Rehmat Ali, petitioner No, 1, who is now dead and is represented by his legal representatives, was refugee displaced person from Mauza Dherian, Tehsil and District Hoshiarpur whereas Wali Muhammad who is also dead and is represented by his legal heirs, was refugee displaced person from Chak Lavian, Tehsil and District Hoshiarpur, both of them were heading families comprising 8 persons each and were allotted land (135 Kanals, 11 Marlas) in Chak No,541 G.B. under a Scheme in force commonly known as 'Guzara Scheme'. Some time later, such grants were converted into Ejected Tenants Scheme. Both of them applied for the grant of proprietary rights. The matter seems to have been examined and processed by the authorities concerned and sanction of the Commissioner of Sargodha Division was sought who on 17-11-1966 accorded the sanction to the "grant of proprietary rights in land measuring 16 Acres, 6 Kanals and 8 Marlas comprising Killa Nos,7, 8, 11, 12, 14, 16 to 25 of Square -No,19 situated in Chak No,541/G.B. Tehsil Samundari, District Lyallpur in favour of Wali Muhammad son of Umar Din, Rehmat Ali son of Noor Bux of the same Chak by means of sale by private treaty on the terms and conditions prescribed therefor."
Aziz Din and Ali Muhammad who were members of the families of Rehmat Ali and Wali Muhammad, appear to have taken up the matter with the authorities for the grant of rights to them separately. It was on such a motion by them that the Commissioner Sargodha Division, Sargodha vide memorandum, dated 5-6-1975 clarified that the proprietary rights will be granted to the heads of families and "in case somebody feels aggrieved about the mis-joinder, he can have a resort to civil Court for establishing his rights." The Deputy Commissioner, Lyallpur, as it then, was directed to decide the case on merits so that the aggrieved party could go in appeal.. The Deputy Commissioner/Collector then took up the matter who on examination of the record and hearing the parties, vide order, dated ' 30-5-1978 proceeded to implement the order of the Commissioner, dated 17-11-1996. The order of the Deputy Commissioner was appealed against which was dismissed by the Additional Commissioner (Revenue) Sargodhs Division on 22-4-1979. The matter was, then, agitated before the Board of Revenue, which was dismissed by A.K. Khalid, Member (Colonies) Board of Revenue Punjab on 10-5-1979. It was found by him that grant of proprietary rights was in accordance with the policy instructions and the petitioner had no right to claim proprietary rights as a separate allottee." Admittedly, the said order was not challenged any further. As a consequence, a conveyance Deed was executed in favour of Rehmat Ali and Wali Muhammad, deceased and registered on 21-7-1980. It was, however, on some application made by respondents Nos, 2 and 3 before the Member (Colonies) Board of Revenue; Punjab, Lahore in the year 1982 that Mr. S. M. Naseem, the then Member (Colonies) Board of Revenue decided to proceed with the matter on suo motu side treating the same as a revision and eventually came to the conclusion that "the respondents (petitioners herein) were jointly allotted the disputed land under Elected Tenants Scheme and thus the allotment was to be treated as a single tenancy and the proprietary rights of only 64 kanals of land could, have been granted to the respondents under this Scheme. The Commissioner had erred in granting the proprietary rights of 134 kanals, 8 marlas of land to the respondents. The execution of conveyance deed and its registration was, therefore, incorrectly made and mutation was also incorrectly sanctioned. In view of what has been stated above, it is abundantly clear that the proprietary rights of the land in dispute were obtained by the respondents through fraud and misrepresentation of fact. The Board of Revenue, therefore, can competently exercise its jurisdiction under section 30(2) of the Colonization of Government Land (Punjab) Act, 1912. Consequently I would set aside the order, dated 13-1-1966 of the Commissioner allowing the respondents to obtain the proprietary rights, revoke the deed of conveyance executed in their favour and rescind Mutation No,895 decided in favour of the respondents. The Commissioner should again enquire into the matter keeping in view the policy on the point and considering that it was one tenancy. The revision petition is thus, disposed of." This was vide order, dated 8-2-1983 which has been assailed through this petition.
2. It is contended by the learned counsel that the families of Rehmat Ali and Wali Muhammad, petitioners hailed from different villages in India and it was just a chance that the allotments under the 'Guzara Allowance Scheme' were shown as a single allotment whereas both the families were separate and independent for all intents and purposes. It is contended that Commissioner of the Division was conscious of this fact and proceeded to sanction the sale of the whole of the allotted land to them which order was maintained by the Board of Revenue as well. It is contended that no fraud whatsoever, has been committed by the petitioners, the provisions of section 30(2) of the Colonization of Government Land (Punjab) Act, 1912 were not attracted. According to him, learned Member Board of Revenue has acted without lawful authority in setting aside the order of the Commissioner which had been upheld by the Board of Revenue. Reliance has been placed on a judgment by the apex Court, dated 15-5-1991 in C.A. No,447 of 1988 that the petitioners were validly granted the proprietary rights.
