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Petitioner: Mst. BILQEES BARKAT VS Respondent: MEMBER, BOARD OF REVENUE J-V/Chief Settlement CommissionerHonorable Justice Ch. Muhammad IqbalCh. Shaukat Ali Javed,Muhammad Yaqoob Kanjoo
2018 Y L R 829 [Lahore] Before Ch. Muhammad Iqbal, J Mst. BILQEES BARKAT and 3 others---Petitioners Versus MEMBER, BOARD OF REVENUE J-V/Chief Settlement Commissioner and 4 others---Respondents Writ Petitions Nos. 79106-R and 79005 of 2017, decided on 28th September, 2017. (a) Displaced Persons (Land Settlement) Act (XLVII of 1958)--- ----Ss. 2, 4, 5, 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)---Scheme for Management and Disposal of Available Urban Properties, 1977, Para, 1---Transfer of Property Act (IV of 1882), S. 41---General Clauses Act (X of 1897), S. 21---Allotment of evacuee land---Cancellation of---Fraud---Effect---Repeal of evacuee laws---Chief Settlement Commissioner, jurisdiction of---Bona fide purchaser---Scope---Chief Settlement Commissioner cancelled the allotment of suit land and all the subsequent mutations---Contention of petitioners was that they were bona fide purchasers of suit land---Validity---Entire land of the Mouza was acquired by the Government leaving behind no private ownership in field---Only those evacuee could be considered to be genuine claimant who had abandoned their urban/agricultural land in India with effect from 01-03-1947 to 15-06-1953---Land of petitioners in the Mouza, if any, on the basis of which original allottee and others had submitted their claims had already been acquired in 1911 much before the Independence---Original allottee did not qualify as genuine claimant and his claim was fake, fictitious and result of fraud---Chief Settlement Commissioner/ Notified Officer passed injunctive order restraining further proceedings or making any allotment including claim of petitioners which order was upheld upto Supreme Court---Petitioners during existence of said order got allotted the suit land in their favour by committing misrepresentation and fraud---Original allotment was based on fraud and any further alienation in presence of restraining order would carry no significance--- Chief Settlement Commissioner had notified the urban limits as building site same stood excluded from the constituted compensation pool---Land in question was a building site and same was not available for allotment against outstanding verified claims---Fraud would vitiate the most solemn proceedings---Any edifice raised on fraudulent transaction stood automatically demolished---Any ill-gotten gain achieved by fraud could not be validated under any law---Evacuee laws stood repealed with effect from 01-07-1974---Chief Settlement Commissioner was vested with no authority to make any fresh allotment or entertain any claim---Limited jurisdiction was bestowed upon Chief Settlement Commissioner to conclude the pending proceedings before him or those matters which were referred to by the Supreme Court or High Court---Inquiry proceedings with regard to commission of fraud, in the present case, were pending since 06.07.1972 (before repeal of evacuee laws)---Chief Settlement Commissioner was well within jurisdiction to take cognizance of the matter in the present case---Forum at which fraud was committed had the jurisdiction to investigate the said fraud and undo the same---High Court remanded the matter to notified officer to determine the geniuses of the claim who had the jurisdiction to decide the matter afresh---Subsequent purchaser herself had committed default in making bona fide investigation qua the genuineness of vendor's title---Protection of S.41 of Transfer of Property Act, 1882 was not available to the subsequent vendee of evacuee property---High Court could even decline to interfere in erroneous order on the sole ground of unclean hands of the petitioner---Petitioner had purchased the suit land during pendency of inquiry proceedings in settlement department qua bogus and fraudulent claims without any investigation and she was precluded to claim better title or any protection of being bona fide purchaser---Any