Ch. Muhammad Iqbal, J.Through this writ petition, the petitioner has challenged the validity of an order dated 07.06.2000 passed by the Member Colonies, Board of Revenue, Punjab who cancelled the alleged grant of proprietary rights which were granted in favour of Umer Din, father of petitioner No.2 having obtained on the basis of fraud and concealment of facts.
2. Brief facts of the case are that Umar Din got allotted land measuring 100 kanals situated in Chak No.204/M, Tehsil Chishtian District Bahawalnagar and also obtained a conveyance deed in his favour; that the Commissioner, Bahawalpur Division, Bahawalpur sent reference for cancellation of conveyance deed on 14.12.1996 to the Member, Board of Revenue under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, as the said conveyance deed was obtained through fraud; that respondent No.1 initiated proceeding and finally canceled the conveyance deed and resumed the said land in favour of the State vide impugned order dated 07.06.2000.
Hence, this writ petition.
3. The learned counsel for the petitioners submitted that the impugned order is patently illegal; petitioner No.1 is subsequent purchaser from petitioner No.2, whereas petitioner No.2 is son of the alleged allottee Umer Din; that the land measuring 58 kanals was purchased by petitioner No.1 from petitioner No.2, who received the suit land through gift by his father; that after purchase of the land measuring 58 kanals from petitioner No.2, petitioner No.1 filed suit for specific performance which was decreed on the basis of conceding statement of petitioner No.2 whereafter a sale deed was also registered in favour of petitioner No.1 in respect of 58 kanals from the suit land, as such the Member, after registration of the sale deed in favour of petitioner No.1 was not competent to annul the allotment.
4. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
5. Admittedly, the land measuring 100 kanals situated in Chak No.204/Murad, Tehsil Chishtian District Bahawalnagar comprising Khasra No.138/13 half, 14 to 25 was leased out to Umar Din (father of petitioner No.2) under five years Temporary Cultivation Lease Scheme from Kharif 1975 to Rabi 1980 by the Assistant Commissioner, Chishtian vide order dated 04.07.1975 but the allottee committed default in payment of the rent due, thus a notice under Section 24 of the Colonization of Government Lands (Punjab) Act, 1912 was issued. However, during pendency of the above proceeding before the competent authority, the defaulter allottee, Umar Din unauthorizedly and with concealment of facts inserted an application without signature, date and stamp in the official record. On the basis of said application as well as a report of the Patwari, he succeeded in issuance of a Robkar dated 14.06.1987 and in obtaining the proprietary rights from the Deputy Collector on 25.07.1995, even without having any confirmed lease in his favour. Thus, the above order of the District Collector was without any lawful authority / jurisdiction whereas any order passed by an authority without having jurisdiction would be void ab-initio. Reliance is placed on the cases reported as Khuda Bakhsh Vs. Khushi Muhammad and 3 others (PLD 1976 SC 208), Bashir Ahmad Vs. Meer Aslam Jan (2007 CLC 1544), Messrs East-West Insurance Company Ltd. through Chairman & Another Vs. Messrs Muhammad Shafi & Company through Managing Partner & 2 Others (2009 CLD 960) and an unreported judgment dated 18.04.2017 rendered by a learned Division Bench of this Court in case titled as Sultan Vs. Federation of Pakistan and 4 others (Writ Petition No.28756 of 2014). Moreover, the alleged allottee Umar Din, father of petitioner No.2 did not deposit the lease amount for the period w.e.f. Kharif 1975 to Rabi 1995 and even no receipts of payment of lease amount were referred to in the record or produced before this court. Even otherwise, the khasra girdawari from Kharif 1985 to Kharif 1991 shows the classification of the suit land as 'Ghair Mumkin Tibba', which means that the suit land was not cultivated by lessee. This shows that Umar Din (predecessor of the petitioners) committed breach of Terms and Conditions of lease, thus, he was dis-entitled for grant of proprietary rights of the land in question. Reliance in this regard is placed on a case cited as Muhammad Sharif through L.Rs. Vs. Province of Punjab through District officer Revenue Pakpattan (2014 SCMR 334). As per above consective Revenue record of khasra girdawari from 1975 to 1991 the land was not under-cultivation but in contrary of the above record, the Halqa patwari prepared a bogus report showing the suit land to be cultivable and on the basis of the said report, proprietary rights were granted on 25.07.1995 in favour of Umar Din. The record proves that Umar Din procured the proprietary rights of the land in question through concealment of true facts, misrepresentation and by committing fraud. It is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of law. Reliance in this regard is placed on cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Sindh Irrigation and Drainage Authority Vs. Government of Sindh and others (2022 SCMR 595).
