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Petitioner: REHMAT ALI VS Respondent: THE BORDER AREA COMMITTEE and others
Court Name: Lahore High Court Judge(s): M. Javed Buttar Title: REHMAT ALI vs THE BORDER AREA COMMITTEE and others Case No.: Writ Petitions Nos.280/R of 1985, 321-R of 1984 and 117-R of 1989 Date of Judgment:1997-05-18 Reported As: 1998 CLC 112 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This judgment shall dispose of Writ Petitions Nos.280-R/1985, 321-R/1984 and 117-R/1989 as common question of law and facts are involved in all these petitions. 2. The facts, in brief, leading to these constitutional petitions are as follows:-- Writ Petition No,280-R of 1985. 3. Respondent No,2 Subedar Ghulam Muhammad was allotted a piece of land in village Rayya, Tehsil and District Kasur under a Military Scheme and out of his allotment, he sold land measuring 83 Kanals and 8 Marlas vide sale deed registered on 23-9-1981 to the petitioner Rehmat Ali. On 8-3- 1984, one Captain Saif Ullah gave an application to respondent No,1, Border Area Committee to the effect that as the allottee, respondent No,2, had sold the land in violation of Martial Law Regulation No,9 as amended by Ordinance No,III of 1981, without prior permission of the G.H.Q., the allotment was liable to be cancelled. On receipt of the application, the Border Area Committee issued notices to the allottee as well as the vendee i,e, respondent No,2 and the petitioner and later on notice was issued to them through citation in a daily newspaper and on their failure to appear, ex parte proceedings were conducted against them and vide its impugned order dated 20-6-1984, the Border Area Committee cancelled land measuring 83 Kanals and 18 Marlas from the allotment of respondent No,1 and resumed the same in favour of the State. The allottee obtained a post facto sanction from the G.H.Q. On 2-5-1985 and thereafter moved the Border Area Committee for the recall of the impugned order but as no reply was received by the Border Area Committee, therefore, the vendee has instituted the present petition which was admitted to regular hearing on 16-11-1985. In the written statement filed by Border Area Committee, it was disclosed that post facto sanction granted by the G.H.Q. Was cancelled/withdrawn by it vide letter dated 7-9-1985, a copy of
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which has been attached with the written statement as Annexure R/1. Whereafter, the petitioner moved C.M. No,5266 of 1989 seeking permission to implead G.H.Q., Rawalpindi as respondent No,3 in the writ petition and C.M. No,5267 of 1989 seeking permission to submit additional grounds having been necessitated due to the withdrawal order passed by G.H.Q. On 7-9-1985. On 31-3-1993, notice was issued to respondents in both the applications and it was also ordered that these will be heard alongwith the main petition. Respondent No,1 has submitted replies to both these applications and has opposed the same. To avoid any further delay C.M: No,5266 is rejected. C.M. No,5267 is allowed. Writ Petition No,321-R of 1984 4. Havaldar Nazir Ahmad, respondent No,2 was allotted land measuring 218 Kanals 15 Marlas under a Military Scheme on 26-1-1963 and he sold the same to the petitioners Muhammad Rafiq, Abdul Majeed and Muhammad Hafeez vide registered sale deed dated 9-3-1981 for a consideration of Rs,1,30,000 and the Revenue Mutation No,846 was also attested in favour of the petitioners on 9-12- 1981. On 8-3-1984, one Captain Saif Ullah gave an application to respondent No,1, Border Area Committee, to the effect that the allotment in favour of respondent No,2 was liable to be cancelled as the allottee had sold the same in favour of petitioners in violation of Martial Law Regulation No,9 as amended by Ordinance No,III of 1981 because the sale had been effected by the allottee in favour of the petitioners/vendees without prior permission from the G.H.Q. The applicant also asked for the allotment of this land after its cancellation from the name Of the allottee. On receipt of the application, the Border Area Committee, issued notice to the petitioners and thereafter a notice was also issued to them through a newspaper and on their failure to appear, ex parte proceedings were conducted against them and vide its order dated 20-6-1984, ftspondent No,1/Border Area Committee, cancelled the allotment of respondent No,2, Havaldar Nazir Ahmad and resumed the same in favour of the State, hence this petition which was admitted to regular hearing on 1-4-1985. Respondent No,1, Border Area Committee vide its parawise comments and written statement, has opposed the petition. The application of Captain Saif Ullah (C.M. No,1080 of 1987) under Order I, rule 10, C.P.C. For impleadment as a party to this petition was disposed of by this Court on 18-4-1987 with an observation that he is neither a necessary nor the proper party but was allowed to watch the proceedings and was also allowed to make submissions with the permission