This writ petition arises out of a mukhbari application filed by Respondent No.2 against Mst.
Nehmatey, the predecessor-in-interest of Petitioners Nos.1 & 2, in respect of the land allotted to her in various villages in lieu of her entitlement as mentioned in the succeeding para.
2. The facts of this case, in brief, are that Mst. Nehmatey was a claimant displaced person, whose claim was verified by the Central Record Office on 11-6-1952 of 942 bighas 14 biswas equivalent to 17458 P.I.Units. Against this entitlement the following allotments were made in her name:-- S.No.Place of allotment Date of allotment.Units confirmed
1. Chak no.32/1-AL Tehsil Okara 26-3-53 1901 2.Nank Singh-Wala, Tehsil Dipalpur, District Shiwal. 23-8-55 2535 3.Jeithpur, Tehsil Depalpur District Sahiwal. 23-8-55 191 4.Joyanwala, Tehsil Ferozenwala District Sheikhupura. 7-12-64 1027 5.Pindi Ratan Singh, Tehsil Ferozenwala District Sheikhupura.7-12-64 1458 6.Chak No. 19/GB, Tehsil Nankana, District Sheikhupura. 26-8-72 2687 Total 9899
3. Petitioners Nos. 1 & 2 are the daughters of the allottee. Out of the land allotted to her in Chak No. 32/1-AL she gifted an area measuring about 15 1/2 acres to them through deed dated 8.2.1960.
(Annex. `A'). The remaining land in this Chak, was alienated by her in favour of Petitioners Nos. 3 & 4 through sale deed dated 13-10-1959. As a matter of fact, she disposed of by way of sale, the entire land allotted to her, in favour of various persons, who were not impleaded as party either in the mukhbari application or before this Court. As is borne out from the mukhbari application, copy whereof has been placed on the file, the allegation against the allottee was that the land abandoned by her in village Godda number "hadbest" 23, Nabha State was to be verified in terms of P.I.Units on the basis of Kacha Bigha, whereas it has been verified treating the land as pacca bighas. It was averred that due to this wrong verification she procured land in excess of her entitlement by more than three times.
4. The application was heard by Respondent No. 1. In support of the mukhbari application respondent No. 2 who is now represented by his legal representatives, relied on letter No. 8166-M(L) dated 2-10-1951 issued from the Deputy Rehabilitation Commissioner (Land) and under Secretary to the Financial Commissioner Rehabilitation and Colonies, Punjab to all Deputy Commissioners in the Province, wherein it was directed that on re-examination of jamabandis Nabha State it was ascertained that bighas in this State were kacha and not pacca, the area of which was equal to 5/24 of an English acre. The direction given under this memorandum was that the former units of length should be adopted for the purposes of verification of the claims. Reliance was also placed on the P.I. Units jantani which showed that the bighas in the Nabha State were kacha and not pacca. On the other hand he petitioners relied on the special jamabandi for village Godda, Tehsil Bawal Nabha State, and the statement of Munshi Noor Muhammad Patwari, Central Record Office, to show that on the title page of the jamabandi it was written "per tarfi bigha pukhta". It was on the basis of this entry that the petitioners contended before the Settlement Commissioner that they were entitled to have their claim verified on the basis of pukhta bigha. The mukhbari application was filed by Respondent No. 2 through his attorney. In this respect the petitioner's objection was that on the strength of the deed of power-of-attorney, relied upon by the respondent; the attorney was not competent to file the application.
