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Writ Petition No. 385/R of 1983, decided on 21st December, 1985.

---9. 2(2)--Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11--Constitution of Pakistan (1973), Art. 199--Bona fide vendees of land from Government--Inclusion of such land in R.L.II after repeal of evacuee property laws--Effect--Evacuee Laws having been repealed by Act XIV of 1975, Settlement Authorities, held, would have no authority and jurisdiction to deal with property, dispute about which was neither pending before such authorities nor same was pending before High Court or Supreme Court immediately before statutory date viz. 1-7-1974--Cancellation of land from bona fide purchaser after repeal of evacuee property by Settlement authorities would be without lawful authority and jurisdiction and could be set aside by High Court in exercise of constitutional jurisdiction.

Grindlay Bank Ltd. v. Murree Brewery Company Limited and another P L D 1954 Lah. 745; Asghar Ali Mollah v. Surabindu Sen and others P L D 1968 Dacca 498 and The Chief Settlement Commissioner, Lahore v Raja Muhammad Fazil Khan and others P L D 1975 S C 331 ref.

Din Muhammad v. Additional Deputy Commissioner (General with Powers of Additional Settlement Commissioner Jhang and others P L J 1983 Lah. 666 rel.

---S. 9--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)--Fraudulent allotment--Remedy after repeal of evacuee laws--Remedy against fraudulent allotment, available to Settlement Authorities, after repeal of evacuee laws, held, would be invoking jurisdiction of Civil Court i.e. Court of general jurisdiction under S.9 of Civil Procedure Code, 1908--Settlement Authorities or notified officer would have no jurisdiction to deal with case involving fraud after repeal of evacuee laws by Act XIV of 1975.

Sher Afzal Khan and 'others v. Haji Razi Abdullah and others X984 S C M R 228 rel.

Mian Allah Nawaz for Petitioners.

Ch. Muhammad Ashraf Arshad for Respondents Nos. 1 and 2 and Ijaz Ahmad Ansari and M.M. Bhatti for Respondents Nos. 3 to 8.

Date of hearing: 4th December, 1985.

The facts relevant for the determination of the controversy arising between the parties, in this writ petition are, that respondents Nos.2 to 8 are the successor-in-interest of one Mughalai. The late Mughalai was proposed and confirmed agricultural land measuring 61 Kanals 15 Marlas in Mauza Mubarikpur, Tehsil Ahmedpur East, District Bahawalpur, vide R.L.II No. 146. Its allotment was subsequently cancelled from the name of late Mughalai, and it was proposed and confirmed in favour of one Khan Bahadur, vide R.L.II No. 195. R.L.Il No. 195 indicates, that on account of double allotment, the land from the name of Mugalai is being cancelled.

2. The new allottee Khan Bahadur was a displaced person from non-agreed area, therefore, under the Martial Law Regulation No. 89/91 Khan Bahadur surrendered this land and subsequently purchased it from the Government. After purchase of the land, Khan Bahadur sold this land through a registered sale-deed dated 18-7-1963 for a consideration of Rs.20,000 in favour of the petitioners. The petitioners vendees sought sanction of the sale of land in their favour, from the Collector under section 19 of the Colonization of Government Land Act, and the said sanction was granted.

3. According to the petitioners, they deposited the installments of the price and after making full payment, applied for the grant of conveyance deed which was issued in favour of the petitioners on 3-5-1973. In the meanwhile, with effect from 1st of July, 1974 the Evacuee Laws were repealed. After repeal, with a view to deal with the cases of fraudulent and bogus allotments, a letter dated 5-9-1979 was issued, under which the Settlement Authorities were empowered to make a probe into such allotments.

4. The respondents 2 to 8 moved A.D.C.(G), Bahawalpur under para. 2 of the said letter praying, that the entries in R.L.II Nos. 195 and 196 be corrected. The A.D.C.(G) called for a report from Tehsildar Ahmedpur East. The Tehsildar Ahmedpur East, in his report dilated upon the history of allotment from Mughalai to Bahadur Khan and then its purchase by the petitioners. The learned A.D.C.(G), Bahawalpur, vide his order dated 12-10-1983 accepted the application of the respondents Nos. 2 to 8 and included the land purchased by the petitioners in R.L.II of Mughalai their predecessor-in-interest.

The petitioners have assailed the order of A.D. C . (G) , Bahawalpur through this writ petition.

