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Official Citation: 2018 YLR 2073
Court / Jurisdiction: Lahore High Court
Year of Decision: 2017
Decision Date: 2017-12-31
Petitioner: PROVINCE OF THE PUNJAB through Member Judicial-V/Chief Settlement JUDGMENT
This judicial decision was delivered by the Lahore High Court on 2017-12-31. The matter involves proceedings between PROVINCE OF THE PUNJAB through Member Judicial-V/Chief Settlement JUDGMENT and Respondent, officially reported as 2018 YLR 2073. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2018 YLR 2073
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title:PROVINCE OF THE PUNJAB through Member Judicial-V/Chief Settlement
JUDGMENT
Reported As: 2018 YLR 2073 Result: Order accordingly Judgment JUDGMENT CH. MUHAMMAD IQBAL, J. Through this single judgment, I would intend to decide titled writ petition as well as Writ Petitions Nos,38-R and 80-R of 2016 as all the writ petitions have been arisen out of saw impugned order. Writ Petitions Nos,37-R and 38-R of 2016, 2. Through Writ Petitions Nos,37-R and 38-R of 2016, the petitioner (Province of Punjab) has challenged the validity of order dated 16.11.2015 passed by the Notified Officer / Member (Judicial- III), Board of Revenue who after setting aside the order dated 01.03.2003 passed by the Secretary (S&R) restored the order dated 30.11.1976 passed by the Settlement Commissioner (Lands), Multan Division and order dated 12.03.1988 passed by the Additional Deputy Commissioner, (G) Lahore, Cantt., Lahore. 3. Brief facts of the case are that land measuring 521-Kanals 19-Marlas in Khata No,130, Village Charar, Tehsil and District Lahore was allegedly allotted to one Skujaat Ali son of Himayat Ali. Against the said allotment, Umrao Bakht, Ashraf Ali and Anwar Hussain All filed Mukhbari Applications, which were allowed and allotment in favour of Shujaat All was cancelled by the then Notified Officer, Multan vide order dated 30.11.1976 and said land was allotted to the Mukhbars and accordingly. Robkar No,21381 was issued to the ADC (G) Lahore Cantt., for implementation. Ashraf Hussain etc. (Mukhbars) filed application on 11.02.1991 for implementation of order dated 30.11.1976 as well as decree of Civil Court dated 01.07.1990 and Robkar dated 21.03.1988. The then Chief Settlement Commissioner, Punjab on the said application constituted a committee vide order
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dated 24.04.1991 to look into the instant case as well as other similar pending matters. The committee summoned Mr. Mumtaz Jaoiya, former ADC (G), Cantt., Lahore and recorded his statement in connection with Robkar dated 21.03.1988 purportedly issued by him, who categorically denied the genuineness of the Robkar as well as his signature and stated that no Robkar was issued by him. The then Chief Settlement Commissioner in the light of the available evidence declared the Robkar dated 21.03.1988 to be bogus, fabricated and non-existent document and finally vide memo dated 01.03.2008 cancelled the said allotment of Umrao Bakhat, Ashraf Hussain, Anwar Hussain, Balquees Begum and Majida Begum as the same, was secured on the basis of forged and fabricated order dated 30.11.1976. Against the above order, Writ Petitions Nos,36-R, 56-R and 64-R of 2003 were filed, which petitions were accepted by the learned Single Judge in Chambers vide order dated 19.12.2012 by setting aside the impugned order dated 01.03.2003 and the case was remanded to the Chief Settlement Commissioner to hear the parties and decide the matter afresh. Similarly another Writ Petition No,32500/2013 was also allowed by this Court on 16.12.2013 in view of the earlier order dated 19.12.2012 passed in Writ. Petition No,56-R/2003, and remanded the matter to the Notified Officer, Lahore for decision on merits. In the post remand proceedings, the Notified Officer vide order dated 16.11.2015 restored the order dated 30.11.1976 passed by Settlement Commissioner (Lands), Multan Division, Multan as well as order / Robkar dated 12.03.1988 passed by Additional Deputy Commissioner (General) Cantt., Lahore. Hence, these writ petitions. Writ Petition No,80-R of 2016 4. Through Writ Petition No,80-R of 2016, the petitioner challenged the order dated 16.11.2015 passed by the Notified Officer, Lahore and also requested that direction may be issued to respondents Nos,1 to 3 to transfer the property in possession of the petitioners as per law. 5. Brief facts of this petition are that the petitioners are occupants of constructed houses bearing Khasra Nos,1196, 1197, 1198, 1199, 1200, 1201, 1202, 1215, 1217, 1135, 1136, 1137/90-11, 1161/94-01 and are entitled for allotment of the same as per judgment of Hon'ble Supreme Court of Pakistan in the case of Muhammad Ramzan and others v. Member (Rev.) /CSS and others (1997 SCM R 1635) whereas the notified officer without taking into account the actual physical status passed the order dated 16.11.2015 and allotted the above said Khasra to the respondent which allotment is not