infirmity or flaw in the title of vendor would travel with the property and subsequent purchaser was debarred to claim better title than that of vendor---State land/Urban evacuee property could not be sold through any private treaty but could be let or leased out through transparent, unrestricted public auction to fetch the maximum price---Chief Settlement Commissioner/Notified Officer had applied his judicious mind and rightly passed the impugned order---Constitutional petition was dismissed in limine. [Case-law referred]. (b) Fraud--- ----Fraud would vitiate the most solemn proceedings. [Case-law referred]. (c) Administration of justice--- ----Ill gotten gain achieved by committing fraud could not be validated under any law. Ch. Shaukat Ali Javed for Petitioners. Mian Subah Sadiq Wattoo, AAG. Muhammad Yaqoob Kanjoo for Respondents Nos. 1 and 2/Settlement Department on Court's call. Date of hearing: 28th September, 2017. ORDER CH. MUHAMMAD IQBAL, J.---Through this single order, I intend to decide titled writ petition along with connected Writ Petition No.79005 of 2017 as parties to the lis in both the writ petitions are same, common questions of law and facts are involved and arisen out of same impugned orders. 2. Through these writ petitions, the petitioners have challenged the validity of consolidated order dated 24.04.2017 passed by learned Member (Judicial-V ), Board of Revenue/Chief Settlement Commissioner/ Administrator (Residual Properties)/ Notified Officer, Punjab whereby cases titled "Muhammad Iqbal v. The State/ Bilqees Barkat etc." and "Riaz Ahmad v. The State/Bilqees Barkat etc." were allowed and allotment of land measuring 769-Kanals in favour of Sharaf Din vide mutation No.89 dated 24.02.1975 and all subsequent series of mutations were ordered to be cancelled. 3. Brief facts of the case as contended by the learned counsel for the petitioners are that a chunk of agricultural land measuring 769-Kanals against RL-II Khata No.2 in Mouza Shivepura Kalan, Tehsil Cantt., District Lahore was allotted to Sharaf ud Din son of Muhammad Umar Qureshi against his alleged abandoned land in Mauza Jawaharpur and Jharera Dehli India and said allotment was confirmed by the competent authority on 24.05.1972. Said Sharaf Din allottee entered into an agreement to sell of the said land with Ch. Riaz Ahmad who filed suit for declaration and permanent injunction on 31.01.1974, which was decreed vide judgment and decree dated 28.01.1974 and said decree was given effect in revenue record through mutation No.89 dated 24.02.1975 in his favour. The said Riaz Ahmad further sold the said land to Mst. Bilqees Barkat etc. the present petitioners through sale deed No.5759 Behi No.1, Jild No.203 dated 27.04.1977 and a mutation No.107 dated 18.06.1978 was duly sanctioned in favour of the petitioners. On the basis of Mukhbari applications one filed by Habib Khan and Muhammad Iqbal etc. the allotment of Sharaf Din was cancelled by the Chief Settlement Commissioner on 04.06.1978. The petitioners challenged said order through Writ Petitions Nos.789- R/78 and 1052-R/78 and this Court vide order dated 10.11.1985 accepted the petitions, set aside the impugned order and remanded the case to the Notified Officer for decision afresh. In the post remand proceedings respondent No.1 vide order dated 24.04.2017 again cancelled the allotment made in favour of Sharaf Din (original allottee) as well as all the subsequent mutations and ordered the resumption of the said land in favour of the state. Hence, these writ petitions. 