of the Court. Mr. Aitezaz Ahsan, Advocate has represented Captain Saif Ullah and in view of the above order passed on 18-4-1987, he has also been allowed to make submissions. Writ Petition No,117-R of 1989 5. Sher Muhammad Khan, respondent No,2, ex-Army Personnel was allotted land measuring 191 Kanals and 8 Marlas in villages Fatha and Bharo Chak Jattan, Tehsil Shakargarh, District Sialkot under a Military Scheme. He transferred the said land to his son Dilshad Khan, respondent No,3, on. 13-9-1981 through a registered gift deed. The gift was given effect to in the revenue record. Respondent No,3, the donee, then sold the land to the petitioners through different transactions effected on different dates in the year 1984-85. In pursuance of the sales, the mutations were also sanctioned in favour of the petitioners/vendees. One Muhammad Arshad Khan, Advocate gave an application to respondent No,1, the Border Area Committee, that the allottee/respondent No,2 had gifted the land comprising of his allotment to respondent No,3 without obtaining permission from the G.H.Q. And the respondent No,3, the donee, without obtaining prior permission from G.H.Q. Sold the said land to petitioners and both these transactions were illegal and violative of Martial Law Regulation No,9 of 1959 and as such the allotment may be cancelled and the allotted land be resumed in favour of the State. On .Receipt of the application, the notices were issued to the allottee, the donee, and the vendees, and thereafter the notice was issued to them through daily Nawa-i-Waqt and on their failure to turn up, ex parte proceedings were conducted against them and the Border Area Committee vide its impugned order dated 12-4-1988, the land allotted to
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respondent No,2 was cancelled and resumed in favour of the State. Hence this constitutional petition which has remained in motion from 1989 may be due to the fact that in routine, it has been linked with the abovementioned connected petitions. The Border Area Committee vide its factual report and parawise comments has opposed this petition. It has also furnished copies of the interim orders passed by it to show that the parties were properly served and ex parte proceedings conducted against them were proper. 6. In all these petitions, only the vendees have challenged the orders of Border Area Committee and the allottees have not challenged the impugned orders of cancellation of their allotments and though made a party in these petitions as respondents, the allottees have not turned up in spite of having been served except in W.P. No,321-R of 1984. They are thus being proceeded ex pane. 7. Mr. Rashad Masood Ghangohi, learned counsel for the petitioner in Writ Petition No,280-R of 1985 has made his submissions from petitioner's side which have been adopted by Mr. Tahir Qayyum Lodhi, Advocate appearing on behalf of the counsel for the petitioners in Writ Petition No,321-R of 1984. None has turned up on behalf of the petitioners in W.P. No,117-R of 1989. Ordinarily, the petition is not to be decided on merits in the absence of the petitioner's counsel but as the Writ Petition No,117-R of 1989 has been linked with the abovementioned other two writ petitions and as the common question of law and facts are involved in all these petitions and as the arguments have been addressed from both sides at length, therefore, this petition is also being decided on merits alongwith other two. 8. I have heard the learned counsel for the parties and have also seen the record. 9. In order to better appreciate the issues involved, the provisions of relevant law are quoted below: ' Martial Law Regulation No,9 called as West Pakistan Border Area Regulation, 1959 (hereinafter referred to as the Regulation was issued by Martial Law Administrator Zone B and came into effect on 20-3-1959. ' The Border Area Committee was constituted under para. 4(a) of the Regulation. Schedule III of the Regulation provides conditions of allotment of land/property under the Border Scheme and Condition No,9 of Schedule III which permitted the Central Government to prescribe the terms and conditions of allotment reads as under:-- "9. The allotment will be subject to payment of such price, terms and conditions as may be determined by the Central Government in this respect." ' In pursuance to this power, the Central Government framed a scheme in 1961 known as the Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under Martial Law Regulation No,9 Zone B. ' The provisions of para. 6 of this Scheme relevant to the extent are reproduced below:-- "6.--(1) The allotment of land will be subject to the following terms and conditions:-- The allottee shall --- (a) . (b) not alienate the land by sale, gift, exchange, mortgage after acquiring the proprietary rights except for the objects specified in clause (a) above, or otherwise without the prior permission of the Deputy Commissioner concerned who, before passing any order in this respect, shall satisfy himself that the alienee_is a suitable person for settlement in the border area. In case of the Military allottee the Deputy Commissioner concerned shall obtain approval from the General Headquarters before passing final order for alienation of the land. The Deputy Commissioner before according such a permission, shall in consultation with the Aajutant-General, General Headquarters Det (W&R) Dte Rawalpindi satisfy himself further that no Military personnel is willing to purchase the land;" ' The Regulation was amended on 1-2-1981 by Ordinance No,III of 1981 called as the West Pakistan Border Area Regulation, 1959 (Punjab Amendment) Ordinance, 1981 (hereinafter referred to as the