6. So far as the argument of the learned counsel for the petitioner that the Member, Board of Revenue is not competent to cancel the allotment and grant of proprietary rights in favour of Umer Din and subsequent transfer of the said land in favour of petitioner No.2. It is now settled that under Section 30(2) of the Act ibid, the Board of Revenue has jurisdiction to annul the lease / allotment / proprietary rights / Conveyance Deed etc. obtained on the basis of fraud and in violation of the policy or the statements of conditions issued by the Board of Revenue under the Act ibid. This view has been reiterated by the Hon'ble Supreme Court of Pakistan in a latest judgment titled Nausher Vs. Province of Punjab through District Collector, Khanewal and another (PLD 2022 SC 699) as under:- "17.3 The next ground of challenge was that the application involved the allegation of fraud, which can only be decided by Civil Court and the Member, Board of Revenue, had no jurisdiction to decide it. Section 30 (2) of the Act has clearly conferred power on the Board of Revenue to decide the allegation of fraud in the following terms: 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 for 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 person 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.
This ground is thus not legally tenable. The Board of Revenue is competent to decide upon whether any person had acquired the tenancy rights, under the Act, in respect of any land by means of fraud."
Reliance is also placed on the case titled as Mian Asghar Ali Vs Govt. of Punjab through Secretary (Colonies) BOR, Lahore & Others (2017 SCMR 118), wherein the Hon'ble Supreme Court of Pakistan held as under:- "4. Review Petitioner challenged the said judgment through Civil Petitions No.2466 to 2468 of 2004, before this Court, wherein leave was declined vide judgment dated 16.12.2004; since reported as Mian Asghar Ali v Province of Punjab through District Collector and others (2006 SCMR 936), operative part whereof is reproduced here in below:- "Independent thereof any intervention with the impugned order would tantamount to encouraging perpetuation of patent illegal devices to protect the illegitimate gains reaped by the political vultures for unjust enrichment at the cost of public exchequer which has eroded the very moral fabric of the society."
13. We have examined the record with the assistance of Petitioner and learned ASC for the Respondents. As noted in the narrative above, in detail that the order for the cancellation of conveyance deed through private treaty (dated 29.10.1994), was passed by the Member (Colonies) BoR through detailed order dated 4.7.98 (page 78 CPLA NO.2364 of 2015) pursuant to various representation and essentially on the directions made in WP No. 4039 of 1995. Therefore, it cannot be said that the impugned sale was either cancelled on the direction of the Chief Minister or for that matter in dictated exercise of jurisdiction/force command, of the Chief Executive of the Province. It may be observed that it was the Review Petitioner, as observed by this Court, in earlier round culminated into judgment reported as Mian Asghar Ali(Supra) who "exerted political influences with provincial hierarchy got 8 marlas plus prime commercial land situated within the compound of Municipal Committee, Sahiwal from Member BOR, securing relaxation of ban from Chief Minister, Punjab, precipitating in sale deed dated 29.10.1994, in violation of Municipal committee's Policy keeping the later in darkness" against, which the Civil Review Petitions, were also dismissed as withdrawn and matter of cancellation of conveyance deed for all practical purposes attained finality and a fait accompli. No exception to the cancellation of sale deed obtained by the Review petitioner by misrepresentation and through fraudulent means, by the Member (C) BOR, under section 30(2) of Colonization of Government Land Act, 1912 could now be agitated in subsequent proceedings, founded entirely on different cause of action obliquely.
14. It may not be out of place to mention that the controversy raised by the Petitioner culminating into present Review Petition is not arising out of the order (dated 4.7.1998), of cancellation of sale deed by way of private treaty but, the order dated 16.06.2010 passed by the Member (Colonies)
BoR, whereby his request for the allotment of alternate land was declined for valid reasons."
