R.
0. R. Noe. 538 to 561/71.72 were filed on 24-1972 against the order dated 26-10-1971 of the Additional Commissioner (Revenue), Sargodha by which the appeals of the petitioners calling in question the allotments of State land in Rath Dullewala, District Mianwali, allowed by the Collator, by way of exchange, in favour of the respondents, wore rejected both on merits as well as on point of limitation.
2. R.
0. It. No, 780/72-73 was filed on 17-4.1973 against the order dated 18-1-1973 by which the Additional Commissioner declined to interfere with the order dated 16.1-1970 of the Deputy Commissioner/Collector, Mianwali allowing alterations in the Register Girdawari for Kharif 1967 and Rabi 1968 pestaining to Khasra Nos, 2226, 3006 and 3336 of village Seelwan.
3. Simultaneously a miscellaneous application was moved to the then Advisor to the Governor, Punjab, alleging that Lt.-Col. Muhammad Hanif respondent had fraudulently obtained multiple allotments of State land under the Resettlement of Chashma Barrage Displaced Persons Scheme, 1968, and that an inquiry should be held into the mattes. The Commissioner, Sargodha Division who was accordingly, deputed to hold the inquby, submitted a report on 19-4.1975 holding, inter aila, that Lt.-Col. Muhammad Hanif had transferred his excess lands in the revenue estates of Seelwan and Ohalughara of Mianwali District to his relatives through Mutation Nos, 5247 and 1922 attested respectively on 10-2-1968 and 14.4-1969 after these lands had been acquired under the Lend Acquisition Act, 1894 for the construction of Chashma Barrage, and on the basis of these Mutations got multiple allotments of State land in his own name as well as in the names of his relatives and subsquently bad them improperly exchanged with lands in Rath Dullewala. Upon this the Board of Revenue in exercise of its revisional powers under section 164 of the Land Revenue Act, accorded permission for the review of the aforesaid two mutations by Collector, Mianwali, ride memo. No, 1924-75/4061-C-IV, dated 9-12-1975. Consequently both the mutations were cancelled by the Assistant Collector. wed Rasul etc. Challenged the legality and propriety of these orders before the High Court in Writ Petition No, 8 of 1976, among other., on the ground that the same were passed in their absence without giving them an opportunity of being heard. On receiving pars-wise comments from the Board of Revenue, Mr. Justice Dr. Naseem Hasan Shah heard the writ hi Ilmine on 14-4-1976 and passed the following order t- ilt appears that some proceedings between the parties are also pending before the Member, Board of Revenue and the apprehension is that if the respondents succeed In those proceedings they may be granted allotment of the land presently in possession of the V onore. This shows that certain aspects of the matter are still being looked into by the Board of Revenue. I, therefore, consider it appropriate to await the decision of the Board of Revenue before proceeding thither in the case, because it would not be proper to fetter the hands of Board of Revenue In any way whatsoever. However, in older to avoid any further complication, I would direct that in case the respondents are granted allotment of the land presently in possession of the petitioners, they will not be dispossessed as a result of the aforesaid allotment order."
S. The official representative of the Board of Revenue who appeared before the High Court that his Lordship bad verbally desired that the matter should be judicially by the Board of Revenue after hearing all concerned. Accordingly all the revision petitions were taken up for hearing and simultaneously notices were also issued in exercise of suo, moto revislonal jurisdiction under section 164 of the Land Revenue Act, 1967 to all those who were affected by the order of the Board of Revenue dated 9-12-1975 according permission to review Mutation No, 5247 and 1922 and the orders consequently passed by the Assistant Collector revoking these mutations allegedly without notice, to appear and present their objections, if any. On 22-2-1977 all the parties appeared through their counsel and addressed arguments at considerable length. They also placed their written arguments on the record.
6. Since all the revision petitions as also the suo mow revision under section 164 emanate from the same subject-matter, they will be &weed of by one order.
7. The circumstances leading up to these revisions briefly are that Government acquired private lands in various villages including Seelwan and Ohslegbara of Mienwali District, for the construction of Chashma Barrage. Notifications under section 4 of the Land Acquisition Act, 1894 in respect of village Seelwan was issued on 18.64965 and in respect of Gbalughara on 2-6-1965.
8. In order to rehabilitate the displaced persons of these villages, Government promulgated a scheme known as the Resettlement of Clashing Barrage Displaced Persons &helm 1968 (hereina (ter called as the scheme). In pang. 14 of this Scheme it was provided that a Denton holding half acre of irrigated land or two acres of Baran, land under cultivation in the affected area will be given 15 acres of land and a person owning more than 15 acres of land an equivalent area but no one will get more than 50 acres of Irrigated land. It was further provided that an owner who was left with 90 acres or more after acquisition would not be considered entitled to get any land.
