The petitioners are aggrieved against the order of Border Area Committee dated 16-2-1988, whereby the sale of the land by the respondent No.3 Abdul Mateen Khan in favour of the petitioners without permission of G.H.Q. Was declared illegal and consequently cancelled.
2. Brief facts of the case are that respondent No.3 Abdul Mateen Khan was allotted 201 Kanals, 5 Marlas of land in village Keerianwali, Tehsil Depalpur, District Okara under Border Area Scheme. He paid the requisite dues to the Government and the proprietary rights were conferred on him on 28- 7-1967 by A.C.-II which is evident from mutation copy attached as Annexure "A". He remained in undisputed possession. After the sanction of mutation, Abdul Mateen became full owner of the property and on 9-8-1986, he sold 101 Kanals, 9 Marlas, of land to the petitioner . No.1 through registered sale-deed for consideration of Rs.1;90,000. Sale-deed was given effect in Mutation No.317 on 4-11-1986. The petitioner No.1 through Mutation No.361 sanctioned on 31-1-1988*sold 15 Kanals, 7 Marlas of land to petitioners Nos. 2 to 7 for Rs.32,000.
3. One Sardar Khan not party in this petition submitted an application on 5-10-1986 complaining to the Chairman, Border Area Committee that Abdul Mateen Khan obtained allotment of 800 Kanals and 2 Marlas of land by fraud and has sold the same to the petitioner No. l . He prayed for an inquiry for cancellation of the land. On the basis of this application, proceedings were initiated by the respondent No. 1. Notice was issued to him at his village address Keerianwali, Tehsil Depalpur, District Okra and ultimately, the advertisement was published in the newspaper for his service.
He did not appear and ex pane proceedings were ordered against him and the petitioner No. 1.
Statement of Patwari was recorded who stated that Abdul Mateen allottee without obtaining sanction of the G.H.Q., transferred land to the petitioner No. l in contravention of the provisions of M.
L. R.9 of 1959. Through impugned order; allotment of respondent No.3, sale in favour of petitioner No. 1 and the subsequent sale made by the petitioner No. l to remaining petitioners was also annulled.
A Robkar was issued for cancellation of 101 Kanals and 9 Marlas of the land of the petitioner No. l and for cancellation of subsequent sale, to the Assistant Collector, Depalpur for its implementation in the revenue record. Copy of the said Robkar r is Annexure "G".
4. Border Allotment Committee has submitted the written statement. It is admitted that respondent No.3 Abdul Mateen Khan got proprietary rights in land but it was subject to terms and conditions prescribed in scheme prepared by the Government under para. 9 Schedule III to M.L.R. 9 of 1959 and other terms and conditions prescribed therein. The allottee under condition (b) shall not alienate the land by sale, gift, exchange, mortgage after acquiring the proprietary rights except for the objects specified in clause (a) above, or otherwise without the prior permission of the Deputy Commissioner concerned who, before passing any order in this respect, shall satisfy himself that the alienee is a suitable person for settlement in the border area. In case of the Military allottee, the Deputy Commissioner concerned shall obtain approval from the General Headquarters before passing the final order for alienation of the land. The Deputy Commissioner before according such a permission shall on consultation with the Adjutant General, General Headquarters Det, (W&R) Det, Rawalpindi satisfy himself further that no Military Personnel is willing to purchase the land.
5. In 1981, through Punjab Ordinance No. III of 1981, a new penalty clause No. 1.1 was inserted which is as under:--- "The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Headquarters.."
According to the respondent No.2, Military allottee could not sell or transfer the allotted land without prior permission of the G.H.Q., because keeping in view the defence point of view of the country, the conduct, character and activities of the purchaser are to be investigated. The petitioner No.1 purchased the land in violation of law, therefore, the sale-deed, dated 9-8-1986 is illegal. Mutation No. 317 sanctioned on 4-11-1986 in favour of the petitioner No. 1 and subsequent sale made by him to the many petitioners through Mutation No. 382 are against law.
