MUHAMMAD RAZA QURESHI, J. The instant Writ Petition was initially decided through Order dated 20.01.2010 wherein pursuant to C.M. No. 130/2010, which was a joint Application on behalf of the Petitioner as well as the Respondents Nos. 7 to 9 namely, Allah Ditta son of Muhammad Ramzan, Abdul Rehman and Allah Ditta son of Karim Bakhsh respectively, wherein parties claimed to have entered into a compromise and sought disposal of this Writ Petition in the light of said compromise and Writ Petition was accordingly disposed of as per the contentions of the parties canvassed through Application.
2. However, subsequently an Application bearing C.M. No.6604/ 2014 under section 12(2). C.P.C. was filed on behalf of Ghulam Qadir, Abdul Rasheed sons of Ghulam Muhammad. Ghulam Hussain, Fida Hussain sons of Ghulam Mustafa and Shabbir Ahmad son of Sultan Ahmad contending that Order dated 20.10.2010 was procured through fraud and misrepresentation as the Respondent Allah Ditta was not even alive at the time of submission of Application bearing No.130/2010. Pursuant to Order dated 22.04.2015 the C.M. No.6614/2014 was dismissed.
3. Subsequently, another Application bearing C.M. No.1512/2011 under section 12(2), C.P.C. was filed by Respondent No.8, Abdul Rehman challenging the same order dated 20.01.2010 which was allowed by this Court and the proceedings in the instant Petition stood revived for its adjudication on merits.
4. The admitted facts culminating into instant Writ Petition are that the subject matter property of this Writ Petition is an evacuee land admeasuring 215 Kanals 13 Marlas, situated in Village Chah Meeran Khan, Tehsil Shuja Abad, District Multan. The land was allotted to Hassan Khan and Mst.
Salee alias Boodi who were children of one Sheve Singh and have been impleaded in this Writ Petition as Respondents No. 5 and 6 respectively. The allotment as claimed by the Respondents No. 5 and 6, was made by A.S.C (1), Multan the then Notified Officer on 29.03.1982 in pursuance of compliance of allotment order bearing No.21.09.1967 claimed to have been issued by Chief Settlement and Rehabilitation Commissioner, West Pakistan, vide R.L.II No.203. The said R.L.II No.203 was incorporated in the revenue record through Mutation bearing No.559 dated 28.04.1992.
5. Subsequently, Respondents Nos.7 to 9 who claimed to be occupancy tenants of the subject matter land having acquired proprietary rights through mutations during the years 1977 to 1979 challenged the allotment of the land to the Respondents Nos.5 and 6.
6. The Respondents Nos. 7 to 9 challenged the allotment before the Deputy Settlement Commissioner, Multan who deputed Assistant Commissioner, Jalal Pur to hold an inquiry. The said Revenue Officer submitted a detailed inquiry report on 06.12.1993 declaring that the allotment with respect to subject matter land was bogus, therefore, registration of FIR was recommended.
Subsequently, pursuant to reports and recommendations the Deputy Commissioner, Multan vide order dated 04.01.1994 recommended the registration of FIR and cancellation of Mutation No. 559 in favour of Respondents No.5 and 6.
7. The Respondents Nos.5 and 6 filed an appeal before the Additional Commissioner (Revenue), Multan Division, Multan against the order of Deputy Commissioner. Pursuant to Order dated 13.03.1995 the order of Deputy Commissioner was set aside by the Additional Commissioner (Revenue), Multan.
8. The Order dated 13.03.1995 was subsequently challenged by Respondents Nos.7 to 9 before the Member Board of Revenue/Chief Settlement Commissioner through ROR No.1040/1995. The Revision Petition was allowed by the learned Member Board of Revenue/Chief Settlement Commissioner through Order dated 09.07.1996. Against this order a Review Petition No.175/1996 was filed by the Respondents Nos.5 and 6, which was also dismissed through Order dated 06.05.2000.