9. Lt.-Col. Muhammad Hanif respondent owned land measuring 1,774 kanals and one marks in village Seelwan and 295 kanals in village Ghalushara. Since village Seelwan and three other villages, namely, Bhan Summble, Kaaba Aheeran and Kundian Niche were situated in Dam area and were to be inundated first. a special Scheme for the rehabilitation of the evlctees of these four villages was promulgated on 11-4-1968 and the land for this purpose was reserved in villages Rath Nitro Shaheed, Buland, Rode, Nawan Sasso, Lucco, Peelowains of Tehsil Khushab. Lt.-Col. Muhammad Hanif was allotted maximum area of 50 acres in Rath Nlkroo Sbaheed on 15-7-1968 in lieu of his land abandoned b/ him in village Seelwan.
10. It is alleged that in order to grab more Land Lt.-Col. Muhammad Hanif respondent transferred, by way of benamt transaction, 243 tam* and 10 marks of his land in village Seelwan to his nine relatives for Rs, 12,000 vide Mutation No, 5247, which was attested on 10.2-1968. By way of this sale each transferee got 8 kanals and 2 marks of cultivated land which happened to be below the floor of eligibility (I.e. 16 kanals) prescribed under clause 14 of the Sci.Eme. In order to obviate this condition an application in the name of Rab News; one of transferees and a real nephew of Lt.-Col. Muhammad Hanif wu moved before the District Collector for the correction of entries in the Register Girdawari of village Solemn for Kharif 1967 and Rabi 1968, palisades to Klusn Nos, 2226, 3336 and 3006. A Naib-Tahsidar was accordingly deputed and he after making certain inquiries at the spot CM 3-7-1968 and 10-84968 submitted a report on 31.12-1969 recommending the following variations in the classification of soil in the relevant Khasra numbers. ees....Orocomeammoolar*.s..... Wawa araseoNsarabemealal.....m.Somem.....weemmiwalonotoomMow.olosIlwx vaollawsNeollese....
Khasra No, Area Existing entries in Classification reported Register Girdawari. By Naib-Tabsildar. .1IIMINOMII.11.*1611111111........* osse._maimusameame. Wmell aareadtaa.111.01117111MININIII*111.~F K M K M 8t M 2226 86 3 28 3 Sallab 83 3 Saab 58 - Bantu Qadeem {{BLUR PAGE}} 3336 33 15 12 - Sailab 20 10 Sailab 13 5 Banjar 13 5 Banjar Qadeem Qadeem 1 10 Abadi 3006 26 10 /7 Sailab 26 10 Sailab On the basis of this report, the District Collector passed an order on 161-1970 allowing correction in the entries of Register Girdawari for Kharif 1967 and Rabi 1968 changing thereby the classification of banjo. 'lades's; area into that of cultivated sagab arm. In this way the share of each one of nine transferees in the cultivated Mid) area was increased from 8 konall 2 miles to 16 kanatr which made them eligible for allotment of alternate land to a limit of 15 acres each under the Resettlement Scheme.
H. As a result, allotments were obtained in the names of all the nine transferees on 4-8-1971 in village Maken, Tehsll Khushab, District Sargodha. Subsequently on 28-104970 Lt.-Col. Muhammad Hanif moved an application before the Resettlement 0 " coriCol loot or for the exchange of his own land allotted to him in Rakh Nikroo Shaheed as well as the land obtained in the name of his nine transferees in village Maken. The Collector thereupon hastily proceeded to resume the land under section 24 of the Colonisation of Government (Lands) Act, 1912 by his order dated 29.10-1970 and then by a subsequent order dated 10-3-1971 purported under section 10 of the Colonisation of Government (Lands) Act, 1912 transferred these allotments to the area of Rakh Dullewala in District Mianwali, which was reserved for evictees of village Ghalughara.
12. Similarly in 1969, Lt.-Col. Muhammad Hanif gifted away his entire land measuring 295 kanals in village Ohalughara in favour of his 15 close relatives including his mother, sister, wife, sister-in-law end nephew in consideration of Rs, 5,000 through Mutation No, 1922, sanctioned on 14-1-1969.
Consequently, each of the transferees obtained allotment of 15 acres in lieu of this land and subsequently on 17-64971 got it exchanged with bettor had in the area of Sarwar Rhel in Rath Dullewala.
13. In the same way the other relatives of Lt.-Col. Muhammad Hanif, namely, Baabir Ahmed, Umar Hayat and Muhammad Raman respondents also got their allotted lands exchanged with the area in Rakh Dullewalc
14. When the petitioners who were also claiming allotments in Rath Dullewala as evictees of village Ohalughara came to know about the multiple allotments made in that village, by way of exchange, in favour of Lt.-Col. Muhammad Hanif and his relatives, they filed appeals before the Additional Commissioner, Sargolha, which were dismissed on the point of limitation as well as on the question of locus small of the petitioners to contest these allotments. Hence these revision petitions.
