This judgment will dispose of two connected petitions (Writ Petition No. 4/R of 1988), as common questions of law and facts are involved in both these petitions.
2. The necessary facts briefly stated are that Mst. Hasib-un-Nisa widow of Abdur Rehman's was temporarily allotted land measuring 1,589 kanals 13 marlas of village Manak, Tehsil Narowal, District Sialkot. The claim being from non---agreed area, it underwent scrutiny under M L Rs 84 and 89 and the claim was ultimately verified for 53 O.P.I. Units on 11-10-1961. She after reduction of her entitlment under M.L.Rs. 84 and 89 assertedly applied for purchasing the excess land. There is some dispute, as to whether the lady could exercise the option of purchase or not. However, the Border Area Committee, vide its order dated 12-1-1966, came to the conclusion that since the area was only proposed, she was not entitled to exercise the option to purchase the area. She was thus allowed to retain the land to the extent of 806 Kanals and 4 Marlas at Khata No.1 in accordance with her reverified entitlement and the rest of the land measuring 783 kanals 9 marlas was cancelled from her name. This order was challenged through Constitutional petition (W.P. 879/1966) in which one Hussain Bakhsh, was impleaded as respondent No.2, as he was allotted a portion of the land so cancelled. It was stated in para 9 of the aforesaid petition, that he had sold the land to one Karim Nawaz, but the latter was not impleaded as a party. The writ petition was dismissed in default but restored and again was dismissed in default. In an application for restoration, it was brought to the notice of the Court that Hussain Bakhsh had died before the filing of the writ petition and this assertion was not disputed by the learned counsel for Hasib-un Nisa: The application for restoration was dismissed vide order dated 22-5-1974. Thereafter, LY.A No.60 of 1974 was filed but the same was disposed of with the agreement of the parties, in the terms as under.
"Out of the land cancelled measuring 783 kanals 9 marlas, by the Border Area Committee on 12-1- 1966, if any land has been allotted and the allotment has finally been maintained, then Mst. Hasib- un Nisa or her heirs would have no right to that land. Other land which has not been allotted to anybody nor disposed of by now, will vest in Mst. Hasib-un--Nisa or her legal heirs who have already deposited the purchase price."
2. The other relevant facts are, that after cancellation order dated 12-1--1966, land measuring 66 kanals 6 marlas was allotted to one D.1 Mir son of Kalu against his verified claim vide order dated 14-3-1966. Nazar Muhammad and others (Petitioners in W.P. 4-R/87) purchased this land from D.1 Mir on 24-10--1974. Respondents Nos.3 to 14 who are successors-in-interest of Mst. Hasib-un-Nisa, applied to the Deputy Commissioner Sialkot on 30-3-1986 for working out the land to be retained by them on payment of the requisite price in implementation of the order dated 11-2-1986 of the High Court passed in L.P.A. No. 6 of 1974. The Deputy Commissioner vide order dated 16-6-1987 declared the allotments made by Border Area Committee to D.1 Mir son of Kalu, Hussain Bakhsh, Abdul Latif son of Munshi, Sepoy Rashid Khan illegal and void and directed that price at the prescribed rate for the entire land in question be received from the respondent and that the Revenue Record be corrected by omitting entries existing in favour of the. Allottees. This order was challenged in both these petitions by the respective petitioners, as they claim to be the purchasers from D.1 Mir and Hussain Bakhsh, the allottee.
