This civil revision assails judgment and decree dated 24.11.1994 passed by the District Judge, Sargodha, whereby appeal of the respondents was accepted and suit filed by the petitioners was dismissed.
2. Precisely, facts relevant for the disposal of this revision petition are that the petitioner filed a suit for declaration with permanent injunction as consequential relief against the respondents, asserting that he is owner in possession of land measuring 20 kanals 10 marlas of Chak No, 89/NB, Tehsil & District, Sargodha. He also asserted in his plaint that land measuring 50 kanals and 5 marlas, as detailed in the plaint, was allotted to Muhammad Yousaf, Respondent No, 4, vide Letter No, 650, who acquired proprietary rights and took over the possession of the land whereafter he transferred the suit land, as mentioned above, in favour of the petitioner. It was also pleaded in the plaint that after transfer by sale in favour of the petitioner, as mutation was also sanctioned and he was shown as owner in the revenue record. Member (Colonies), Board of Revenue, Punjab, cancelled the allotment of Muhammad Yousaf, allottee on the ground that the land allotted to him fell within the prohibited area, within five miles radius of the municipal limit and thus, the allotment was obtained through fraud and misrepresentation. This cancellation necessitated filing of suit by the petitioner.
3. The respondents being defendants in the suit, contested it and controverted the assertions in the plaint by filing a written statement. On the basis of these controversial pleadings of the parties, trial Court framed issues and recorded the evidence. Learned trial Judge, who was seized of the matter, after due appraisal of evidence vide his judgment and decree dated 21.4.1992 decreed the suit of the petitioner and granted him the relief claimed.
4. The respondents aggrieved of the decision of the trial Court dated 21.4.1992, filed an appeal before the learned District Judge, Sargodha, and succeeded in getting the judgment and decree of the trial Court set aside. The learned District Judge, while accepting appeal, dismissed the suit of the petitioner vide his judgment and decree dated 24.11.1994. The petitioner came up in revisional jurisdiction of this Court assailing appellate judgment and decree, impugned herein, on the multiples grounds. His petition was admitted to regular hearing and is now fixed for final determination.
5. Learned counsel for the petitioner submits that once the land having been allotted to Muhammad Yousaf, allottee, price of it having been received, possession of the land having been transferred, Respondent No, 2 was not equipped with any lawful authority, to cancel the allotment.
He further submits that petitioner was a bona fide purchaser for lawful consideration and his name appeared in the revenue record but he was not given any kind of notice, before cancellation of allotment of Muhammad Yousaf, and thus, order of Respondent No, 2 regarding cancellation is contrary to law as well as principles of natural justice. It has further been contended that the provision under which Respondent No, 2 proceeded to cancel the allotment, were not applicable to the case in hand and thus, claimed that order of Respondent No, 2 is ab-initio void. Learned counsel for the petitioner further elaborates his arguments by saying that there was no material available before Respondent No, 2 or the appellate Court to say that the land allotted to Muhammad Yousaf fell within the prohibitory area as claimed by the respondents. According to him, municipal limit at the time of allotment were to be looked into. He alternative argued that had the land been in prohibited zone even then it could not have been cancelled under law. Conversely, the learned counsel for the respondents refuting the arguments of the petitioner, supported the judgment and decree, impugned, and submitted that the land allotted to Muhammad Yousaf is within the prohibited zone and thus, on an objection by the auditors, was rightly cancelled. He also contends that under Sections 16 and 30(2) of the Punjab Colonization Government Lands Act, 1912, Respondent No, 2 was competent to cancel the allotment obtained out of fraud and misrepresentation. Learned counsel also urged that before cancellation, a notice to the allottee was given and the petitioner being transferee from the original allottee cannot demand any notice.
6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the part of land, subject of allotment of Muhammad Yousaf, allottee, vested in the petitioner and his name was duly reflected in the revenue record which is shown to have been produced before respondent No, 2 at the time of order of cancellation. It shows that petitioner is recorded as owner in possession. The petitioner was a transferee from the allottee from whom the entire sale price was received by the respondents and execution of documents, in this behalf was completed and he when purchased this land, there was nothing pending in from of proceedings for cancellation of the land from the name of the allottee.
Section 30(2) of the Punjab Colonization of Government Lands Act, 1992, reads as under: "Section 30(2): If, at anything, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause pass an order resuming the land in respect of which proprietary rights have been acquired or reduced the area of such land or pass such order as it may deem fit."
7. Respondent No, 2 had exercised its authority under the provision of law, above produced which it itself says that Board of Revenue may proceed for cancellation of tenancy rights obtained through fraud or misrepresentation, after giving such person a reasonable opportunity of showing cause but in the instant case no step in this behalf was taken by Respondent No,
2. I had required, during the course of hearing, the learned counsel for the respondent to show from his record any notice served on the petitioner, including the original allottee Muhammad Yousaf but he could not do so.