15. The learned counsel for petitioners contended with great vehemence that the sale of land by U - Col. Muhammad Banff in village Seelwan to his relatives through Mutation No, 5247 suctioned on 10-2-1968 was not valid inasmuch as it was made after the land in question had already been acquired under the Land Acquisition Act, 1894 and the power of the owner to dispose of or otherwise deal with it without the sanction of Collector had come to an and after the publication of notification under section 4 on 18-6-1965 in view of clause Numbly of section 24 of the said Act. The validity of the sale was also assailed on the ground; fiestip that it was made without the sanction of the Collector; 'secondly that the possession was not delivered to the nine transferees as would appear from the absence of any entry to that effect in the Register Girdawari; third0 that the sale was not motivated by butines principles in that the land was to he inandsted in the summer of 1%8 and the proceodings of taking actual 11Cilidik112 of it had already started; and foot* that the sale transaction was beearni and was grossly under-valued, the price paid being Rs, 12,000 only. In view of this, the learned counsel argued that the sale in question was void ab bill* and no valid claim for any alternate antomenb under the Resettle-meat Scheme could be based on it.
16. The learned counsel then argued that the order dated 16-1.1970 of the District Collector allowing corrections in the entries of Register Girdawari of Kharif 1967 and Rabi 1968 pertaining to Khasra Nos, 3006, 3336 and 2226 of village Seelwan comprising Mutation No, 5247 were against law and procedure and therefore unsustainable. It was submitted that by altering the entries of Register Girdawari on the plea of clerical errors, the Collector had made a ;permanent change not only in the Register Girdawari but also in the last larnabaudis -which could not be legally effected except through mutation of sehayiktafai ay. Required by section 44 of the Land Revenue Act, 1967. Further. That the change thus made in the soil classification of the three Khasi.% numbers had resulted in increes4 of the cukioced sallab area which illegally brought each one of the nine Iranderve5 within Ow door of ellgibility prescribed under the Scheme for allotment of alternate land.
17, The Wilsfacd counsel also sabciltted that if tht Mutation No 5247 was presumed to b valid and the order of the Colirster making corrections L the Xnasia Justified, the nine traroaferees- could not get alternate land because aocording to Board of Revenue letter No, 65 54- 69/2768-CSI, dated 27-11-1969 only the owners at the time of publication of notification under section 4 of the Land Acquisition Act were entitled to got alternate land.
18. With regard to the transfer by Oft of the land in village Ghalughare in favour of I5 donee* through Mutation No, 1922. Sanctioned on 14.4-196P the learned counsel. Sotoontted that it aufered ::scare 4r 444, tram the tame legal iniirminft as the tale irensaction elected through Mutation No, 5247, namely, that she land in question already stood acquired under the Land Acquisition Act and the OWMT was left with no power to dispose of or deal with it, that the poeseacion of the lend was not delivered to the donee,. That the gift was made tot not any services rendered by the donee* to the donor, that the transfer was grossly under-priced. The price being Rs, 5,000 only and that the trawler was motivated by the desire to create multiple el gibilities for Obt4i0i0e? Ii'tcraeste lands through the transform, e, en though Lt.-Col. Mohammad Boni! Hod elreedy obtained !Narinsum allotment of 50 &AU stn Rokh Shaloted against his total owneiship as long ago as 15-7,1968 and no i'lrihet allotment couid be obtained in -Ole; names of the doctor under the Scheele to lieu of any subseqoent ttansfer made out of the same ownership,
19. Finally, the learned ,;:otiatal !Of the petitioners submitted that allotment' mane under /...9t,A toio4 oAies h' private Itesty could not be eachanged without ezpress ono of'i Cove4linsent .And therefore t WWI not competent to the Collector to transfer them by way of exchange to Rakh Dullewala. The learned counsel also objected to the circumvention of law by the Collector by first resuming the land of the respondents under section 24 of Coloniastion of Government (Lands) Ace, 1912 and then rnakios fresh allotments to them under section 10, in the area reserved for Sarwar Kbel in Rath Duliewela.
Accordingly, he argued that theme orders of the Collector were without lawful authority and therefore void and nonexistent in the eyes of law.
20. As aeatnet the above, the learned counsel for the respondents submitted Ora the petitioners had no right to claim the land allotted to the respondents, that they had already been allotted land as trvictees in the line of Samar Khel Tribe and that mere assertion that they might be allotted land in *Lae it was cancelled from the names of Lt.-Col. Muhammad Hanif and others did not give them any right to the said land nor they had any knee eicatil to die appeal& tevisions or application for review of the mutations.
21. It was also submitted that the revision petitions were hopelessly barred by limitation and as the benefit of tezeon 5 of the Limitation Act was not available by virtue of applicaeility of section 29, therefore the delay could not be condoned merely on the the pie e that the petitioners were not aware of Me impugned orders and bad cone to know about them only after the respondents were phy'llesily put in possession of the land in the area cutout itii for Sarwar Khel in Rakh Dullewala,
22. The leNrevi sxsanoci further argued that as tee respondents hate continued in potreesion of the land in question for more than three yearn they were ptotected undo proviso to section 16 or the Colonizstiln ;if Government ands; 1r12,. And could not therefeee be deprived of the land at this ;tap,
23. With regard to the question of sew mote exercise of frVikt3311i jurisdiction by the Board of Revenue under section 164 of the Land Reveaue Act. 1967, the learned counsel contended that it was not competent, ,fierrip because proceedings were initiated on an application moved by the petitioner and seoonay because revision petitions pertaining to the same subject-matter were already pending before the Board of Revenue.
