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Civil Appeal No. 292 of 1969, decided on 18th May 1971.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 14th April 1966, in Writ Petition No. 574 of 1964).
Order of Border Area Committee (cancelling allotment) made after 8.6-1962 i.e. after commencement of Constitution of Pakistan (1962)-Not immune from attack and open to judicial review under Art. 98.
Muhammad Khan v. Border Allotment Committee P L D 1965 S C 623 distinguished.
Mehr Din v. Border Area Committee P L D 1970 S C 311 ref.
-Allotment validly made in favour of P (eligible for allotment under Rehabilitation Settlement Scheme or Border Scheme)-Border Committee under para. 10 (a) not empowered to cancel allotment from names of persons inheriting land from P after his death-Question of inheritance including mode of succession -Not a matter for Border Area Committee to decide nor Border Area Committee competent to annul or modify mutation finally authenticated by competent Revenue Authority.
P, a displaced person was allotted land in the border area against his verified claim. Thereafter P died issueless and on his death mutation was attested in favour of his three nephews and this mutation was finally authenticated by the competent Revenue Authority. On receipt of a complaint that the mutation was obtained by misrepresentation, the Border Area Committee cancelled part of allotment, holding that the three nephews were entitled to only 3/8th share of the land allotted to P. The Supreme Court, however, held, that the question of inheritance as to who were the heirs of P and what was the extent of their respective share, was not a matter for the Border Area Committee to decide nor was the Border Area Committee competent to annul or modify a mutation finally authenticated by competent Revenue Authority. If, apart from the three nephews, there was, at all, any other heir of P for which it was thought necessary to review the mutation, the Border Area Committee should have, instead of making the impugned order, referred the matter to the authority competent to modify the mutation.
Ch. Azimuddin, Advocate Supreme Court instructed by Kh. Wali Muhammad, Advocate-on-Record for Appellants.
Abdul Mannan, Advocate Supreme Court instructed by Salim Ahmad Malik, Advocate-on-Record for Respondent No. 1.
Respondents Nos. 2 and 3 : Ex parte.
Date of hearing : 30th April 1971. .
-This appeal, by special leave, is directed against the judgment and order of a Division Bench of the erstwhile High Court of West Pakistan, Lahore, by which the appellants' Writ Petition No. 574 of 1964 was dismissed on the 14th April 1966.
The facts relevant for the purpose of this appeal are as follows:
Pindu, a displaced person from India migrated to West Pakistan. He was allotted some land in village Uppal, Tehsil and District Lahore on 30-8-1952 Against his verified claim. This land lies within the border area, that is, within a distance of 5 miles from the border between West Pakistan and India. Sometime., after the allotment, Pindu died issueles9. On his death, the mutation in respect of the land allotted to him, was attested on 31-8-1955 in favour of the three appellants who are the nephews of Pindu, the mutation was finally authen ticated by the competent Revenue Authority on 7-9-1965. On the receipt of a complaint that the appellants had obtained the mutation in their favour by misrepresenting facts before the competent authority, the Border Area Committee re-opened the matter and, on. the basis of a report received from the Central Record Office, came to the conclusion that, apart from the appel lants, there were other persons also who were entitled to succeed Pindu as his collaterals. According to the report received from the Central Record Office, Pindu died leaving behind the three appellants as his nephews and five other persons. namely, Jamal, Sanwalia, Daliala, Babkan and Kamlu. Of them, Daliala alone was reported to have migrated to West Pakistan where he also died issueless. These facts were said to have been furnished by the Central Record Office on the basis of jamabandi record alleged to have been received from India. However, having regard to these facts, the Border Area Committee arrived at the finding that the appellants, as heirs of Pindu, were entitled to 3/8th share of the land allotted to Pindu, and by its order, dated 28-4-1964, cancelled the allotment in respect of the land in 5/8th share. The land in the said 5/8th share was then allotted to the respondents Nos. 2 and 3. Against this order, the petitioners made a writ petition in the High Court. A Division Bench of the High Court dismissed the writ petition on two grounds. Firstly, in the facts of that case, there was no lack of jurisdiction or power in the Border Area Committee to cancel the allotment in excess of the entitlement of the appellants. Secondly, in view of the decision of this Court in the case of Muhammad Khan v. Border Allotment Committee (P L D 1965 S C 623), the High Court has no jurisdiction to interfere with the order of the Border Area Committee.
Leave was granted in this case to consider if the two grounds on which the writ petition was dismissed by the learned Judges are valid.
