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Writ Petitions. Nos. 548‑R of 1971, 795‑R of 1972 and Criminal Miscel laneous No. 290‑Q of 1976, decided on 3rd December, 1979.

--‑‑S. 561‑A read with Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 27, 28 & 29 and Penal Code (XLV of 1860), Ss. 468/109, 419 & 420 read with Prevention of Corruption Act (II of 1947), S. 5 (2)‑Quashment of proceedings‑Accused alleged to have obtained allotment of land in name of a person who was dead for ten years and to have sold such land fraudulently‑‑Such allegations amounting to offences under Ss. 27 & 28 of Act XLVII of 1958‑Prosecution against accused, however, not lodged by an officer appointed under Act‑Cognizance of offence could not in circumstances, be taken by any Court including Special Judge, Anti‑Corruption‑Allotment in respect of which allegations were made also standing cancelled by Settlement Authorities-- Held, no useful purpose can be served by continuing proceedings which were otherwise without legal basis‑Proceedings quashed.

Shaukat Ali Malik for Petitioners.

Nemo for Respondents Nos. 1 to 3.

Khan Muhammad Virk for Respondents Nos. 4 to 7.

Dates of hearing : 2nd and 3rd December, 1979.

This order will dispose of Writ Petition No. 548/11/71, Writ Petition No. 795/11/72 and Crl. Misc. No. 290/11/76 as these are connected matters.