24. Al for the transfer of land in village &teleran, the learned counsel submitted that the same was made through mutation duly attested by a revenue officer after payment of full price at market rate and after possession was delivered at the spot. He maintained that the Collector was fully competent to allow correction of obvious clerical errors occurring in the existing entries of the Reg Girdawari and that correction through mutation of mita indroj was not a legal requirement in such cases. As regards Mutation No, 192t of village Ghalughara, the learned counsel pointed out that it was made with the sanction of the Land Acquisition Collector, that the possession was immediately delivered to the dances of the gift, which was complete in all respect& that it was also incorporated in the jornabandi and its bona fide cannot be questioned after a lapse of about 8 years. The transferees were also paid cash compensation under the award and they were duly allotted land in Rakh Dullewala. Finally, the learned counsel submitted that Lt.-Col. Muhammad Hanif and other respondents have already invested lees af rupees and if the lands were cancelled from thole nemelp at this stage they would suffer 414 itanlena. Wm,
25. From the above disputations made at the bar and the written arguments and other material placed on record, the questions that fell for consideration are-
(a) whether the petitioners had a locus staadt to challenge the allertmenta made to the respondents by way of exchange;
(b) whether the appeals before the Additional Commissioner were barred by limitation and, if so, whether they could be decided on merits without getting over the bar of limitation;
(c) whether the Board of Revenue was competent to allow review of the impugned mutations and interfere with allotments obtained without entitlement In exercise of its revisional jurisdiction under section 164 of the Land Revenue Act, 1967;
(d) whether the trensfes of land in village Seelvan through Mutation No, 5247 after the publication of notification under section 4 of the Land Acquisition Act, 1894 was valid;
(s) whether it was compteat to the Collector to allow corrections in the entries of Register Girdawari which continued to be incorporated in the last Jo/nobs:tens, on the plea of clerical errors;
(f) whether the allotment of alternate lands in favour of Lt.Col. Muhaaimad Banif and his nine transferees and its subsequent exchange with the lands in Rath Dullewala was valid and according to law u.d Government instillations; (fir whether the transfer of land by gift in village Gbalashara on 14-4.1969 ride Mutation No, 1922 was valid and whether the donees were entitled to get alternate allotments after the donor had already taken maximum allotment of 50 acres against his total ownership authorised under the 19 c 8 Scheme;
(h) whether it was lawful for the Collector to allow exchange of land sold by private treaty without the express sanction of the Government and whether the procedure adopted by him in so doing was warranted by law;
(I) whether the respondents were entitled to the benefit of section 16 of Colonization of Government (Lands) Act, 1912 in view of their continued possession of the land for more than three years.
26. Now taking up the first question we find that there was a persistent demand by the evictees of Chashma Barrage that they should be settled in compact blocks, villagewise and ware-wise (tribewise) near their home lands. The Board of Revenue accepted the demand in principle at a meeting hel on 29-4-1968 and decided that unirrigated State land might be allotted to( 4 these evictees near their present homes to satisfy their desire to settle vi wise and tribe-wise. Accordingly Rath Dullewala was earmarked for settlement of evictees from village Ghalughara. A scheme for the purpose was formulated by the Resettiment Officer/Collector in consultation with the representives of all the four wads of village Ghalushara and the following order of priority was approved for the purpose of allotment one after the other:-
(i) Wari Awan (wart of the respondents). (M) Wari All Sher KUL (00 Wee Bahrain Khel.
(A) Wari Sarwar Khel (warn of the petitioners).
Four abadis were also carved out and reserved for each wars. According to this order of priority, allotment to Awans was started from the southeasterly direction first and after progressively accommodating Ali Sher Khels and Behram Khels, the residual area falling on the north/westerly direction of the Rath was earmarked for Samar Khel, the wars of the petitioners. Lt.-Col. Muhammad Hanif and his relatives were brought from vario places where they had already, been settled, and land allotted in th favour in tee area falling to the share of Sarwar Khel as a result of draw of lots. This resulted in denying the Sarwar Khel to be settled togethe in a compact block as decided by the Board of Revenue. The rights the present petitioners who belong to the wars Sarwar Khels have thus jeopardised because a large number of them have still not been allott any land and even those who were successful, the land offered to them heavily infested with sand dunes which was not acceptable to them. In view of these circumstances the petitioners had a right to be heard against the who obtained allotment without entitlement in the area reserved for th petitioners' tribe, and a fortiori, had a locus standi to challenge even th mutations and corrections in the revenue record by which eligibilities fo multiple allotments were erected. In this connection the decision of Kar High Court reported as Abdul Wall Ansari v. The Custodian, Evacuee Property Karachi (1) which was vehemently relied upon by the learned counsel for the respondents has no bearing whatsoever on the facts of the present case.
