MUHAMMAD IIAL$$M, C. J.These appeals arise 4om the common judgment of the Lahore High Court, Lahore, dated 0-8-1976 in Writ Petitions Nos. 157-R/68, 239-R/68, 300-R/68, 266-R/70, 267-R/70 and 758-R/78, whereby Writ Petitions Nos. 266-R/70 and 267-R/70 were accepted whereas Writ Petitions Nos. 157-R/68, 239-R/68, 300-R/68 and 758-R/73, were dismissed. However, no appeal has been filed against the judgment in Writ Petition No. 758-R/73.
Leave to appeal was granted to consider the questions: firstly, whether the sales of land, in favour of the contesting respondents, were by fake persons, and obtained by fraudulent means ; and if so whether they could be protected as against the appellants' allotment ; and, secondly, as to the effect of para, 14(1), its proviso and para. 14(2) of the Rural Rehabilitation' and Settlement Scheme qua the alienation in favour of the contesting respondents-vendees on the assumption that the Special Military Court did not, on the conviction of the vendors order for the confiscation of fraudulent allotments and/or property benefits derived therefrom.
The dispute in these appeals is between the alienees from Murad Khan and others on the one hand and the allottees of the land on the other.
The facts which have given rise to these appeals I re that Murad Khan and 15 others conspired together and got registered claims in the names of several Muslims who had not, in fact, migrated for India. One such Muslim was Bagh Dil in whose name claim bearing N~. 44336 was verified comprising 5335 produce-index-units, and land equiv4lent to these units was allotted at Khata No. 7 of R. L. II in village Rakh,Kartarpur, district Sheikhupura. Out of the allotted land, an area of 925 Kanals 18 Marlas was sold to respondent No. 3 in Civil Appeal No. 168 0 983 by someone impersonating himself as Bagh Dil. In Civil Appeal N . 166 of 1983, Murad Khan again fraudulently acting as Special Attor ey of Bagh Dil sold 880 Kanals 2 Marlas out of the allotted land to Sardar Muhammad Siddiq for a sale consideration of Rs. 30,000. In Civil Appeal No. 167 of 1983, one Amir who had not migrated to Pakistan, but his claim was got registered, against which allotment of 1,336 Kanals and 8 Marlas of land in his name at Khata No. 683 of R. L. II in village Kharianwala, District Sheikhupura, was obtained. This land was sold to respondent No. 3, a member of the gang engaged in the nefarious activities along with Murad Khan through a registered sale-deed followed by a mutation in his name in 1958. The unsatisfied units were transferred to village Bhikhi, District Sheikhupura, and there 1624 Kanals were confirmed in his name at Khata No. 900. This land was then sold to respondent No. 2 through a sale-deed. In Civil Appeal No. 145 of 1983, respondent No. 2 succeeded in getting a fake claim verified on the pretext that the original claim forms were either misplaced or lost. One such claim was No. 21119 allegedly filed on behalf of respondent No. 1, which was verified by the Centrall Record office and despatched to village Kbarian--wala, District Sheikhupura, and entered at Khata No. 683 of R. L. II against which 1,336 Kanals and 18 Marlas of land was allotted and confirmed. This land was sold to respondent No. 3 for a sale consideration of Rs. 30,000 followed. By Mutation No. 283 which was sanctioned on 17-2-1958. The remaining units were transferred to village Bhikhi, District Sheikhupura and 1,624 Kanals were got confirmed at Kbata No. 900 of R. L. II in this village on 9th of April, 1958.
This land was also sold to respondent No. 3 by one Rahim acting as Attorney of respondent No. 1.
Upon the promulgation of the Martial Law Regulation No. 49 on 28th November, 1958, Murad Khan submitted declaration in regard to his ill-gotten gains under para. 3 of this Regulation to the Deputy Rehabilita--tion Commissioner, and the allotments made were consequently cancelled by the Assistant Rehabilitation Commissioner (Land) by order dated 17-2-1959. But as Murad Khan failed to account for the benefits received from his ill-gotten gains, he was prosecuted along with his accomplices under para. 13 of the said Regulation and they were convicted and sen.7tenced to various terms of imprisonments, fine and confiscation of the following properties obtained fraudulently
1. R. L. II No. 2.26 of Sahoki Mallian.
2. R. L. II No. 35 of Tibbi Hira.
3. R. L. Nos. 1131 and 182 of Kahar Gill.
4. R. L. No. 3?:3/1 of Madar.
5. R. L. II No. 7 of Rakh Kartarpur.
6. R. L. II Nb.~683 of Kharianwala .
7. R. L. 11 No ` 900 of Bhikhi,
8. R. L. II No'. 327 of Nadar.
9. R. L. II No. 27 of Leel.
10. R. L. 73 oJf Moujoki Mallian. .
However, the Martial Law Administator, Zone 'H', while confirming the sentences by, letter dated 23- 5-1961, excluded the following five Khatas from confiscatiorn I