5. The learned Settlement Commissioner, however turned down the petitioners' objection regarding institution of the application by the respondents' attorney. The fact that respondent No. 2 had himself been appearing before him and also got his statement recorded, weighed with him, in upholding the maintainability of the application. Regarding merits of the case, by his order dated 4-4-1977 he was of the view that:-- "My conclusions after seeing the special jamabandi of village Godda are that the assessment of land revenue has been converted into pacca bighas on the preface of the jamabandi, but in the body of the special jamabandi each and every khewat is assessed against kacha bighas for, example khata No 6 measuring 10 bighas rosely barani is assessed to land revenue of rupees 2 annas 4 and pie 9 but when converted into "per tarfi bigha pukhta" its assessment comes to 11 annas 6 pie because 10 bighas kham is near about equal to 3 bighas pukhta. This does not mean that bighas of this village are pukhta. It is only for the calculation of land revenue that is why to the preface of the jamabandi, it is written. Secondly this version gets further support from the P.I.Units Jantri in which it has clearly been shown the bighas of Nabha State as Kham bighas. Thirdly letter No. 8166-R (1) issued by the Financial Commissioner's Office dated 2-2.1951 has left no doubt that the bighas of whole Nabha State are kham ones.
(i) Mauza Nanak Singhwala, Tehsil Depalpur2535 units
(ii) Jaithpur Tehsil Depalpur191 units
(iii) Chak No. 32/1-AL Tehsil Okara.1901 units Total462 7 units This land was ordered to be allotted to respondent No. 2.t .It appears that respondent No. 3 was the second informer. In this connection, the learned Settlement Commissioner directed that if any area was left after adjustment of the claim of respondent No. 2. That would be allotted to respondent No.
3. The order dated 4-4-1977 has `been called in question under Article 199 of the Constitution.
6. The learned counsel for the petitioners argued that under para 29 of the Rehabilitation and Settlement Scheme, the petitioners' predecessor was entitled to have her rights to be determined in accordance with the entries in the jamabandi. His submission was that the special jamabandi for the village where her land was situated, on its title page bore the entry"per tarfi bigha pukhta" and that this jamabandi did not embody any entry to the effect, that the measurement of the land was based on "kham" bighas. It Was argued that respondent No. 1 had no jurisdiction to interpret the special jamabandi and that this power could only be exercised by the Officer on Special Duty, Central Record Office. In support of this submission, reliance was placed by the learned counsel on Syed Raunaq A.I etc. v. Chief Settlement Commissioner and others. (PLD 1973 S.C. 230). It was also contended that the settlement of Bawal Nizamat was made in accordance with the British Revenue law, on the same pattern as was done in the settled areas of the British India. The learned counsel also urged that the entitlement of other claimants of Bawal Tehsil was determined by the department, on the basis of pacca bighas and the petitioners alone were singled out.
7. I have considered these submissions of the petitioner's learned counsel in the light of the record.
Para 29 of Rehabilitation Settlement Scheme lays down:-- "Rights under the Rehabilitation Settlement Scheme should tie given to a claimant in accordance with the entries in the special jamabandis received from the prescribed area of India."
The object of this paragraph is that the total area and the classification of the land left by a claimant, in India should be ascertained on the basis of the entries of the special jamabandis.
There is no dispute regarding the classification of the allottee's land or its area which was verified as 942 bighas arid 14 biswa s. The controversy however is on the pont as to whether the P.1.Units of this land should have been calculated on the basis of "kacha" bighas and `pacca' bighas. The entries in jamabandis are well known. These only relate to the particulars of the land such as khewat/khatuni/khasra numbers; name of the owner and the cultivator, total area, classification and the land revenue assessed thereon. Whether the land is to be measured as kacha bighas or pacca bighas, is not the part of the entries made in a jamabandi. The petitioners, therefore, cannot take advantage of the entry " per tarfi bigha pukhta" made on the first page of the special jamabandi. The learned Settlement Commissioner, in the impugned order has held that this entry only relates to the calculation of land revenue and he has given cogent reasons for coming to this conclusion. I have no reason to differ with him. The objection that the impugned order is violative of para 29 of the Rehabilitation Settlement Scheme is without any merit.
8. As observed above the area and the classification of the land abandoned in India by a displaced person, are to be gathered from the special jamabandi. This function is performed by the Central Record Room authorities and the area verified by them. The calculation of the Produce Index Units on the basis of the area so verified is the job of the field staff of the Land Settlement Department.