3. Learned counsel for the petitioners argued that the order dated 16-6--1987 of the Collector is without lawful authority and illegal as the Collector has no jurisdiction under any law to scrutinize the allotments made by the Border Area Committee and to declare them illegal or ineffective in law that the judgment passed in L.P.A.No. 60 of 1974 neither directed nor authorised him to hold scrutiny of the allotments made nor on the basis of the application dated 30-3-1986. Deputy Commissioner in the capacity of Collector or even as Notified Officer could set at naught the allotments made by the Border Area Committee, and that the impugned order is otherwise arbitrary as it proceeds on the basis that original R.L. II is not available whereas the fact is that the original R.L. II is available and has been produced before this Court, which clearly established the allotments made to the predecessor-in-interest of the petitioners as well as others. '
4. Learned counsel for respondents Nos. 3 to 14 in reply raised the preliminary objections to the effect that both the petitions are liable to be dismissed on account of laches and delay, that both these petitions were filed against a dead person and as such these are not maintainable, and that Karim Nawaz petitioner has no locus standi to maintain the petition as the sale made to him is under challenge. It was explained that the legal representatives of Hussain Bakhsh from whom Karim Nawaz assertedly purchased the land have taken proceedings for cancelling the mutation of sale on the plea that Hussain Bakhsh, their father had not sold the land in dispute, and that after long litigation, which also came before the High Court in Constitution petition the matter on remand is yet to be decided finally by the Board of Revenue, that Col. Per Zai, who is prosecuting this petition as an attorney of Karim Nawaz had made the allotment in the capacity of Chairman of the Border Area Committee to Hussain Bakhsh and then the land so allotted was transferred through ostensible sale to Karim Nawaz. It was argued that allotment was made by Col. Pir Zai for his own benefit and as the name of Hussain Bakhsh was merely used a cloak the petition, which has been filed for the benefit of Col. Pir Zai merits to be dismissed. It was further argued that the petition of Nazar Muhammad is liable to be dismissed on account of misconduct as they falsely pleaded that they were not afforded opportunity of hearing by the Deputy Commissioner; though they had participated in the proceedings and were also heard. On merits it was argued that the Deputy Commissioner being Officer incharge of the Revenue Administration in the District is responsible for maintaining correct Revenue Record and as such is entitled to hold transactions ineffective in law if the same are based on void orders. It was argued that the land in dispute being "surrendered land' under Martial Law Regulation No. 84/89 read with 91 the same did not form part of the compensation pool and as such was not available for allotment to the predecessor-in- interest of the petitioners and others in the year 1966. This land under the aforesaid Regulations belonged to the Provincial Government and Mst. Hasib-un-Nisa, predecessor-in-interest of the respondents having exercised the choice to purchase was entitled to retain the said land. It was urged that the Deputy Commissioner was also Notified Officer and as such in both these capacities competently declared the allotments made by the Border Area Committee as illegal and void.
5.I have considered the respective submissions of the learned counsel for the parties and have also gone through the available record.
6. The preliminary objections may first be dealt with. Mujeebur Rehman's who had already died, was arrayed as respondent No.7 with other respondents in both these petitions. The petitioners on coming to know of his death have brought on record legal representatives of Mujeebur Rehman's deceased. It is pertinent to note that he was not the only person against whom these petitions were filed and as such the principle that petition riled against a person who is dead on the date of institution is nullity and the Court has no jurisdiction to substitute the heirs of the deceased does not apply. It is well-established that where a suit is filed against several defendants the heirs of one of the deceased respondents can be brought on record (See A.I.R. 1937 Lahore 794 and A.I.R. 1934 All 25). At best these petitions are to be treated to have been filed against the legal representatives of the deceased respondent No.7 on the date when they were brought on record. The objection would thus boil down to the objection of laches and delay which objection has otherwise been taken. The Writ Petition No. 252/R-87 was filed on 24-8-1987 while the other petition was filed on 9-1-1988. The ground of laches as such in any case is not available in the first petition while the objection in the second petition loses weight as in any case the order was already under challenge and no right otherwise carne to vest in these months in the respondents.
7. The plea that the sale by Hussain Bakhsh is being challenged by his heirs and as such Karim Nawaz is not entitled to maintain this petition is also without merit. Admittedly till date the heirs have not succeeded in their plea though the litigation is still pending.
The plea that due to alleged unconscionable conduct of the attorney, equitable relief should be refused as it would amount to allowing Col. Pir Zai, the attorney, to retain the ill-gotton gain, may now be considered. This plea is based on the allegation that as Col. Pir Zai, who was Chairman of the Border Area Committee, after retirement is prosecuting this petition on an attorney of Karim Nawaz. It should be assumed that Col Pir Zai was the real beneficiary. The name of Hussain Bakhsh was used as cloak and that sale made by Hussain Bakhsh to Karim Nawaz was a device to obtain the land so allotted. It will be seen that without assuming the afore-enoted facts, the inference of unconscionable conduct does not naturally flow from the allegations made. Moreover on the question whether the sale was in fact made or not by Hussain Bakhsh to Karim Nawaz litigation is already going on and in these proceedings it will not be appropriate to give any finding on that issue. These observations are sufficient to dispose of this objection.
The plea that appeal against the impugned order is available under law and without resorting to remedy of appeal the Constitutional jurisdiction cannot be availed. It was added that legal heirs of Hussain Bakhsh have filed such an appeal. The filing of an appeal by the heirs of Hussain Bakhsh does not debar the petitioners to invoke the Constitutional jurisdiction of this Court as their plea is that the Deputy Commissioner had no authority whatsoever to deal with the allotment made by the Border Area Committee and to pass the impugned order or to assume the jurisdiction in respect of the land in dispute. So, the main question is whether the Deputy Commissioner could take cognizance of the matter. Moreover, in view of the plea that cognizance was taken in order to implement the order passed in L.P.A. It will not be proper and just to refuse invocation of Constitutional jurisdiction of the Court with respect to the merits of the case. At the outset it may be noted that first important observation recorded in the impugned order .For holding that allotments made by Border Area Committee are illegal is that the relevant R.L.11 as per report submitted was not available. The report so made is apparently incorrect as well as misleading as the relevant R.L.II Register is still available and was produced during the a! Imments for perusal. The register contains Khatas showing allotments made in the names of D.1 Mir, Hussain Bakhsh and other allottees by the Border Area Committee.
