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Petitioner: Abdul Shakoor VS Respondent: Member (Judicial-V), Board of Revenue etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Abdul Shakoor vs Member (Judicial-V), Board of Revenue etc Case No.: Writ Petition No.2809 of 2015/BWP Date of Judgment:2018-01-10 Reported As: 2018 LHC 1128 Result: Petition dismissed
Judgment Shujaat Ali Khan, J: - Through this single judgement, I intend to decide instant petition (W.P. No.2809/2015) as well as connected petition (W .P. No.2766/2015) having commonality of law and facts. 2. Unnecessary details apart, the facts, forming factual canvas of the instant petition, are that Ghulam Abbas, predecessor-in-interest of respondents No.3 to 10, being migratee from Mauza Kundhwala, Amar Kot, Tehsil Fazilka, District Ferozepur , India submitted his claim for allotment of land against that abandoned by him in India. Upon verification of his claim against the abandoned land in India, 603 Produce Index Units (PIUs) were transferred to District Rahim Yar Khan for allotment in the year 1972. Against the said PIUs, land measuring 31 Kanals 15 Marlas situated in Mauza Taranda Siway Khan, District Rahim Yar Khan was proposed for allotment through RL-II No.591. The said allotm ent was confirmed by the competent authority through order , dated 18.6.1973, however , the same could not be implemented in the revenue record due to the fact that the land in question was situated within the territorial limits of Municipal Committee Rahim Yar Khan. During the interregnum period Ghulam Abbas died. After death of Ghulam Abbas, his legal heirs (respondents No. No.3, 9 & 10) filed declaratory suit with the averments that after deposit of requisite fees in pursuance to the allotment order , they became full owner of the land in question. The said suit was dismissed by the learned Senior Civil Judge, Rahim Yar Khan vide judgement and decree dated 26.11.1987. Aggrieved by the judgment and decree passed by the learned Senior Civil Judge, Rahim Yar Khan, respondents 3,9 and 10 filed an appeal which was accepted by the District Judge, Rahim Yar Khan through judgment and decree, dated 30.7.1989. Further , respondents No.3, 9 and 10 also filed a miscellaneous application for modification of the decree passed by the appellate court which was allowed by the appellate court vide order dated 8.3.1990. Against various decisions rendered by the appellate court, the aggrieved parties filed three Civil Revision Petitions (Nos.415-D/1989, 415-D/1990 and 197-D/1991) before this court. The said revision petitions were allowed by this court through consolidated judgment and decree, dated 26.9.1993. While accepting the revision petitions, this court held that claim of Ghulam Abbas for allotment of
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land would be deemed to be pending. Being swayed with the observation of this court, legal heirs of Ghulam Abbas filed application before the Board of Revenue, Punjab, Lahore for allotment of land against their pending units. As said application remained unattended, legal heirs of Ghulam Abbas filed W.P.No.3 715/1996/BWP before this court which was disposed of through order , dated 20.10.1996, in view of the statement of the learned Assistant Advocate General that matter would be decided in terms of judgment, dated 26.9.1993, passed in Civil Revision No.415- D/1989 within three months. Resultantly , the matter was referred to the Assistant Commissioner , Rahimyar Khan/Notified Officer/Deputy Settlement Commissioner (respondent No.2) who, upon fulfillment of codal formalities allotted land measuring 224 kanals situat ed in Mauza Bandur , Tehsil and District Rahimyar Khan in favour of legal heirs of late Ghulam Abbas vide order , dated 28.04.2001, which was incorporated in the revenue record through Mutation No.5730 attested on 19.10.2001. Later on, the said land was purchased by Abdul Shakoor (petitioner in the instant petition) by virtue of Mutation No.5739 dated 25.10.2001. 