sustainable in the eyes of law. 6. Messrs Hafiz Muhammad Yousaf and Muhammad Shahzad Shaukat, Advocates appearing on behalf of the petitioners submit that the order dated 30.11.1976 passed by the then Settlement Commissioner (Lands), Multan Division is without jurisdiction and without lawful authority; that the said Notified Officer, Multan was not competent to allot the land situated in Lahore Cantt., which land is beyond his territorial jurisdiction; further submits that Robkar dated 12.03.1988 issued by the Additional Deputy Commissioner (General), Cantt., Lahore for allotment of an alternate land is also illegal as there is no provision available in the evacuee laws for allotment of alternate land; that all the available evacuee urban land, including the land which has not yet been confirmed to any person against units or claim or which may be available in future in all the Revenue Estates situated within the Urban Limits of a Municipal Corporation, Municipal Committee, a Notified Area Committee, Town Area Committee, Small Town Committee, a Sanitary Committee, or Cantonment throughout the Province of the Punjab are declared as building sites vide notification dated 16.05.1973 and thereafter such land cannot be allotted by any Notified Officer; that the original allottee had not challenged the cancellation of their allotment before any forum till to date; submitted that the Province of Punjab through Chief Settlement Commissioner / Member (Residual Properties), Board of Revenue is custodian of the evacuee properties and is legally competent to assail the illegal order of the allotment and to file instant writ petition; further submits that doctrine of past and closed transaction only gives protection to those rights which were created under the
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law and if any .right is constituted against the law then principle of past and closed transaction would not be applicable rather such void and illegal orders can be ignored in its entirety; submitted that the impugned order passed by the Notified Officer is against the law and facts of the case as well as against the parameters of the Scheme 1977. In support of his arguments Mr. Shehzad Shaukat, Advocate has relied upon Muhammad Ramzan and others v. Member (Rev.) / CSS and others (1997 SCM R 1635), Member Board of Revenue/Chief Settlement Commissioner, Punjab Lahore v. Abdul Majeed and another (PLD 2015 SC 166), Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822), Mst. Kabiri Bibi and others v. Secretary (S&R) Board of Revenue and others (2012 YLR 392), Jamil Ahmad Sheikh v. Ch. Zafar Iqbal and another (2010 YLR 1257), Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119), Province of Punjab through Secretary, Irrigation and Power Department Lahore v. Deputy Settlement Commissioner, Lahore and others (1991 SCM R 1592) and Member Board of Revenue, Punjab Lahore v. Rafaqat Ali (1998 SCM R 2596). 7. Learned counsel appearing on behalf of the respondents submits that Province of Punjab is not competent to file instant writ petition; that against the order dated 30.11.1976, a Writ Petition No,861- R/1979 was filed by Mst. Hamida Begum etc. which was dismissed vide order dated 29.09.1986 and said order was never assailed before any forum, as such, order dated 30.11.1976 has attained finality and the principle of doctrine of past and closed transaction is applicable .upon the case of the petitioners; further submitted that the petitioners of Writ Petition No,80-R/2016 are illegal occupants, as such, they are not entitled for any relief. 8. I heard the arguments of learned counsel for the parties and gone through the record with their able assistance. 9. Admittedly, the evacuee laws were repealed with effect from 01.07.1974 after promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 A and in exercise of the powers conferred under subsection (2) of Section 2 of the Act ibid. Governor of the Punjab in supersession of all previous notifications in this behalf notified .the officers for the disposal of all pending proceedings under the laws of Repealed Act ibid. before the authorities withintheir territorial jurisdiction through Notification No,296(Misc.)-Admn-Sett/74- dated 14th November, 1974 which is reproduced as under:- GOVERNMENT OF THE PUNJAB BOARD OF REVENUE Dated the 14th November, 1974 NOTIFICATION No,296(Misc.)-Admn-Sett/74.---In pursuance of the provisions contained in subsection (2) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, the Governor of the Punjab is pleased to notify the officers mentioned in Column No,1 of the Schedule annexed hereto, for the disposal of all proceeding under Laws repealed by the said Ordinance, pending before the authorities mentioned in Column No,2 of the said Schedule within the territorial jurisdiction mentioned in Column No,3 thereof SCHEDULE Sr. - No, Officers notifiedAuthority before whom proceedings were pendingTerritorial jurisdiction (1) (2) (3) 1. Commissioners of the DivisionsChief SettlementRespective Divisions.