2. Facts leading to the above petitions are that Ehtsham Ali Rizvi and Haider Abbas Rizvi were displaced persons from non‑agreed‑ area in India and for the land abandoned by them there, their claims were verified and they were issued entitlement certificates known as QPR for 4207 P.I.Us. on 20th February 1960, and 16th March 1960, respectively. In lieu thereof, they ware allotted an area measuring 528 kanals, 3 marlas to Chak No. 34/RB, Tehsil and District Sheikhupura. The allottees agreed to sell an area measuring 200 kanals to the petitioners through an agreement dated 18th September 1961 and appointed one Manzoor Hussain as their attorney in whose favour irrevocable power of attorney was also executed the same day viz. 18th September 1961. The entitlement was reduced under Martial Law Regulation No. 89/91 from .4207 P.I.Us. to 1455 P.I.Us. and the allotment in lieu thereof was made at Khata No. 286 for an area measuring 184 kanals, 13 marlas on 17th April, 1962. In view of the agreement referred to above dated 18th September 1961, the land was mutated in favour of the petitioners vide Mutation No. 195 on 24th June, 1962. An application was made on behalf of the claimants by their attorney Manzoor Hussain, to the relevant authority that since the allotment had been made of Thur and Sem area, they were entitled to Beshi to the extent of 40% of the‑units. The application was allowed and vide Khata No. 18 an area measuring 221 kanals, 16 marlas now in dispute was allotted in the name of the claimants on 6th August, 1962. This area was also transferred in favour of the petitioners vide Mutation No. 18 on 22nd May; 1963. One Alamgir, Lambardar and some others filed an application on 1st November 1963, to the Deputy Com missioner saying that the vendees were not entitled to get the Beshi units. The application was marked to the Revenue Assistant for enquiry and report who reported that the allotment of 221 kanals, 16 marlas to the original allottees was quite correct and that no irregularity of any kind had been committed in this respect. The Deputy Commissioner, Sheikhu pura, however, decided to refer the matter to the Chief Settlement Commissioner, upon which the Deputy Secretary (Rural) to the Chief Settlement Commissioner vide Memorandum No. 786‑40‑P‑65,/2940‑R(L; dated 22nd July 1965 informed the Deputy Commissioner, Sheikhupura that "According to the provisions of the scheme excess is to be given at the time of the allotment to the claimants who got sem and thur affected area. No such indulgence can be shown subsequently and particularly after the lard has been surrendered. The excess given is irregular any: may be withdrawn after observing necessary formalities of law". Or, receipt of the above, a copy was sent to the Tehsildar concerned who cancelled the land measuring 221 kanals, 16 marlas from Khata No. 18 on 5th May, 1966. The area alongwith others was then allotted in the name of one Khushi Muhammad son of Jiwa at Khata No. 20 on 9th May 1966, and was then sold in favour of respondents No. 4 to 7 vide Mutations sanctioned on 19th April, 1969. The petitioners challenged the cancella tion of the allotment from their Khata No. 18 by means of an appeal which was partly accepted to the extent that the impugned order of cancellation was set aside but the case was remanded to the Assistant Commissioner/Deputy Settlement Commissioner (Land), Sheikhupura to withdraw the Beshi with the consent of the vendees i.e. the present petitioners. This is vide order of the learned Additional Settlement Commissioner dated 26th August, 1970. During the course of hearing w which the last mentioned order was passed, it was brought to the notice of the Additional Settlement Commissioner that the land allotted in the, name of Khushi Muhammad son of Jiwa at Khata No. 20 on claim form: No. 6992 on 9th May 1966, was altogether a bogus affair as Khush; Muhammad had died in America in 1955 and there was no question of his selling the land to the respondents Nos. 4 to 7 in the year 1969. Having e teen apprised of these facts, the learned Additional Settlement Commissioner in exercise of powers of the Chief Settlement Commission‑ v directed issuance of notice to the alleged allottee, Khushi Muhammad and to the purchasers of the land i.e. respondents Nos. 4 to 7 as to why the allotment should not be cancelled. Against the order of the learned; Additional Settlement Commissioner by which the petitioners' appeal hall partly been allowed but the case remanded for withdrawing Beshi with their consent, the petitioners filed a revision petition saying that the Beshi could not be withdrawn at all and had rightly been allowed in their favour in the first instance. Respondents Nos. 4 to 7 to whom notice had been issued under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 by the learned Additional Settlement Com missioner under the aforesaid order, also filed a revision petition The learned Settlement Commissioner took up the two revision petitions together and he came to the following conclusion that "in the circumstances stated the impugned order was fully justified. The vendees of the land have a right to be heard before any land in which they have interest is withdrawn from them. At the same time the Beshi is to be withdrawn from their Khata after observing the necessary formalities of law as desired by the learned Chief Settlement Commissioner. The plea of both the parties that the case should not have been remanded to the DSC (L)) is without force though in each case it is for different reasons. The plea of the petitioners in the first case that there is no Beshi to be withdrawn without any valid basis on account of the history of the case stated above culminating in the direction of the learned Chief Settlement Commissioner. At the same time, the vendees have a right to be heard." He dismissed both parties' revision petitions vide order dated 29th March, 1971. This order was challenged by the petitioners through Writ Petition No. 548/R/71 saying, inter alia, that Beshi allowed on account of Sem and Thur was right and could not be withdrawn. The writ petition was admitted for hear ing and an order of .status quo was passed on 28th July 1971. In pursuance of the order by the learned Additional Settlement Commissioner, dated 26^th August 1970 for issuance of notice to the respondents Nos. 4 to 7 as to why the allotment in the name of Khushi Muhammad be not cancelled, the matter was taken up by the learned Additional Settlement Commissioner when the respondents Nos. 4 to 7 filed an application that since the peti tioners had filed writ petition in which an order of status quo had been pass ed the proceedings should be stayed. The application was rejected on the ground that the writ petition related to retention of Beshi units whereas the proceedings being taken were in relation to the fraudulent allotment in favour of Khushi Muhammad. The two matters being distinct, the proceedings could continue. This is vide order of the learned Additional Settlement Commissioner dated 19th June 1972. The respondents Nos. 4 to 7 filed a revision petition against the last mentioned order which was dismissed by the learned Settlement Commissioner vide order dated 8th September, 1972. The respondents Nos. 4 to 7, then, filed a Writ Petition No. 795/R/72, in which it was urged that against the same impugned order, Writ Petition No. 548/R/71, stood admitted. Consequen tly, the writ petition of the respondents Nos. 4 to 7 was also admitted for hearing. Further proceedings before the learned Additional Settlement Commissioner were stayed subject to notice. When the stay matter came up for final hearing on 24th October 1973, the following order was passed by His Lordship Mr. Justice Syed Nasim Hasan Shah as his Lordship then was and now a learned Judge of the Supreme Court of Pakistan :‑

"The matter has come up in connection with the confirmation of the interim order of ‑ stay passed . on 22nd December, 1972. By that order proceedings before the Additional Settlement Commissioner (L), Punjab, in regard to the property in question were stayed, pending the disposal of the writ petition, subject to notice.