9. The Petitioner who was a transferee pendente lite claims himself a bona fide transferee with consideration (exchange) from Respondents Nos. 5 and 6 and profess to have no knowledge about the litigation, inter se, Respondents Nos. 5 and 6 with Respondents Nos. 7 to 9 and through this Writ Petition has challenged the adverse order passed by the Revenue Officers in hierarchy, culminating into the Impugned Orders passed by the Member Board of Revenue/Chief Settlement Commissioner, Punjab. Admittedly, the Respondents Nos.5 and 6 never challenged the said Orders further in any proceedings.
10. Learned counsel for the Petitioner contends that after repeal of Disabled Persons (Land Settlement) Act, 1958 ("Act"), only Notified Officer had authority and jurisdiction to proceed against any alleged fraud or fraudulent claim, therefore, Deputy Commissioner had no authority to recommend or lodge FIR against the Respondents Nos. 5 and 6. According to learned counsel after repeal of the Act, the revenue/settlement authorities had no jurisdiction to question any allotment made by the competent authorities. According to learned counsel, Respondents Nos.7 to 9 had no locus standi to challenge the allotment in favour of Respondents Nos.5 and 6 as they only claimed their right being occupancy tenants pursuant to order of learned Member, Board of Revenue, therefore, learned counsel for the Petitioner submits that the proceeding initiated against the Respondents Nos. 5 and 6 are without jurisdiction, illegal and unlawful.
11. Learned Assistant Advocate General as well as learned counsel for the Respondents Nos.7 to 9 while supporting the Impugned Orders have contended that the Impugned actions/orders of the Respondent authorities are upon a direction of learned Member, Board of Revenue/ Chief Settlement Commissioner/Notified Officer and are strictly in accordance with law.
12. The arguments of the parties have been heard and record has been perused with their able assistance. At the outset, it is noticed that the Petitioner who claims to have stepped into the shoes of Respondents Nos. 5 and 6 against consideration (exchange) has to sink and sail with Respondents Nos.5 and 6 who never challenged the Orders dated 09.07.1996 or Order dated 06.05.2000 passed in Review Application by learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab, therefore, to assail the orders/proceedings which already have attained finality uptill Board of Revenue/Chief Settlement Commissioner against Respondents Nos.5 and 6, no room is left for the Petitioner to have another bite at the cherry through a collateral challenge knowing well that proceedings have attained finality against his predecessors-in-interest. Upon evaluation of principle of caveat emptor it is observed that he cannot even seek shield of Section 41 of Transfer of Property Act, 1882. The instant Petition is also silent that how and when the subject matter property devolved upon the Petitioner. The Honourable Supreme Court of Pakistan has already laid down that the protection of section 41 of the Transfer of Property Act, 1882 is not available to a vendee in respect of an evacuee property. Reliance is made upon the case "Kanwal Nain and 3 others v. Fateh Khan and others" (PLD 1983 SC 53), "Manzoor Hussain v. Fazal Hussain and others" (1984 SCMR 1027), "Gul Muhammad and others v. The Additional Settlement Commissioner and others" (1985 SCMR 491), "Ejaz Ahmad Khan v. Chahat and others" (1987 SCMR 192) and "Mst. Resham Bibi v. Mst. Elahi Sain" (PLD 1991 SC 1034).
13. To the extent of claim of the Petitioner being bona fide transferee of the land in question, suffice it to say that admittedly he derived alleged title from Respondents Nos.5 and 6, therefore, the Petitioner only stepped into their shoes and is debarred to claim any independent or better title than that of Respondents Nos.5 and 6. Therefore, the Petitioner has no protection under Section 41 of the Transfer of Property Act, 1882 and if any infirmity, deficiency or flaw subsequently emerges in the title of Respondents Nos.5 and 6 that shall always pass on to the Petitioner who does not enjoy a shield of bona fide purchaser. Reliance in this regard is placed on the cases reported as "Muhammad Yamin and others v. Settlement Commissioner and others" (1976 SCMR 489) and "Talib Hussain and others v. Member, Board of Revenue and others" (2003 SCMR 549).
