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Official Citation: 2025 LHC 1297
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-03-10
Parties: Zafar Mehmood Khalid and another vs Border Area Committee and other
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-03-10, officially reported as 2025 LHC 1297. In this matter between Zafar Mehmood Khalid and another and Border Area Committee and other, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC1297
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Zafar Mehmood Khalid and another vs Border Area Committee and other Case No.: Writ Petition No.9579 of 2017 Date of Judgment:2025-03-10 Reported As: 2025 LHC 1297, PLJ 2025 Lahore 538 Result: Petition Allowed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. Through this Constitutional Petition, the petitioner impugned the order dated 29.09.2017 passed by Border Area Committee (respondents No.2 & 3) by virtue of which land measuring 130 Kanals sold through mutations No.631, 635 and 636 dated 09.03.1998 was cancelled from the names of legal heirs of Lt. Col. Zahoor Ahmad being sold without obtaining NOC in exercise of powers conferred under Para 10(a) of West Pakistan Border Area Regulation, 1959 (Amended vide Ordinance No.III of 1981). 2. Relevant facts forming background of this petition are that land measuring 400 Kanals situated at Chak No.199/8-R, Tehsil Fortabbas, District Bahawalnagar, was allotted to Lt. Col Zahoor Ahmad s/o S.M. Hayat under Border Area Scheme by the Provincial Government; that after fulfillment of required conditions and payment of the consideration amount, proprietary rights were transferred through registered deed dated 05.09.1979 which was registered at Bahi No.1, Jild No.32, Serial No.3693, page No.86; that on the strength of said registered deed of transfer of proprietary rights mutation No.504 was sanctioned on 25.03.1996 in the name of said Lt. Col. Zahoor Ahmad; that after the demise of said allottee inheritance mutation No.611 was sanctioned on 02.05.1997 in favour of his legal heirs namely Kishwar Zahoor (widow), Amir Zahoor (son), Atiya Zahoor and Aliya Rehman (daughters); that legal heirs of Lt. Col. Zahoor Ahmad through their attorney namely Subedar Kanwar Javed Ahmad applied for issuance of No Objection Certificate (NOC) from General Head Quarter (GHQ); that through letter No.7778/1091/WR-1 dated 09.09.1997 permission was accorded; that thereafter they sought NOC from the Border Area Committee and the said Committee vide letter No.BAC/NOC-51/97 dated 30.09.1997 granted permission for sale of said
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border land measuring 400 Kanals to Muhammad Nawaz, Muhammad Zaman sons of Sultan Khan, Ghulam Rabbani son of Gull Muhammad, Muhammad Afzal, Muhammad Amir, Muhammad Habib, Muhammad Rashid sons of Muhammad Iqbal and Muhammad Shafiq s/o Salman; that in the light of said permission, legal heirs of Lt. Col. Zahoor Ahmad transferred land measuring 50 Kanals to Muhammad Rashid, Muhammad Amir sons of Muhammad Iqbal through mutation No.632 dated 09.03.1998, land measuring 50 Kanals to Muhammad Shafiq s/o Salman through mutation No.633 dated 09.03.1998, land measuring 50 Kanals to Muhammad Afzal, Muhammad Habib, sons of Muhammad Iqbal through mutation No.634 dated 09.03.1998, land measuring 48 Kanals to Muhammad Nawaz s/o Sultan Khan through mutation No.637 dated 09.03.1998, land measuring 48 Kanals to Muhammad Zaman s/o Sultan Khan through mutation No.638 dated 09.03.1998 and land measuring 24 Kanals to Ghulam Rabbani s/o Gull Muhammad through mutation No.639 dated 09.03.1998. In this way, they sold total land measuring 270 Kanals to the persons in whose names NOC was issued. However, they sold land measuring 50 Kanals to Abdul Rauf s/o Salman through mutation No.631 dated 09.03.1998, land measuring 40 Kanals to Muhammad Bashir s/o Muhammad Nawaz through mutation No.635 dated 09.03.1998 and land measuring 40 Kanals to Muhammad Rasheed s/o Muhammad Nawaz through mutation No.638 dated 09.03.1998, total land measuring 130 Kanals in favour of the persons whose names were not reflecting in the NOC; that Muhammad Zaman who acquired the land through mutation No.638 died and his inheritance mutation No.821 was sanctioned on 26.05.2004 in favour of his legal heirs namely Muhammad Nawaz, Rab Nawaz, Muhammad Khan, Sakina Bibi and Zarina Bibi; that Abdul Rauf, Muhammad Bashir and Muhammad Rasheed who acquired land measuring 130 