2. After hearing the learned counsel for the parties at some length, it is clear that the ground on which this writ petition was admitted, namely, that the order impugned in this writ petition is also being challenged in W. P: No. 548‑R/71 is not quite accurate.

3. Be that as it may, as this writ petition has been admitted to hear ing, it has to be decided. on merits. The interim stay order passed on 22nd December, 1972 will, however, be modified to the effect that the proceedings before the Additional Settlement Commissioner are allowed to proceed and final orders can be passed therein but the said orders will not be given effect to pending disposal of this writ petition. The application for stay is decided in the above terms."

This is dated 24th October, 1973. Thereafter the proceedings against the respondents Nos. 4 to 7 culminated in cancelling the allotment in the name of Khushi Muhammad being forged and the entitlement of Khushi Muhammad having already been settled in another district, namely, Sahiwal. The order of the learned Settlement Commissioner is dated 30th April, 1978. Certified copy of the same has been produced by the learned counsel for the petitioners and is placed on record.

3. Learned counsel for the petitioners has contended that the Beshi allowed to the claimants was in accordance with the Correction Slip No. 8, dated 29th April 1950 printed at page 10 of the produce Index Booklet. He has produced the booklet wherein it is stated in respect of Sheikhupura district if the area allotted on the account of Sem and Thur has been ren dered damp to the extent of more than 50%, units for such land should be reduced by 40 /p. It is submitted that in pursuance of this provision of law, the Deputy Commissioner had rightly allowed 40% Beshi to the claimants and allotments had accordingly been made at Khata No. 18 of an area measuring 221 kanals 16 marlas on 6th August, 1962. The allotment was never challenged by means of an appeal or revision and the order has therefore, become final. It is next submitted that on an application of Alamgir that the Beshi could not be granted to the claimants, a report was called for from the local authorities and the Revenue Asstt. reported that nothing wrong had been done in this case and no action on the mis cellaneous application was called for but the learned Additional Settlement Commissioner thought it fit to refer the case to the learned Chief Settle ment Commissioner. On behalf of the latter, without hearing the peti tioners, the Deputy Secretary (Rural) sent a memorandum on 22nd July, 1965 to the local authorities to the effect that "according to the provisions of the scheme excess is to be given at the time of the allotment to the claimants who got sem and thur affected area. No such indulgence can be shown subsequently and particularly after the land has been surrendered. The excess given subsequently irregular and may be withdrawn after observing necessary formalities of law." Learned counsel has contended that not only the memo, has no legs to stand upon having been issued without hear ing the persons likely to be affected i.e. the petitioners but also the same is based on misconception of the relevant provision of law that the Beshi can only be given at the time of allotment and not later if it had been omitted at the earlier time. It is contended that it is not in the hands of a claimant to make allotment for his full entitlement. If the authorities chose to make the allotment at one point and are apprised that some entitlement has been left out, the authorities have the jurisdiction to make up the deficiency and in the present this has only been done. It is, then, contended that the memo. provided that "The excess given is irregular and may be withdrawn after observing necessary formalities of law" but nothing of the kind was done and the Tehsildar put down an endorsement on the Khata No. 18 of the claimants that the area was cancelled. It is submitted that this was arbitrary all through and through. Learned counsel has contended that the petitioners filed an appeal against the said order and that the appeal was allowed as the petitioners have not been heard but all the same the case was remanded to the Assistant Commissioner/Deputy Settlement Commissioner to withdraw the Beshi with the consent of the vendees. It is submitted that that had been done on account of the aforementioned memo of the Deputy Secretary (Rural). It is stated that not only the memo. was invalid as submitted above, but also there was no occasion for directing withdrawal of the Beshi units. The petitioners' revision petition had been dismissed without appreciation of facts, the learned counsel contends. Finally, the learned counsel has contended that the land in question was allotted alongwith other in favour of one Khushi Muhammad son of Jiwa and in the proceedings under section 10/li of the Displaced Persons (Land Settlement) Act, 1958 the allotment in the name of Khushi Muhammad had been found to be fraudulent and illegal and had been cancelled by the learned Settlement Commissioner in exercise of the powers of the Chief Settlement Commissioner vide order dated 30th April, 1978. ' Therefore, the learned counsel submits, there is no justification to interfere in the confirmed allotment of nearly 17 years earlier in favour of the petitioners' predecessor in interest.