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Commissioner, Settlement Commissioner, Claims Commissioner And Rehabilitation Commissioner 2.. Mr. M.A. Wasti, Addl. Settlement Commissioner/Secre tary (Administration) to the Member Board Of Revenue (Settlement and Reh: Wing)Settlement Commissioner, Settlement Commissioner (industries). Claims Commissioner and Rehabilitation Commissioner on Urban sideProvince of the Punjab Respective Divisions (under the control of the Commissioners) Additional Commissioners.2.Settlement Commissioner, Settlement Commissioner, With the dele- gated powers for Ss. 10 and 11 of the D.P. (Land Settlement) Act, 1958. Deputy Commissioners, Settlement Officers And Colonization Officers.Addl. Settlement Commissioner, Addl. Settlement Commissioner, With the delegated powers for Ss.10 and 11 of the D.P. (Land Settlement) Act, 1958. Addl. Claims Commissioner And Addl. Rehabilitation Commissioner.Respective Districts. Addl. Deputy Commr. ExtraAddl. Settlement Commissioner,Respective Districts
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Asstt: Settlement Officers and Extra Assistant: Colonization Officers.Addl. Settlement Commissioner, With the delegated powers for Ss.10 & 11 of the D. P.( Land Settlement) Act, 1958. Addl. Claims Commissioner and Addl. Rehabilitation Commissioner(under the control of Dy. Commissioners.) 6. Deputy Secretary (Rural) Board of Revenue, Settlement and Reh. Wing.Settlement Commissioner, Settlement Commissioner with the dele- gated powers for Ss. 10 and 11 of the D.P. (Land Settlement) Act, 1958, Claims Commissioner and Rehabilitation Commissioner on the land side/Officer on Special on Special Duty. Central Record Office.Province of the Punjab BY ORDER OF THE GOVERNOR OF THE PUNJAB Sd/- (M. Aslam Avais) Member Board of the Revenue and Secretary to the Government of the Punjab, (Excise and Taxation/Settlement and Rehabilitation Wing); No,296 (Misc,)-Admn-Sett/74 dated 14th November, 1974 10. The evacuee land measuring 521- Kanals 19-Marlas of village Charar Tehsil and District Lahore was allegedly allotted to Shujaat Ali son of Hamid Ali. Upon the Mukhbari applications of Umrao Bakht, Ashraf Ali and Anwar Hussain Ali/ respondents, the allotment of said Shujaat Ali was cancelled and said resumed land was allotted to the respondents vide order dated 30.11.1976 by the Settlement Commissioner (Lands), Multan Division. Whereas as per notification reproduced above, only the Commissioner, Lahore Division was competent to adjudicate upon the matter and the Settlement Commissioner Multan was not competent to pass order of allotment in favour of Mukhbars, as such, alleged order dated 30.11.1976 was passed without jurisdiction, which is illegal,
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coram non-judice and has been passed without lawful authority. From the perusal of aforementioned notification dated 14.11.1974 only, the Notified Officer mentioned in column No,1 of the said Schedule was competent to adjudicate the matter falling within the territorial jurisdiction mentioned in column No,3. In this case, the Notified Officer Multan illegally invoked jurisdiction of the Chief Settlement Commissioner, Punjab Lahore and without lawful authority passed the order of allotment of evacuee land falling beyond his territorial jurisdiction, whereas the respondents failed to produce any order passed by competent authority in respect of transfer of the case for adjudication from Lahore to Multan. Furthermore, as per notification reproduced above, the Notified Officer of Multan Division has no power to allot the land situated within the territorial jurisdiction of Notified Officer, Lahore. Moreover in the presence of notification dated 16.05.1973 as well as after the repeal of evacuee laws on 01.07.1974, the Notified Officer Multan was not competent to allot land situated within the Municipal Limits of Lahore Cantt., which has already declared as building site and said land can only be disposed of by the competent authority under Scheme 1977 framed under section 3 of the Displaced Persons (Land Settlement ) Act, 1975. Admittedly, vide notification dated 16.05.1973, all the available urban agricultural land in district Lahore was declared as building site which land could not be allotted against any pending evacuee claim, since the issuance of the above notification whereas after the Repealing Act 1975 there exists no agricultural urban land in Lahore for any allotment or adjustment against unsatisfied claims of produce index units and the claimants holding any unsatisfied entitlement pending PIUs may seek any other remedy if available under the law, whereas they stood disentitled to obtain allotment of urban land in satisfaction of pending units or get alternate allotment of land as held by the Hon'ble Supreme Court of Pakistan in case reported as Muhammad Ramzan and others v. Member (Rev.),ICSS