The calculation is done by them in accordance with the Produce Index Booklet published by the Government. In this respect the learned Settlement Commissioner referred to the Produce index Units Jantari which contained the details of kacha and pacca bighas not only for the Nabha State but for the whole of East Punjab according to which in the entire Nabha State the bighas were kacha. It therefore, cannot be said that the learned Settlement Commissioner overstepped his jurisdiction. There was no question of interpreting the special jamabandi. The matter was merely the determination of the Produce Index Units for the land verified by the Central Record Room in the name of the petitioners predecessor-in-interest. In the circumstances of the case, the reliance on Raunaq A.I's case by the petitioners' learned counsel is misplaced.
9. There is no firm footing for the argument that before partitioning of India, the settlement of Bawal Tehsil of Nabha state was made according to the scale applied in the British India. The "Punjab States Gazettes" Volume XVII-A of 1904 referred to by the petitioners' learned counsel, at page 376 only provides that the settlement of Bawal Nizamat was conducted on the lines of the British Revenue Laws of 1884 and record of rights prepared as in British Districts. There is, however, nothing on the record-to-suggest that after the merger of Bawal Tehsil in the Nabha State, it continued to be governed by the British Land Revenue Laws and the pattern of measurement of land applied in Nabha State was not applied thereto. The preponderance of view is that in Nabha State the bighas were kacha and not pacca. It will be useful to reproduce here under an extract from the Punjab Government's letter No. 8166-M(L) dated 2nd October, J951referred to in the impugned order:-- "On re-examination of jamabandis of Nabha State it has now been ascertained that bighas in this State were kacha and not pacca; the area of which is equal to 5/24 of an English acre."
It is needless to emphasise that this policy letter was issued in supersession of all previous instructions and followed throughout the province. If in violation of this memorandum in some stray cases the produce index units for the land situate in Nabha State were calculated by the field staff of the department, according to pacca bighas, that can hardly be considered a valid ground for interference with the impugned order.
10. It was next argued that the application was not properly instituted as it was filed through an attorney who under the deed of power-of-attorney dated 1-4-1977 (Annexure `H') had no authority to commence proceedings under sections 10/11 of the Act. To highlight the rule of construction of a deed of power-of---attorney, the learned counsel referred to the Federation of Pakistan v. Pioneer Bank Ltd. (PLD 1958 Dacca 535) wherein the following observation of the Privy Council in Bank of Bengal v: Ramanathan Chetty (I.L.R. 43 Ca1.527) were quoted with approval: "Where an act purporting to be done under a power-of-attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four concerns of the instrument either in express terms or by necessary implication."
11. On examination of the deed dated 1-4-1977 I find that it empowered the attorney to conduct cases on behalf of respondent No. 2 in the Rehabilitation and Settlement Department and to file applications of all kinds. I am not unaware of the case laying down that a power-of -attorney should be construed strictly, but I feel that on a fair construction of the deed, the attorney's authority to file and prosecute the application in question, before the Settlement Authorities, can reasonably be spelt out from it. Furthermore, the purpose of mukhbari application is only to impart information to the department about the bogus and fraudulent allotment of land and the Settlement Authority on whom the fraud is practised by the allottee, is also a party to the proceedings. The Chief Settlement Commissioner at the relevant time had suo motu powers to take cognizance of the case and cancel the allotment, on proof of commission of fraud. In the instant case the information given to the Settlement Commissioner through the mukhbari application was found correct. The excess land therefore, had to be cancelled. Whether or not the land so cancelled is allotted to respondent No.2 is not the concern of the petitioners. It is also significant that respondent No. 2 has been himself appearing before the Settlement Commissioner and pursuing the case. He also got his statement recorded. For all these reasons I do not think that the petitioners can be permitted to retain the excess land and the mukhbari application thrown out on the ground that it was not properly instituted.