4. Learned counsel appearing for respondents Nos. 4 to 7 has submit ted that the. Beshi allowed to the petitioners' predecessor‑in‑interest, the claimants, could not have been granted and had rightly been ordered to be withdrawn under the impugned order. As regards the cancellation of the allotment of the respondents Nos. 4 to 7's predecessor‑in‑interest, namely, Khushi Muhammad vide the impugned order of the learned Settlement Commissioner dated 30th April, 1978, the learned counsel for the respon dents submits that at this stage he cannot say anything in this behalf.

5. From the statement of facts made above and the contentions of the learned counsel for the parties, it would appear that for the sera & thur area allotted to the claimants i. e. the predecessor in interest of the peti tioners they were allowed 40% Beshi in accordance with Correction Slip dated 29th April, 1950 mentioned above and the area was accordingly allot ted in lieu thereof on 6th August, 1962. The order was never challenged in an appeal or revision and consequently, was final. In collateral proceedings, in absence of the persons likely to be affected, the same could not have been rendered ineffective by the Deputy Secretary (Rural) to the Chief Settlement Commissioner vide his memo dated 22nd July, 1965 quoted above. Besides that the memo. does not correctly comprehend the legal provision when it says that the Beshi can only be given at the time of allotment meaning thereby in the first instance. If for any reason the full entitlement including the one for Beshi is not satisfied at one stage, there is no bar that the balance or the deficiency may not be made up subsequently. In respect of direction that the action should be taken "after observing necessary formalities of law" as if that meant nothing to the Deputy Secretary (Rural), the direction toy was not even complied, when the allot ment at Khata No. 18 was just cancelled by recording an endorsement on that on 5th May, 1966. This is no way of exercising public powers. The appel late and the revisional authorities felt bound by the memo of the Deputy Secretary (Rural) to direct that the Beshi allowed should be withdrawn. As seen above, that was neither permissible nor could be done and the appellate as well as the revisional authorities fell in error in not applying their own independent mind and in abdicating judicial function in view of the memo from the Headquarters office.

6. In view of what has been stated above, it would be quite clear that the Beshi allowed and in lieu thereof allotment made on 6th August, 1962 was correct and final and could not have been interfered with. The orders to the contrary culminating in the. order of the learned Settlement Com missioner dated 29th March 1971 are declared to have been passed without lawful authority and of no legal effect. This disposes of Writ Petition No. 548/R of 1971. 1n the circumstances, the parties shall, however, bear their own costs.

As regards Writ Petition No. 795/R/72, the title of the predecessor in interest of the petitioners, namely, Khushi Mohammad son of Jiwa in the allotment has since been found to be without any legal basis vide the order of the Settlement Commissioner/ Chief Settlement Commissioner dated 30th April, 1978. Earlier orders challenged in this petition call for no interference on behalf of the petitioners, though it may be said that‑ those orders have already been quashed as against the successors in interest of the earliest claimant allottees of the land in question. This petition has no force and is otherwise infructuous, This is dismissed as such. The parties shall bear their own costs,

Land was allotted in the name of Khushi Muhammad son of Jiwa on Claim No. 6992 at Khata No. 20 of Chak No. 34/1113, Tehsil & District Sheikhupura on 9th May, 1966. It was sold in favour of Rajab Ali son of Ata Mohammad, Bashir Ahmad son of Farzand Ali, Ghulam Mohyuddin son of Ahmad Ali and Khushi Muhammad son of Akbar Din through mutations sanctioned on 19th April, 1969. The respondent No. 1, whose predecessor‑in‑interest had earlier been allotted some of the land, filed an application before the Anti‑Corruption Department on 2nd March, 1971 saving that the allotment in the name of Khushi Muhammad had been obtained by fraud and forgery in the year 1966 as Khushi Muhammad had died in U.S.A. in the year 1956. The sale on his behalf in the year 1969 in favour of the above vendees was obviously false. After investigation the Anti‑Corruption Police, Lahore registered a case under sections 468/109, 419/420, P.P.C. read with section 5(2) of Act 11 of 1947 against the petitioner and five others. The allegation against the petitioner being that he as a Lambardar identified a fictitious person as Khushi Muhammad. The case was put up before the learned Special Judge, Anti‑Corruption No. 1, Lahore, before whom a preliminary objection was taken that the allega tions constituted offences under sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958. The learned Special Judge could not pro ceed with the matter in the absence of a complaint by an officer under the said Act in view of section 29 of the .Act. The learned Special Judge observed that the allegations constituted various offences under the Penal Code and even if those constituted offences under sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958, the matter could still be proceeded by him. This is vide order dated 30th May, 1974. The petitioner has filed this petition for quashmant of the proceedings against him.