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Amending Ordinance). ' Section 11 of the Amending Ordinance substituted the then existing Condition No,10 and added a new Condition No,11 to Schedule III of the Regulation, the substituted and the added conditions read as below:-- "(10)The allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this Schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled. (11) The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without permission of the General Headquarters." 10. It is contended by the learned counsel for the petitioners that in all these petitions, the Border Area Committee passed ex parte orders of cancellation of allotment without giving an opportunity of being heard to the petitioners and without satisfying itself, that the petitioners/vendees cannot be served in an ordinary manner, recourse to the substituted service by way of citation in the newspaper is illegal and therefore, the impugned orders being violative of the principle of audi alteram partem are illegal and liable to be set aside on this ground alone; that the sanction of G.H.Q. Is required to keep the Border Area clean from the unwanted elements and as some of the petitioners are ex. Servicemen, therefore, in its real spirit the law has not been violated; that after the acquisition of the proprietary rights, the allottees became absolute owners of the land in dispute and were not governed by the regulation and the Ordinance and were governed by the ordinary law of the land under which they could transfer their ownership in any manner they liked in favour of anyone; that Condition No,11 as added in the schedule to the Regulation by the Amending Ordinance No,III of 1981 merely speaks of the cancellation of allotment but does not render the sale as void and as this Condition is penal in nature, therefore, it should be liberally interpreted in favour of the allottees and transferees; that after, the repeal of all evacuee, rehabilitation and settlement laws by Act XIV of 1975, there is no jurisdiction left in any authority to intermeddle into the rights of Displaced Persons settled in land, houses and shops etc. And thereafter Border Area Committee had no jurisdiction over the corpus of the property and consequently could pass no order in relation thereto; that Ordinance No,III of 1981 which has introduced fundamental changes in the constitution of Border Area Committee and has also imposed new conditions in Schedule No,III i,e, Conditions Nos.10 and 11 is repugnant to the relevant provisions of MLR 9 which is the existing law and, therefore, provisions made by Punjab Ordinance No,III of 1981 are ineffective to the extent of repugnancy by virtue of Article 143 of the Constitution. In the last, it is submitted in regard to the rights of the petitioners in Writ Petition No,280-R of 1985 that withdrawal of post facto sanction by the G.H.Q. Without granting the petitioners an opportunity of being heard is illegal. In support of his contentions, learned counsel for the petitioners relied on Muhammad Ibrahim v. Havaldar Muhammad llyas and 3 others (1983 CLC 963 (Lahore), Abdul Ghafoor and others v. Muhammad Ismail (PLD 1982 SC 364), Muhammad Rafiq and 2 others v. Border Area Committee and another (1982 CLC 1196) (Lahore), Abdul Karim v. The Border Area Committee, District Kasur (1980 CLC 670 (Lahore), Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others (1983 SCM R 587) and Chief Engineer, Building Department v. M/s. Pakistan National Construction (1988 SCM R 723). 11. Mr. Tahir Qayyum Lodhi, Advocate appearing for learned counsel for the petitioners in Writ Petition No,321-R of 1984 and Mr. Muhammad Farooq, Qureshi Chishti, Advocate appearing for respondent No,2/allottee in this petition have further submitted that the allottees have been recorded as owners in the revenue record and no condition to their ownership can be read in law. It has also been submitted by them that the Scheme for the Determination of Price, Terms and Conditions for the Allotment of Land under MLR-9, Zone B issued by the Central Government in 1961 in exercise of the powers conferred to the Central Government by paragraph 9 of Schedule III of the