(emphasis supplied)
Further, in a case titled as "Muhammad Munir Ahmad Vs.The State/Member (Judicial)-VII Board of Revenue Punjab Lahore, etc." (in Civil Petition No.1030-L of 2004) the controversial issue before the Hon'ble Supreme Court of Pakistan was that the Revenue hierarchy including the Member, (Judicial) Board of Revenue vide order dated 28.05.2014, cancelled the allotment of state land under Section 30(2) of the Act ibid, which cancellations were maintained by this Court vide order dated 13.06.2014 passed in Writ Petition No.16929 of 2014. The above orders were further assailed in aforementioned civil petition and the Hon'ble Supreme Court of Pakistan vide order dated 05.08.2020 upheld the said cancellation order and by refusing to grant the leave, dismissed said civil petition. Reliance can be placed on the case titled as "Province of Punjab through Collector, Sheikhupura VS Anjuman Talim-ul-Islam and others" (PLD 1987 SC 123). The Hon'ble Supreme Court of Pakistan in a case titled as "Syed Mazhar Hussain Shah through L.Rs VS Member, Board of Revenue, Punjab, Lahore and others" (2006 SCMR 959) has observed that the Deputy Commissioner/ Collector, Faisalabad cancelled the allotment and resumed the state land in favour of the state. The appeal against above resumption was dismissed by the Commissioner and orders of the revenue hierarchy were upheld by the Board of Revenue. This Court also dismissed the writ petition and the Hon'ble Supreme Court of Pakistan refused the leave and upheld the findings of the revenue hierarchy as well as this Court for the cancellation of allotment of state land. Further this Court in another case titled as "Muhammad Manzoor VS Province of Punjab and others" (2011 CLC 494 Lahore) has already held that under Section 30(2) of the Act ibid, the Board of Revenue is competent to resume the land which was got allotted through fraud.
As per record of this case the alleged proprietary rights were obtained by the predecessor of the petitioners through misrepresentation, fraud and in violation of the allotment policy, as such, the Member, Board of Revenue rightly cancelled the Conveyance Deed and proprietary rights granted in his favour. Thus, the argument of the learned counsel for the petitioners has no face and same is hereby repelled.
7. Moreover, petitioner had earlier filed a W.P. No.3096/2000 challenging the order dated 17.11.1996 of the Commissioner Bahawalpur Division, Bahawalpur, who sent a reference for the cancellation of the alleged allotment and the conveyance deed which were obtained by mis-representation and concealment of facts. The said writ petition was dismissed by this Court vide order dated 20.04.2010; however, the petitioner has not assailed the above order any further, as such the said order for dismissal has attained the status of finality and have become past and closed transaction. Reliance is placed on Pakistan International Airlines Corporation Vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14). As the controversy of sending the Reference and cancellation of the allotment by the Member Colonies, Board of Revenue has already been adjudicated through aforementioned writ petition and meritorious decision was rendered after hearing the party, as such the second writ petition on the same subject, same property and same cause of action is not maintainable, as such the principle of res judicata is also applicable in this case.
8. Record indicates that the petitioners were well-aware of the Reference sent to the Board of Revenue in respect of the cancellation of the conveyance deed and the said order was assailed by them through W.P. No.3096/2000, which petition was dismissed by this Court on 20.04.2010. The Member, Board of Revenue passed the impugned order on 07.06.2000 but the petitioners have come to this Court through the instant writ petition [No.5407/2010] after an inordinate delay of about ten years, whereas only ninety days period is considered sufficient to challenge an adverse order in the Constitution Petition, otherwise the principle of laches will be attracted to the case.
Reliance is also placed on a case cited as State Bank of Pakistan through Governor and another Vs. Imtiaz Ali Khan and others (2012 SCMR 280), wherein the Hon'ble Supreme Court of Pakistan held as under: "28.... Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent."
Further reliance is placed on judgments cited as Allah Rakha (deceased) through LRs and others Vs. Additional Commissioner (Revenue) Gujranwala and others (2020 SCMR 502) and Mian Aurangzeb Noor Vs. Rent Controller, Lahore and another (2012 CLC 1729).