Kanals through mutations No.631, 635 and 636 and the vendees of mutations No.637, 638 and 639 partially gifted land measuring 188 Kanals to Nazir Ahmad s/o Noor Muhammad through mutation No.822 dated 26.05.2004 and land measuring 12 Kanals to Bashir Ahmad s/o Shakoor Khalid Aasi through mutation No.838 dated 03.11.2004; that Nazir Ahmad who acquired land through mutation No.822 sold said land measuring 188 Kanals to Zafar Mehmood Khalid s/o Muhammad Ashraf vide mutation No.833 dated 15.07.2004 and said Zafar Mehmood Khalid exchanged said land measuring 188 Kanals with Shakoor Khalid Aasi through mutation No.841 dated 03.11.2004; that the Border Area Committee through order dated 26.11.2007 cancelled land measuring 130 Kanals from the name of legal heirs of Lt. Col. Zahoor Ahmad, land measuring 188 Kanals from the names of Muhammad Nawz, Rab Nawaz sons of Sultan Khan, Muhammad Bashir, Muhammad Rasheed sons of Muhammad Nawaz, Ghulam Rabbani s/o Noor Muhammad, Sakina Bibi and Zarina Bibi daughters of Sultan Khan and land measuring 12 Kanals from the name of Muhammad Khan i.e. total land measuring 330 Kanals on the grounds that said transfers were made without obtaining NOC; that said order of Border Area Committee dated 26.11.2007 was assailed through Writ Petition No.16 of 2008, 1215 of 2008, 9248 of 2016 and this Court while setting aside the impugned order dated 26.11.2007 through orders dated 09.09.2014, 01.04.2015 and 12.05.2016 with the consent of learned counsel for the parties remanded the matter to Border Area Committee with the direction to decide the matter afresh after hearing all concerned persons; that Border Area Committee through order dated 12.11.2014 cancelled land measuring 250 Kanals including 130 Kanals from the names of legal heirs of Lt. Col. Zahoor Ahmad, land measuring 48 Kanals from legal heirs of Muhammad Zaman, land measuring 48 Kanals of Muhammad Nawaz and land measuring 24 Kanals of Ghulam Rabbani on the ground that said land was sold without obtaining NOC, however, sale of land measuring 150 Kanals was kept intact; that subsequently the Border Area Committee through order dated 29.09.2017 cancelled the land measuring 130 Kanals from the name of legal heirs of Lt. Col. Zahoor Ahmad being sold without obtaining NOC and with regard to the land measuring 120 Kanals held that the same shall be
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decided by Border Area Committee separately. Feeling aggrieved, the petitioners (subsequent purchasers) have filed instant Writ Petition by challenging the order dated 29.09.2017. 3. I have heard learned counsel for the parties at length and gone through the record with their able assistance. 4. From the perusal of record it appears that land measuring 400 Kanals was allotted to Lt. Col. Zahoor Ahmad under Border Area Scheme by the Provincial Government and after payment of consideration amount proprietary rights were transferred through registered deed dated 05.09.1979 and on the basis of said registered deed mutation No.504 was sanctioned on 25.03.1996. After the demise of said allottee, inheritance mutation No.611 was sanctioned on 02.05.1997 in favour of his legal heirs. Said legal heirs through their general attorney applied for issuance of NOC and the GHQ granted permission for sale of land through letter dated 09.09.1997 and thereafter the Border Area Committee through letter No.BAC/NOC-51/97 dated 30.09.1997 granted permission to transfer their land measuring 400 Kanals to Muhammad Nawaz, Muhammad Zaman sons of Sultan Khan, Ghulam Rabbani son of Gull Muhammad, Muhammad Afzal, Muhammad Amir, Muhammad Habib, Muhammad Rashid sons of Muhammad Iqbal and Muhammad Shafiq s/o Salman. It is also evident from the record that legal heirs of Lt. Col. Zahoor Ahmad transferred land measuring 270 Kanals through mutations No.632, 633, 634, 637, 638 and 639 dated 09.03.1998 to the persons for whom NOC was obtained. It is also matter of record that through mutation No.631, 635 and 636 dated 09.03.1998 land measuring 130 Kanals was transferred to Abdul Rauf, Muhammad Bashir and Muhammad Rasheed whose names are not reflecting in the letter dated 30.09.1997. 