Petitioners seek quashment of proceedings initiated by respondents Nos. l and 2 against them in respect of their confirmed allotment secured through Claim No.6735 prior to enforcement of Evacuee Laws Repeal Act (Act No.XIV of 1975).
2. Brief facts of the case are that the claim of the petitioners was duly verified by the competent officers of the Central Record Office in the year 1962-64 and entitlement certificate was issued in their favour, on which they through their Mukhtar, Abdul Waheed Khan got allotments in Layyah and Muzaffargarh Districts. Said allotments were made by the competent Settlement Authorities after verifying the genuineness of the claims and entitlement certificates, etc. Of the petitioners.
Respondent No.2 doubted the genuineness and verification of claim. In order to ascertain it formulated the following points namely:---
(1) Whether the entitlement certificate was sent from Central Record Office to District Sheikhupura?
(2) Whether the record present in the Central Record Room Lahore indicates their representation through their son Abdul Waheed?
(3) Whether in the record of Central Record Room Karachi under Q.P.R. Scheme, Claim No.6735-V is entered in the names of Mst. Bilquees Begum and Mst. Akhtari Begum daughters of Haji Hafiz Asghar Ali Khan?
(4) Whether the entitlement certificate has been transferred from District Sheikhupura to District Muzaffargarh?
Above suggestions were put by the Additional Deputy Commissioner to the Deputy Commissioner on 30-1-1996 who approved them and passed the following order:-- "A.D.C.(G) to personally supervise and obtain information from Central Record Rooms, Lahore, Karachi and from Sheikhupura. "
3. Respondents were called upon to submit parawise comments of the instant writ petition. The comments have been submitted by respondent No. l on 1-12-1996. It is asserted that during the holding of inquiry against one Mohiuddin Muhammad Khan it came to the notice of respondent No. l that Abdul Waheed who was attorney of aforesaid Mohiuddin has also obtained allotment in various villages of District Muzaffargarh, therefore, he gained an impression that allotment secured in pursuance of Claim No.6735 is of dubious nature. Abdul Waheed Khan is son of the petitioner No. l and petitioner No. 2 is his aunt. It is also mentioned that original entitlement certificate is not available on the record. The entitlement certificate has been shown to have been transferred from Sheikhupura District. He has also placed on record alongwith the comments the letter written by him to the Deputy Settlement Commissioner (Claims and Records) Karachi (Flag ' B' with the comments) regarding the registration of claim in the name of Mst. Bilquees Begum and Mst.
Akhtari Begum daughters of Asghar Ali. He referred to the letter (Flag ' C') written to the Incharge Central Record Room Lahore, letter (Flag 'D') to the Additional Deputy Commissioner (General)/Additional Settlement Commissioner, Sheikhupura, Flag 'E' reply of Deputy Secretary (E.P.) Karachi to the letter, dated 5-3-1996 written by respondent No. l to him. Relevancy of the letter, dated 18-3-1996 written by the Deputy Secretary (E.P.) Karachi that the requisite information has not been sought from the concerned officer the detail of the particulars have been submitted in the application attached as Flag ' F' filed with the comments. The Deputy Commissioner respondent No. l passed an order on the said application that in accordance with the request of the petitioners for verification of report from Record Room Karachi Niaz Ahmad Head Clerk Settlement was directed to check the Record Room Karachi (Claims) and submit a detailed report and also provide a certified copy of the claim and copy of registration alongwith report of Deputy Secretary (R.S. & E.P.) prior to 14-7-1996 vide order, dated 30-6-1996. Vide letter, dated 17-7-1996 placed at Flag 'J' with the comments, addressed to respondent No.1 by the Secretary (R.S. & E.P.)