12. The impugned order was also assailed on the plea of bias. The submission was that respondent No. 2 was the Member of National Assembly and associated with the then party in power namely Pakistan Peoples Party; the Settlement Commissioner was influenced by him and did not act impartially, which vitiated the entire proceedings. This objection is also not sustainable. There is no evidence on the file to establish that the Settlement Commissioner was actuated by favouritism towards respondent No. 2 which disqualified him to hold the enquiry. The petitioners learned counsel himself disclosed during arguments that they moved an application before the Chief Settlement Commissioner for transfer of the case, which was rejected. It thus follows that the learned Chief Settlement Commissioner also did not find any substance in the allegation of bias.
13. It was next argued on behalf of the petitioner that their predecessor-in---interest did not commit any fraud and that it was merely a case of calculation of Produce Index Units; sections 10/11 of the Act were therefore, not attracted. It is to be noticed that the allottee could not have been unaware of real state of affairs that in Nabha State the bighas were kacha and not pacca but she procured the excess land on the basis of pacca bighas. The fraudulent and bogus nature of her allotment is thus obvious.
14. It was then obliquely urged that petitioners Nos. 3 & 4 are bona fide purchasers for valuable consideration; the land held by them could not be taken over. So far as this plea is concerned, there is nothing on the record to suggest that before purchasing the land they made any enquiry regarding the vendees` title. This plea was also not raised by them before the tribunal below and cannot be permitted to be urged for the first time before the High Court.
15. The petitioners' learned counsel lastly argued that they should have been given the choice to retain the land falling within the entitlement of the allottee. I think in such like case there is no question of choice, the land secured last and found in excess of the allottees' entitlement has got to be cancelled and resumed.
16. All the submissions of the petitioners' having failed their learned counsel as a last resort contended that even in accordance with Memorandum No.8166--M(L) dated 2-10-1951, treating the land as kacha bighas, the Produce Index Units were not correctly calculated. If this is so the petitioners should agitate the matter before the learned Settlement Commissioner, who shall examine this issue.
Obviously, according to the above definition, the land does not necessarily mean the tangible property. It covers different rights like the occupancy rights, right to receive rent etc.
7. It is proved by documentary evidence that full price for the land in Khasra Nos. 1 to 13 of square No. 100 measuring 100 Kanals and land in Khasra Nos. 14 to 25 in square No. 110 measuring 97 kanals and 16 marlas, had been paid by the vendor. Thus, they became: full owners in view of the rule laid down in Ilam Din v. Muhammad Din PLD 1964 SC 842 and A.I Muhammad and others v. Chief Settlement & Rehabilitation Commissioner and others 1984 SCMR 94. It was held in both the precedents that the proprietary title passes on payment of full price of the land. Hence, the sale made in respect of the said land was clearly pre-emptiable.
8. The remaining land measuring 490 kanals and 8 marlas falls in second category in respect of which 1/10th price had been deposited. By virtue of the Memo. No. 6432-74/5217-CI, dated 30-10- 1974 (Ex. P.32) the Govt. Of the Punjab decided to waive the condition of self-cultivation by an allottee of land under the Islamabad Oustees Scheme, meaning there by that the allottees could get the land cultivated through tenants and receive rent from them. Thus, the right to receive rent from the tenants enjoyed by the allottees under the Scheme was covered by the definition of agricultural land given under the Punjab Alicnation of Land Act and was thus pre-emptiable. The appellants had filed s he suit for pre-empting the entire land though it fell under two distinct categories; one in respect of which the entire price had been paid and the other in respect of which only 1/10th of the price had been deposited. However, for purposes of law the said distinction made no difference because the pre-emptors had come forward to take the whole bargain.