5. The Border Area Committee (respondents No.2 & 3) cancelled the land in exercise of powers conferred under para 10(a) of West Pakistan Border Area Regulation, 1959 (amended vide Ordinance No.III of 1981) in the following terms: "Aforesaid, land measuring 130-0 Kanals situated Chak No.199/8-R, Tehsil Fortabbas is hereby cancelled from the name of legal heirs of Lt. Col. Zahoor Ahmad being sold without obtaining NOC in exercise of powers conferred under para 10(a) of West Pakistan Border Area Regulation, 1959 (amended vide Ordinance No.III of 1981). All the entries in record of rights and mutations transactions be amended accordingly. The Assistant Commissioner, Fortabbas is directed to implement the same in the revenue record accordingly." 6. As the impugned order was passed under paragraph 10 of the Regulation, hence, before discussing further it is better to understand said paragraph, which reads as under: "10. (a) The Committee may scrutinize allotment of any state land or immovable property within border area and may, on being satisfied that any allotment was made to a person not eligible for allotment, cancel such allotment and direct the allottee to surrender forthwith to the Deputy Commissioner within whose jurisdiction such property is situated failing which the Deputy Commissioner or the Committee may take possession of the property by evicting any person there from with such force as may be necessary for the purpose: Provided that no such order shall be made unless the person likely to be affected thereby is given an opportunity of being heard before the order is passed. (b) The decision of the Committee under sub-paragraph (a) shall be final." 7. A study of said paragraph provides that the Border Area Committee can decide the question of eligibility of any person for allotment of land by itself or cancel any allotment made by it of land and direct the allottee to surrender forthwith the cancelled property to the Deputy Commissioner within whose jurisdiction the property is situated. 8. The concept of cancellation of allotment, as provided in paragraph 10(a), is that if in the view of Committee scrutinizing the allotment of any state land or immoveable evacuee property within any Border Area is satisfied that any allotment was made to a person not eligible for allotment, may proceed to cancel such allotment and direct the allottee to surrender/forfeit the property to
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the Deputy Commissioner or the Committee. But in the present case, the allotment was not cancelled on the ground that the allottee was not eligible for allotment. In the said paragraph, the missing of word "subsequent purchaser" is also conspicuous and it is clear that the allotment from the name of original allottee can be cancelled but once it is further transferred and that too after obtaining the No Objection Certificate from the General Headquarters or Border Area Committee by the original allottee or his legal heirs, then the power to cancel the land from the subsequent transferee's name would not be within the power of the Border Area Committee under paragraph 10(a) of the Regulation. 9. The impugned order further reflects that the powers were exercised on the grounds that the legal heirs sold the land without obtaining NOC. Now the effect of not obtaining NOC is being discussed. 10. The petitioners claimed that since NOC with regard to selling of 400 Kanals was issued by the Border Area Committee, therefore, the legal requirement was fulfilled and the Committee should have no concern/objection as to whom the said land may be sold. Whereas, stance of the respondents-Border Area Committee is that it was mandatory to obtain NOC by mentioning the names of the vendees and the land could only be transferred in the names of the persons for whom NOC was obtained. They added that it was necessary to safe the Border Belt from being occupied by undesirable persons, because it being a sensitive area and therefore, the control of General Head Quarter with regard to the alienations of the lands situated there was not only expedient but also in the national interest. 11. The West Pakistan Border Area Regulation, 1959 (Martial Law Administrator Zone "B" Regulation No.9 of 1959) (hereinafter referred to as the Regulation) was promulgated on 17th of March, 1959. The 'Border Area' as defined in Paragraph No.3(a) provides that any area in the Province of Punjab along the Indo-Pakistan Border which falls within five miles from such border as further amplified in subparagraph (II)(2) of paragraph 55 (a) of the West Pakistan Rehabilitation Settlement Scheme. 