4. Learned counsel for the petitioners submits that impugned order is illegal, coram non judice, without jurisdiction, based on misreading and non-reading of record, against the law and facts of the case; that respondent No.1/Notified Officer has no jurisdiction to cancel the allotment of Sharaf Din and all subsequent mutations; that order of the then Chief Settlement Commissioner dated 23.02.1978 still holds field and in the presence of the said order, impugned order could not have been passed which is illegal on the face of it; further submits that the petitioners are bona fide purchaser of the suit property and have protection under Section 41 of the Transfer of Property Act. 5. Learned law officer assisted by the learned counsel appearing on behalf of the settlement department submits that allotment in favour of Sharaf Din and Dawood both sons of Muhammad Umer Qureshi was obtained on the basis of fraud, misrepresentation; that in compliance of direction passed by this Court in Writ Petition No.789- R/78 the Chief Settlement Commissioner/Notified Officer after hearing the parties passed the impugned order and no illegality has been committed; that Sharaf Din filed claim of the revenue estate of Jawaharpur and Jharera Tehsil and District Dehli, India which had already been acquired for establishment of Palumpur Airport etc. and compensation whereof had also been paid to land owners by the Indian Government in the year 1909 and property/land exclusively had stood vested with Federal Government; that the claim/allotment in favour of Sharaf Din and Dawood are fake, bogus, fictitious and based on fraud; further submits that the then Chief Settlement Commissioner through Memorandum dated 6.07.1972 restrained/banned the further allotment. Against the said stay order one Qutab-ud-Din and 35 others including the petitioners and his brothers filed Writ Petition No.458-R/72 which was dismissed by this Court. Feeling dis-satisfied an appeal was filed which was also dismissed and order impugned wherein were upheld by Hon'ble Supreme Court of Pakistan vide judgment dated 02.07.1976 which is reported as 1976 SCMR 524; that in violation operative stay order allotment in favour of Sharaf Din was made; further submits that mutation No.89 dated 24.02.1975 was sanctioned after repeal of settlement laws against land measuring 769-Kanals, whereas the suit land had already been declared by Chief Settlement Commissioner as building site 1973, as such, respondent No.1 after considering all the submissions made by the learned counsel for the parties and perusing the record rightly passed order and no illegality has been committed. 6. I have heard the arguments of the learned counsel for both the parties at full length and gone through the record with their able assistance. 7. The whole controversy is centered around the genuineness or otherwise of claim and allotment of the evacuee land to Sharaf ud Din son of Muhammad Umar Qureshi who got allotted land measuring 769 Kanals in Mauza Shivepura Tehsil Cantt. Lahore against his alleged claim of abandoned land in Mauza Jawaharpur and Jharera Dehli India, details of allotted land whereof is as under:---
Sr. No.
Khasra No.
Land Measur-ing
Owner-ship according to Jamabandi
Remarks
K
M
1
317
5
4
Balqees Barkat etc.
Abadi
2
318
5
5
-do-
-do-
3
323
13
19
-do-
-do-
4
324
9
14
-do-
-do-
5
325
7
1
-do-
-do-
6
326
3
13
-do-
-do-
7
343
5
15
-do-
-do-
8
344
3
18
-do-
-do-
9
345
3
16
-do-
-do-
10
346
5
2
-do-
-do-
11
347
6
10
-do-
-do-
12
348
7
7
-do-
-do-
13
349
8
0
-do-
-do-
14
350
14
18
-do-
-do-
15
352
6
0
-do-
-do-
16
353
6
9
-do-
-do-
17
354
5
1
-do-
-do-
18
356
4
15
-do-
-do-
19
357
3
8
-do-
-do-
20
358
6
19
-do-
-do-
21
359
9
0
-do-
-do-
22
360
7
14
-do-
-do-
23
361
9
18
-do-
-do-
24
362
4
10
-do-
-do-
25
363
7
1
-do-
-do-
26
364
12
3
-do-
-do-
27
365
2
6
-do-
-do-
28
366
13
4
-do-
-do-
29
367
10
18
-do-
-do-
30
368
4
5
-do-
-do-
31
369
5
2
-do-
-do-
32
370
9
0
-do-
-do-
33
371
4
19
-do-
-do-
34
372
2
19
-do-
-do-
35
373
12
5
-do-
-do-
36
374
10
1
-do-
-do-
37
375
3
8
-do-
-do-
38
376
2
0
-do-
-do-
39
377
5
2
-do-
-do-
40
378
8
7
-do-
-do-
41
379
4
6
-do-
-do-
42
380
6
18
-do-
-do-
43
381
3
4
-do-
-do-
44
382
4
2
-do-
-do-
45
383
9
3
-do-
-do-
46
385
17
19
-do-
-do-
47
386
8
18
-do-
-do-
48
387
6
2
-do-
-do-
49
388
7
14
-do-
-do-
50
392
10
3
-do-
-do-
51
393
8
19
-do-
-do-
52
394
2
10
-do-
-do-
53
443
5
6
-do-
-do-
54
444
5
4
-do-
-do-
55
446
5
11
-do-
-do-
56
449
14
4
-do-
-do-
57
450
12
6
-do-
-do-
58
451
9
0
-do-
-do-
59
452
15
13
-do-
-do-
60
459
9
0
-do-
-do-
61
462
19
17
-do-
-do-
62
463
12
2
-do-
-do-
63
471
7
8
-do-
-do-
64
474
5
10
-do-
-do-
65
475
7
10
-do-
-do-
66
476
5
17
-do-
-do-
67
479
5
5
-do-
-do-
68
481
5
0
-do-
-do-