9. The vendor Zahid Jan had originally purchased the land from the allottees under the Islamabad Oustees Scheme who held the same under a permanent scheme for agricultural purposes. Zahid Jan could not alienate his rights except with the permission of the Commissioner under section 19 of the Colonization of Government Lands Act. Document Ex. D. 1 clearly proved that the Commissioner accorded the requisite sanction for sale of the disputed land on 22-11-1974. The mere fact that the Provincial Government continued to be shown as owner in the ownership column of document Ex. P-4 (mutation of sale No. 372) and Ex. P-5 (khasra girdawari) was not sufficient to prove that transfer of rights had taken place and that the sale was not pre-emptiable.
Admittedly full price had been paid in respect of 197 kanals and 16 marlas of land, the legal title had passed to the allottees and thereafter to Zahid Jan, the vendor. The Revenue authorities bring about a change in the ownership column only after the execution of the conveyance deed. As regards the remaining land of 419 Kanals and S marlas only 1/10th of the price had been paid and rights in respect of the said land were sold, therefore, no change could be brought about in the ownership column of the revenue papers.
10. In order to maintain the suit for pre-emption it is not essential in all cases to show that the property is tangible property. Even abstract rights like occupancy tenancy, Muqarridari rights, right to cut trees, or rights to receive on usufructuary or "real property " andpre-emtible. Only rights of a mortagagee whether usufructuary or not have been excluded from the definition of "agricultural land" given in the Punjab pre-emption Act. The pre-emptor merely seeks substitutionin place of the vendor. Whatever rights are transferred to the vendees go to the pre-emptor. In the case of Ghulam Khan v. Dulla and another (AIR 1944 Lah. 181), it was held that Muqarridari rights were benefits arising out of 1 hence "village immovable property" and pre-emptiable under the lawrights were held to be pre-emptiable in the case of Fateh Muhammad and 5 others v. Mst. Nazir Begum (PLD 1985 Lah. 85). In the case of Jalla and others v. Nauranga and others (AIR 1950 Lah. 62), a Division Bench of the Lahore High Court had held that the right of a "ghair Dakhilkar Naqdi Guzar" as almost identical with that of a Muqarridar. He could keep his own sub--tenants and receive from them half the Batai like a landlord. The right of the "ghair Dakhilkar Naqdi guzar" was held to be "village immovable property". In A Haji Sultan Muhammad and another v. Muhammad Siddiq (PLD 1973 SC 347), it was held that allottees' rights were "real property" and pre-emptiable under the law The allottees have a direct interest in the land and sale made by them even beforebecoming full owners was pre-emptiable. The same view was expressed in Syed Abdur Rashid v. Pakistan through the Secretary, Ministry of Refugees and Rehabilitation, Karachi and other (PLD 1962 SC 42), Babu A.I Muhammad v. Mahmood-ul-Hassan (PLD 1968 Lah. 329) and Radha Kishan and others v. Fakharuddin and others (AIR 1934 Lah. 143).
11. Now I come to the question as to whether the permission granted under section 19 was specifically in favour of a certain person and that the pre-emptor could not be allowed to be substituted in his place as held in Majeed Ahmad etc. Yousaf another (1987 CLC 1891). No doubt, the Commissioner accords sanction for sale of the colony land or the rights of the allottees in favour of a certain person but it does not mean that the permission accorded makes the law of pre-emption inoperative. The Commissioner exercise his powers under one law an, thereafter cannot resist substitution of the specific vendee by a successful pre emptor under another law.