3. On the other hand, one Rehmat Ali, predecessor-of-interest of petitioners in the connected petition, being migratee from Salamat Pura, Tehsil Paluth, District Jalandhar , India, filed Claim No.132320 for allotment of land against his land abandoned in India. After verification of his claim, initially he was allotted land measuring 169- Kanals & 12-Marlas in Mauza Bandur , Tehsil and District Rahim Yar Khan against R.L-II No.828/78 in lieu of 457 PIUs leaving 56 PIUs unsatisfied. As Khata No.41, wherein Rehmat Ali was allotted land, was jointly owned by the Muslims and non-Muslims owners, the allotment made in his favour could not be effectuated in the revenue record. As a result, he, alongwith others, filed Writ Petition No.1283/1963 before the erstwhile High Court of West Pakistan, Lahore but without any success as the same was dismissed through judgment, dated 31.03.1966. Aggrieved by the judgment passed by the erstwhile High Court of West Pakistan, Lahore, Rehmat Ali, alongwith others, agitated the matter before the apex court of the country . The august Supreme Court of Pakis tan decided the matter through judgment reported as Rehmat Ali and others v. The Settleme nt and Rehabilitation Commissioner , Bahawalpur Division, Bahawalpur and others (1973 SCMR 356). Thereafter , land measuring 161 Kanals 12 Marlas situated in Mauza Bandur Tehsil & District Rahim Yar Khan was allotted in favour of Rehmat Ali in lieu of 457 units whereas his claim for allotment of land against 56 pending PIUs remained undecided. Resultantly , Rehmat Ali filed application, dated 13.06.1973, before the District Collector/Rehabilitation Officer, Rahimyar Khan which was followed by a reminder , dated 20.11.1973. After death of Rehmat Ali in the year 1995, his inheritance devolved upon his legal heirs (petitioners in the connected petitio n). As the application filed by Rehmat Ali in the year 1973 was not being decided by the relevant authority , his legal heirs (petitioners in the connected petition) filed W.P.No.3632/2000 before this court which was disposed of through order , dated 11.08.2000, with a direction to the Notified Officer to decide the matter within one month. As the grievance of legal heirs of Rehmat Ali was not redressed despite passing of order , dated 11.08.2000, by this Court they were constrained to file another Writ Petition (No.335/2001) for allotment of land against their pending units, however , they opted to withdraw it on 03.07.2001 with the contention that the Notified Officer assure d them for redressal of their grievance. Since the grievance of the legal heirs of Rehmat Ali was not attended to by the authority concerned, they were compelled to file another W.P.No.3082/2002 which they opted to withdraw on 28.02.2012 with permission to agitate their grievance before the Chief Settlement Commissioner , Punjab. After withdrawal of aforesaid writ petition, they filed application before the Chief Settlement Commissioner , Punjab for cancellation of the land allotted in favour of legal heirs of Ghulam Abbas and its allotment in their name in lieu of their pending PIUs. The Chief Settlement Commissioner , Punjab, through order , dated 11.02.2015, while turning down the request of legal heirs of Rehmat Ali for allotment of land against their pending units, cancelled the land allotted in favour of legal heirs of Ghulam Abbas in the year 2001. Aggrieved by the cancellation of the land from the name of legal heirs of Ghulam Abbas, Abdul Shakoor has filed the instant petition whereas the legal heirs of Rehmat Ali being aggrieved of non-allotment of land in their favour in lieu of pending units have filed the connected petition. 4. Mr. Bashir Hussain Khalid, Advocate representing the petitioner in the instant petition & respondents No.5 to 13 in the connected petition submits that the impugned order is not sustainable for the reason that after decision regarding allotment of a specific land by the Notified Officer, the same is not appealable/reviewable before any other authority working under the settlement laws but in the matter of the petitioner, the land allotted in the
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names of legal heirs of Ghulam Abbas has been cancelled by the Chief Settlement Commissioner, Punjab while exercising his powers of review on the application submitted by the legal heirs of Rehmat Ali (petitioners in the connected writ petition); that Chief Settlement Commissioner has no power to review an order passed by the Notified Officer; that the apex court of the country during the course of hearing of C.P. No.1644-L/2011 observed that Notified Officer shall not exercise suo moto jurisdiction upon any miscellaneous application which does not fall within the categories of cases specified in the Repeal Act, 1975; that after repeal of Settlement Laws in the year 1975 the landmark judgment was rendered by the apex court of the country in the case reported as Nawab Din v. Member, Board of Revenue (Settlement & Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846) which till date holds the field and according to the ratio-decidendi of the said judgment the proceedings pending regarding verification of claims of refugees cannot be equated with the pending proceedings for allotment of land on the basis of verified claims; that power of review of Chief Settlement Commissioner to annul an allotment on the ground that the claimant being not a refugee his claim was bogus, is always there but the said power canno t be exercised to undo a valid allotment made on the basis of verified claim. 