5. It has been contended on behalf of the petitioners, that the order impugned dated 12-10-1983 passed by A . D . C . (G) , Bahawalpur, whereby the land purchased by the petitioners from Khan Bahadar was included in R.L.II of Mughalali was without lawful authority and jurisdiction. According to the learned counsel on 12-10-1983, the A . D . C (G) , had no authority and jurisdiction to deal with the matter because the Evacuee Laws had been repealed with effect from 1-7-1974 and the present case was not pending immediately before 1-7-1974, so as to clothe the A.D.C (G) with any legal authority to deal with the matter. It was further contended on behalf of the petitioner, that they were bona fide purchasers, and they had also sought sanction for the Durchase of land by them. It was further urged, that the land had been surrendered by Khan Bahadar under Martial Law Regulation No. 89/91, and, therefore, the respondents if aggrieved ought to have challenged the cancellation of allotment from the name of late Mughalai. It is pertinent to mention, that the allotment in favour of late Mughalai was made after his death, and, therefore, according to the learned counsel for the petitioners, the respondents Nos. 2 to 8 fully knew all the facts and failure on their part to challenge the allotment disentitled them to seek relief from this Court. It was further argued, that para, two of the letter/ notification issued by the Settlement Department after the repeal of the Evacuee Laws could not override the substantive law taking away the jurisdiction.

6. On the other hand, it has been contended by the respondents Nos. 2 to 8, that the entry in R.L.II 195 is bogus and fictitious, because if the allotment of the land was liable to be cancelled on account of double allotments, then in the said event it should have reverted to the first allottee of the disputed land. According to the learned counsel for the petitioner, the note on R.L.II. No. 195 has no legal validity. The cancellation of allotment from the name of late Mughalai according to the respondents Nos.2 to 8 was based upon fraud and, therefore, in 1979 on the basis of a letter issued by the Settlement Department, the same was pressed into service, for seeking the redress of grievances. In support of these contentions, the learned counsel for the respondent No.2 cited Grindlay Bank Limited v. Murree Brewery Company Limited and another P L D 1954 Lah. 745; Asghar Ali Mollah v. Surabindu Sen and others P L D 1968 Dacca 498. The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L D 1975 S C 331. These judgments lays down the rule of law with regard to the fraud which vitiates the entire proceedings howsoever solemn they may be.

7. I have heard the learned counsel at length and in my view, it is essential to first adjudge the validity of the letter issued by the Settlement Department under which the impugned order was passed by the learned A.D.C. (G). The aforesaid letter, in my view has no legal value and the authorities issuing the same had acted in violation of the law, which repealed the Evacuee Laws. If we hold this letter to be legal, then in the said event we will be holding, that despite the repeal of the Displaced Persons Land Settlement Act, sections 10 and 11 thereof were still on the statute book, which obviously had not been the intention of legislature. I find support in this view by a judgment of this Court reported as Din Muhammad v. Additional Deputy Commissioner (General) with Powers of Additional Settlement Commissioner Jhang and others P L J 1983 Lah. 666.

8. A word on the conduct of the respondents Nos. 2 to 8 is necessary to mention here. They awoke from their slumber in 1979 long after the cancellation of allotment in favour of this predecessor-in-interest and therefore, it cannot be said, that they had no knowledge about such cancellation. They did not agitated it before any forum, to seek remedy which was then available to them. It was further strenuously argued that the original order of the cancellation of allotment on the basis of which a note was given in R.L.II is not available on the record and. therefore, fraud had been committed. I am afraid, that the contention has no force. On the other hand, it will be presumed, that the order did exist, because after the allotment of land, it was surrendered under Martial Law Regulation No. 89/91, and sold to the petitioners. It is further noteworthy to mention, that after cancellation of allotment in favour of Mughalai, the petitioners were successful in obtaining further allotment on the said claim firm.

9. The next question is even if the allotment in favour of Khan Bahadar is assumed to be fraudulent, what remedy lay with the department to undo it. The answer to this question finds mention in the judgment delivered by the Supreme Court of Pakistan in the case reported as Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 S C M R 228. According to the dictum laid down by the L Supreme Court, it was for the department to have invoked the jurisdiction of a Civil Court i.e. a Court of general jurisdiction under section 9 of the C.P.C. In the light of the above discussion, I find, that there was no fraud. The Settlement Authorities or the notified officer had no jurisdiction to deal with the case involving fraud, which as held by the Supreme Court is voidable and not void ab initio. The nicer distinction drawn by the counsel for the respondents Nos. 2 to 8 between the fraud played upon the Tribunal, and the one committed by parties inter se has no significance. For the foregoing reasons, this writ petition is liable to be accepted and thus accordingly, the impugned order dated 12-10-1983 passed by the learned A.D.C.(G), Bahawalpur, whereby the allotment in favour of Mughalai was restored is hereby set aside, for having passed without lawful authority and jurisdiction. The parties are left to bear their own costs.

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