69
482
10
10
-do-
-do-
70
485
6
8
-do-
-do-
71
486
5
8
-do-
-do-
72
490
4
19
-do-
-do-
73
491
5
10
-do-
-do-
74
492
24
3
-do-
-do-
75
255
15
15
-do-
DHA
76
256
6
6
-do-
-do-
77
257
7
10
-do-
-do-
78
455
8
19
-do-
-do-
79
456
10
14
-do-
-do-
80
465
44
16
-do-
-do-
81
466
41
2
-do-
-do-
82
469
4
14
-do-
-do-
83
470
6
13
-do-
-do-
84
483
7
6
-do-
-do-
85
484
9
19
-do-
-do-
86
467
06
14
-do-
-do-
Total land
769
00
After securing above allotment Sharaf Din alienated the said land to one Ch. Riaz Ahmad, who got incorporated the said land under the command of decree of civil court in the Revenue Record through mutation No.89 dated 24.02.1975. Whereafter said Ch. Riaz Ahmad further sold the land to the petitioners. Against the above as well as many other allotments, Habib Khan etc. filed Mukhbari applications and the then Chief Settlement Commissioner passed the injunctive order dated 06.07.1972 restraining all the wings of the Settlement as well as the Revenue department to make any further registration of claims, attestation of mutations, registries and any other sort of alienation of the evacuee lands. This order of the Chief Settlement Commissioner was challenged through filing W.P. No. 458-R of 1972, which was dismissed by this Court. The order of this Court was challenged before the Hon'ble Supreme Court of Pakistan through Civil Appeal No.609/1975 which was dismissed by the Hon'ble Apex Court vide order dated 02.07.1976 maintaining the order passed by this Court as well as order of the Chief Settlement Commissioner dated 06.07.1972. After the conclusion of the proceeding against above said injunctive order, the Chief Settlement Commissioner allowed the Mukhbari application dated 29.06.1974 filed by Muhammad Iqbal etc. and cancelled the allotment of Sharaf ud Din vide order dated 04.06.1978. Present petitioners (Mst. Bilqees Barkat etc.) challenged the said cancellation order through filing Writ Petitions Nos.789- R/78 and 1052-R/78 on the ground of being a bona fide purchaser. The said writ petitions were accepted vide order of this Court dated 10.11.1985 and the case was remanded to the Member Board of Revenue/Chief Settlement Commissioner for decision afresh in accordance with law. 8. In the post remand proceedings, the entire matter was re-opened to investigate existence element of fraud, as well as the genuineness or otherwise of the claim and allotment of evacuee land in favour of Sharaf ud Din. It evinces from the record that the alleged RL-II Khata No.2 appended with this petition was issued in the name of Sharaf Din on 09.05.1972 on the basis of his claim of being evacuee having abandoned the land in Mouzas Jawaharpur and Jharera Tehsil and District Dehli India. The said RL-II Khata No.2 according to available record has never been entered in the revenue record till 24.02.1975, whereas, for the first time the said allotment came on the record through a decree dated 28.01.1974 passed in a suit for declaration in favour of Riaz Ahmad, a subsequent purchaser from said Sharaf ud Din when it (decree) was incorporated in the revenue record through mutation No.89 dated 24.02.1975, in clear violation of the injunctive order of the Chief Settlement Commissioner dated 06.07.1972 as well as during the pendency of Writ Petition No.458-R/1972 and even after the repeal of evacuee laws. Moreover, in order to ascertain the genuineness of the claim held by Sharaf ud Din in 01.07.1974, the judicial record of Writ Petition No.444-R of 1978 was also examined and according to Gazette Notification dated 22nd December 1911 (appended with writ petition) the entire land of Mouza Jawaharpur and Jharera was acquired by the British Government of India for establishment of Palumpur Airport as well Cantonment and Capital City of new Dehli India. The Chief Commissioner Delhi while exercising power under Section 3 (C) of the Act, XVII of 1887 Gazette Notification of India dated 15th March 1915 acquired entire land of Mouza Jawaharpur and Jharera as reflected at Serial Nos. 17 and 18 of the said notifications. For ready reference, notifications are as under:--
Defective images in the certified copy.