5. Mr. Naseeer Ahmad Chaudhry, Advocate appearing on behalf of petitioner in the instant petition and proforma respondents No.5 to 13 in the connected petition, while adopting the arguments advanced by Ch. Bashir Hussain Khalid, Advocate, additionally submits that as this court while deciding CR. No.415-D/1989 declared that claim of Ghulam Abbas would be deemed to be pending, no illegality was committed by the Notified Officer while making allotment in favour of legal heirs of Ghulam Abbas. 6. Learned Law Officer, assisted by learned counsel representing the Settlement department, while opposing the instant petition, states that this court while deciding above referred Civil Revision Petitions held that R.L-II No.6799 issued in the name of Ghulam Abbas was not genuine, thus, no land could be allotted in favour of Ghulam Abbas or his legal heirs in presence of such findings; that this court, while accepting the above noted revision petitions, reversed the findings of the appellate court, as a result those of the civil court were upheld meaning thereby that allotment of land in favour of Ghulam Abbas in Mauza Taranda Siway Khan was held illegal, thus, no land could be allotted to him in future in lieu of the said land; that it was established on record that out of the land allotted to Ghulam Abbas, major chunk was earmarked for construction of an International Hotel but the said fact escaped notice of the Notified Officer; that the Chief Settlement Commissioner has not annulled the allotment in favour of Ghulam Abbas merely on the ground that the land fell within the limits of municipal committee but also it was found that claim of Ghulam Abbas was referred to Dera Ismael Khan, thus, the same could not be satisfied in District Rahimyar Khan without proper transfer by the competent authority; that a person who seeks equitable relief is supposed to come to court with clean hands; that plea of bona fide purchaser is not attracted against the land allotted under settlement laws; that at the most petitioner can sue against his vendors for making his loss good; that report of Patwari that the land in question does not fall within territorial limits of municipal committee cannot be given precedence over the findings of the Chief Settlement Commissioner; that the controversy involved in the present petitio n cannot be decided without recording of evidence which exercise cannot be undertaken in these proceedings. In support of his contentions, learned Law Officer has produced copies of Notification bearing No. LGA/526/3447-50 , dated 10.03.1986, regarding the local limits of the Municipal Committee Rahim Yar Khan, Site Plan of the Municipal Committee, letter dated 01.09.2012 addressed by the District Collector , Rahimyar Khan to the Assistant Commiss ioner Rahimyar Khan and others, Notific ation bearing No.200-2012/107- C.V.T (III), dated 25.08.2012, issued by Board of Revenue Punjab, copy of letter addressed by the Additional District Collector , Rahimyar Khan to All the Assistant Commissioners of the district, dated 20.05.2015, Notification bearing No.141-215/64-CVT (III), dated 20.05.2015, issued by the Board of Revenue, Punjab. 7. Mian Ahmad Nadeem Arshad, Advoca te appearing on behalf of respondents 3 to 10 in the instant petition has supported the stance taken by Ch. Bashir Hussain Khalid, Advocate. 8. Ch. Bashir Hussain Khalid, Advocate for the petitioners in the instant petition, while exercising his right of rebuttal, submits that the learned Law Officer as well as learned counsel representing Settlement department has tried to mingle up certain facts just to mislead this court which is not acceptable; that as findings of this court