I shall consider the second ground first. The order of the Border Area, Committee cancelling the allotment from the names of the appellants in 5/8th share was made on 28-4-1964, that is, long after the commencement of the 1962-Constitution on 8-6-1962. This Court held in the case of Muhammad Khan v Border Allotment Committee that an order made by the Border Allotment Committee before 8-6-1962 is immune from attack in A Courts including the High Court and the Supreme Court. This decision, it appears, was not correctly appreciated by the learned Judges of the High Court and they thought that all orders of the Border Area Committee made under the West Pakistan Border Area Regulation, 1959, irrespective of the date of such orders, are immune from attack. This, however, is not the decision of this Court in Muhammad Khans case. In that case, what was decided is that no order made under the said Regulation before 8-6-1962 is liable to be called in question. It follows therefrom that an order made under the said Regula tion on or after 8-6-1962 i3 open to challenge. This legal position was made all the more clear in d subsequent decision of this Court in the case of Mehr Din v. Border Area Committee (P L D 1970 S C 311). In the instant case, the impugned order of the Border Area Committee having been made on 28-4-1964, the High Court has jurisdiction to determine the validity of that order. As regards the first ground relied on by the learned Judges, the view taken by them, I am afraid, is not correct either. Learned counsel for the respondent No. 1 submits that under Paragraph 10 (a) of the West Pakistan Border Area Regulation, 1959, the Border Area Committee was empowered to cancel the allotment in this case. He relies on tbU.,legal provision for sustaining the impugned order of the Border Area Committee. Para graph 10 (a) of the said Regulation is thus
" 10 (a) The committee shall scrutinize all allotments of evacuee property within any border area and may, if after such scrutiny it ii satisfied that any allotment was made to a person. not eligible for allotment under the West Pakistan Rehabilita tion Settlement Scheme including the Border Scheme, cancel the allotment and direct the allottee to surrender forthwith the property to the Deputy Rehabilitation Commissioner within whose jurisdiction the property is situated and the decision of the committee in this regard shall be final."
According to this Paragraph, the Border Area Committee has
the power to cancel an allotment, if it is satisfied that the
allotment was made to a person not eligible for allotment under
the West Pakistan Rehabilitation Settlement Scheme or the
Border Scheme. In the instant case, Pindu, a claimant displaced
person was found to be eligible for allotment of land and the
disputed land lying within the border belt was accordingly
allotted to him. Thus, there was nothing wrong in the allot -I_
of the disputed land in favour of Pindu. As Pindu was B
eli;ible for allotment, paragraph 10 (a) is inapplicable in this
case and, for that reason, the Border Area Committee was
not empowered to cancel some land out of the allotment from
the names of the appellants who claim to have inherited it
from Pindu. In cancelling land in 5/8th share, the Border Area
Committee decided the question of inheritance, namely, as to
who are the heirs of Pindu and what is the extent of their
respective inherited shares. The question of inheritance includ
ing the mode of succession was not a matter for the Border Area
Committee to decide. Admittedly, the appellants obtained
mutation in respect of the entire land allotted to Pindu and
the same was duly authenticated by the competent Revenue
Authority on 7-9-1955. By the impugned order, the Border
Area Committee not only decided the question of inheritance
and the mode of succession, but also virtually decided that
the mutation in favour of the appellants was wrong. With
regard to the mutation, the Border Area Committee concluded
"Taking the above accumulatively into consideration it is therefore apparent that the attestation of th: mutation con ferring the right of succession of the property entirely in favour of three individuals is wrong as the rights of the remaining shareholders have been ignored apparently due to mis representation made by this party."
It is needless to say that the Border Area Committee is not competent to annul or modify a mutation finally authenticated by the competent Revenue Authority. Of course, the Border Area Committee sent a copy of its impugned order to the Revenue Authority concerned to enable them to review the mutation. But this was done apparently to carry into effect the Border Area Committee's finding with regard to inheritance and mode of succession and its order cancelling the allotment in 5/8th share, which the committee, in the facts of this case, was not competent to make. For these reasons, the learned Judges of the High Court were not right in taking the view that there was no lack of jurisdiction or 3 >..; .r in. .ht Border Area Committee to cancel the allotment in excess of entitlement C of the appellants. If, apart from t.- e appellants there was, at all, any other heir of Pindu :_,a- r ii-..la > .v:3.-, br , F g'zt necessary to review the mutation in favour of - l_: c;19:rits, the border Area Committee should have, instead of making the impugned order, referred the matter to the authority competent to modify the mutation.
Both the grounds relied on by the learned Judges having been found to be untenable, their judgment cannot be sustained. I would, accordingly, allow the appeal and set aside the judgment of the High Court. Powever, having regard to the points of law involved, I would leave the parties to bear their own costs.
WAHIDUDDIN AHMAD, J.-I
agree.
SALAHUDDIN AHMED,
J.-I agree.
Appeal accepted.
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