CH. MUHAMMAD IQBAL J. Through this writ petition, the petitioners have challenged the order dated 06.06.2009 passed by the Member Judicial-V / Chief Settlement Commissioner, Board of Revenue, Punjab who cancelled the allotment from the name of Muhammad Umar son of Jaggu, predecessor-in-interest of the petitioners, and resumed the land in favour of the state.
2. Brief facts of the case are that the present petitioners/Abdul Rehman etc. got inserted, through mutation No.182 in the Part Sarkar, their names as owners of the evacuee property, being legal heirs of Muhammad Umar son of Jaggu Meo resident of Mouza Aomra, Tehsil Ferozpur Jhakla District Gorhgawana India whose claim No.44480 Hadbast No.20 Sr. No.617821 viz 29 Bigha 8 Biswa was sent for allotment of 29 Bigha 8 Biswa in Mauza Malku Lahore on 15.01.1954 and mutation No.245 dated 23.4.1963 regarding land measuring 23 Kanals 9 Marlas was sanctioned in favour of Muhammad Umar vide Khata No.54 but subsequently vide order dated 20.07.1964 the Revenue Officer Halqa cancelled the above allotment. On the application of one Sajjad Ahmad, the Chief Settlement Commissioner initiated proceedings to ascertain the veracity of said allotment. During pendency of the said proceedings, Sajjad Ahmad filed an application for withdrawal of his application. The Chief Settlement Commissioner kept continue the probe of the matter and resultantly cancelled the alleged allotment of evacuee land from the name of Muhammad Umar son of Jaggu and resumed the same in favour of the state vide impugned order dated 06.06.2009.
Hence, this writ petition.
3. Learned counsel for the petitioners submits that Muhammad Umar was a displaced person who was allotted land measuring 23 Kanal 09 Marla situated in village Malku Lahore Cantt. on 12.07.1955; and he was in possession of the land in question that said allottee died on 28.06.2002 and after his death, one Mumtiaz Khan s/o Allah Din fraudulently got entered in the revenue record inheritance mutation No.718 which was later on cancelled on 19.12.2004; that the petitioners are legal heirs of Muhammad Umar and in this regard, they also got a decree dated 19.01.2009 from the Civil Court, Lahore, as such, the impugned order dated 06.06.2009 passed by the Member, Board of Revenue/Chief Settlement Commissioner is illegal and liable to be set aside.
4. Learned counsel for the respondents has supported the impugned order.
5. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
6. As the main controversy revolves around the issue that whether Muhammad Umar son of Jagu (predecessor-in-interest of the petitioners) was a displaced / evacuee person or not, therefore, the record of the civil suit for declaration filed by Abdul Rehman, petitioner No.1, son of Muhammad Umar was requisitioned. The perusal of memo of the parties of the civil suit shows the petitioners are permanent residents of India. For ready reference, the memo of parties of the plaint is reproduced as under:
7. In the suit for declaration titled Abdul Rehman v. Public at large and others filed by the petitioners for declaring them as legal heirs of Muhammad Umar deceased was decreed by the learned Senior Civil Judge, Lahore on 19.01.2009. The record of the said suit shows that the petitioners are permanent residents of India. The petitioner No.1, Abdul Rehman, while appearing as P.W.1 in the said suit also deposed that he as well as other petitioners are permanent residents of India. In the above referred civil suit, he produced the death certificate of Muhammad Umar (Exh.P.1), his (Abdul Rehman's) copy of passport (Exh.P.4) and copy of identity card (Exh.P.5), copy of identity card of Subhan Khan, petitioner No.3 (Exh.P.6), copy of identity card of Ilyas Khan, petitioner No.2 (Exh.P.7) and copy of identity card of Mst. Subhani, petitioner No.4 (Exh.P.8). All the above documents (Exh.P.4 to Exh.P.8) produced in original before the learned Senior Civil Judge who after observing the originality of the same, placed photocopies whereof on record and, returned the original documents to the petitioner. The said documents also shows the addresses of the petitioner in India. For ready reference, the scanned copies of aforesaid documents are reproduced as under: Translated into English Form No 6 No.63668 (Under Rule 8)
Death Certificate Haryana Government Health Department Birth Death Registration Act 1969, under section 17 Certified that details below are correct Block/Hallqa Umra (Nagina)Tehsil Ferozpur Jhirka District Mevat Sate Haryana Name M. Umar Sex Male Date of Death 28.06.2002 Death Place Umra Registration No. 249 Registration Date30.06.2002 Father's Name Jugu Address Umra Date of Death (In Words)____________ Add Distt Registrar (Birth & Death), Cum Distt Health Officer Mewat G.H.Mandi Khera
8. All the above documents were produced by the petitioner themselves as evidence before the civil court and the petitioners are bound by the contents of the said documents which show that Muhammad Umar, predecessor of the petitioners, was permanent resident of India who never migrated to Pakistan, thus he was not an evacuee person and was not entitled for any allotment against any evacuee claim in Pakistan and if he had obtained any allotment that was the result of manifest fraud, forgery and misrepresentation. The petitioners are also permanent residents of India who are pursuing the instant proceedings of this petition through their special attorney, as such, they are legally debarred to claim any allotment as evacuee persons in Pakistan.
Even otherwise, the father of the petitioners namely Muhammad Umar died on 28.06.2002 in India.
