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Petitioner: Mst. SOHAGI AND ANOTHER VS Respondent: THE SETTLEMENT COMMISSIONER (LAND), JUDGMENT
Court Name: Lahore High Court Judge(s): Abdul Shakurul Salam Title:Mst. SOHAGI AND ANOTHER vs THE SETTLEMENT COMMISSIONER (LAND),
JUDGMENT
Reported As: PLD 1977 Lahore 272 Result: Order accordingly Judgment JUDGMENT ' The order will dispose of Writ Petitions Nos, 283/R-75, 318/R-75, 387/R-75 and 148/R-76 as these involve a question of law common to all. Facts leading to these petitions are as follows Writ Petition No, 283/R of 1975 I. A claim form No, 22524 was filed by Khudia for verification of land abandoned by Mohar Singh on 25-1-1952. The claim was verified in favour of the right-holder. A mutation of inheritance bearing No, 51 was sanctioned in favour of Mst. Suhagi, petitioner No, 1, as a sole heir and daughter of the right-holder on 21-4-1955. Allotment was confirmed on the Khata of the right-holder for an area of 29 kanals 6 marlas at RL 11 No, 308 in village Zafar Key, Tehsil Kasur District Lahore on 28-1-1955. Some seven years later, respondent No, 5 filed a Mukhbari application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. An Additional Settlement Commissioner exercising delegated jx)wers of the .Chief Settlement Commissioner, held, that he was satisfied that Mst. Sohagi was not the daughter of Mohar Singh the right-holder and that the allotment on his Khata was fictitious. He, thus, cancelled the land allotted to Mohar Singh and then transferred to Mst. Suhagi. He, further, ordered that "the land is now open for allotment. The claim of the present applicant may also be considered on merits." This is vide order dated 3-7-1970. Mst. Suhagi alias Mst. Saluki alongwith her husband filed a Settlement Revision in this Court bearing No, 142/70 which was admitted for regular hearing and order of status quo was passed by a learned Division Bench of this Court on 30-7-1970. Subsequently, it was returned to the petitioners for challenging the impugned order by means of a revision petition before the Settlement Commissioner as that became permissible. A revision petition was, then, presented before the Settlement Commissioner.
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The Settlement Commissioner observed that the version before the lower Court that Mst. Suhagi was not the daughter of Mohar Singh was based on reliable evidence and that the contention that the witnesses against her were related to the informers had no force because in the circumstances no outsider could know the situation and none was coming forward to state the truth. He, thus, held the petitioner No, 1 was not entitled to relief. As regards respondent No, 4 that he be treated as a first informer, the Settlement Commissioner left the matter to the discretion of the Deputy Settlement Commissioner to consider the contention on its merits, With the above observations, he dismissed the revision petition vide order dated 9-11-1973. The petitioner No, 1 applied for purchase of land in her possession by means of separate applications dated 3-4-1974 and 15-4-1974. The land was however, allotted to the respondent N. 4 on 20-5-1974 by the Deputy Settlement Commissioner. The petitioner alongwith her husband, filed a revision petition and it was urged that the allotment could not be made to the respondent as an informer because there was no provision of law then existing when the land was cancelled on 3-7-1970, and that the petitioner No, 1 had applied for purchase of the land and it should have been offered for sale in accordance with Ordinance XV of 1974. The Settlement Commissioner held that the petitioner No, l's allotment was cancelled by the Additional Settlement Commissioner on 3-7-1970 and that order had been maintained by the Settlement Commissioner on 9-11-1973. It was not challenged any further. The order had, thus, attained finality. Further, that the new law on the subject clearly entitled the informer to allotment. As regards the right of the petitioners to purchase the land, it was observed that provisions of Ordinance XV of 1974 were net correctly understood. Section 3 (b) of Ordinance XV of 1974 (Evacuee Property and Displaced Persons Law (Repeal) Ordinance, 1974) clearly laid down that the purchase is to be allowed only in such cases where the land is available. In this case, in view of the allotment made as far back as 20-5-1974 the land was no more available since it had been allotted and confirmed in the name of the respondent. It may not be lost sight of that the Ordinance XV of 1974 in itself came into operation with effect from 1-7-1974. In view of the allotment having been confirmed in the name of the respondent on 20-5-1974 the provision of purchase allowed by the Ordinance XV of 1974 coming into force on 1.7-1974 does not come into play. As already stated above, the land was not available to be disposed of by way of sale. Thus, the learned Settlement Commissioner dismissed the petitioners' revision petition vide order dated 9-1- 1975. The petitioners have challenged the aforesaid orders of the Settlement authorities by means of a petition under Article 199 of the Constitution. 