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whereby revisions petitions field by the Municipal Committee were accepted and it was declared that claim of Ghulam Abbas would be deemed to be pending, were not challenged by the Settlement department it acquiesced with the same, thus, at this stage, it cannot introduce new plea while taking U-turn; that though certain portion of land of a Tehsil can be considered as Urban but the entire Tehsil cannot be consider so; that there is no factual inquiry as contented by the learned Law Officer rather the matter can conveniently be decided by this court on the basis of available material; that the petitioner has already asserted in ground (vii) of the instant petition that if it is established on record that at the relevant time the land allotted to Ghulam Abbas fell within the municipal limits of Rahim Yar Khan, the petitioner would have no case; that the petitioner is ready to bear the expenses for appointment of local commission to verify said fact and that mala fide on the part of the legal heirs of Rehmat Ali is manifest from the fact that while filing application before the Chief Settlement Commissioner, Punjab they did not array the petitioner as party despite knowing the fact that his name was incorporated in the revenue record in the year 2001. 9. Mr. Mukhtar Ahmad Tahir Kamboh, representing the petitioners in connected petition states that he would not press said petition to the extent of respondents No.5 to 13. Consequently , the connected petition is dismissed as not pressed to the extent of said respondents only. To the extent of rest of respondents learned counsel submits that as the application was filed by Rehmat Ali (predecessor-in-interest of the petitioners) on 13.06.1973, followed by a reminder , dated 20.11.1973, their case fell within the category of pending proceedings; that the findings of respondent No.1 that case of the petitioner did not fall within category of pending proceedings stands nullified from the record; that Notification, dated 16.05 .1973, only put a clog against allotment of land which had already been declared as building site whereas the petitioners claimed allotment of agricultural land against their pending units; that the case-law referred in the impugned order is not applicable to the case of the petitioner . Relies on Tufail Muhammad through L.Rs v. Messrs Siddique Textile Mills Ltd. and others (2009 SCMR 1091 ), Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore v. Akhtar Ali Khan and others (2007 SCMR 459), Umra and others v. Additional Settlem ent Commissioner and others (2005 SCMR 1713 ), Ali Muhammad through L.Rs. and others v. Chief Settlement Commissioner and others (2001 SCMR 1822 ), Nawab Din v. Member , Board of Revenue (Settlement & Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846) and Rehmat Ali and others v. The Settlement and Rehabilitation Commissioner , Bahawalpur Division, Bahawalpur and others (1973 SCMR 356 ) 10. Learned Law Officer, assisted by learned counsel appearing on behalf of Settlement department, submits that connected petition is not maintainable as three earlier petitions on the same subject have already decided by this court; that the application submitted by Rehmat Ali (predecessor-in-interest of the petitioners) in the year 1973 was dismissed by the Notified Officer, on 10.06.2001, in presence of the petitioners but the said fact has been concealed by them while filing connected petition, thus, they are not entitled to equitable relief; that mala -fide on the part of the petitioners is also manifes t from the fact that through they also filed proceedings before the District Collector , Rahim Yar Khan but the said fact has also not been incorporated in the connected petition; that the order passed by the Notified Officer was not challengeable before any authority establi shed under the settlement laws rather the same could only be assailed before this court in writ petition but till date the petitioners have not challenged orders dated 10.06.2001 and 19.07.2002 passed by the Notified Officer and District Collector , Rahim Yar Khan respectively thus the connected petition merits dismissal. 11. Ch. Bashir Hussain Khalid, Advocate for the petitioner in the instant petition in furtherance of his above arguments submits that the learned Law Officer as well as the learned counsel representing the Settlement Department have adopted inconsistent pleas inasmuch while defending the order impugned in instant petition they have argued that the Chief Settlement Commissioner, Punjab rightly reviewed the allotment made in favour of legal heirs of Ghulam Abbas, however, while opposing the connected petition they have adopted the plea that order passed by the Notified Officer is not challengeable/reviewable before any authority working under the Settlement Laws rather the aggrieved parties are supposed to approach this court in respect of their grievance against the order passed by the Notified Officer.