12. On 06.11.1969, the Secretary to the Government of West Pakistan vide letter No.7955-69/4141-C IV wrote to the Adjutant General GHQ, Rawalpindi, that "the Government of West Pakistan is pleased to transfer all land lying within five miles belt of the IndoPak Border in the former Punjab Province and the Bahawalpur State to the General Headquarters, for allotment through the Agency of the Border Allotment Committee, subject to the condition that the price of the land will be settled by negotiation between the Board of Revenue with GHQ and in consultation with Finance Department. 2......... 13. Then letter No.3277-71/3264-CVI dated 29th September, 1971, was sent by the Secretary to Government of the Punjab, Colonies Department, to the Adjutant General, G.H.Q., to the following effect:-- "The Governor of the Punjab has been pleased to decide that the payment of the price of the State agricultural land lying within five miles of the Indo-Pak Border belt allotted to Military Personnel by the Border Committee, shall be made by the allottees as under:-- (a) The allottees shall pay into Government Treasury the price of the State land in lump sum or in ten equal yearly installments under the head 'L.I Extraordinary Receipt-Sale of underdeveloped agricultural land by auction or by private treate in "Colonies" on the dates fixed for the payment of land revenue......................" 14. The Federal Government framed a scheme in 1961 bearing the title "Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under MLR-9" (1961 Scheme). With reference to the mode and permissible types of transfers of land by an allottee, paragraph-6 of the 1961 Scheme is relevant which is reproduced below: "The allotment of land will be subject to the following terms & conditions: (a) Not transfer the land before acquiring the Proprietary rights except through mortgage for the purpose of obtaining a loan for the development of the land from--
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(i) The Provincial Government; (ii) Any Government sponsored institution; or (iii) A Co-operative Society. (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 Adjutant General, General Headquarters Det (W&R) Det Rawalpindi satisfy himself further that no Military personnel is willing to purchase the land; (c) Bring at least 50 per cent of the allotted land under food grains crop every year. The allotting authority may relax the conditions from time to time; (d) Not allow the land to deteriorate and will not use it for a purpose other than agriculture including horticulture; (e) Regularly make payment to Government of revenue, cesses and Abiana, if any; (f) Not be permitted to sell the land for the first 5 years after obtaining the proprietorship. (ii) In the event of death of an allottee, the allottment shall devolve on the legal heirs of deceased who fulfil all the conditions relating thereto." 15. The Provision of paragraph-6(b) visualize that the allottee shall 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 Headquarter before passing the final order for alienation of the land. The Deputy Commissioner, before according such a permission, shall on consultation with the Adjutant General, General Headquarters Det (W& R) Det, Rawalpindi, satisfy himself further that no military personal is willing to purchase the land 16. Said provision of para-graph 6(b) has subsequently been reinforced by the enactment of West Pakistan Border Area Regulation, 1959 (Punjab Amendment Ordinance 1981), whereby new condition 11 has been incorporated in Schedule-III of Regulation that provides as follows: "11. The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Headquarters." 17. From the perusal of said clause, it appears that said clause was imposed with a defence point of view and it reveals that only the allottee is bound to obtain prior permission of the G.H.Q. for the transfer of allotted land. Subsequent transferee is not reflected in the said clause and no embargo in this regard is imposed upon him. 18. As per stance of the respondents, the Military Allottee could not sell or transfer the allotted land without prior permission of the G.H.Q., because keeping in view the defence point of view of the country, the conduct, character and activities of the purchaser are to be investigated; that the petitioners violated the terms and conditions of the allotment, therefore, the Border Area Committee rightly cancelled the allotment. 19. The condition No.10 of the Schedule-III of the Regulation, for Cancellation of Allotment, provides as under: "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."