2. Learned counsel for the petitioners has contended that, firstly, the order of cancellation of allotment from the name of the petitioner No, 1 by the Additional Settlement Commissioner on 3-7- 1970 on the finding that the petitioner No, 1 in whose favour a mutation had been sanctioned some 15 years earlier was not the daughter of the right-holder is arbitrary and illegal. It is, secondly, contended that in the aforesaid order, it was said that the land "will be now open to allotment." Therefore, it should have been allotted in the name of the petitioner No, 2, husband of petitioner No, 1, who was a temporary allottee of the estate and entitled to preference. Thirdly, it is contended that petitioner No, 1 had applied for purchase of the land in question on 3rd and 15th of April 1974 and without disposal of her applications, the land could not have been allotted to respondent No, 4 on 20-5-1974 : Fourthly, that the allotment could not have been made in favour of the respondent No, 4 as an informer because he was not the informer. The informer was respondent No, 5 on whose application the proceedings of cancellation had culminated in the order of Additional Settlement Commissioner dated 3-7-1970. Therefore, it is submitted that if the allotment had not been made in favour of the respondent No, 4, as it could not be legally, then, the petitioners were entitled to be offerred the land in their occupation for purchase in accordance with Ordinance XV of 1974. 3. Learned counsel for the respondent No, 4, to whom the land has been allotted, has contended that the issues as to whether the respondent was an informer or not was not raised by the
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petitioners before the relevant authorities and they cannot now raise it in this Court. It is also submitted that the allotment has been made to the respondent No, 4 in accordance with section 14-A of Act XXXVI of 1974 and the respondent being a claimant and a temporary allotee of the estate was rightly allotted the land and no exception can be taken thereto. It is submitted that old Settlement cases should not be reopened. Reliance is placed on Abdul Khaliq v. Sultan Butt and another (1). It is, further, contended that the order of the Additional Settlement Commissioner dated 3-7-1970 cancelling the allotment of the petitioner No, 1, as upheld by the Settlement Commissioner on 9-11-1973, having not been challenged further, has attained finality and cannot be challenged in these proceedings by means of a petition filed on 8-4-1975. Lastly, it is contended that the petitioner No, 1 had wrongly got the allotment as a sole heir and daughter of Mohar Singh which she was rot and, therefore, the allotment was cancelled under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 by the Additional Settlement Commissioner on 3-7-1970. Consequently, the petitioner No, 1 having acted wrongly in securing the allotment is not entitled to relief from this Court in exercise of discretionary jurisdiction under the Constitution because a person guilty of fraud is not entitled to an equitable relief. Reliance is placed on Ahmad Khan and others v. Custodian of Evacuee Property, West Pakistan and others (2) and Mirza Muhammad Shafi v. The Collector, Sheikhupura and others (3) It is added that no writ should be issued to allow a person to retain illegal gains. Reliance is placed on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (4). Writ Petition No, 318/R of 1975 4. Facts leading to this petition are that land measuring 93 kanals (1)PLD 1973 Lah. 313 (2) PLD 1963 Kar. 450 (3) PLD 1968 Lah. 403 (4) PLD 1975 SC 331 14 marlas was allotted in Chak No, 211/RB and 28 kanals 18 marlas in Chak No, 100/RB, Tehsil Jaranwala, District Lyallpur to the petitioner. From the allotment in Chak No, 211/RB, the petitioner exchanged an area of 58 kanals 14 marlas with respondent No, 2 with the latter's land measuring 51 kanals 12 marlas in the same Chak. ' The land allotted in Chak No, 100/RB was sold by the petitioner to Mahr Din, Nathe Khan and Badar Din for consideration. On receipt of a reference from the Director or Enforcement, Evacuee Property and Claims Lahore dated 7-3-1966, Sardar Hidayat Ullah Mokal, Settlement Commissioner, exercising powers of the Chief Settlement Commissioner, held that the allotment had been obtained by the petitioner by impersonation thus, committing fraud and false representation and so he ordered that "the agricultural land measuring 122 kanals and 2 marlas originally allotted in the name of Abdul Aziz alias Aziz alias Khanda son of Imam in Chak No, 100 and 211/RB, Tehsil Jaranwala District Lyallpur be cancelled forthwith and as all the subsequent transactions of the land in dispute are illegal, they shall stand void, inoperative and shall have no legal effect. The Deputy