14. Be that as it may, if there is ex-facie some stigma or clog attached to the allotment of land to Respondents Nos.5 and 6, obviously the Petitioner cannot establish a better defence than those Respondents. As has been stated above, the Petitioner now has to sink and sail with the Respondents Nos.5 and 6. Whereas it is yet to be established through evidence whether the Petitioner can even claim any right and interest in the property to sponsor the litigation of the Respondents Nos.5 and 6? In terms of law, if the allotment of said Respondents is found to be defective or fraudulent then obviously the Petitioner booked a risk at the time of transfer and will have to face the legal consequences contained in provisions of section 52 of Transfer of Property Act, 1882.
15. Pursuant to Order dated 09.07.1996 passed by the learned Respondent No. 1, the Deputy Commissioner, Multan was directed to initiate inquiry for ascertaining and determining the elements of fraud. The said inquiry was stopped pursuant to injunctive Order dated 23.08.2000 passed by this Court. However, since the property is evacuee, the Respondents Nos.5 and 6 and now the Petitioner is to satisfy the serious doubts about the veracity and legitimacy of the allotment order in favour of the Respondents Nos.5 and 6. Such doubts can only be removed upon examination of particulars of the verified claim of the Respondents Nos.5 and 6; the original place/village/domicile of the said Respondents in India; the date of transfer of their claim to village Chah Meeran Khan; and the order of the competent authority to allot the said land to the Respondents. All these crucial elements were missing. It is also critical that according to the record the allotment in favour of the Respondents No.5 and 6 was made without proper scrutiny and reports/process by the Revenue Field Staff. The most pivotal question remains to be investigated that if the occupant tenancy of the Respondents Nos.7 to 9 is established then how subject matter land was allotted or sanctioned in favour of the Respondents Nos.5 and 6 despite its non- availability.
16. If upon inquiry it is established that the subject matter allotment was fraudulent then obviously fraud vitiates the most solemn proceedings and any edifice so raised on the basis of fraudulent transaction would automatically collapse. Reliance in this regard is placed on the cases titled "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), "Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited" (2010 SCMR 1097) and "Baja through L.Rs. and others v. Mst. Bakhan and others" (2015 SCMR 1704).
17. There is also a fallacy in the arguments of the Petitioner that upon repeal of evacuee law only Notified Officer can examine the subject matter allotment. The legal status is that evacuee laws stood repealed from 01.07.1974 through promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, whereafter the jurisdiction of the Notified Officer under section 2(2) of the Act was limited to decide only the actively pending proceedings on the matters which are remanded by the superior courts of the country, whereas he was debarred to make any fresh allotment of the evacuee land. If any earlier allotment of evacuee land got allotted in excess of entitlement or obtained fraudulently, the settlement authorities still have the inbuilt inherent power to adjudicate and determine the existence of element of fraud in allotment of the evacuee land and once the existence of fraud stands established then such fraudulent allotment wears no worth and sanctity in the eyes of law and same necessarily is to be considered as void ab initio/nullity since its inception. Reliance in this regard is placed upon Judgment reported as "Ali Muhammad and others v. The Additional Commissioner (Consolidation) with Powers of Settlement Commissioner (L) and others" (1985 SCMR 1128), relevant portion whereof is reproduced as under:- We may also point out that this Court has held in several cases that the settlement authorities have the power to withdraw the area allotted to a claimant which is in excess of his entitlement or fraud and misrepresentation under section 11 of the Displaced Persons (Land Settlement) Act."