The second basis for assumption of jurisdiction is the order dated 11-2--1986 passed in L.PA. No 60 of 1974. Admittedly the said order did not remand the matter for decision to Deputy Commissioner.
The respondents Nos.3 to 14, successors-in-interest of Mst. Hasib-un-Nisa, the original allottee, have moved this petition on 30-3-1986 seeking implementation of the order dated 11-2-1986. The operative part of this order reads:- .....If any land has been allotted and the allotment has finally been maintained, then Mst. Hasib un- Nisa or her heirs would have no right to that land. Other land which has not been allotted to anybody nor disposed of by now will vest in Mst. Hasib-un-Nisa or her legal heirs, who have already deposited the purchase price."
It is apparent from above that fresh scrutiny of the allotments already made was neither allowed nor contemplated by this order. Even otherwise by moving an application on 30-3,1986 no scrutiny could be made under Sections 10 and 11 of the Displaced Persons (Land Settlement) Act even by a notified officer, as on account of the repeal of evacuee laws on such application could be entertained on 30-3-1986. Morever it was not shown that the Deputy Commissioner was even a notified officer. What at best could be done was to find out if any land out of the land in dispute (783 kanals 9 marlas) had not been allotted to anybody nor disposed of by 11-2-1986 when the said order was passed. The words used in the operative part are if any land had been allotted and the allotment had finally been maintained then Mst. Hasib-un-Nisa or heirs would have no right to that land". Admittedly the land had been allotted to D.1 Mir and Hussain Bakhsh by the Border Area Committee vide order dated 4-3-1966 and the said allotment order was not set aside in the litigation, culminating in the decision of L.P.A. No. 60 of 1974. The said allotments as such stood finally maintained and held the feld when the Deputy Commissioner assumed the jurisdiction on the basis of the application dated 30-3-1986. In fact the order dated 11-2-1986 passed in the L.PA.
On the consent and in the presence of the learned counsel for the parties had brought to an end the challenge made to the allotment orders passed by the Border Area Committee or to the question whether the surrendered land could be allotted by the Border Area Committee or not. The effect of the order dated 11-2-1986 was that if the land has been allotted and the allotment has been finally maintained i.e. Prior to the date of the said order those allotments were to stand and to land so allotted Mst. Hasib-un-Nisa or her heirs would have no right. But if after those allotments any land out of the total land measuring 783 kanals 9 marlas is available i.e. Which has not been allotted to anybody or has not been disposed of till then the said land was to vest in Mst Hasib-un- Nisa or her legal heirs.
8.The question may be asked that when the allotment made to Hussain Bakhshwas challenged in Writ Petition No. 879 of 1966, out of which L.P.A. No. 60 of 1974 arose and when the said allotment was not interfered with then why the observations as have been quoted above were made by the learned Judges. The answer is that these observations were made as in those proceedings other allotments, if any, made by the Border Area Committee were not known. Now it is apparent from the impugned order that the entire land stands allotted to allottees named therein much earlier to the order passed in L.P.A. The respondents Nos.3 to 14, who are heirs of Mst. Hasib-un-Nisa having accepted the order dated 11-2-1986 cannot now turn round to challenge the allotments made, which subsisted on the date of the passing of the order in the L.P.A. In any case Deputy Commissioner in the capacity of a Collector cannot sit in judgment of the allotment orders passed by the Border Area Committee. No provision of the revenue law could be cited by the learned counsel for the respondents which may have conferred power on a Collector to set at naught the orders passed by Border Area Committee on the pretext of maintaining correct in purported exercise of revenue record. Para. 10 of Martial Law Regulation No. 9 of 1959 confers exclusive jurisdiction on Border Area Committee and the orders passed by it are final. For the reasons given above the impugned order dated 16-6-1987 passed by the Collector cannot be sustained. The same is hereby declared to have been passed without lawful authority and hence of no legal effect. The writ petitions) succeed and are hereby accepted with cost.
Karim Nawaz Attorney Lt. Col. (Rtd) Inamullah, Pir Zai Fazal-ur-- Rehman's Khan, Matiur Rahman Khan and Muhammad Rafique son of Nazar Muhammad are present. Judgment announced.