Board of Revenue Sindh, dated 17-7-1996 in reply to letter, dated 2-7-1996 addressed to respondent No.1, it was stated therein that the claim of the petitioners was verified by the Deputy Settlement Commissioner and Claims Commissioner, Karachi, vide order, dated 27-11-1962 and Additional Claims Commissioner (Land) Lahore, Camp at Karachi vide his order Case No.527/V, dated 8th May, 1964 (copies enclosed). Flag J/1 is the copy of the verification of the claim of the petitioners by the Deputy Settlement and Claims Commissioner and Flag J/2 is the order of the Additional Claims Commissioner (Land) West Pakistan Lahore, Camp Karachi. Flag ' L' with the comments is a letter written by Deputy Commissioner Sheikhupura to respondent No.1 in response to a letter, dated 27- 6-1996 and 4-7-1996 wherein he was informed that the claim of the petitioners of 14800 units was transferred from Sheikhupura through Dak Bahi No.491, dated 24-7-1970 through Parcel No.42 to the Deputy Settlement Commissioner (Land) District Muzaffargarh. It was further submitted in the said letter that in response to letter, dated 5-3-1996 the verification of the aforesaid claim is hereby answered for necessary action. By a subsequent letter the original claim and order of the competent officer was asked to be provided to respondent No.1 through Flag 'N'. The other letter attached with the report relates to the correspondence and the reminders issued to different officers by respondent No. 1.
4. Respondent No. l has relied upon Notification, dated 5-9-1979 attached as Flag ' P' with the comments on the ground that allotment obtained on the basis of forged and fabricated order is totally nullity in the eye of law, therefore, should be ignored and the land is still available for disposal.
5. Learned counsel for petitioners contends that proceedings initiated by respondent No. l are wholly without jurisdiction and uncalled for. The claim of the petitioners, in fact, was already inquired into on the Mukhbari application by the Settlement Authority. Again, Additional Commissioner and Commissioner D.G. Khan conducted inquiry into the allotments of various persons including that of the petitioners and ultimately held the same in accordance with law vide Annexure ' C' . After 25 years the claim or allotment of the petitioners cannot be examined by the respondents. Respondent No. l is neither Notified Officer nor Competent Authority to reopen the past and closed transaction after repeal of the Evacuee Laws by the Evacuee Property and Displaced Persons (Repeal) Act XIV of 1975. In support of his pleas, learned counsel has relied upon Farman Ali v. Deputy Commissioner, Sanghar PLD 1984 Kar. 62, Muhammad Younus and two others v. Muhammad Younus Khan etc. 1981 SCMR 899, Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236, Officer on Special Duty v. Bashir Ahmad and 9 others 1977 SCMR 208, Fateh Muhammad and others v. Deputy Commissioner Toba Tek Singh PLD 1989 Lah. 473 and Dahla v. Settlement Commissioner 1983 SCMR 1039. He further submitted that the petitioners are genuine claimants, the perusal of evidence on the record clearly shows that the allotment made in favour of the petitioner was perfectly in accordance with their genuine claims and entitlement. The documents placed on record by the respondents themselves, particularly the orders attached as Flags J, J/1 and J/2, order of the Deputy Settlement Commissioner/Deputy Claims Commissioner and Additional Claims Commissioner clearly establish that the allotment procured by the petitioners is neither based on forged nor on fabricated orders. The inquiry sought to be quashed in presence of aforesaid documents itself comes to the logical end.
6. Learned Additional Advocate-General while appearing on behalf of the respondents has relied upon Notification No.766/79/2216-EI/2, dated 5-9-1979 to contend that allotments obtained on the basis of forged or fabricated orders are totally nullity in the eye of law and, therefore, should be ignored as non--existence and the land treated as still available for disposal.
7. I have heard learned counsel for the parties and perused the record. The present, case has a chequered history which involves determination of important legal question and also deep appreciation of documentary evidence placed on record.
8. A Mukhbari application was submitted against the allotment made in favour of the petitioners, whereon an inquiry was held and ultimately it was dismissed on 27-7-1979 by the Deputy Settlement Commissioner (Land) Layyah. The Robekar issued in pursuance thereof is attached with the writ petition as Annexure ' B' . Still another inquiry was conducted by the Additional Commissioner, Muzaffargarh, and then by the Commissioner, D.G. Khan Division, against various claims in which the petitioners' allotments were also inquired into and they were found valid by him. Report of the Additional Commissioner in this behalf has been appended as Annexure "C" with the petition.