and others (1997 SCM R 1635):- "we are inclined to hold that on the promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units. Further, in Notification dated 16.05.1973, the- competent authority declared the evacuee properties as "building sites" and it cannot be allotted against rural claims rather it can only be disposed of under the Scheme for Management and Disposal of Available Urban Land, 1977, whereas informers' (Mukhbars) right does not stand anywhere in the said Scheme, as such, the impugned order of allotment dated 24.04.1991 passed by the former Chief Settlement Commissioner is also against the parameters laid down in the Scheme. Furthermore, the Notified Officer, Lahore while passing the impugned order dated 16.11.2015 has also not considered propriety or impropriety of order of the Settlement Commissioner (Land) Multan Division dated 30.11.1976 which order was rendered blatantly without lawful jurisdiction as well as against notification dated 14.11.1974. Moreover, the then Chief Settlement Commissioner vide order dated 24.04.1991 constituted a probe committee to investigate the- genuineness of the allotments and said committee summoned Mr. Mumtaz Joiya, ADC(G) Cantt. who allegedly made alternate allotment, adjustment and issued Robkar dated 21.03.1988. He appeared, got recorded his statement before the committee and categorically denied the issuance of above Robkar as well as denied, his signature on the impugned Robkar whereas no document has been produced in rebuttal of the above statement, as such, alleged Robkar purportedly issued by ADC(G) Cantt., Lahore lost its sanctity as the same was a bogus document. Further for the sake of arguments, had the said document of Robkar been issued by the ADCG even then the same would have no validity as the said officer did not hold any authority to
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allot alternate land as he does not stand anywhere in the Scheme 1977. Admittedly the land of Harbanspura definitely falls within the ambit of the Notification dated 16.05.1973 whereby the Chief Settlement Commissioner has already declared it as building site which notification was upheld by the Hon'ble Supreme Court of. Pakistan in its dictum laid down in Ramzan as well as Ali Muhammad's cases. Moreover, admittedly, the respondents are not in the possession of the suit land and bare perusal of Robkar shows that respondents allegedly surrendered their land in Mauza Charar and in lieu thereof alternate land was allotted to them by the Addl. Deputy Commissioner (G) Land who was vested with no authority to visualize mechanism at his own whims and caprice and passed such an arbitrary and fanciful order. Furthermore, from scanning of impugned Robkar, it is clearly mentioned therein that the proposed land has already been transferred / allotted to some other persons, as such, the allotment of an alternate land measuring 202-Kanals 01-Marla falling Khasra Nos,1161/94-1, 1137/90-11, 1141/10-14, 1142/6-15 to the legal heirs of Shahzadi Umrao etc. as well as issuance of Robkar was made in contravention of law as no provision is available in the Repealed Act for making the alternate allotment, rather it was mandatory for the field staff to seek fresh order/instruction from the competent authority before allotment of alternate land or proposal for the allotment which is not available on the record as such the orders of alternate allotment made by the ADC (G) is coram non judice and void ab initio. Even Chief Settlement Commissioner has no authority to make allotment of alternate land as discussed in the cases reported as Muhammad Ramzan and others v. Member (Rev.) /CSS and others (1997 SCM R 1635) and All Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822), Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another (PLD 2015 SC 166). Learned counsel for the petitioner argues that against the order of allotment dated 30.11.1976 a Writ Petition No,861-R/ 1979 was filed which was dismissed in limine on 29.09.1986 by this Court, as such, order dated 30.11.1976 passed by Notified Officer attained finality and also attained the status of past and closed transaction, suffice it to say that admittedly the original order of allotment was passed by the Notified Officer designated for Multan Region who was vested with no jurisdiction to decide the matter relating the territorial jurisdiction of Notified Officer Lahore and no order of any competent authority has been placed on record to show the transfer of claim as well as the said Mukhbari applications from Lahore to Multan for adjudication whereas subject evacuee land undeniable fall under the jurisdiction of the Notified Officer of Lahore and mere consent or convenience of the litigating parties does not confer any jurisdiction to adjudicate a matter outside its jurisdiction rather it is only the dictates of codified law to bestow or rescind