27. As regards the point of limitation, it may be observed that the! Can be no condonation of delay under section 5 of the Limitation Act, where an appeal or application is filed under the provision of Land Raven Act, 1967 which provides a special period of limitation of its own. Un therefore the case is brought under one of the exemptions of Part III the Limitation Act which deals with computation of a period of limitation, delay in filing an appeal or application for review cannot be excused by virtue of section 29 of Limitation Act read with section 167 of the Land Revenue Act, 1967. The petitioners in the present case have pleaded that the transfer of land by Lt.-Col. Muhammad Hanif through Mutations Noe. 5247 and 1922 and subsequent allotments obtained by him and h transferees on the basis of these mutations as also by his other rola were made in such a clandestine manner as the petitioner' could not corn to know about them till after 10.8-1971 when they bad already physical poseession of the land in Rath Dullewala. The appeals were accordingly filed on 15-9.1971 without wasting any time and were theref within time, u limitation starts in such cases from the date of knowlsdg of an order and not from the date it was patted. The plea is not without substance. There was definitely an element of concealment of facts about the whole proceedings of the transfer of land and the manner in which subsequent allotments were obtained, through exchanges, in P.Akh Dullewala. It is noteworthy that the transfer of lands by mutations in villages Seelwan and Gbalvghara was kept hidden even from the Land Acquisition Collector so mush so that when he announced the awards of these villages on 31-12-196i sad 29-1-1970, he had to observe in his proceedings that on scrutiny of the record he had not come across any transactions made through mutations in these villages during the pest fine years. Even the old girdawaris were PLD 1967 KaL 130 {{BLUR PAGE}} maintained throughout in the name of Lt.-CoL Muhammad Hanif himself in spite of the so-called change having occurred in the ownership of land in tavva of the transferees. This may be a mere minion but it had certainly kept every body around in dark about these transactions. In these= circumstances the petitioner cannot be credited with the knowledge about the transfer of lands through the impugned mutations or subsequent allotments obtained through exchanges. All those facts tend to constitute a good ground on which exemption from limitation could be claimed under section 18 of the Limitation Act. Further, as it will be seen In the succeeding paragraphs, both the transactions were fraudulently made with a view to creating multiple eligibility for obtaining alternate lands under the 1968 Scheme a were thus void and nullity in law and therefore no question would arise for holding that the matter could not be considered on merits on account o any bar of limitation. Reference in this connection may be usefully made to the decisions reported as PLD 1969 Lab. 1039, PLD 1970 Lab. 6 and PLD 1970 Lah.
647. Therefore the contention that the appeals before the Additional Commissioner were barred by time, or the present revisions are not maintainable on account of bar of limitation cannot be accepted.
28. As to the objection raised against the purported exercise of SW mote revisionsl power by the Board of Revenue Ode its order dated 9-12-1975 according p 'scion for review of Mutations Not 5247 and 1922, it may be observed that the said order was passed on receiving an inquiry report from the Commissioner, Sargodha dated 19-4-1975 holding that the mutations were made fraudulently with a view to creating eligibility for multiple allot-=Die under the Resettlement Scheme, and that subsequently allotments were actually obtained and got exchanged in Rath Dullewala at the cost of other tribes' interest. Also it was reported that pursuant to the above order of the Board of Revenue, the Collector had reviewed the mutations fancifully without notice to the affected persons. Since there was an obvious disregard of law and procedure in sanctioning these mutations and also failure on the part of the Collector to follow the principle of era akera porton in reviewing his previous orders, it was the duty of the Board Revenue to interfere in the matter in exercise of its MO mote revision powers and set the wrong right. These powers of the Board of Revenue being discretionary and unfettered can be freely invoked where there ha been not only a material irregularity but also a material injustice, no matte a private party has or has not moved an application in the matter. This objection raised by the learned counsel therefore has no force.
29. Adverting to the question of validity of Mutation No, 5427 of village Seelwan, we find that it was sanctioned after the publication of notification under section 4 of the Land Acquisition Act, 1894 (Act No, 1 of 1894) in utter disregard of the instructions issued in this behalf by the Land Acquisition Collector ride his Letter No, LAC/14-1010, dated 19th August, 1967, calling upon the RCM= Officers of the district not to sanction an mutation or allow any transaction of land after the date of publication notification under section 4. The learned counsel for the respondents ar that these instructions which were issued in terms of disuse serenthry of section 24 were intended to prohibit any improvements on or disposal land being taken into consideration in determining the compensation and were not to affect the right of an owner to transfer his land before its possession was actually taken. The argument cannot be accepted because acceding to the scheme of the Land Acquisition Act, 1894 and the move of slam seventh', of section 24 the power of the owner of the land to be acquired to deal with it coma to an end after the publication of notification under section 4 and if with the knowledge of acquisition proceedings and the/1 notification thereof he continua to deal with such land, he does so at his own risk. Reference in this connection is invited to a ruling of the Azad I & K High Court reported as No* Akmad v. Governnuna of Azad J ct 8 (1) wherein it has been clearly laid down that without prior sanction of the Collector the owner cannot deal with the land to be acquired after the publication of notification under section 4 of the Laud Aoquisition Act.