In a similar situation where original lessee after payment of entire lease amount, sold her rights to subsequent lessee, who onward sold those rights to another person but Board of Revenue after issue of suo-moto notice to the original lessee, cancelled transfer in favour of subsequent transferees were declared as illegal, in the case of Mian Bashir Ahmad vs. The Government of Sindh through Chief Secretary, Sindh Secretariat Karach and 3 others (1997 MLD 1847). Provision of notice of hearing before cancellation was a statutory provision that Muhammad Yousaf No, 2 lawful transferee, held to be so concurrently by the two Court below, was entitled notice as well as hearing before order by Respondent No, 2 and thus I conclude that this order was bad at law.
8. Respondent No, 2 no doubt could proceed against fraudulen transfers of tenancy/lessee rights obtained through misrepresentation under Sections 16 and 30(2) of the Punjab Colonization of Government Lands Act 1912, but not with regard to land permanently settled on the allottees. These provisions only related to tenancy/lessee rights which were not involved i the case in hand. The petitioner had paid the entire price of land, ha deposited all the other incidental charges and had taken over the possession of the land and in such an eventuality their allotment could not have been cancelled. In the case of Malik Harbhagwan's case, it was held that transfers, once made in favour of the petitioner could not be cancelled. This view was taken by this Court, in the case reported as Government of Punjab Province vs. Malik Harbhagwan and another (1940 PLR 529) and it was decided that Collector could see payment of purchase of money and the fulfillment of conditions of sale, before executing sale-deed in favour of the allottee but thereafter he ceases with any authority to intervene, after conferment of proprietary rights even though there has been breech of some condition of sale-deed. It goes without saying that proviso to Section 16 of the Act, 1912, which existed on the textbook earlier to 1978 conferring jurisdiction on Respondent No, 2 to scrutinize tenancy/lessee rights under the Punjab Colonization of Government Lands Act, 1912, stood removed w,e,f, 3.3.1948 through Ordinance, XII of 1978. Case of the petitioner, as observed above, did not relate to tenancy rights, thus, Respondent No, 2 was equipped with no authority to cancel allotment in favour of Muhammad Yousaf, after receipt of price and execution of sale-deed.
9. Powers vesting in Respondent No, 2 under Section 30(2) of Act, 1912, also did not give him any authority to cancel land of the petitioner but those powers to resume even tenancy rights, are subject to certain prerequisites like fraud or misrepresentation. Assertions of fraud and misrepresentation are factual in nature, which require some basis and determination.
Undisputedly, power under Section 30(2) of the Act, ibid were given to Respondent No, 2 as remarked above which could not have been delegated by him but he, admittedly, did not hold any inquiry and after passing the order of cancellation, remitted the case to its subordinates for this purpose. The course adopted by Respondent No, 2 was not permissible under law. He had no concrete proof of fraud or misrepresentation and thus even if it be assumed that he had an authority to cancel allotment of the petitioner, there being no proof of the pre-requisites, as noted above, his order resuming land of the petitioner is void, on the face of it. Respondent No, 2 having himself acted contrary to provisions of Section 30(2) of the Act ibid, his order is ultra vires of this provision of law. My this view, gets support from a judgment given by this Court in alike facts, in the case of Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha vs. Muhammad Akram (PLD 1993 Lahore 114). This Court in another case of Muhammad Lid qat and 5 others vs. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others (2000 CLC 953) struck down the cancellation order passed under Section 30(2) of Act, 1912. In this case, allotment was made under Grow More Scheme and the allottee further sold those rights, for a valuable consideration whereafter Board of Revenue determined that allotment was fraudulent and cancelled it and the purchaser was required to purchase this land on payment of market price, again, it was held that it was not open to the Board of Revenue to resume land which already stood vested in the purchaser. In this case, after transfer of land, petitioner, thereover, has settled since their allotment. Land exclusively vested in him and could not have been cancelled or resumed by Respondent No, 2.
10.Respondent No, 2, even on the basis on which he proceeded to pass the order dated 29.8.1985 that the allotment falls within the prohibitory zone of five miles of the Municipal limits, could not cancel it because once land was made available for allotment, it was transferred and it settled on the petitioner, it would supercede all the notifications imposing such prohibitions. Under law, presumption is that acts done by the statutory functionaries were done in good faith and in lawful manner, according to law applicable at that time. Under the principles of locus poenitentia, the respondents were not justified to act in the complained manner to cancel land of the petitioner.
11. The appellate Court did not properly comprehend the legal proposition involved in the case and at the same time, relevant provisions of law, as referred to above, escaped his notice. Without their being any evidence, showing that cancellation order by Respondent No, 2 was backed by some lawful authority or any justifiable basis and fraud or misrepresentation on part of the allotte, the order of Respondent No, 2 could not have been sustainable, consequently, appellate judgment is not only tainted with illegalities, above referred, but also runs counter to the law applicable, hence, same is not sustainable. I, accordingly, set aside the appellate judgement and decree dated 24.11.1994 passed by the District Judge, Sargodha, with the result that judgment and decree dated 21.4.1992 by the learned Civil Judge, stands revived whereby suit of the petitioner was decree. There will be no order as to costs.