the jurisdiction of a forum. Moreover, connivances of the parties or the colourable pursuit of the adjudicator does not enlarge his territorial jurisdiction at his whims and caprice and any such order passed by an interested authority is coram non-judice, void, tainted with grotesque motive which does not have any legal protection and will not be considered as past and closed transaction. The Hon'ble Supreme Court of Pakistan has elaborately discussed and answered the matter of past and closed transaction it is recent judgment reported as Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCM R 206) declaring that "the principle of past and closed transaction would apply in case where rights were created under the valid law, even if such law was allowed to lapse or was removed from the statute book, however, an instrument that was still born or treated by the court as non est was barred from creating any vested rights, let alone being protected under the doctrine of past and closed transaction. The Courts were duty bound to protect the rights and interests created under a law and also to deny the enjoyment of rights purported / created under an invalid law. Where a party claiming the protection of rights, that were created under a law, failed to pass the test of constitutionality, as determined by the court, it could not take the plea of past and closed transaction. Moreover, it is reiterated that order passed in Writ Petition No,861-R/1979 attained the
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status of past and closed matter, suffice it to say that from perusal of said order, it reveals that the notification of building site dated 16.05.1973 was neither in question nor debated by the parties nor its effect was considered by this Court, as such, said order dated 30.11.1976 is required to be ignored as settled in Ramzan's Case (supra) wherein it is held as under:-- "Now we will proceed to deal with other aspect regarding consequence of order passed by authority having no jurisdiction in the matter. Question relating to legality and impact of void order and for disregarding the same when nullity, has been considered by this Court on numerous occasions. Pivotal question which needs attention is whether impugned orders concerning allotment of land passed by Notified Officer are mala fide or suffer from total lack of jurisdiction or have been passed in disregard to existing law and tends to frustrate provisions of evacuee laws and schemes framed thereunder, therefore, be deemed as nullity. In case of Muhammad Swaleh (PLD 1964 SC 97) this Court ruled, that if circumstances disclose that order pre-eminently provides right to either party is nullity the same should be ignored. In the case of Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104) the Court did not attach finality to the orders which were passed by an authority in, excess of its jurisdiction or suffered from want of jurisdiction and were found to be devoid of lawful authority and nullity. It was observed in these matters that edifice constructed on the basis of void order crumbles along with same, and did not require to be set aside through appeals or any other proceedings. In the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) it has been observed that "elementary principles of law require mandatory condition regarding exercise of jurisdiction by a Court, Tribunal or Authority must be fulfilled, otherwise all proceedings drawn by such forum would suffer from total want of jurisdiction otherwise action taken and decision rendered by said forum shall have no legal effect. Similar view was taken in case of Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184) wherein it was held that orders passed by tribunal having no jurisdiction are not sustainable and all successive proceedings based upon the same are equally illegal and devoid of lawful authority. In Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197) it' was observed that "where the Court is not properly constituted; all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances it could never be too late to admit and give affect to the plea that the order was a nullity" and thus impugned order was set aside. The above discussed proposition was elaborately discussed in case of Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208) wherein action and orders were found to be coram non judice and nullity in the eye of law. After surveying case-law this Court in a recent judgment reported in PLD 1997 SC 351 (Province of Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari) also dealt with the effect of orders which are void and coram non judice and propounded that same may not be carried out". Even in another case reported as Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822), the Hon'ble Supreme Court of Pakistan has declared that if any…
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