9. Moreover, under Article 173 (5) of the Constitution of Islamic Republic of Pakistan, the State land should be transferred by the government as per law. For reference Article 173(5) of the Constitution is reproduced as under: "Transfer of land by the Federal Government or a Provincial Government shall be regulated by law."
Under Section 23 of the Contract Act, 1872, if any order is passed by an authority beyond its jurisdiction and against the public policy, such order is nullity in the eyes of law. For ready reference, Section 23 of the Act ibid is reproduced as under: "23. What consideration and objects are lawful and what not.--The consideration or objection of an agreement is lawful, unless--It is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
(emphasis supplied)
With regard to contract being against law and public policy, the Hon'ble Supreme Court of Pakistan in a case reported as Hameedullah and 9 others Vs. Headmistress, Government Girls School Chokara, District Karak and 5 others (1997 SCMR 855) held that:- "From the aforestated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land.
Sale of public office cannot be a legal transaction. It is completely illegal and against public policy.
Therefore, such an agreement is hit by section 23 of the Contract Act, which makes it void."
(emphasis supplied)
The August Court in a case reported as Maulana Abdul Haque Baloch and others Vs. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641) has held as under:- "The competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for. In this view of the matter, in absence of the requirements of rule 98 being fulfilled in the instant case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of law, and therefore, ultra vires the powers granted under rule 98 of BMCR 1970 read with section 5 of the Act of 1948, and thus void. Shorn of relaxations so grant, CHEJVA has no legal sanctity and consequently remains an agreement entered into against the provisions of law, hence not enforceable.
All the key provisions of CHEJVA were made subject to a reliance on relaxations that were illegal and void ab initio, the illegality of the agreement seeps to its root. As such, no operative part of the agreement survives to be independently enforceable and the principle of sever ability cannot be applied to save any part thereof. The agreement is, therefore, void and unenforceable in its entirety under the law."
Reliance can also be placed on the cases titled as Muhammad Manzoor through Legal Heirs & Others Vs Province of Punjab through District Officer Revenue, Vehari & Others (2011 CLC 1235) & Muhammad Yaseen & Others Vs District Co-Ordination Officer, Muzaffargarh & 4 Others (2009 YLR 2365). Here in this case the alleged proprietary rights were obtained by Umar Din, the predecessor of the petitioners, in violation of the Article 173(5) of the Constitution of the Islamic Republic of Pakistan, 1973, provisions of the Colonization of Government Lands (Punjab) Act, 1912, Section 23 of the Contract Act, the policy as well as against the dictum laid down by the Hon'ble Supreme Court of Pakistan and this Court and by committing fraud, as such, the Member, Board of Revenue while invoking jurisdiction under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, has rightly cancelled the proprietary rights as well as Conveyance Deed of Umar Din.
10. As regard to the claim of petitioner No.1 being bona fide purchaser of the land in question, suffice it to say that admittedly he derives alleged right from his vendor (Umar Din, predecessor of the petitioner No.2) and subsequent purchaser only stepped into shoes of his vendor and is debarred to claim any better title than that of his vendor and subsequent purchaser has no protection under Section 41 of Transfer of Property Act and if any infirmity, deficiency or flaw subsequently emerges in the title of owner / vendor that shall always travel with the land and subsequent purchaser is precluded to raise plea of protection of bona fide purchaser under Section 41 of the Transfer of Property Act, rather he may trace his remedy against the vendor as per law. Reliance in this regard is placed on a latest judgment of the Hon'ble Supreme Court of Pakistan cited as Nausher Vs. Province of Punjab through District Collector, Khanewal and another (PLD 2022 SC 699), wherein it has been held as under:- "17.6 The last ground of challenge is also misconceived. It was asserted that the order of the Member, Board of Revenue could not have affected the rights of the appellant in the suit land, as he was the bona fide purchaser of the suit land. When the appellant is found to have procured the tenancy rights, as well as the proprietary rights, in the suit land in name of a dead person, and then to have transferred the same in his name from that of a dead person, it cannot lie in his mouth that he is the bona fide purchaser of the suit land. Protection under section 41 of Transfer of Property Act, 1882 can only be claimed when the following conditions are fulfilled: (a) the transferor is the ostensible owner; (b) he is so by the consent, express or implied, of the real owner; (c) transfer is for consideration; and (e) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. All these four conditions are lacking in the present case."