There is nothing in the Colonization of Government Lands Act to show that the sales made with permission of the Commissioner under section 19 of the Colonization of Government Lands Act were exempt from a suit for pre-emption. In case of Majeed Ahmad etc. v. Yousaf and another (1987 CLC 1891), a comparison was made between the tenancy under the Colonization of Government Lands Act and the occupancy tenancy under the Punjab Tenancy Act, 1887. It was held that the sale of an occupancy tenancy was pre-emptiable but not the sale of tenancy rights held under Act V of 1912. It was further held that the sale of tenancy rights, though made with permission of the Collector under section 19 of the Act, was not pre-- emptiable. A passage from the said judgment maybe reproduced with advantage:-- "The tenancy rights under Act V of 1912 are held under the statement of conditions, issued under section 10 thereof. Such rights are a grant by the Government and it is for the Government to grant the same to such a person whom it finds eligible for the same or entitled for the same. The Government as such has a right to accept a person as its tenant, and similarly it has a right to refuse to accept a person as its tenant. This is why a restriction on a sale of tenancy rights has been placed under section 19 of the Act. No sale can be made without the permission of the Collector and a sale made without the same is void. The reason is that the Government wants that the tenancy should remain with the person who is eligible or entitled to get and retain the said tenancy and who can fulfil the terms and conditions laid by the Government. Permission under section 19 as such is not automatic and similarly the permission under section 19 ibid is not general but is specific for the person for whom it is made. Accordingly, the Collector has to give the permission not only for a sale but has to give the permission for sale m favour of a specific person.
The permission so granted holds good and enures for the benefit of the person in whose favour the permission is given or the person whom the Government accepts as a tenant in place of the original tenant. The permission in the present case, therefore, held good in favour of the appellant and could not hold good for any pre-emptor and so to say for respondent No. 1. In other words, the permission under section 19 ibid is only for and in favour of the appellant and its benefit cannot 'pass on to respondent No. 1 as there is no such permission in his favour. A vendee cannot purchase such rights without such permission. Similarly a pre--emptor cannot step into the shoes of a vendee without such permission. We cannot impose a tenant on the Government by any means including by the passage of a decree for pre-emption. On that account, too, no, person, howsoever superior right of pre-emption he may possess, can pre-empt the sale of tenancy rights held under Act V of 1912."
With due respect I am not inclined to agree with the view expressed in Majeed's case. The view that a pre-emptor cannot step into the shoes of a vendee without permission of the Collector, with due deference, is not based on any provision of the law. The right of the pre-emptor is merely that of substitution and not of re-purchase so as to attract the provisions of section 19 of the Act. The pre- emptor can definitely replace the specific person in whose favour permission to sell was granted by the Commissioner. The overriding consideration in such cases is not the liking or choice of the Government but enforcement of the right guaranteed or secured to a person under the law. The choice of the Government for sale of colony lands has its own limits. The choice made by the Government is final as long as it is not disturbed by resort to the law of pre-emption. If a person enjoying a right of pre-emption chooses to disturb the said choice there is nothing in the law to stop him from doing so. The withdrawal of the Notification dated 28-2-1944 in the year 1973 is a clear pointer that after the said withdrawal, suits for pre-emption could be competently filed in respect of sale of colony lands.
12. A similar question arose in the case of Muhammad Ibrahim v. Hawaldar Muhammad Ilyas and 3 others (1983 CLC 963). The said case pertained to sale of agricultural land allotted under the Martial Law Regulation No. 9 of 1959 about the Border Area. It was held as under:- "It is an established proposition of law that right of pre-emption is not a right of re-purchase but it is a right of substitution and a successful pre--emptor is substituted in place of the purchaser. In this view of the matter, prohibition on the sale or purchase of agricultural land in border area by an allottee under Martial Law Regulation No. 9 ibid does not operate against a pre-emptor who exercises a right under a different law, viz. The Pre-emption Act. In Abdul Ghafoor and others v.
Muhammad Ismail (PLD 1982 SC 364) with reference to restriction contained in paragraph 24 of the Land Reforms Regulation about the sale of land, it has been held that it is more a restriction on the vendor than the vendee. It has further been held that the restriction contained in sub-para. (4) of Paragraph 24 of the Land Reforms Regulation is about the alienations by sale, mortgage, gift or otherwise and a pre-emption decree does not fall For the foregoing reasons this petition is found without any merits and is therefore, dismissed leaving the parties to bear their own costs.