30. In the present cue notification under section 4 relating to village Sedwan was published on 18.6- 1965 and subsequently notifications under sections 6 and 17 were also issued on 174.1967 and 26.1- 1967 respectively. The actual process of taking possession of the lands was started on 26.6.1447 with the issuance of notices to the interested persons under sections 9 and 10 and consequently physical possession of most of the khava numbers in village Seelwan including Khasra No, 3336/1 sold through Mutation No, 5247 was taken vide Entry No, 202 dated 8-2-1968 of the Roznameka waqtatt of the Patwarl. This means that acquisition proceedings were already completed and even physical possession of the lands including one Matra number sold through the impugned mutation bad been taken two days before the sanctioning of the mutation on 10-24968. It Is thus obvious that the transfer of land was made not only after the publication of notification under section 4 but also after the whole acquisition proceedings including taking possession of the land in terms of sections 16 and 17 had *heady been completed and therefore the impugned mutation was void and of no legal (consequence.
31. Of the remaining deficiencies pointed out in the impugned mutation, one was that the sale was not supported by delivery of possession to the Ve1141003 and the other that it was not motivated by business principle. There is nothing in the revenue record to sunset that the possession was ever delivered to the voodoos. On the contrary it is evident from the entries of register &damp' that Lt.- Col. Muhammad Hanif continued in possession of the lend even after the attestation of the mutation and there was hardly any move on the part of the vendees to get the relevant entries in the mama mord changed in their names or to have made any attempt to take physical possession of the !And. The question was not even agitated before the Land Acquisition Collector on 31-12-1968 when he announced the award of these lands and declared before the common assembly of the villagers that no transaction of any land had taken place in village Seel wan during the past five years. Had the possession been delivered to the vendee: in a regular manner or the entries made to that effect in the revenue record, the Land Acquisition Collector must have taken note of it. It therefore follows that the sale was not accompanied by delivery of possession of the land whicha is a sine quo non for any valid mutation. It is alto not believable that the vendee: had really wanted to purchase, for agricultural purpose, a few kaaals of land comprising partly banjo, qadeem and partly cultivated area which was to be submerged under the Dam during the same summer. As it would appear from the subsequent events the transaction was not really motivated by any business principle but by the desire to create multiple digibilities for obtaining alternate lands under the Resettlement Scheme. It is therefore manifest that the sale was not supported by the delivery of possession of the land and also that it was not motivated by any business 41)PLD1964AzadI&K21 principle and thus void and incapable of creating any right or title in favour) of the nine transferees.
32. It appears that after the Mutation No, 5247 had been attested, Lt.-Col. Muhammad Banff discovered that his nine transferees could not obtain alternate land because each one became owner of only 8 kande and 2 marks of cultivated land instead of 16 !Canals entitling for alternate allotment under the Scheme. In order to overcome this hurdle Lt.-Col. Muhammad Hanif and his real nephew (Rab Navas) one of the transferees, applied to the Collector on 12.6-1968 for the correction of entries in Register Girdawari pertaining to Kbarif 1967 and Rabi 1968. Upon this a Natb- Tabsildar visited the spot (which according to the petitioners could not be visited because of the flood season and also because the land had been inundated by the WAPDA), and submitted a report to the District Collector recommending variations in the soil classification by altering the entries of Register Girdawari, on which the Collector ordered corned mi of the relevant entries on the asis of obvio clerical errors, ride his order dated 16-1-1970. In doing so the Collector ignored the provisions of pares.
7.43 and 7.49 of the Land Record Man which inter alla provide that in carrying out changes in the kind of soil its Register Girdawari as well as in the Register Haridaran Zemin care sho be taken that land once classed as unirrigated or waste land be not cl as irrigated unless a permanent change of this nature has occurred. Since the entries required to be changed had been recorded continuously as such `L not only in the Registers Girdawari but also in all the Jranabandis, old or new there was no occasion for the Collector to have ordered a change in these entries which were of permanent nature unless of course It had b established during the course of an inquiry that a permanent change the kind of soil had occurred. The correction for the purpose, if at all considered necessary should have been made through a mutation of seha IndraJ as required under section 44 of the Land Revenue Act. It is now settled law that no disputed entry in a Jamabandi should be altered whethe on the ground of mistake or of fraud except on the basis of an obvlou derIcal error or a patent fact. It has been further held in 1934 L L T 37 th a fact that needs an elaborate inquiry to establish is not a "patent fact. As in the present case the entries appearing in the Register Girdawari continued to be incorporated in all the Jam/bawls they should not have AI been altered on the presumption of being "clerical errors" in view of pars 7--of the Land Record Manual. Thus in view of this legal position the otti dated 16-1-1970 of the District Collector allowing corrections In the entre of Register Girdawari which bad been incorporated in all the for long, was without lawful authority and therefore void and of no legs effect.
