereas the petitioners by approaching the Civil Court were provided ample opportunities to prove that area in dispute was not part of the prohibited zone, who completely failed despite availing the chance to lead evidence in this behalf. Thus, the Courts below were fully justified to non-suit the petitioners/plaintif fs and their suits as well as the appeals were rightly dismissed, which being perfect narrative of the available material are maintained. Resultantly , this and the connected civil revisions are bound to fail and dismissed accordingly . However , the petitioners may approach the revenue/colony hierarchy for the allotment of alternate land as per the prevailing instructions, if so advised.