6. Learned counsel for the petitioners contends that the petitioner No. l is a bona fide purchaser for consideration. He has checked the Revenue Record before sale of the land in his favour. The respondent No.3 is duly entered complete owner of the suit property without any incumberance, therefore, he purchased it after paying Rs. 1,90,000 to the allottee. If there was any restriction on the sale of the land that could be pointed out to him by the Deputy Commissioner or the Sub-Registrar at the time of registration of the sale-deed in his favour. No such objection was raised, therefore, the sale--deed was registered in his favour. He has further argued that under condition 8-B prescribed by M.L.R. 9 of 1959, it was the duty of the Deputy Commissioner to satisfy himself whether the vendee is a suitable person for settlement in Border Area and if there was any objection, matter should have been referred to the G.H.Q. For obtaining sanction before the registration of sale-deed in his favour. The petitioner has not committed any fault in purchasing the land. The sale-deed was registered after observing legal formalities with certificate of the Patwari that there was no restriction for the sale in favour of the petitioner No. 1. In these circumstances, submits that allotment' made in the year 1967 to the respondent No.3 was cancelled through impugned order after a very long time when the land has been sold. He did not appear before the respondent No.1 nor his correct address was given in the notice advertised in the newspaper. He was condemned unheard. The impugned order is not in accordance with the true spirit of conditions of the allotment and restriction for its sale. The impugned order is illegal and be declared without lawful authority.
7. Learned counsel for the Border Allotment Committee supported the impugned order and has relied upon condition No. 11 promulgated through Ordinance No.III of 1981 which says that allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without permission of the G.H.Q:
8. I heard the counsel for the parties at length, perused the relevant) record. It is evident from Annexure "A" mutation sanctioned in favour of Abdul Mateen respondent No.3 allottee that he was given proprietary rights after allotment on the payment of prescribed dues. The land belongs to Central Government and was mutated in his name on 28-7-1967 after payment of entire price. He was given proprietary rights of 201 Kanals; 5 Marlas. The allottee after acquiring proprietary rights sold 101 Kanals, 9 Marlas of land to petitioner N0.1 through registered sale-deed dated 9-8-1986.
This deed was given effect in the Revenue Record through mutation sanctioned on 4-11-1986.
Muhammad Sharif petitioner No.1 vendee from respondent No.3 further sold 15 Kanals and 7 Marlas of land for Rs. 32000 to remaining petitioners on 31-1-1988 through sale mutation. When the sale- deed was presented for registration, the Sub-Registrar has not raised any objection regarding violation of any conditions of MLR 9 of 1959. In fact the Patwari has given an endorsement with entitlement certificate that the property was not encumbured and its sale is not prohibited.
Government functionaries have not cared to abide by the restrictions on the sale of the property situated in border area. Petitioner innocent villager has checked the Revenue Record and found the property free from all encumberence entered into bargain and having purchased against huge amount has been deprived of it without any fault on his part. The Deputy Commissioner under the scheme could get the sanction from G.H.Q. For the transfer of the land in his favour if there was any objection with regard to his suitability. No such reference was made to the G.H.Q. As contemplated by the condition of allotment which could be done even by the Border Allotment Committee before passing of the impugned order.
9. The advertisement given by the Border Area Committee shows the address of Abdul Mateen Khan of Tehsil Depalpur, District Okara, whereas after the sale of the land, he was not residing there.
According to Annexure "A", be was resident of Karachi. Notice has not been sent on the correct address, therefore, he was not served and has been condemned unheard.
10. The petitioner after such a long time could not be deprived of valuable property on a technical objection that the sanction of G.H.Q. Was not obtained. Border. Area Committee or Deputy Commissioner could refer the case to G.H.Q. For the permission of sale in favour of the petitioner No. 1.
11. This. Court while deciding Writ Petition No.687/R of 1979 on 24-3-1980 observed as under:--- "The admitted position of all the parties is that the land in question was State land i.e. Provincial Government land. On 6th November, 1969, the Secretary to the Government of West Pakistan vide.