As propositus of petitioners had never migrated to Pakistan, and was not an evacuee person as such, petitioners who are Indian were not entitled for any allotment of evacuee land. The record also shows that the alleged allotment in the name of Muhammad Umar s/o Jaggu was made on 23.04.1963 which was subsequently cancelled on 20.07.1964 and nothing is available on the record that the said cancellation order was ever recalled/set aside by any competent forum. The above facts demonstrate that the allotment has been obtained by the petitioners or their predecessor through fraud and misrepresentation. It is 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 in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority v.
Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).
9. Furthermore, Muhammad Umar, predecessor of the petitioners, was a permanent resident of India, as such, he as well as his legal heirs are foreigners, who are also residents of the enemy state, thus by any stretch of imagination, cannot seek a decree to declare them as legal heirs of Muhammad Umar (an Indian Citizen) from a court in Pakistan, whereas the Senior Civil Judge, Lahore by committing a serious legal blunder passed a decree dated 19.01.2009 without having jurisdiction over the parties and the said decree in its entirety is nullity in the eyes of law and void ab initio. It is settled law that any order which is passed by an authority without jurisdiction, would be illegal and void ab-initio. Reliance is placed on the cases reported as Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208), Bashir Ahmad v. Meer Aslam Jan (2007 CLC 1544) and Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others (2009 CLD 960).
10. It evinces from the record that the petitioner fraudulently obtained the allotment of evacuee land. It is settled law that where an allotment order has been obtained by committing fraud in that eventuality, the Chief Settlement Commissioner being custodian of the evacuee property has jurisdiction to initiate inquiry or take cognizance of the matter of allotment of the evacuee land which is ultimately the property of the public at large. The issue of jurisdiction of the Chief Settlement Commissioner/Notified Officer has been settled by the Hon'ble Supreme Court of Pakistan in a recent judgment reported as Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd. and others (2016 SCMR 222) wherein it is observed that when a matter of allotment is re-opened, the Settlement Authority has the jurisdiction to re-examine all the facts pertaining to the title of the parties from the very inception of claim and to decide the matter according to available record as per law. In another judgment cited as Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another (1969 SCMR 154), the Hon'ble Supreme Court of Pakistan has observed as under:- "We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Commissioner which merely required that the petitioner should disclose his credential as the transferee of the property in dispute. The leaned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no apparent reason why the petitioner wants to avoid this examination. The grievance of the petitioner at this stage is baseless and premature. This petition is dismissed."
(emphasis supplied)
The above said view has been reiterated in case reported as Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
11. Moreover, Section 21 of the General Clauses Act, 1897 confers an inherent jurisdiction to an authority which has passed the order to reverse the erroneous or illegal order earlier passed by it.
Similarly if any benefit has been obtained from authority by practicing misrepresentation or fraud, the same forum is vested with in built jurisdiction to undo the wrong. In this regard the Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) has held that where the allotment order made by the authorities was illegal, without jurisdiction, based on fraud and forgery, in that eventuality the same authority can undo such illegal order either on its own motion or on the information received to it through application. In the case of obtaining allotment of evacuee land through fraud, the settlement authority may reverse such order of allotment and in such like matter, the superior Courts can withheld the exercise of their discretionary writ jurisdiction to annul the order of authority, even though it was clearly without jurisdiction. Relevant portion of the said judgment (supra) is reproduced as under:- "Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Razzaq Ali the latter "was clearly without jurisdiction."
Further, in another judgment reported as Shamrooz Khan v. Muhabbat Khan and another (1989 SCMR 819), the Hon'ble apex Court held that the Settlement Authorities have jurisdiction to issue notices on the complaint wherein it reveals that the order of transfer of evacuee land was procured on the basis of fraud and non-existent documents. The relevant portion of the judgment (supra) is reproduced as under:- "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court.
We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs."
12. As per record the petitioner obtained the allotment order on 06.06.2009 by practicing of fraud and misrepresentation of true facts when the above factum of fraudulent allotment to non- evacuees the citizens of enemy state came into knowledge of the Chief Settlement. Commissioner who by declaring the said order of allotment as result of fraud and misrepresentation withdrew the same and cancelled the allotment vide subsequent order dated 17.07.2009 has committed no illegality.
13. In view of the aforesaid facts and circumstances of the case, the Chief Settlement Commissioner/Notified Officer, after minutely perusing the record and hearing the parties, rightly passed the impugned order which does not require any interference. Learned counsel for the petitioners has failed to point out any perversity, illegality or any jurisdictional defect in the impugned order calling for any interference by this Court in its constitutional jurisdiction.
14. Resultantly, this writ petition is hereby dismissed being devoid of any force with cost of Rs.5,00,000/- to be recovered as arrears of land revenue. However, office is directed to transmit copies of this order, writ petition as well as all the annexures and copy of the civil suit to the Chief Settlement Commissioner who is directed to conduct a detail inquiry as to whether any allotment exists in the names of Muhammad Umar, predecessor of the petitioners, or the petitioners and if any other allotment is found to be in existence in record, the Chief Settlement Commissioner shall cancel the same forthwith and retrieve possession of the land in favour of the state and shall proceed further in accordance with law. The Chief Settlement Commissioner, Punjab shall complete this process within a period of two months from the receipt of copy of this order and shall submit compliance report to this Court through its the Deputy Registrar (Judicial) who is directed to place the compliance report before this Court on administrative side for perusal.