1. R. L. 1'I No. 323/1 of Madar.
2. R. L. '11 No. 7 of Rakh Kartarpur.
3. R. L. 11 No. 683 of Kharianwala.
4. R. L. II No. 900 of Bhikhi.
5. R. L. II No. 327 of Nadar.
These properties were excluded from the operation of the order of confiscation as they stood in the names of the alienees other than the accused persons. However, by another letter, dated 12th of July, 1961, issued by Martial Law Administrator, Zone 'B', the contents of the letter dated 23-5-1961 were clarified as under "The alienated land by the bogus allottees i. e. accused Murad Khan and others will no doubt continue to be the evacuee property even after such alienations. Such alienations are subject to the provisions contained in clause 14 Chapter II, Part I of the West Pakistan Rehabi--litation and Settlement Scheme wherein it has been provided that if the allottee alienator is subsequently found to have obtained the allot--ment of land by fraud or by misrepresentation the alienation will be deemed to be void.
(2) It is a fact that the property was sold after obtaining no-objection certificate from the Custodian but the claim was bogus and as such the sale was also bogus as such they cannot be allowed to retain the possession of the land because the title not vests in the Custodian of the Evacuee Property, who are responsible for its further disposal."
Thereafter, Phool Muhammad Khan, Abdul Haq and Sardar Muhammad Siddique herein parties to the appeals again represented to the Martial Law Administrator, Zone 'B' for reconsideration of their cases "so as to allow them to retain the lands purchased by them bona fide". They were informed by letter dated 7-9-1961 that the contents of letter dated 23-5-1961 have been wrongly construed by them and that its true import has been stated in the letter, dated 12th of July, 1961. However, during the interregnum on the receipt of the letter dated 23-5-1961, the District Magistrate exercising the powers of the Deputy Settlement Commis--sioner restored the names of the alienees in the Khata, but again on the receipt of the letter dated 12th of July, 1961, the entries were reversed, as a result of the cancellation of allotments. Phool Muhammad Khan next challenged this order in appeal before the Additional Settlement Commissioner on the ground that the Martial Law Administrator, Zone 'B', had exempted the five Khatas from the order of confiscation, therefore, the lands purchased by him could not be cancelled. This appeal was accepted on 13th of April, 1963 and the land was again restored in his name in the Khata.
After the conviction of Murad Khan, the resumed land was allotted to the appellants in these appeals. These allottees challenged the order of the Additional Settlement Commissioner passed in appeal filed by Phool Muhammad Khan before the Settlement Commissioner in revision and during the pendency of the revision the Judge Advocate-General, G. H. Q., Rawalpindi again notified by his letter dated 18th May, 1963, addressed to the Chief Settlement and Rehabilitation Commissioner that the above order of the Additional Settlement Commissioner should be set aside as he had no power to interfere with the order of the Special Military Court confiscating the property in favour of the State. But as the revisional powers of the Chief Settlement Commissioner were taken away, the matter was sent to the Settlement Commissioner for deciding it as a revision under the relevant provisions of law. Abdul Haq, one of the parties in the proceedings, filed an application and prayed that it may be ascertained from the office of the Judge Advocate-General, G. H. Q., Rawalpindi or Head--quarter No. 1, Corpse, Kharian Cantt., whether the order of confirmation conveyed by letter dated 23-5-1961 was further reviewed or modified by any higher Martial Law Authority. A reference was made on the prayer being granted to the Judge Advocate- General who by letter dated 12-1-1966 intimated that the position was the same as stated in the letter dated 12th of July, 1961, namely, that the land obtained as against bogus claims whether alienated or not stood confiscated. But the Adjutant-General, G. H. Q., Rawalpindi. Intimated a different stand by letter dated 12th of December, 1967, addressed to the Chief Settlement and Rehabilitation Commissioner. This intimation was sent in reply to the petition addressed to the Commander-in-Chief, Armed Forces, by Sardar Muhammad Siddiq, Abdul Hamid, Fazal Karim, Rana Phool Muhammad Khan, in relation to the order . Of the Martial Law Administrator while confirming the order of confiscation that the purport of the exclusion of the Kbatas was to take them out from the ambit of confiscation. However, at the end it was stated that as the Commander-in-Chief was no longer competent to adjudicate upon such matters in view of the Martial Law Orders (Repealed) of 1962, having been repealed, the decision of the matter undoubtedly rested with the authority competent in law to adjudicate upon those matters.
The Settlement Commissioner by order dated 12-1-1968 confirmed the order of the Additional Settlement Commissioner and thus restored the land to the alienees in compliance with the order of the Martial Law Administrator dated 23-5-1961 as the punishment of confiscation was awarded to Murad Khan and not to the persons who were bona fide purchasers of land for consideration. It is this order which was challenged in the writ petitions by the appellants-allottees on the grounds amongst others that the land having been resumed became a part of the compensation pool and could only be disposed of in accordance with the relevant provisions of the Land Settlement Act and not otherwise.