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20. The concept of cancellation of allotment as provided in paragraph No.10 is that the allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this schedule. The case of the respondents is that the allotment made in favour of the allottee was cancelled on the ground that land was transferred without getting NOC and in this way condition No.11 of the schedule-III was breached. 21. In the present case, the original allottee died and the land had been devolved to his legal heirs, who, after obtaining NOC from the Border Area Committee, alienated land measuring 130 Kanals through mutations No.631, 635 and 636 dated 09.03.1998. The vendees of said mutations along with the other persons gifted said land along with other land (total measuring 188 Kanals) to Nazir Ahmad through mutation No.822 dated 26.05.2004. Said Nazir Ahmad sold the land to Zafar Mahmood Khalid through mutation No.833 dated 15.07.2004 and Zafar Mahmood Khalid exchanged said land measuring 188 kanals with Shakoor Khalid Aasi through mutation No.841 dated 03.11.2004. 22. Once an original allottee or his legal heirs have been allowed to transfer his property under a no objection certificate issued by the General Headquarter or Border Area Committee, then in case of transfer to another individual the terms and conditions which were applicable to the allottee would come to an end and the subsequent purchasers would be considered at liberty to deal with their acquired land in any manner which deems fit and proper. The subsequent purchaser would no more be bound to observe the conditions which were made applicable to the original allottee under the Regulation and the subsequent matters would be regulated under the supreme law i.e. Constitution which guarantees every citizen under Article 23 thereof to have a right to acquire, hold and dispose of property in any part of Pakistan and by virtue of Article 24 of the Constitution it is again fundamental right of a citizen of Pakistan that he will not be deprived of property. A Division Bench of this Court in a case titled "Ch. Zafar Hussain and 5 others V. Border Area Committee through Chairman and 6 others" (2012 MLD 1538) held as under: "5. Once an original allottee, who has been accommodated under Rehabilitation Settlement Scheme has been allowed to transfer his property under a No Objection Certificate issued by the General Headquarters or Border Area Committee, then in case of transfer to another individual the terms and conditions which were applicable to the allottee would come to an end and the subsequent purchaser would be considered a free citizen of Pakistan and would be at liberty to deal with his acquired land in any manner which deems fit and proper. The subsequent purchaser would no more be bound to observe the conditions which were made applicable to the original allottee under the West Pakistan Border Area Regulations, 1959 and the subsequent matters would be regulated under the Supreme Law i.e. Constitution which guarantees every citizen under Article 23 thereof to have a right to acquire, hold and dispose of property in any part of Pakistan and by virtue of Article 24 of the Constitution, it is again fundamental right of a citizen of Pakistan that he will not be deprived of property. The lands allotted under the Regulations, 1959 are undoubtedly situated within the Pakistan and thus are subject to be held with under the provisions of Constitution. The findings arrived at by the Border Area Committee whereby the allotment in favour of respondent No.6 (a subsequent transferee) was cancelled only for the reason of there being no NOC from General Headquarters or Border Area Committee is declared an act to have been taken by the Border Area Committee without lawful authority and of no legal effect and same is set aside. The transfer of the land in favour of the predecessor in interest of the petitioner is declared to be in accordance with law and protected under the Constitutional provisions and it is declared that once a No Objection Certificate is issued by the Border Area Committee to the original allottee for transfer of the land, allotted to the said allottee by the Border Area Committee, then for subsequent transaction, no
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fresh No Objection Certificate from Border Area Committee or as the case may be the General Headquarters would require." 23. It was argued that the embargo was imposed to restrict the transfer of land to undesirable persons, therefore, without crossing the barrier/issuance of NOC the land falling in the border belt cannot be transferred and if said check and balance is not made applicable, then in sensitive belt, property could be acquired by an undesirable person, which would be dangerous for the defence purpose. The purpose of the said para of the scheme is to restrain undesirable person to occupy or purchase the land situated in the border belt but without adjudicating upon or declaring as 'undesirable' or 'not a suitable person' by any forum of competent jurisdiction the allotment could not be cancelled. In this regard reliance is placed on the case titled "Subedar Sardar Khan through Legal Heirs and others V. Muhammad Idrees through General Attorney and another" (PLD 2008 Supreme Court SC 591), wherein Hon'ble Supreme Court of Pakistan observed as under: "9. Now adverting to the judgment passed by learned Division Bench in constitutional petition (W.P.No.66-R/1995) and heavily relied upon by Ch. Muhammad Abdullah Advocate. Respondent No.1 challenged the vires of the Scheme on the ground that the Scheme was promulgated without any lawful authority. It was held by the Lahore High Court in the said case that inconsistency if any in the Regulation and the scheme was removed by promulgation of the Ordinance III of 1981 and "thus had a definite purpose behind it as it was necessary to save the border belt from being occupied by undesirable persons, it being a sensitive area and therefore, the control of General Headquarter with regard to the alienations of the lands situated there was not only expedient but also in the national interest". So the ratio of the said judgment is that the purpose of the said para of the Scheme is to restrain undesirable persons to occupy or purchase the land situated in the border belt: The vendee was…
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