Letter No.7955-69/4141-CVI wrote to the Adjutant-General G.H.Q., Rawalpindi, that 'the Government of West Pakistan is pleased to transfer all State land lying within five miles belt of the Indo-Pak Border in the former Punjab Province and to Bahawalpur State to the G.H.Q. For allotment through the agency of the Border Allotment Committee, subject to the condition that the price of the land will be settled by negotiation between the Board of Revenue with G.H.Q. And in consultation with the Finance Department.
2. ...........................................
Then, Letter No.3277-71/3264-CVI, dated 29th September, 1971 was sent by the Secretary to Government of the Punjab, Colonies Department to -the Adjutant-General, G.H.Q. To the following effect: "The Governor of the Punjab has been pleased to decide that the payment of the price of the State agricultural land lying within five miles of the Indo-Pak Border belt allotted to Military Personnel by the Border Committee, shall be made by the allottees as under:---
(a) The allottees shall pay into Government Treasury the price of the State land in lump sum or in ten equal yearly instalments under the head ' L-I Extraordinary Receipt---Sale of Undeveloped Agricultural -land by auction or by private treaty in 'Colonies' on the dates fixed for the payment of land revenue' .........
From the perusal of the above two letters, it would be apparent that the land was initially transferred to the G.H.Q. Subject to the payment of the price to be settled later on, by the G.H.Q.
Then, it was decided subsequently that the allottees themselves shall pay the price. Therefore, until transfer price, i.e. The consideration, was paid, the title did not pass from the seller to the transferee.
When the petitioners paid the transfer price which was accepted by the seller i.e. The Provincial Government, and the latter executed the sale--deeds and got them registered in favour of the petitioners, the petitioners acquired title from the owner. Nobody else can object thereto. The contention of the learned counsel for the respondents that since the sale-deeds had been executed on the basis that the petitioners were taken as allottees of the land whereas they were not has no force for the simple reason that whatever the reason for execution of the registered sale-deeds may be as long as the executant, the owner; does not object, nobody else can do so.
Another contention that when the Revenue Authorities of the Provincial Government purported to cancel the allotments of the petitioners, the petitioners previously filed writ petitions contending that the said authorities had no jurisdiction but only Border Area Committee had, is of no avail .To the respondents for the reasons, firstly, that the Revenue Authorities themselves stated previously that they had no intention to take any action against the petitioners, secondly, the Border Area Committee did not contend that the action of the Revenue Authorities was lawful and, finally a plea of a party cannot confer jurisdiction on a tribunal which the latter does not possess under law.
Therefore, as long as the registered sale-deeds in favour of the petitioners subsist and mutations of sale in their favour exist, nobody can interfere in their rights. The judgments referred to by the learned counsel for the petitioners are fully applicable to the cases in hand and are; therefore, relied upon. If anybody or authority is dissatisfied, it can ask the seller, the Provincial Government, to get the registered sale-deeds cancelled in appropriate proceedings from proper forum. It would be for the Provincial Government to decide as to whether the facts justify such a recourse and law permits it to do so, and whether it is advisable in the circumstances of the cases. It is quite clear like crystal that except for the owner, i.e. The Provincial Government, nobody else, including the Border Area Committee; has any jurisdiction or authority to intermediate in the rights of the petitioners. Proceedings before the Border Area Committee and the order impugned in these petitions interfering in the rights of the petitioners are totally without lawful authority and of no legal effect. These are so declared. The titled petitions are allowed with costs to be borne by the Border Area Committee.
12. In the light of observations made in aforesaid cases and the fact that no objection was raised by D.C. Or Sub-Registrar at the time of execution of sale-deed and sanction of mutation regarding suitability of vendee to settle in border area in terms of conditions referred above, this petition is allowed, the impugned order is declared without lawful authority consequently of no legal effect.
The case is remanded to respondent No. l for its decision afresh after referring the matter to the G.H.Q. For obtaining its permission itself or through Deputy Commissioner concerned keeping in view the suitability of the vendee as prescribed in the conditions of allotment. There will be no order as to costs.