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12. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with these petitions as well as the case-law cited at the bar . 13. During the course of arguments, Mr. Mukhtar Ahmed Tahir Kamboh, Advocate for the petitioners in the connected petition clarified that he has instructions not to press the petition to the extent of respondents No.5 to 13 meaning thereby that private parties have no rival claim against each other rather the petitioners in both these petitions are confining their prayer for setting aside of the impugned order passed by the Chief Settlement Commissioner , Punjab. 14. Now reverting to the merits of the case, I have noted that Learned Law Officer, assisted by the learned counsel representing the Settlement Department, ferociously argued that since the claim of Ghulam Abbas was declared as bogus by this court in its judgment, dated 26.9.1993, no land could be allotted to him or his legal heirs as their case did not fall within the definition of pending proceedings. To appreciate the said contention, I have gone through the entire judgment rendered by this court in above referred Civil Revision Petitions. While dealing with the validity of allotment of land in favour of Ghulam Abbas this court has inter-alia observed as follows: - "7. Applying this principle to the facts and circumstances of the case it is eminently clear that the allotment made by the Settlement Authorities to Ghulam Abbas was merely paper transaction and, therefore, it did not create any right in his favour. The land was in possession of the Province of Punjab and it was being used for public purposes. It was, therefore, not in the compensation pool and was inacapable of allotment to Ghulam Abbas. This being the legal position, I have no difficulty in coming to the conclusion that allotment, even if made, in favour of Ghulam Abbas was wholly coram non-judice and was of no lawful consequences. This well established principle of law was wholly over-looked and disregarded by the learned District Judge while rendering the decision dated 26.11.1987. It, therefore, suffers from patent error of law which is evident on the face of record. The decision of the learned District Judge, therefore, is without any legal support and cannot be sustained. As the first decision falls down, the subsequent decision also crumbles as being super-structure on a void decision." (emphasis provided) Further , this Court while dealing with the sanctity of R.L-II No.6799 has inter-alia observed as under: - "There is yet another aspect of the case . A bare look on RL-II No.6799 indicate s peculiar features which casts serious doubt about the genuineness of RL-II No.6799. There is a note on it by the Patwari which indicates that suit land was proposed to one Noor Smand vide a RL-II No.590; that this proposal was not confirmed as the same was cancelled from one Sadar -ud-Din who had filed constitution petition in the High Court and had obtained a stay order . This is not the end of it............ ...This being the legal position, the orders of the Deputy Settlement Commissioner dated 30.4.1973 and 18.6.1973 are wholly destitute of any legal foundation......" A perusal of the afore-quoted paragraphs shows that the allotment of land subject matter of the Civil Revisions, referred Supra, was declared illegal mainly for two reasons viz. firstly it was occupied by the provincial government by raising construction at the site, thus, same was not available in compensation pool and secondly the said land was already proposed for allotment in favour of one Noor Samand but nowhere in the entire judgment this Court declared the claim of Ghulam Abbas as bogus. 15. It is imperative to note that this Court in Para No.10 of its judgment, dated 26.09.1993, has inter-alia observed as under: - "10. While parting with this order , it is made clear that the claim of Ghulam Abbas shall be deemed pending within the terms of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, (XIV of 1975) and shall not preclude the competent authorities from allotting any evacuee agricultural land which might be still available." A cursory glance over the afore-quoted paragraph affirms that the claim of Ghulam Abbas was held genuine. Further , the competent authority was permitted to allot land against the claim of Ghulam Abbas, thus, no illegality was committed by respondent No.2. Moreover , in his order , dated 28.04.2001, respondent No.1 has referred to certain communications issued by various authorities and after confirmation that claim of Ghulam Abbas to the extent of 603 PIUs was pending, he allotted the disputed land in favour of legal heirs of Ghulam Abbas.
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16. It is notable that the Assistant Commissioner/Notified Officer/Deputy Settlement Commissioner, while deciding the matter vide order, dated 28.04.2001, inter-alia observed as under:- {{URDU TEXT}} A perusal of the afore-quoted portion shows that the order passed by respondent No.2 was subject to approval by the Chief Settlement Commissioner . A glance over column No. 10 of Mutation No.5730 depicts that the same was sanctioned after requisite approval by the Chief Settlement Commissioner . To verify said fact, reference can be made to the following lines of column No.10 of Mutation No.5730: - {{URDU TEXT}} According to the order impugned in these petitions the Chief Settlement Commissioner observed that he had gone through record of the case prior to passin g the same but as the said important fact escaped notice of respondent No.1, it cannot be believed that he decid ed the matter in its true perspective. Further , if the allotment made by respondent No.2 was validated by the Chief Settlement Commissioner , the same could not be re opened on a miscellaneous application of other persons who were clamoring for allotment of land against their pending units but the said important fact also went unnoticed. 17. The second ground of attack by the learned Law Officer as well as learned counsel appearing on behalf of the Settlement Department is that as the unsatisfied units of Ghulam Abbas were transferred to Dera Ismael Khan the same could not be satisfied in district Rahimyar Khan without their proper transfer by the competent authority . Perhaps, learned Law Officer has raised such plea in oblivion of the following observation of respondent No.2 in order , dated 28.04.2001: - {{URDU TEXT}} A perusal of the above-quoted portion from the order passed by respondent No.2 shows that he took cognizance of the matter upon reference by respondent No.1 and to fortify his observation he has referred to certain communications but those have not been discussed in the impugned order meaning thereby that the same has been…
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