3. On the other hand, the learned counsel for the respondents Nos, 2 and 3 as also the learned counsel appearing for Advocate-General, Punjab, support the impugned order. It is contended that it was a single tenancy and both the petitioners were entitled to the extent of 64 Kanals of land only and the rest of the same has been rightly resumed by the Board of Revenue. It is contended that section 30(2) of the Act has rightly been invoked by the learned Member Board of Revenue.
4. The point which his germane to resolve the controversy and emerges from the facts and circumstances of the case is as to whether the Board of Revenue could lawfully invoke its power under section 30(2) of the Act in passing the impugned order. It may be observed that power under section 30(2) of the Act can be exercised where the acquisition of the tenancy was result of fraud and misrepresentation or the person was not eligible to have such rights. It is, thus, to be seen whether any fraud or mis-representation was committed by the petitioners in acquisition of the proprietary rights or had incurred any such ineligibility for such rights. It has been noted above that the two petitioners Rehmat Ali and Wali Muhammad had migrated from different villages of District Hoshiarpur and settled in Chak No,541 G.B. In the process of allotment of land, the members of families of Rehmat Ali and Wali Muhammad had been separately listed with their names and ages. On the Register of Temporary Allotment, Rehmat Ali and Wali Muhammad were assigned separate serial numbers. The area of two families headed by Rehmat Ali and Wali Muhammad, was almost 8 Acres each, but instead of making the total of the land against their respective allotments, the total of the two allottees was made together i,e, 135 Kanals and 11 Marlas. That, however, would not have made any difference that is how the Commissioner of the Division while sanctioning the sale in their favour mentioned the area as well i,e, 16 Acres 6 Kanals and 8 Marlas.
The matter was processed and examined thoroughly at the level of the Collector of the District while implementing the said order which order was, then, maintained by the Additional Commissioner and Mr. A.K. Khalid, the learned Member Board of Revenue. No fault was found with order of the Commissioner, dated 17-11-1966. As a consequence of which dues were paid by the petitioners and registered, conveyance. deed was issued in their favour and necessary entires carried out in the Revenue Record as well. No fraud or mis-representation could possibly be attributed to have been committed by the petitioners. Neither it can be argued that all those authorities acted illegally or without application of mind in passing the respective orders. The tenancies of the two families were quite distinct and independent meant for the respective families. Each of them could have been allotted the land, that is how proprietary rights were granted for the land measuring 16 Acres, 6 Kanals and 7 Marlas for which they were eligible under the Scheme. The premises on which the learned Member Board of Revenue in his order, dated 8-2- 1983 has proceeded to set aside the order of the Commissioner and revoke the conveyance deed that it was to be treated as a single tenancy and only 64 Kanals of land could have been granted to them, has factually no sound and valid basis. Invocation of provisions of subsection (2) of section 30 of the Act was declined by the Board of Revenue, Punjab itself in Muhammad and others v. Abdul Hameed and others (1993 MLD 1929) observing that extraordinary jurisdiction under section 30(2) of the Act could only be invoked when fraud and misrepresentation was established to have been committed. Again in The State v. Hashim through Muhammad Amir and others (1996 MLD 258) exercise of power under section 30(2) of the Act was declined. In Ghous Muhammad v.
Member (Colonies), Board of Revenue, Punjab Lahore (1986 MLD 997) the Board of Revenue while exercising powers under section 30(2) of the Act had directed the Deputy Commissioner to inquire into the matter as the allotment in favour of the petitioners therein appeared, to be in excess of the entitlement. That was a case of grant of proprietary rights under the Ejected Tenants Scheme. The order of the Board of Revenue was declared as of no legal effect, by this Court that no jurisdiction vested with the Board of Revenue to interfere with a settled transaction. In Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha v. Muhammad Akram (PLD 1993 Lahore 114), it was observed that where necessary substratum of facts was not laid, section 30(2) of the Act could not be invoked. Reference may also be made to Muhammad Liaquat and 5 others v. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953) and Ch. Muhammad Wasi and 9 others v. Member (Colonies) Board of Revenue Punjab, Lahore (2001 CLC 564). In the present case as well, the jurisdictional facts for invoking the extraordinary power under section 30(2) of the Act were lacking and missing. No fraud or misrepresentation had been committed by the petitioners nor they had suffered any ineligibility in securing allotment/grant of proprietary rights of the land. It may be observed that order of the Commissioner, dated 17-11-1966 whereby he had sanctioned the grant Of proprietary fights, had undergone scrutiny on judicial side right from the level of the Collector up to the Board of Revenue. The settled rights of the parties could not be interfered with on general unsubstantiated allegatias. The learned Member Board of Revenue, thus, acted without jurisdiction in passing the impugned order, dated 8-2-1983.
As a result of the above, this petition is accepted. Order, dated 8-2-1983 passed by the learned Member (Colonies) Board of Revenue is declared illegal and of no legal effect. No order as to costs.