Reliance can also be placed on the cases titled as Muhammad Yamin and others Vs. Settlement Commissioner and others (1976 SCMR 489), Bashir Ahmad and Others Vs. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199), Talib Hussain & Others Vs Member, Board of Revenue & Others (2003 SCMR 549).
11. The Commissioner, Bahawalpur Division, Bahawalpur while delving into the record, the aforesaid commission of fraud in obtaining the proprietary rights of the land in question surfaced upon the record and he sent a Reference to the Board of Revenue on 14.12.1996 for cancellation of the Conveyance Deed. The Member, Board of Revenue after perusing the record rightly cancelled the Conveyance Deed in question vide order dated 07.06.2000, by observing as under:- "5. I have examined the record produced by representative of the Deputy Commissioner, Bahawalnagar which shows that the land in question was leased to the respondent under Five years Temporary Cultivation Lease Scheme from Kharif 1975 to Rabi 1980 by the A.C/Collector, Chishtian on 4.7.1975 which does not seem to have been confirmed by the District Collector and the possession under Section 10 (4) of the Colonization of Government Lands (Punjab) Act, 1912 has not been delivered to the respondent. The respondent failed to deposit lease money as well as rent from Kharif 1975 to Rabi 1995. The respondent was summoned for 21.1.1985 by the A.C/Collector on the office report to deposit the lease money but he did not turn up upto 24.12.1986. An unsigned, undated and unstamped photocopy of application addressed to the Assistant Commissioner, Chishtian from Umer Din respondent for grant of proprietary rights under Notification dated 3.9.1979 marked to Ahmad on 18.11.1979 is available on record. Robkars in respect of report regarding position on ground was issued to the Naib Tehsildar, Dahranwala on 14.6.1987 so that the original allotment could be decided. Patwari halqa has reported on 15.11.1989 that the entire land had been cultivated but the copies of khasra girdawari show the classification of land as 'Ghair Mumkin Tibba' upto Rabi 1979 and from Kharif 1985 to Kharif 1991 and this position continues on the following girdawaris. Only in Kharif 1979 and Rabi 1980 cultivation has been shown whereas in Kharif 1980 and Rabi 1981 'khali' has been recorded in the girdawari. Hence the report made by the Patwari halqa is totally bogus and against the record. The D.C/District Collector without examining the record and obtaining report status of the land in question from the field staff merely on a note put up by Khalid Shahzad Siah Nawis allowed the issuance of conveyance deed vide order dated 25.7.1995 by recording {{URDU TEXT}} and again on the same day signed the conveyance deed. He did not even bother to examine the record as to whether the lease has been confirmed and lease money has been deposited or not and whether the land in question has been brought under cultivation to the required percentage. The date on which the price of the land in question was deposited has not been written in the Challan forms even head of account has not been mentioned. All these things create doubt that the entire proceedings have been done in a haphazard manner.
6. A cursory look at record shows that the order of the D.C/District Collector suffers from a patent irregularity. The whole process and the order issued by the District Collector on 25.7.1995 are manifestly incorrect and fraudulent. A lease which has not been confirmed and the possession under the law has not been delivered to the allottee does not entitle him to the grant of proprietary rights and issuance of conveyance deed. In fact the fraud is manifest on the face of it as the application (photo copy of which is available on the D.C's file) purported to have been written on behalf respondents is unsigned, undated and unstamped. The role of the District Collector and his staff is most deplorable, calling for disciplinary proceedings against them.
7. In exercise of powers conferred under Section 30 (2) of the Colonization of Government Lands (Punjab) Act, 1912 the land measuring 100 kanals comprising Khasras No.13 half, 14 to 25 of Rectangle No.138 situated in chak No.204/Murad, Tehsil Chishtian, District Bahawalnagar is resumed and the conveyance deed issued in favour of Umer Din son of Kalu, respondent is ordered to be annulled. The amount deposited, if any, is forfeited. Mutations entered on the basis of this fraudulent allotment should be reviewed in accordance with law, if not already done."
12. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders and has also not identified any jurisdictional defect calling for interference by this Court.
13. Resultantly, this writ petition, being devoid of any merit, is hereby dismissed.