1. M. R. KHAN, J.--This appeal, by special leave, is directed against the judgment and order of a Division Bench of the erstwhile High Court of West Pakistan, Lahore, by which the appellants' Writ Petition No, 574 of 1964 was dismissed on the 14th April 1966.
2. The facts relevant for the purpose of this appeal are as follows: Pindu, a displaced person from India migrated to West Pakistan. He was allotted some land in village Uppal, Tehsil and District Lahore on 30-8-1952 against his verified claim. This land lies within the border area, that is, within a distance of 5 miles from the border between West Pakistan and India. Sometime after the allotment, Pindu died issueless. On his death, the mutation in respect of the land allotted to him, was attested on 31-8-1955 in favour of the three appellants who are the nephews of Pindu, the mutation was finally authenticated by the competent. Revenue Authority on 7-9-1965. On the receipt of a complaint that the appellants had obtained the mutation in their favour by misrepresenting facts before the competent authority, the Border Area Committee re- opened the matter and, on the basis of a report received from the Central Record Office, came to the conclusion that, apart from the appellants, there were other persons also who were entitled to succeed Pindu as his collaterals. According to the report received from the Central Record Office, Pindu died leaving behind the three appellants as his nephews and five other persons, namely, Jamal, Sanwalia, Daliala, Babkan and Kamlu. Of them, Daliala alone was reported to have migrated to West Pakistan where he also died issue less. These facts were said to have been furnished by the Central Record Office on the basis of jamabandi record alleged to have been received from India.
3. However, having regard to these facts, the Border Area Committee arrived at the finding that the appellants, as heirs of Pindu, were entitled to 3/8th share of the land allotted to Pindu, and by its order, dated 28-4-1964, cancelled the allotment in respect of the land in 5/8th share. The land in the said 5/8th share was then allotted to the respondents Nos, 2 and 3. Against this order, the petitioners made a writ petition in the High Court. A Division Bench of the High Court dismissed the writ petition on two grounds. Firstly, in the facts of that case, there was no lack of jurisdiction or power in the Border Area Committee to cancel the allotment in excess of the entitlement of the appellants. Secondly, in view of the decision of this Court in the case of Muhammad Khan v. Border Allotment Committee , the High Court has no jurisdiction to interfere with the order of the Border Area Committee.
4. Leave was granted in this case to consider if the two grounds on which the writ petition was dismissed by the learned Judges are valid.
5. I shall consider the second ground first. The order of the Border Area Committee cancelling the allotment from the names of the appellants in 5/8th share was made on 28-4-1964, that is, long after the commencement of the 1962-Constitution on 8-6-1962. This Court held in the case of Muhammad Khan v Border Allotment Committee that an order made by the Border Allotment Committee before 8-6-1962 is immune from attack in Courts including the High Court and the Supreme Court. This decision, it appears, was not correctly appreciated by the learned Judges of the High Court and they thought that all orders of the Border Area Committee made under the West Pakistan Border Area Regulation, 1959, irrespective of the date of such orders, are immune from attack. This, however, is not the decision of this Court in Muhammad Khan's case. In that case, what was decided is that no order made under the said Regulation before 8-6-1962 is liable to be called in question. It follows therefrom that an order made under the said Regulation on or after 8- 6-1962 is open to challenge. This legal position was made all the more clear in a subsequent decision of this Court in the case of Mehr Din v. Border Area Committee . In the instant case, the impugned order of the Border Area Committee having been made on 28-4-1964, the High Court has jurisdiction to determine the validity of that order. As regards the first ground relied on by the learned Judges, the view taken by them, I am afraid, is not correct either. Learned counsel for the respondent No, 1 submits that under Paragraph 10 (a) of the West Pakistan Border Area Regulation, 1959, the Border Area Committee was empowered to cancel the allotment in this case. He relies on this legal provision for sustaining the impugned order of the Border Area Committee. Paragraph 10 (a) of the said Regulation runs thus : " 10 (a) The committee shall scrutinize all allotments of evacuee property within any border area and may, if after such scrutiny it is satisfied that any allotment was made to a person not eligible for allotment under the West Pakistan Rehabilitation Settlement Scheme including the Border Scheme, cancel the allotment and direct the allottee to surrender forthwith the property to the Deputy Rehabilitation Commissioner within whose jurisdiction the property is situated and the decision of the committee in this regard shall be final."
6. According to this Paragraph, the Border Area Committee has the power to cancel an allotment, if it is satisfied that the allotment was made to a person not eligible for allotment under the West Pakistan Rehabilitation Settlement Scheme or the Border Scheme. In the instant case, Pindu, a claimant displaced person was found to be eligible for allotment of land and the disputed land lying within the border belt was accordingly allotted to him. Thus, there was nothing wrong in the allotment of the disputed land in favour of Pindu. As Pindu was eligible for allotment, paragraph 10
(a) is inapplicable in this case and, for that reason, the Border Area Committee was not empowered to cancel some land out of the allotment from the names of the appellants who claim to have inherited it from Pindu. In cancelling land in 5/8th share, the Border Area Committee decided the question of inheritance, namely, as to who are the heirs of Pindu and what is the extent of their respective inherited shares. The question of inheritance including the mode of succession was not a matter for the Border Area Committee to decide. Admittedly, the appellants obtained1 2 mutation in respect of the entire land allotted to Pindu and the same was duly authenticated by the competent Revenue Authority on 7-9-1955. By the impugned order, the Border Area Committee not only decided the question of inheritance and the mode of succession, but also virtually decided that the mutation in favour of the appellants was wrong. With regard to the mutation, the Border Area Committee concluded : "Taking the above accumulatively into consideration it is therefore apparent that the attestation of the mutation con-ferring the right of succession of the property entirely in favour of three individuals is wrong as the rights of the remaining shareholders have been ignored apparently due to misrepresentation made by this party."
7. It is needless to say that the Border Area Committee is not competent to annul or modify a mutation finally authenticated by the competent Revenue Authority. Of course, the Border Area Committee sent a copy of its impugned order to the Revenue Authority concerned to enable them to review the mutation. But this was done apparently to carry into effect the Border Area Committee's finding with regard to inheritance and mode of succession and its order cancelling the allotment in 5/8th share, which the committee, in the facts of this case, was not competent to make. For these reasons, the learned Judges of the High Court were not right in taking the view that there was no lack of jurisdiction or power in the Border Area Committee to cancel the allotment in excess of entitlement c of the appellants. If, apart from the appellants, there was, at all, any other heir of Pindu for which it was thought necessary to review the mutation in favour of the appellants, the Border Area Committee should have, instead of making the impugned order, referred the matter to the authority competent to modify the mutation. Both the grounds relied on by the learned Judges having been found to be untenable, their judgment cannot be sustained. I would, accordingly, allow the appeal and set aside the judgment of the High Court. However, having regard to the points of law involved, I would leave the parties to bear their own costs.
8. WAHIDUDDIN AHMAD, J.--I agree.
9. SALAHUDDIN AHMED, J.--I agree. PLD 1965 SC 623 PLD 1970 SC 311