Defective images in the certified copy.
Defective images in the certified copy.
Defective images in the certified copy.
Defective images in the certified copy.
Defective images in the certified copy. Since the issuance of the gazette notifica-tion supra the entire land of the said two Mouzas stood vested with the British Govt. of India leaving behind no private owner-ship in field, which has direct negative bearing upon the very status of the peti-tioners' predecessor-in-interest, who claimed to be an evacuee having abandoned his agricultural land in Mauza Jawaharpur and Jharera India. Further, under section 2 of the Displaced Persons/Lands Settlement Act XLVII of 1958 only those refugees were considered to be genuine claimant who abandoned their urban/agricultural land in India as an evacuee w.e.f. 01.03.1947 to 15.06.1953, whereas, the land of peti-tioners' predecessor in Mouza Jawaharpur and Jharera (if any) on which basis Sharaf Din and others submitted their claims had already been acquired as back as in 1911 much before the partition of the India and for both the above reasons, he (Sharaf ud Din) does not qualify as a genuine claimant, as such, foundation of their claim to be an evacuee having abandoned land in India stood frustrated and his claim in its generic was fake, fictitious and result of fraud, as he had not abandoned any land in the aforementioned Mouzas. Sharaf Din despite being cognizant of above facts got allotted land measuring 769-Kanals in Mouza Shivepura Kalan, Tehsil and District Lahore RL-II, Khata No.2 which (allotment) for the first time unearthed/reflected through mutation No.89 dated 24.02.1975. Against the bogus claims and allotments, one Habib Khan etc. instituted Mukhbari application to the then Chief Settlement Commissioner who passed an injunctive order dated 06.07.1972 which is as under:-- Habib Khan petitioner, through his counsel has submitted an application purporting to be under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 and under Section 14 of the Registration of Claims (Displaced Persons) Act, 1956, alleging that the claimants hailing from the revenue estates of Jawaharpur and Jharera, Tehsil and District Delhi, had obtained numerous allotments of agricultural lands, both urban and rural, under the Rehabilitation Settlement Scheme, by means of fraud and false representation, which are liable to cancellation. In this connection, it has been contended that the areas of both the abovementioned revenue estates stood acquired by the Government of India in the year 1908-09 and thereafter there existed no private ownership. It has been vehemently alleged that the claimants from these estates filed claims under Registration of Claims (Displaced Persons) Act, 1956 and by adducing false evidence and submitting, in respect of their claims, information which they know to be false or did not believe to be true and by fraudulently concealing and misre-presenting facts, for the purpose of making the claims which they know to be false, procured orders of verification which subsequently formed basis of Entitlement Certi-ficates issued by the Central Record Office and in lieu which the alleged allotments of land had been confirmed. It has also been urged by the counsel for the petitioner that compensation under the Rehabilita-tion and Settlement Laws is only intended for persons who had actually suffered losses whereas in the case of persons from the revenue estates of Jawaharpur and Jharera, the position is quite different as they and their prede-cessors-in-interest had already received compensation at the time of acquisition by the Government of India. Prima facie, a case of fraudu-lent verification of claims and securing of allotments of land against the claimant is---. Taking into consideration the material placed on record, the circumstances of the case warrant that all such allotments which have already since been confirmed against the disputed claims of person hailing from the revenue estates of Jawaharpur and Jharera, be not allowed to be