Commissioner/Deputy Rehabilitation Commissioner, Lyallpur is directed to ; (I) take over the possession of land equivalent to 122 kanals and 2 marlas from the respondent Abdul Aziz alias Aziz alias Khanda son of Imam Din To call upon the respondent to render accounts of the mesne profits for the period the land remained in their illegal possession in accordance with Jhar Bandobast and to realise the same as arrears of land revenue; and not to re-allot the resumed area to any person without the prior approval of the learned Chief Settlement Commissioner. To furnish full details of the land resumed together with a copy of his order to the Chief Settlement Commissioner for obtaining his orders regarding the fresh disposal of the land in terms of Memo Nos. 4027-6/3576-R (L) dated 21-7-1966 No, 6167-66/ 5624-R (L) dated 2-10-1966 and endorsement No, 6167-66/5622-R (L) dated 2-11-1966. This is vide order dated 18-7-1967. The petitioner challenged this order in this Court by mans of a Settlement Revision No, 111/67. It was dismissed as a writ petition by a learned Division Bench of this Court on 22-9-1967. The petitioner, after leave, filed
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Civil Appeal No, 271/69 in the Supreme Court. It was dismissed by their Lordships of the Supreme Court on 14th June 1973. The petitioner, then, filed an application to the Chief Settlement Commissioner on 29-11-1973 that the land in question, being in his possession, may be sold to him and price realized according to new policy and law prevalent in the Country. The matter was taken up by the Deputy Settlement Commissioner who recommended the application to the Deputy Commissioner on 11-3-1974 who, in turn, recommended and forwarded the same to the Chief Settlement Commissioner. The latter forwarded the matter for necessary action to the Deputy Settlement Commissioner, Jaranwala in accordance with the instructions contained in Circular letter No, 24/POL dated 21-1-1974. While the application was pending, Ordinance XV of 1974 was promulgated. It was subsequently enacted as Act XIV of 1975, known as Evacuee Property and Displaced Persons (Laws) (Repeal) Act, 1975 to be effective from 1st of July 1974, which allowed sale of land in favour of the occupants under certain circumstances, The Deputy Settlement Commissioner took up the case of the petitioner for purchase on 3-3-1975 and came to the conclusion that according to paragraph No, 2 of the Circular letter No, 915/POL dated 20-11-1974 it was provided that "the sale shall be made only in case the land has not been withdrawn under any judicial order of a competent authority", and, therefore, the petitioner was not entitled to purchase the land. Thus holding, the Deputy Settlement Commissioner declined to sell the land to the petitioner, and ordered a part of the cancelled allotment to be allotted to Sardar Khan respondent No, 1 as an informer, a part to be disposed of by means of auction and also set aside the mutation of exchange between the petitioner and the respondent No, 2. The petitioner filed an appeal before the Settlemeht Commissioner who held that "under the law only that land can be purchased by the appellant in which order (of allotment) has not been set aside or cancelled by the Settlement Authorities. In this case the allotment was cancelled as far back as 1967. He, therefore, cannot purchase it". Thus, he dismissed the petitioner's revision petition on 31-3-1975. The petitioner, again, approached the Chief Settlement Commissioner for purchase but the later refused to interfere in the judicial order passed by the Settlement Commissioner and advised the petitioner to seek remedy in the High Court. The petitioner has filed the present petition under Article 199 of the Constitution. 5. Learned counsel for the petitioner, Mr. Muhammad Younus Bhatti, Advocate, who has mainly argued these cases and with deligence, if one may say so, has contended that the learned Deputy Settlement Commissioner had declined to sell the land to the petitioner by reference to Circular letter No, 915/POL dated 20-11-1974 but the same has lost its efficacy on the enactment of Act XIV of 1975 and under the later provisions in section 3 subsection (1) (b), the petitioner being in occupation of the land in question continuously for four harvests immediately preceding Kharif 1973 was entitled to be offered the same for sale, unless there was an order of ejectment passed against hiin which, in fact, has not undeniably, been passed. The Settlement Commissioner in his order dated 18-7-1967 had cancelled the allotment and directed the Deputy Settlement Commissioner to take over possession and not to re-allot the land to anybody. The possession was not taken from the petitioner and the petitioner still continue to remain in possession. The land having not been allotted validly at the relevant time was still available for sale, therefore, should have been sod to the petitioner. It is contended that the Circular letter referred to above has not only lost its efficacy but also cannot override the statute. As regards the conduct of the petitioner that the allotment has been obtained by fraud or misrepresentation and, therefore, he is not entitled to discretionary relief under the Constitution, the learned counsel has contended that the petitioner is seeking relief on the basis of a statute and equitable principles governing discretion do not override an Act of Parliament. It is submitted that Equity itself follows law as is the maxim stated in Snell's Equity, 25th Edition, pages 24-26. Reference is also made to Digest of Equity by Srahan's 6th Edition, Article 150 pages 437 & 438. It is submitted that Equity itself comes to the aid of law and