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Regulation, shows that the condition of the permission for transfer has been laid down as is apparent on the bare reading of para. 6(i)(b) only to keep out the undesirable elements from settling down in Border Area and there is no finding of fact recorded by the Border Area Committee that the petitioners are not suitable persons. In support of his contention, Mr. Muhammad Farooq Qureshi Chishti, Advocate has also relied on Sher Afzal Khan and others v. Haji Razi Abdullah and others (1984 SCM R 228), Manzoor Husain v. Fazal Hussain and,others (1984 SCM R 1027) and Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others (1986 SCM R 529). 12. On the other hand, while opposing these petitions, Ch. Muhammad Rafiq Khan, Advocate, learned Legal Advisor of the Border Area Committee has submitted that the petitioners and allottees in all these petitions were lawfully proceeded ex parte on their failure to appear in spite of various notices having been served upon them and all of them were also served through citation in the newspaper; that the Border Area Committee can scrutinize allotment of any State land or immovable evacuee property within any border area at any time and on being satisfied that the allotment was made to a person not eligible for allotment, can cancel such allotment and direct the allottee to surrender it forthwith and any such property surrendered or taken into possession in pursuance of the Regulation can be allotted by the Committee in such manner and on such terms and conditions as are described in the Schedules annexed to the Regulation, reference in this regard is made to paras. 10 and 13 of the Regulation as amended by the Ordinance; that the allotment can be cancelled for breach of any of the conditions mentioned in Schedule III of the Regulation and the allotment is liable to be cancelled if the land is transferred by the allottee to any person without the permission of G.H.Q., reference in this regard is made to Conditions No,10 and 11 as respectively substituted and added by the Amending Ordinance in the third schedule of the Regulation; that even prior to the abovementioned substitution and addition of Conditions Nos.10 and 11, the permission from G.H.Q. Was required for a valid transfer by the allottee, reference in this regard is made to para. 6(i)(b) of the Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under Martial Law Regulation No,9, Zone B issued by the Central Government in 1961; that the evacuee land in Border Area was acquired by the Central Government for General Headquarters for the purposes of the Regulation on 17-3-1959 and thereafter the land was acquired by the Central Government and Provincial Government on 15-4- 1959 and 8-6-1960 respectively, under section 4 of the Displaced Persons (Land Settlement) Act XLVII of 1958 for the purposes of the said Act and, therefore, there is no conflict between the two statutes; that the Regulation being an independent law continues to exist on the Statute Book despite repeal of Evacuee, Rehabilitation and Settlement Laws and even otherwise no objection to Committee's constitution or to the order passed by it can be taken in view of the provisions of paragraph 18 added by the Amending Ordinance in 1981 and all orders passed by the Border Ar"a Committee are to be deemed to have been passed validly. In support of his contentions, learned counsel has relied upon (i) Sohail Khan and others v. Border Area Committee, an unreported judgment passed by this Court on 30-4-1983 in Writ Petition No,10-R of 1983 affirmed in (ii) I.C.A. No,110 of 1983 on 23-5-1983, (iii) judgment delivered by a Division Bench of this Court in I.C.A. No,144 of 1979 on 13-1-1992, (iv) a decision given by a learned Single Judge on 28-4-1992 in Writ Petition No,200-R of 1989 and (v) Muhammad Latif and 5 others v. Border Area Committee and 2 others (PLD 1978 SC 270). In the last, he has submitted that the abovereferred judgments of the Division Bench of this Court and also of the honourable Supreme Court show that the submissions made on the petitioner's side have no force and the law is already settled in these judgments. 13. Mr. Aitezaz Ahsan, Advocate appearing for the informer, Captain Saif Ullah while adopting the submissions made by the learned Legal Advisor of the Border Area Committee has also submitted that the petitioners are not bona fide purchasers, they knew of the condition of prior permission by