9. After more than 25 years of allotment, respondent No.1 started suo motu inquiry into the claim of the petitioners who according to petitioners is annoyed with them. A proclamation was issued in the Press for appearance of the petitioners before him. They appeared before respondent No.1 and narrated all the facts. It was asserted by the petitioners before him that the report obtained from the Deputy Secretary (E.P.) Karachi was wrong as the verification was not made from the concerned Branch and requested that proper verification from the concerned Branch may be got made and they also deposited Rs.6,000 as expense for doing the needful whereupon respondent No. I vide memo., dated 2-7-1996 deputed Niaz Ahmad Head Clerk to inspect the relevant record and also asked the Deputy Secretary to send his report with regard to the claim of the petitioners vide Annexure A/2 (with C.M. No.1667 of 1996). The Secretary (R.S. & E.P.), Board of Revenue, Sindh, in responded to the above said memo. Allowed the inspector of record of claim file of the petitioners to Niaz Ahmad Head Clerk and also sent his reply verifying the fact that their claim was duly verified by the Deputy Claims Commissioner (Land) Lahore, Camp at Karachi, vide order, dated 24- 11-1962. Alongwith this reply he also appended the copies of claim verification order (Annexures "A/3" with the C.M. Referred to above) and J/1 with the comments.
10. Reference was also made to the Incharge, Central Record Room Lahore for inquiring into and certifying whether the claim of the petitioner is in existence and whether it was sent to Deputy Commissioner Sheikhupura because the same was received from District Sheikhupura. It was directed that certificate be handed over to Niaz Ahmad Head Clerk who was deputed for this purpose. In reply, Deputy Secretary (S&R) Board of Revenue, Punjab, Lahore, reported that entitlement certificate for 14800 units was issued in the names of petitioners and was sent to District Sheikhupura on 3-10-1969. Copy of the letter sent by the Deputy Commissioner is Annexure A/4 while that of the reply sent by the Board of Revenue to the Deputy Commissioner is attached as Annexure A/5 to the above C.M. Respondent No. l also addressed a letter to the Additional Deputy Commissioner Sheikhupura asking him to certify whether the claim of the petitioners was received in District Sheikhupura and the same was sent from District Sheikhupura to District Muzaffargarh and said Niaz Ahmad Head Clerk was deputed for this purpose. In reply to the said letter Deputy Commissioner Sheikhupura stated that entitlement certificate for 14800 units was sent to Deputy Settlement Commissioner (Land), Muzaffargarh on 24-7-1970, copy of the said letter is Annexure A/7, (Flag ' L' with the comments). The entitlement of the petitioners for 14800 units was originally received in District Sheikhupura which was later on sent to District Muzaffargarh on 24-7- 1970 vide copy of the letter Annexure A/8. Petitioners have also placed on record copies of orders passed by the Claims Officer as Annexures A/1 and A/12 (Flags J/1 and J/2 with comments).
11. The claim of the petitioners was verified as back as in the year 1962. A revision against the verification of the claim was dismissed in the year 1964. The Mukhbari application against the said allotment under sections 10 and I I of the Displaced Persons Land (Settlement) Act, 1958, was also dismissed on 27-7--1979 by Assistant Commissioner/Deputy Settlement Commissioner (Land Layyah). Against this order no appeal, revision or Constitutional petition was instituted. The Commissioner, D.G. Khan, also scru tinized the claim of various persons including that of the petitioners. In this context a detailed inquiry was held anti the allotment of the petitioners was found valid. Some of the land allotted to the petitioners has been disposed of by them to different vendees including Abdul Majeed, who has also filed Writ Petition No.6000 of 1995 which is also being disposed of through this common judgment
12. A transaction whether fraudulent or valid has to be declared by the competent authority prescribed under the law. The Settlement Authority while adjudicating upon the application under sections 10 and I1 of the Displaced Persons (Land Settlement Act), 1958, held the allotment of the petitioners as valid. Said order, as mentioned above was not challenged further. Again a probe was made by the Commissioner, D.G. Khan into the allotment of the petitioners and he too did not find any fault with it and it was left intact. Present proceedings are barred by section 11 of the C.P.C. As principle of res judicata is attracted in the instant case. Honourable Supreme Court has held in Dahla v. Settlement Commissioner (Lands) and others 1983 SCMR 1039 that,--- "Principles of res judicata applicable to Settlement proceedings----Settlement Commissioner with powers of Chief Settlement Commissioner cannot decide contrary to decision taken by Settlement Commissioner on same point in earlier proceedings (under sections 10 and 11 of the D.P. (Land Settlement Act, 1958)."