2. Learned counsel for the petitioner has urged that all the facts allegedly constituting crimes under the above‑referred sections of the Pakistan Penal Code in the present case fell within the mischief of sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958 and under section 29 of the said Act "No Court can take cognizance of any of such offences without a complaint in writing made by an officer of the Settlement authorities, which complaint has not been filed.

3. Learned counsel for the respondent No. 1 has submitted that the allegations against the petitioner and others could be tried as ordinary crimes by the learned Special Judge. Anti‑Corruption as some of the accused persons were public servant.

4. The whole case of the prosecution against the petitioner and others is that they obtained allotment in the name of Khushi Muhammad in 1966 when he was already dead for 10 years in U.S.A. Further that the sale on his behalf in the year 1969 in favour of some four persons, was obviously fraudulent, The petitioner is alleged to have identified Khushi Muhammad as a person executing a power of attorney for obtaining allotment. The relevant provisions of law are as follows :‑‑

Displaced Persons (Land Settlement) Act, 1958.

Section 27. Penalty for misrepresentation etc.‑Any person‑

(a) who in an application for allotment of land under section 14 or in any proceeding under this Act furnishes or abets the furnishing of any information which he knows to be false, or does not believe to be true, or fraudulently conceals or misrepresents facts, or abets such concealment or misrepresentation, or

(b) who makes or abets the making of application to more than one Settlement Authority for Settlement or for allotment of land in lieu of the same property, or

(c) who does not comply with the provisions of section 3, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

Section 28. Penalty for unauthorised alteration in Records etc. Any person who, with intent to evade the provisions of this Act, conceals, destroys, mutilates, defaces or alters any book, ‑ record or other document relating to land, or knowingly allows such conceal ment, destruction, mutilation, defacement or alteration, to be caused, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

5. The allegations if read in conjunction with the aforesaid provision of law that‑

"Any person ‑(a) who in an application for allotment of land under section 14 or in any proceeding under this Act furnishes or abets the furnishing of any information which he knows to be false, or does not believe to be true, or fraudulently conceals or misrepresents facts, or abets such concealment or misrepresentation"

is liable to be punished and that‑

"any person who with intent to evade the provisions of this Act, conceals, destroys, mutilates, defaces or alters any book, record or other document relating to land, or knowingly allows such concealment, destruction, mutilation, defacement or alteration to be caused, shall be punishable."

would make it quite clear that the allegations amount to offences under the aforesaid two provisions of law, i.e. sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958. There is no doubt . that if the allegations be correct, the petitioner would be liable under the aforesaid two provisions. However, no prosecution can take place without a complaint in writing of an authorised officer as provided for under section 29 of the Displaced Persons (Land Settlement) , Act, 1958 which lays down that "No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act". Since admittedly no such complaint had been made by an officer appointed tinder the aforesaid Act, the cognizance of the case against the petitioner could not be taken by any Court, including that of the learned Special Judge, Anti‑Corruption, Lahore, who is trying the matter. Moreover, the allotment in respect of which the allegations were made has already been cancelled by the Settlement Commissioner/Chief Settlement Commissioner vide order dated 30th April, 1978. In all the circumstances of the case, no useful purpose can be served by continuing the proceedings, which are otherwise without legal basis. The proceedings pending against the petitioner in the Court of learned Special Judge, Anti‑Corruption, Lahore are, therefore, quashed.

Order accordingly.

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