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not in derogation thereof, and since the law confers a right on the petitioner to purchase the land in dispute, he cannot be denied the relief on account of his past conduct. Reference is also made to Maxwell on Interpretation of Statutes, 10th Edition, page 253. 6. Learned counsel for the respondent No, 1 has contended that a right of action cannot arise from fraud, nor, can it spring out of fraud, He has placed reliance on Broome's Maxims, page 497. He has also submitted that no one should be permitted to take advantage of his own fraud and has referred to page 191 of the aforesaid treatise. It is, next, submitted that intention of the statute should be kept in view while interpreting the same and that there is nothing in the statute referred to by the learned counsel for the petitioner that a person who had obtained allotment by fraud should be able to purchase the same if his fraud comes to light and the allotment is cancelled. He has however candidly pointed out Mst. Soiw Bai v. Bajat Khan (1) for the proposition that the principles of equity cannot be used to defeat law but has placed reliance on Ramdeo Ram v. Frank combs and others (2) for the proposition that Courts of equity cannot grant relief against law. It is, further, submitted that as far as the respondent No, is concerned, the latter had exchanged his land for a portion of the land allotted to the petitioner. Now when the petitioner's allotment has been cancelled, the Deputy Settlement Commissioner has rightly ordered restoration of the land of the respondent No, 2 to the latter. Writ Petition No, 387/R of 1975 7. This application is by the purchasers from the previous writ petitioner, Abdul Aziz. They contend that if the original allottee i,e, Abdul Aziz, had been found to be disentitled to retain the allotment, the petitioners who are bona fide purchasers for value, being in possession of a part of the land in question, should have been sold the same in their occupation as they fulfiled the requisite conditions as laid down in Act XIV of 1975, and that the land in question could not have been allotted to Sardar Khan, respondent No, 2 as an informer because the allotment of Abdul Aziz had been cancelled on the reference of the Director of Enforcement, Evacuee property, and Sardar Khan was not treated as an informer by the Settlement Commissioner when the allotment of Abdul Aziz was cancelled vide order dated 18-7-1967. He could not have been subsequently so treated in ex parte proceedings as an informer. 8. Learned counsel for respondent No, 2 has contended that the-petitioners have no right to maintain this petition as the allotment in favour of their predecessor-in-interest is found to be bogus and they cannot derive any benefit from his misdeeds. It is, further, submitted that the allotment has been rightly made to the respondent No, 2 and the petitioners have no--right to question the same. Writ Petition No, 148/R of 1976 9. The petitioners filed a Claim Form for the land abandoned by Mst. Jewani in India. The claim was verified in due course and a mutation of inheritance was entered in favour of the petitioners by the Assistant Naib Tebsildar on 14-12-1952. It was subsequently sanctioned in their favour alongwith their mother. The allotment was made in favour of the right-holder by the Assistant Rehabilitation Commissioner, sometime around 1953, of an area measuring 39i kanals in Chak No, 29 Janubi Tehsil and District Sargodha. The Director of Enforcement, Evacuee Properties, vide his report dated 4-10-1903 referred the matter to the Chief Settlement Commissioner for resumption of the disputed land on the ground that the petitioners hal not connection with the deceased right-holder. The allotment was cancelled by the Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, on 25-9-1964. The petitioners challenged this order by means of a Settlement Revision No, 8/65 which was allowed and case remanded for fresh decision. It was taken up by Sardar Hidavat Ullah Mokai, Settlement Commissioner, exercising powers of Chief Settlement Commissioner, and he observed that "I am fully satisfied that none of the claimants- could be held entitled to allotment of land in lieu of the area abandoned by Mst. Jewani widow of Muhammad Bakhsh. I, therefore, in exercise of powers of Chief Settlement Commissioner, under sections 10 and 11 of the Displaced