13. Order on Mukhbari application, dated 27-7-1979 having not been further challenged has become final qua the parties. It has been held in Officer on Special Duty Central Board Office v.
Bashir Ahmad and 9 others 1977 SCMR 208, that:-- "Deputy Commissioner exercising powers of Chief Settlement Commissioner, holding claim to be genuine---Order having not been reversed in revision, held became final---Allowing fresh inquiry into genuineness of claim-tantamount to attempting review of order and such course not permissible under law."
14 Similarly in Nawab Syed Raunaq Ali's case (supra) it was urged by the claimants that since their claims had been duly verified in accordance with the procedure laid down by the Registration of Claims (Displaced Persons) Act, 1956, entitlement certificates had been issued by the Central Record Office and allotments of land made on the basis of such certificates, the verifications had acquired a finality under the provisions of the said statute and they could not be reopened by anyone certainly not by the Officer on Special Duty as he had no power to sit in appeal over the decisions of the Claims Authorities. It was held that:-- "The Officer on Special Duty, Central Record Office, had no jurisdiction to cancel the verification orders issued by the Claims Authorities before the 2nd of October, 1959, the date of publication in the Gazette of the Notification No.S.R.O. 466, dated the 25th of September, 1959; nor could he being an authority with limited jurisdiction, treat such verification orders as nullities. His claim, therefore, to- cancel the entitlement certificates issued earlier on the basis of such verification orders was wholly unjustified."
15. Now coming to the question of jurisdiction of respondent No. l and contention of learned counsel for the petitioners that no application or proceedings were pending at the time of repeal of the Settlement Laws against the petitioners, therefore, he in his capacity as Deputy Commissioner had no jurisdiction to examine the validity of claim or allotment of the petitioners. Reference may be made to Muhammad Younus and two others v. Muhammad Younus Khan, etc. 1981 SCMR 899 wherein Supreme Court held as under:--- "Proceedings before Settlement Authorities regarding transfer of disputed land not shown to have been pending before target date of 1st July, 1974---Order of Settlement Authority holding revision petition not maintainable, held, unexceptionable. "
A Settlement Authority cannot further scrutinize the matter which was not pending at the time of repeal of the Act. Since no complaint was pending with respondent No. l on the target date i.e., 1-7- 1974, therefore, he had no lawful authority to scrutinize the allotment and claim of the petitioner in any way. In this respect reference may also be made to Farman Ali v. Deputy Commissioner Sanghar PLD 1984 Kar. 62, in para. 3 whereof it was observed:-- "From the impugned order, dated 7-2-1975 of the Deputy Commissioner, Sanghar and from the other documents on record, it is clear that the case was reopened by the Deputy Commissioner after 1-7-1974. It also appears that no proceedings were pending in connection with the cancellation of the lands allotted to the petitioner on 1-7-1974 from which date the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, came into force. It has not been specified by the Deputy Commissioner, Sanghar in his impugned order in what capacity he had reopened the case and was taking action for cancellation of the lands of the petitioner. Apparently the Deputy Commissioner Sanghar had taken action under the Settlement Laws but the Settlement Laws had already been repealed with effect from 1-7-1974. As no proceedings were pending on 1-7- 1974, the case of allotment of the lands in question to the petitioner could not be reopened by the Deputy Commissioner, Sanghar. "
Thus, action of the respondent to reopen the case of the allotment of the petitioners after the target date is clearly without jurisdiction.
16. Now coming to the last judgment relied upon by the learned counsel for the petitioners, viz., Fateh Muhammad and others v. Deputy Commissioner Toba Tek Singh PLD 1989 Lah. 473, wherein it has been held as under:-- "Repeal of evacuee laws---Effect on existing allotment---Allotment having been made in favour of a claimant from the agreed area, by a competent Authority under Settlement and Rehabilitation laws, no dubious device in law is permissible to achieve indirectly what is not permitted to be done directly under the law. District Collector being a creation of the Land Revenue Act was possessed of no jurisdiction to go behind the allotment and settlement by the evacuee law which had attained finality under section 22 of the D.P. (Land Settlement) Act, 1958 since repealed. Deputy Commissioner/District Collector or any other Revenue Authority was wholly incompetent to defeat such allotment in collateral proceedings in exercise of powers under Land Revenue Act. Allotment through appropriate proceedings could have been cancelled before the repeal of Evacuee Laws by the competent functionaries under the Displaced Persons (Land Settlement) Act, 1958, either in appeal or revision or under sections 10 and 11 of the Act or thereafter, proceedings lawfully pending since before the repeal of such laws could be finally disposed of by a Notified Officer under Act XIV of 1975. Where no such proceedings were pending there arose no question of proceedings being transferred to a Notified Officer for final disposal or his assuming jurisdiction in the matter on any plea whatsoever."