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the G.H.Q. And furthermore the revenue record also shows that the allottees were allotted the land under Military Scheme and, therefore, the vendees/purchasers were put on notice and it was their duty to further check up the terms and conditions under which the allotments were made to the allottees before striking any bargain with them. Learned counsel has referred to the established rule of Caveat Emptor. 14. The perusal of the original record produced by the learned Legal Advisor of respondent/Committee has disclosed that in Writ Petitions Nos.280-R of 1985 and 321-R of 1984, many notices were sent by the Border Area Committee to the allottees as well as the vendces and ultimately they were served through citation in daily Wafaq and, therefore, the contention that the order of ex parte proceedings against them suffers from an illegality has no merit. Similarly, in Writ Petition No,117-R of 1989, the Border Area Committee issued many notices to the allottee, the donee and the vendees and thereafter all of them except petitioner No,9 were also served through citation in daily 'Nawa-i-Waqt. The name of petitioner No,9 Abdus Sattar was misprinted in the newspaper as Abdul Ghaffar but his parentage has been correctly given. However, he has also not turned up today in support of his petition. The perusal of the record has further disclosed that on 18-3-1987 petitioner No,I lqbal Khan and Fazal Ahmad father of petitioners Nos.5 to 8 appeared before the Border Area Committee and thereafter they absented themseives. 15. Now I proceed to discuss the case-law cited by the learned counsel for the petitioners and also by Mr. Muhammad Farooq Qureshi Chishti, learned counsel for the respondent/allottee in W.P. No,321-R of 1984. In Muhammad Ibrahim v. Havaldar'Muhammad Ilyas and 3 others (supra), it was held by the learned Single Judge of this Court in a Constitutional petition that the plaintiff. Even if incompetent to purchase land from an allottee under the Regulation (MLR-9) can validly pre-empt sale made in favour of respondent by exercising, right of pre-emption created in his favour by.The Regulation. However, it was not held that the pre-emptor if successful in his suit would not be governed by the provisions of MLR-9 as amended by Ordinance III of 1981. Abdul Ghafoor and others v. Muhammad Ismail (supra) has no relevance to the facts and law involved in the present petition. In Muhammad Rafiq and 2 others v. Border Area Committee and another, a judgment delivered by Single Judge of this Court, evacuee land was allotted to predecessor in interest of petitioner and was gifted away to petitioners later on through registered deed and the notice issued by the Border Area Committee was challenged through the constitutional petition and it was held that after the allotment, the land ceased to have its evacuee character for all intents and purposes and notice issued by the Border Area Committee regarding illegal possession of the land by the allottee was void ab initio and of no legal effect. The law laid down in this judgment is no more a good law in view of the judgments delivered by the Division Benches of this Court in Intra- Court Appeals which have been discussed in later paragraphs. The judgment delivered by the learned Single Judge, Abdul Karim v. The Border Area Committee, District Kasur (supra) is no more relevant as the same was set aside by the Division Bench of this Court in I.C.A. No,144 of 1979 discussed in later paragraphs. Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others (supra) was cited by the learned counsel for the petitioners to submit that it is an established rule of interpretation of statutes that while interpreting them the legislative intent is to be made effective. There is no denying the fact that while interpreting the statute, the legislative intent has to he. Made effective and the legislative intent has been fully discussed and interpreted in the judgments delivered by the Division Benches of this Court and by the honourable Supreme Court which have been cited by the learned counsel for the Border Area Committee and have been discussed in the later paragraphs of this judgment. Chief Engineer, Building Department v. M/s. Pakistan National Construction (supra), was referred by the learned counsel for the petitioners to contend that the inherent want of jurisdiction results in vitiating the proceedings taken by the Tribunal and. Is incurable notwithstanding waiver by conduct or otherwise. In the instant case, the
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proceedings initiated and finalised as is seen later on were fully competent by the Border Area Committee. 16. Similarly, the authorities relied upon by Mr. Muhammad Farooq Qureshi Chishti, Advocate are of no help to the petitioners or the allottees. In Sher Afzal Khan and others v. Haji Razi Abdullah and others (supra), it has been held by the honourbale Supreme Court that in a case where P.T.D. Issued in favour of the respondent remained in field until repeal of the settlement laws by Act XIV of 1975, the exercise of jurisdiction by the settlement authorities, after coming into force of repealing act, in undertaking any inquiry in order to review and reopen such past and closed transactions, was palpably coram non judice and wholly incompetent. The subject-matter was governed by a different law and not by the Regulation or by the Amending Ordinance Manzoor Hussain v. Fazal Hussain and others (supra) has no relevance to the facts and law involved in the present case. In Province of…
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