(emphasis supplied)
18. The Chief Settlement Commissioner has a jurisdiction to adjudicate or investigate the genuineness of the evacuee's claim as well as allotment made in his favour and if he finds the existence of any fraud committed in obtaining the allotment of the evacuee land, he has the authority to reverse the said order of allotment. The issue of jurisdiction of the Chief Settlement Commissioner has been settled by the Hon'ble Supreme Court of Pakistan in a Judgment reported as "Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd. and others" (2016 SCMR 222) wherein it has been held that when a matter of allotment of evacuee land is re-opened, the Settlement Authorities have 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 reported 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)
19. It has been observed from the Impugned Order passed by the Board of Revenue/Chief Settlement Commissioner that at maximum it is a remand order, which for the time being neither affects the rights of the parties nor upsets their interests. During inquiry, both sides will get an opportunity to represent and plead their respective case. The Petitioner subject to his title, entitlement and valid transfer would get ample opportunity to defend the claim and allotment in favour of the Respondents Nos.5 and 6. If the allotment order made by the authorities is found to be illegal or based upon fraud, in that eventuality Chief Settlement Commissioner is bound to interfere into illegal allotment obtained through fraud or forgery.
20. In such like matters, the superior Courts normally withhold the exercise of their discretionary jurisdiction to annul the order of an authority, even though the order of the authorities suffers from some jurisdictional defect. Reliance in this regard is placed upon report titled "Shamrooz Khan v.
Muhabbat Khan and another" (1989 SCMR 819), wherein the Hon'ble Supreme Court held: "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."
(emphasis supplied)
21. As has been observed above that through the Impugned Order dated 09.07.1996 no injustice has occasioned to either of the parties as the Deputy Commissioner, Multan has been directed by the Board of Revenue/Chief Settlement Commissioner to inquire and investigate the matter and submit a report. If during inquiry or investigation, it is proved that allotment of land in favour of the Respondents Nos.5 and 6 was fraudulent, unless it is ruled out obviously this Court will not allow them or the Petitioner to retain ill-gotten gains and this Court would not like to exercise a discretionary relief in favour of the Petitioner at this stage as the nature of instant Writ Petition is to foster justice and right a wrong, therefore, by invoking Constitutional jurisdiction of this Court, the Petitioner has to demonstrate that orders sought to be set aside herein have occasioned some injustice to the parties. If they do not work any injustice to any party rather cure a manifest illegality, then extra ordinary jurisdiction cannot be allowed to be invoked. Reliance in this regard is placed upon case laws cited as "Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others" (PLD 1973 Supreme Court 236) and "The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others" (PLD 1975 Supreme Court 331).
22. The litigant approaching this Court under Article 199 of the Constitution, has to demonstrate that there is some gross misreading or non-reading or any jurisdictional defect floating on the surface of the record which in the instant case the Petitioner has failed to demonstrate. In such a situation, the Hon'ble Supreme Court of Pakistan has held in Judgment reported as "Muhammad Hussain Munir and others v. Sikandar and others" (PLD 1974 Supreme Court 139) that it is wholly wrong to consider that the Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full fledged Appeal, which plainly is not the intention of the Constitution makers.
23. Despite hectic efforts and able assistance by the learned counsel for the Petitioner, this Court holds that the Impugned Orders passed by the Member, Board of Revenue/Chief Settlement Commissioner are in consonance with law. The findings contained in the Impugned Orders have been evaluated on the basis of record as well as the facts and circumstances and same do not warrant any interference by this Court in exercise of its Constitutional jurisdiction.
24. In view of what has been discussed and held above, this Court declares that there is no illegality or jurisdictional defect in the Impugned Orders dated 09.07.1996 and 06.05.2000 passed by learned Member (Judicial-III), Board of Revenue/Chief Settlement Commissioner, Punjab and same are upheld and consequently, this Writ Petition is dismissed with no order as to costs.
25. Office is directed to transmit a copy of this Judgment forthwith to the Member (Judicial-HI), Board of Revenue/Chief Settlement Commissioner, Punjab, who is directed to ensure that directions contained in Order dated 09.07.1996 are complied with by the Deputy Commissioner, Multan within a period of three months and a report in this regard is submitted to the Deputy Registrar (Judicial) of this Court.