The aforesaid judgments clinch the entire assumption of jurisdiction by respondent No. l in the instant case. Admittedly, proceedings were neither pending before him on the target date nor the case had been remanded to him by Supreme Court or the High Court as laid down in section 2 of Act XIV of 1975. A Deputy Commissioner is creature of statute, he can only exercise jurisdiction vested in him by law. The correctness and validity of the claim and allotment of the petitioners had already undergone exercise of scrutiny during existence of Evacuee Laws on more than one occasions and same having been found in accordance with law, at this be halted stage, it is not permissible to reopen the, case. Thus, the proceedings initiated by the respondents are wholly illegal and without jurisdiction.
17. Notification referred by the learned A.A.-G. And placed on record as Flag ' P' related to forged and fabricated orders. In the instant case the Deputy Claims Commissioner as well as the Additional Claims Commissioner in their orders, dated 27-11-1962 and 8-5-1964 referred to the Deputy Commissioner respondent No. l vide Flags J/1 and J/2 have clearly stated that the claim of the petitioners was verified by them. The orders are genuine, the competent Authority had answered the query of respondent No.1 in accordance to the averments of the petitioners that their claim is genuine and entitlement certificate issued in pursuance thereof cannot be objected to in any manner. This fact is fortified by the aforesaid letter produced by respondent No. l himself alongwith the comments. Admittedly, respondent No. l is not a Notified Officer and no complaint was pending with him before the repeal of Evacuee Laws i.e., 1-7-1974. Respondent No. l at this belated stage is neither authorised nor competent to declare the allotment of the petitioners as forged and fabricated' one. After the repeal of the Act only a notified officer can proceed against forged and fraudulent claims against which complaints were pending at the time of repeal of Act or which have been remanded by Superior Courts. Sections 10 and 11 after the repeal of the Act have gone away with the Act itself. Respondent No. l is left with no power to reopen pass and closed transaction on the basis of suspicion gathered by him during inquiry into a case which was pending adjudication prior to the repeal of the Act. The notification referred by the learned A.A.-G.
Is not relevant for the purpose of the present proceedings.
18. Now coming to the merits of the case, the perusal of the documents attached with the writ petition, Civil Miscellaneous No. 1667 of 1996 and the documents placed on record by respondent No. l alongwith the comments clearly shows that the claim of the petitioners was verified by the Deputy Claims Commissioner on 27-11-1962 which is evident from Flag J/1 attached with the comments. The appeal against the said verification was disposed of by the Additional Claims Commissioner (Lands) West Pakistan, Lahore, Camp Karachi, on 8th May, 1964 (Flag J/2). It is further evidence from the letter written by the Deputy Commissioner Sheikhupura, dated 27-6-1996 (Flag ' L' attached with comments) that 14800 units of the petitioners were transferred from District Sheikhupura to District Muzaffargarh, vide Dak Bahi No.491, dated 24-7-1970 Parcel No.42, addressed to Deputy Settlement Commissioner (Land) Muzaffargarh. The entire suspicion of respondent No. l stood clarified by the aforesaid documents which have been placed on record by respondent No. l himself. Perusal of above-said orders, letters and the documents attached with writ petition and Civil Miscellaneous No. 1667 of 1996 clearly establish that the claim of the petitioners is genuine and has been duly verified by competent Authority. Dragging them to multiple inquiries at such a belated stage shall not in any way serve ends of justice. The initiation of proceedings against the petitioners after such a long time without there being any complaint from any quarter is an abuse process. The proceedings pending before respondent No.1 are wholly without jurisdiction and, consequently, are hereby quashed. The are wholly petition is accordingly allowed with no order as to costs.