dis-posed of by way of sale, mortgage, exchange, gift etc., or by any means whatsoever, and also further allot-ments of agricultural lands are stopped forthwith. I therefore order that the district authorities should stop further allotments of land against claims pertaining to the said revenue estates and the local field staff may especially be directed to withhold mutations regarding sale, mortgage, exchange, gift etc., regarding areas already allotted against such claim still further orders. It is also hereby directed that complete details of all such allot-ments of land against these claims in all the districts of NWFP, Sindh Balochistan and Punjab should be furnished by all the district autho-rities urgently, for taking further necessary action in the matter. Being aggrieved of the above said injunctive order, a Joint W. P. No.458-R of 1972 was filed by Qutab-ud- Din etc. (including Sharaf-ud-Din petitioner No.6) which was dismissed by this Court. Against the decision of the High Court, they (petitioners in W.P. No. 458-R of 1972) filed Civil Petition, which was converted into Civil Appeal No.609 of 1975 and the same was dismissed vide order dated 02.07.1976 by the Hon'ble Supreme Court by upholding the order passed by this Court as well as the above quoted injunctive order of Chief Settlement Commissioner which is reported as Qutubuddin and others v. Sardar Hidayat Ullah Khan Mokal and another (1976 SCMR 524). In the said order, it was held as under:- We have heard Mr. S. M. Zafar and find no merit in the contentions raised in support of the petition. In case inquiries made by the Chief Settlement Commissioner reveal that fraud has been practised by the petitioners on the claims registering authorities or the Rehabilitation and Settlement Authorities the transactions by which verification of claims and allotments of land have been obtained will, in their entirety, become void ab initio and non set in law. The contention that under the Registration of Claims Act claims already verified cannot be reviewed has, therefore, no substance. Another aspect of the case is that writ jurisdiction cannot be invoked to provide a shield to orders of verification of claims obtained by fraud. The learned Judge, was, therefore, right in dismissing the writ petition on this short ground. On the contrary if it is found that no fraud has been practised and allotments have been obtained in due course of law then the inquiry shall automatically come to an end without resulting in irreparable loss to the petitioners. The prayer that no inquiry shall be held at all was, therefore, a tall claim which has been rightly rejected by the High Court. Admittedly Chief Settlement Commissioner passed injunctive order on 06.07.1972 restraining all his subordinate wings in Revenue/Settlement department to stop further proceeding or making any allotment qua the bogus claim including claim of the petitioners' predecessor which (order) remained upheld upto Hon'ble Supreme Court of Pakistan but during existence of said injunctive order of Chief Settlement Commissioner, Sharaf Din with the collusion of officials of revenue/ settlement department and committing misrepresentation and fraud got allotted land measuring 769-Kanals in his favour and under the compromise decree of the Civil Court further alienated the said land through mutation No.89 dated 24.02.1975 in favour of Riaz Ahmad etc., in clear violation of the restraining order. The alleged allotment in favour of Sharaf Din was based on fraud and any further alienation to subsequent vendees Riaz Ahmad and sale deed in favour of the petitioners on 27.04.1977 in the presence of restraining order dated 06.07.1972 carry no significance in the eyes of law. The settlement department circulated instruc-tions notification on 19.06.1978 furnishing guidelines to its subordinate authorities that any allotment remained unimplemented before repeal of Settlement Laws or within one year of the passing of allotment order…
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