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(1) 52 I C 200 (2) AIR 1929 All. 427 ' Persons (Land Settlement) Act, 1958, order that the allotment of land confirmed to Ghulam Muhammad, Din Muhammad sons of Ismail in Chak No, 29/SB, Sargodha be cancelled forthwith and area resumed. The illegal occupants may be directed to render the accounts of the mesne profits derived by them and the same be recovered from them as arrears of land revenue. The area so resumed shall be utilised for the compensation of genuine claimants strictly in accordance with Circular Memo No, 4160-69/3571-R (L), dated 10-6-1969, issued by the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore. A copy of this order be sent to the Deputy Commissioner/Additional Settlement Commissioner (Land), Sargodha, for immediate necessary action." This is vide order dated 4-11-1971. The petitioners challenged this order by means of Settlement Revision No, 49/72 which was partly allowed by setting aside the direction that the petitioners should render accounts of mesne profits. Otherwise, the order was maintained This is vide order of a learned Division Bench of this Court dated 26-5-1972. No further steps were taken in the matter either by the petitioners or any authority until the petitioners applied for purchase of the land in their possession on the basis of Memo No, 24/POL, dated 9-1-1974. The application was rejected by the Deputy Settlement Commissioner on 8-7-1974. The petitioners, teen, filed a revision petition before the Settlement Commissioner who held that he had no jurisdiction but directed the Deputy Settlement Commissioner, Sargodha to decide the case in accordance with paragraphs 2 and 3 of the Ordinance XV of 1974. This is vide order dated 6-12-1974. In the integrum, the land was cancelled from the names of the petitioners en 14-5-1974, and a mutation was sanctioned in favour of the Central Government on 10-11-1974. In pursuance of the above mentioned order of the Settlement Commissioner dated 6.12-1974, the petitioners filed another application before the Deputy Settlement Commissioner on 10-12-1974 praying for permission to purchase the land in question in accordance with paragraphs 2 and 3 of the Ordinance XV of 1974. The respondents Nos. 1 to 3 moved the Deputy Settlement Commissioner for putting the land in question on superdari but those proceedings were declared to be without lawful authority by this Court in Writ Petition No, 274/R-75 decided on 12-12-1975 and no more need be said in this behalf because this matter has no further relevance. The Deputy Settlement Commissioner, while dealing with the application of the petitioners dated 13-12-1974 for purchase, observed that the petitioners do not qualify for obtaining the land for the following reasons :- "(1) paragraph 3 (b) of Ordinance XV of 1974 provides that "agricultural land occupied by any person continuously for 4 harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land". ' In the case of Ghulam Muhammad and Din Muhammad it is clear that an order of ejectment was passed against them by the Chief Settlement Commissioner on 4-11-1971 and that order is still in force as maintained even by the High Court. This position is admitted even by Ghulam Muhammad and Din Muhammad. (ii) On the basis of said order of the Chief Settlement Commissioner dated 4-11-1971 the allotment of land in dispute was cancelled from the names of Ghulam Muhammad and Din Muhammad and the land was resumed in the name of Central Government vide mutation No, 285 dated 10-11-1974. And further Ghulam Muhammad and Din Muhammad were dispossessed of the land in dispute on 4-3-1975 vide Roznamcha Rapat dated 4-3-1975. ' Notwithstanding the formal orders of ejectment, Ghulam Muhammad and Din Muhammad had lost all locus standi in respect of land in question which stood resumed from them by the operation of order of Chief Settlement Commissioner which is still subsisting. (iv) The prayer of Ghulam Muhammad and Din Muhammad for purchasing the land under the New scheme was rejected by the learned Deputy Commissioner/Additional Settlement Commissioner (Land) on 8-7-1974. This order is still in existence because the learned Settlement Commissioner,
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Sargodha had not interferred with this order observing that he was not competent to deal with the revision against the said order. (v) Even under the new scheme, the application for purchase of land had to be submitted on or before 28-2-1974 but Ghulam Muhammad and Din Muhammad submitted their applications on 27-4-1974. Thus the request of Ghulam Muhammad and Din Muhammad was also barred by time limit. (vi) The principle laid down in PLD 1972 Lah. 880 further supports the doctrine that persons whose allotments have been cancelled under section 11 of the Displaced Persons (Land…
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