33. Assuming however for argument's sake that the mutation was v and the corrections made in the Register Girdawari were justified, even th the nine transferees could not get alternate land because according to B of Revenue letter No, 6544-69/2728-CSI, dated 27-11-1969 only owners a the time of publication of the notification under section 4 of the Land Acquisition Act were entitled to alternate land. Although this date w subsequently changed from the date of publication of notification u section 4 to the date of award vide letter No, 993-72/994-CI, dated 28-3-197 and again to the time when the possession of the land was taken undo sections 16 and 17 of the Land Acquisition Act, 1894 vide letter No, 538 73/779-C1V. Dated 11-3-1974, yet these changes in the dates for determini the entitlement of eligible owners for allotment of alternate land were of no avail to the nine transferees, because their case bad already been finseised. And they had been given allotments on 4-84970 on the bards of their so-called eligibilities created through Mutation No 5247 and subsequent correction of Register Grirdawari by the Collector. Moreover, as it w clarified in Board of Revenue letter No, 1924-75/4061-CIV, dated 942-075, these cheeses in the original policy were introduced to accommodate only cases of bona fide transactions whereas alienations involved in the present case were made after the issuance of notification under section 4 with the obvious intention of creating multiple cases of eligibility to secure alterna land and were therefore not covered by aforementioned Government tette II was also observed that such transferees were not eligible for the grant of any alternate land and lands allotted to them were liable to cancellation under subpar.. (r) of para. 14 of the 1968 Scheme. In view of the position thus explained the nine transferees were not entitled to get any alternate laid ender the Scheme.
34. As retards Mutation No, 1922 sanctioned on 14-94069, by which Lt -Col. Muhammad Elanif gifted away his entire land comprising 295 kanals in village Ohelaghara to his 15 close relatives, we find that it suffers, more or lees, from the same legal inafirmities as were noticed in the case of Mutation No, 5247. The only exception in this case is that permission of the Land Acquisition Collector was sought on 3-2-1969 for the transfer of 200 bawls of land in favour of the donee*. The price of land' was fixed at Rs, 5,000 foe the total area and a sum of Rs, 50 was deposited as District Council fee at the rate of I % of the sale price, It may be seen that the price of the land, as assessed by the Revenue Officer, bad no bearing with the actual price of the land which, in no case, was less than Rs, 26,600 as was determined by the Land Acquisition Collector in the award of village Ghalughara announced on 29-1-1970. The Land Acquisition Collector observed in his Award that his main duty was to assess value of the land as it stood in June, 1965, when the notification under section 4 of the Land Acquisition Act was issued. He accordingly assessed the value of the sallab land at Re.
1,000 per kola' By applying this rate, the value of the sailab land alone came to Rs, 26,00 for which only a sum of Rs, 5,000 was shown to have been paid by the dowers. It may also be mentioned that soon after the sale was made, the land was inundated and, therefore, there was hardly any occacon for the dome being put in physical possession of the land. This fact was further confirmed by the absence of any entries in the Register Girdswati showing possession of the donees. This means that the gift ws not only not supported by payment of adequate consideration but it was also without the delivery of possession to the donees which was one of th essential ingredients of a valid gift and therefore it was void and withou any legal consequence. Even if it is presumed that the gift was valid an possession of the land was duly transferred to the donees, they cstinot ciai any allotmeet on the basis of the transfer of the land so made in their favour in view of the fact that the donor, Lt: Col. Muhammad Hanif had already obtained maximum allotment of 50 acres against his total ownership as long ago as 11-7-1968, thereby leaving no further scope for any allotment in favour of 15 donees within the meaning of para. 14 of the 1968 Scheme. Therefore, the allotments made to 15 donees on 10-24971 and their subsequent exchange with the areas in Chak Samar Khel of Rakh Dullewala on 17-6-1971 was without entitlement and therefore void and illegal.
35. The procedure adopted by the Resettlement. Ofilcer/Collector in shifting the allotments of Lt.- Col. Muhammad Hanif and his relatives, by way of exchange, to Rakb Dullewala was also called in question The record shows that Lt.-Col. Whammed Hanif applied for the exchange of land on 28.10- 1977 on which the Collector instead of making any order under section 17 of Colonisation of Government Lands Act. 1912, proceeded to resume the land allotted to the applicant in village Nikroo Shaheed and to his nine transferees in Chak Makers, under section 24 in total disregard of the procedure proscribed for the resumption of lands under that section. After so resuming the lands, the Collector proceeded to make fresh allotments in the name of the applicant and of his nine transferees in Rakh Dullewala in lieu of the resumed lands aide his order dated 10-2.1971 purported under section 10 of the Act. In the same manner the other relatives of Lt.-Col. Muhammad Hanif were also accommodated in Rakh Dullewala. The explanation of the Collector for choosing this novel procedure was that the allottees were clamouring for better lands in compact block in the vicinity of their home village. In this connection it may be well to observe that the allotments made under the Resettlement Scheme, 1968 were outright sales b private treaty in terms of conditions 5 and 9 and therefore no exchange could be allowed by the Collector in lieu thereof in purported exercise of his pow under section 10 or section 17 of the Colonisation of Government Act. The powers of exchange are exerciseable only under section 17. Powers are not unrestrained and the Collector who is acting or purportin to act under section 17 has to be guided by the instructions that have been communicated to him, from time to time, through the Commissioner, the is to say, by all instructions of Government and the Board of Revenue rela to such matters. The general instrucions issued by the Government in this behalf are contained in para. 70 of the Standing Order No, 67 and pars. 364 of the Colony Manual which provide, in clear terms, that land purchased at auction or allotted through sale by private treaty cannot be exchanged without the express orders of the Government, which should only be sought in very exceptional cases. Thus, in the instant case not only that the procedure adopted by the Collector in transferring the previous allotments by making fresh allotments under section 10 was not warranted by law but also powers to allow these transfers by way of exchange were not awailable to him in view of the restrictions laid down under para. 70 of the Standing Order No, 67 and para. 364 of the Colony Manual.