In Civil Appeal No. 168 of 1983, the appellants-allottees on the resumption of the land were allotted land' at Khata No. 7 of R. L. II in village Rakh Kartarpur on 19-7-1962. They filed Writ Petition No. 239-R of 1968, out of which this appeal arises as they were adversely affected by the order passed by the Settlement Commissioner dated 12-1-1968. In Appeal No. 167 of 1983, Noor Muhammad and others were also allotted land in village Kharianwala which was later confirmed, who also stood adversely affected by the order of the Settlement Commissioner dated 12-1-1968 as they were deprived of their allotment. In Appeal No. 145 of 19.83, the land upon resumption was allotted and confirmed in favour of the appellant at Khata No. 40 of R. L. II in village Bhikhi on 14-1-1961. The appellants. Also stood adversely affected by the order of the Settlement Commissioner. In Civil Appeal No. 166 of 1983, the resumed land was allotted to the appellants at Khata No. 7 of R. L. II in village Rakh Kartarpur. They too stood adversely affected by the order of the Settlement Commissioner. In Civil Appeal No. 169 of 1983, the land of Sardar Muhammad Siddique entered at Khata No. 7 of R. L. II in village Rakh Kartarpur measuring 153 Kanals and 10 Marlas on its cancellation was allotted to the appellants. In this appeal the order of the Assistant Rehabilitation Commissioner (Land) was set.
Aside by the Additional Settlement Commissioner on 13-4-1983, and the land in his name was allowed to stand as entered at the Khata. After the passing of the order, the Deputy Settlement Commissioner by order dated 5-4-1964 cancelled the allotment of the land entered in the names of the appellants, against which they filed an appeal which was accepted on 16-9-1969, and the revision petition filed against that order by Sardar Muhammad Siddiquo was rejected by the Settlement Commissioner by his order dated 25-10-1969.
The validity of that order was challenged in the writ petition.
The five excluded Khatas by order dated 23-5-1961. Related to the lands alienated by Murad Khan and others and the question arose as to whether the alienations were saved by para. 7 of the President's Order No. 26 of 1962 on its promulgation on 6th of June, 1962, before the enforcement of the Constitution of 1962.
The High Court held that the letters dated 12-7-1961 and 7-9-1961 could not, in any manner, alter or modify the contents of the letter dated 23-5-1961 which modified/reviewed the order of confiscation as it was protected by para. 7 of the President's Order No. 26 of 1962. This para. Reads as under :- "No Court and, except as provided by this Order, no other authority shall call in question the validity, legality or propriety of anything done or any action or proceeding taken in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period."
The rights of the alienees in the excluded Khatas, therefore, could not be adjudicated upon as it was a past and closed transaction and fell within the dictum laid down by this Court in Muhammad Khan v. Border Allotment Committee (PLD 1965 SC 623This being so this land could not be the subject-matter of any subsequent allotments to the appellants/claim-holders.
Martial Law Regulation No. 49 was promulgated on 28th of December, 1958. There is no dispute that Murad Khan had filed the declaration under para. 3 of the Regulation to the Deputy Settlement Commissioner as a result of which the A. R. C. (Land) cancelled the allotments in his favour by order dated 17-2-1959. From that date onwards the land assumed the status of evacuee property and vested in the Custodian. Murad Khan was prosecuted and convicted for not surrendering the benefits of the sales under para. 13 of the s4id Regulation which provides for "the confiscation of either the whole or a part of his property". Under this para. It was his personal property which could be the subject-matter of confiscation. Clearly, therefore, none of the Khatas excluded from order of confiscation could be regarded as "his property" as long before that date they assumed the status of evacuee property.
In this connection it may be mentioned that not only para. 3 clause (ii) of Martial Law Regulation provided that it shall be treated as an evacuee property and also to have vested in the Custodian, but additionally also the proviso to para. 14 of Chapter IV of the Rehabilitation and Settlement Scheme, which was a part of the Displaced Persons (Land Settlement) Act, 1958, in clear terms, stated that the allotment which was the subject--matter of fraud or misrepresentation would be deemed to be void and the land shall continue to be evacuee property even after its alienation.
The conclusive part of the confiscation order is that part which provides for the confiscation of the property and not that which relates to the exclusion of the Khatas as by no stretch of imagination such Khatas could be treated as being the property of Murad Khan so as to receive protection either under para. 7 of President's Order 26 of 1962 or Article 250 of the 1962 Constitution. Such lands continued to have the status of evacuee property from the date of declaration and their status was not altered upon being excluded from the order of confiscation.
The case of Muhammad Khan v. Border Allotment Committee (supra), is distinguishable on facts as in the instant appeals, it is not the order modifying or reviewing the order of confiscation which is challenged but the rights of the alienees under the excluded Khatas which was not Murad Khan's property as that had no nexus with the order of confiscation.
Both the Settlement Commissioner and the High Court fell into an error to give protection to the alienees under the excluded Khatas who were not protected by reason of the exclusion of these Khatas from the order of confiscation, and the moreso as the status of the property continued to remain evacuee upon the declaration made by Murad Khan in this behalf under Martial Law Regulation No. 49.
For the reasons given above, the judgment of the High Court is set aside and the appeals are allowed, but there will be no order as to costs.