36. Also, there seems no scope for argument that as the respondent had continued in possession of the land in dispute for more than three yea they were entitled to the benefit of section 16 of the Colonization of Government (Lands) Act, 1912. It may be observed that orders making allotment of the land to the respondents and the delivery of its possession to the were soon challenged in appeal before the competent authority and since then the litigation is pending adjudication. The respondents therefore cannot avail of the time elapsed in prosecuting the legal proceedings against the In view of the well recognised principle actus curiae madmen graveit (an act of the Court shall prejudice no man). Besides, according to para. 14 (v) of the Scheme if an allotment is made to a person not entitled to such allotment or is in excess of his entitlement, it should be cancelled or reduced as the case may be. Since in these cases the allotments have been obtained without entitlement therefore, they are liable to cancellation under the Scheme.
37. A claim was also put forward by the respondents that they had pent a sum of rupees eight lacs on improvements by levelling the land, excavating channels, installing tube-wells and constructing houses. To me this story of expenditure seems highly exaggerated. The land was reported to be free from sand dunes and wherever any small pieces of land with and dunes were given to the respondents, they were exchanged with the good land through subsequent allotments. It was also reported that the land contained a lot of wood (standing trees) which was either sold by Lt.-Col. Muhammad Hanif or used for baking bricks for the construction of the bonne or used as rafters or beams. In these circumstances, the expenditure that may have been incurred by LL-CoL Muhammad Hanif has been relatively small as compared to the income derived from the land over the past six years in which he had remained in possession without any legal claim.
38. Thus, for the reasons stated above and in view of the documentary evidence brought on the record I have come to the conclusions :
(a) That the transfer of land by Lt.-Col. Muhammad Hanif through Mutations Nos, 5247 and 1922 in favour of his 24 relatives, after the publication of notifications under sections 4, 6 and 17 of the Land Acquisition Act, was made with the intention of creating multiple eligibilities for obtaining allotments of alternate land under the Resettlement Scheme, 1968 and therefore void and of no legal consequence ;
(6) That the order of the Collector dated 16-1-1970 altering the entries of Register Girdawari which stood incorporated in the last jamabandis, except through mutation seltat tadrah was against law and procedure ;
(c) That allotment of 360 acres obtained in favour of 24 transferees in consequence of the eligibilities created through Mutations Nos, 5247 and 1922 and corrections in the Register Girdawari was illegal and without entitlement and thus liable to cancellation under clause 14(v) of 1968 Scheme.
(d) That the transfer of these and other allotments to Rakh Dullewala through exchange allowed by the Collector without the requisite sanction of Government and without following the proper procedure was without lawful authority and therefore void and illegal ;
(e) That the area of 50 acres in Rakh Dullewala acquired by Lt.-Col. Muhammad Hanif through exchange in lieu of his previous allotment in Rakh Nikroo Sbaheed of Tehsil Khushab was also irregular. However since the original allotment was made according to his entitlement under para. 14 of the Scheme, there seems some justification for the exchange being regularised by according ex past facto sanction. The exchanges allowed in favour of Bashir Ahmed, Umar Hayat and Remzan also stand on the same footings and can be regularised in the same manner; (f)That the land in Rath Dullewala was reserved mainly for allotment among four evictee tribes of village Obalughara in order of priority fixed by the Resettlement Officer/Collector. The petitioners belong to Sat war net Tribe of the said village and were therefore entitled to get this land which was illegally allotted by exchange to the respondents who had already got allotments elsewhere;
(g) The respondents were not entitled to claim any compensation for improvements they might have made because the income derived from the land which remained under their occupation was much more than the expenditure incurred by them.
39. Consequently I would allow the revision, R. O. R. No, 780)72-73, set aside the impugned ordee of the Additional Commissioner, Sargodha dated 18-1-1973 and that of the District Collector dated 16.1-1970 allowing alterations In Roolatie
40. The Revision Petitions Nos, 558/71-72, 559/71-72, 560/71-72 and 561/71-72 are hereby rejected and the order of the Additional Commissioner dated 26.10-1971 is maintained. As a result, the exchange of 50 acres of land allowed in favour of Lt.-Col. Muhammad Hanif in Rakh Dullewala in lieu of his previous allotment in Rakh Nitro Shaheed as also the exchanges allowed in favour of Bashir Ahmad, Umar Hayat and Muhammad Ramzan are regularised and they are allowed to retain the land under their occupation in the aforesaid Rath.
41. There shall be no order as to the costs in the circumstance of the case.
' The order in these revisions was reserved and has been announced today in the presence of the counsel of the parties.