Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Province of Punjab through Secretary, Government of the Punjab, Revenue Department VS Respondent: Federal Land Commission through its Chairman etc
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal, Muzamil Akhtar Shabir Title:Province of Punjab through Secretary, Government of the Punjab, Revenue
Department vs Federal Land Commission through its Chairman etc Case No.: W.P.No.26860/2021 Date of Judgment:2022-11-24 Reported As: 2022 LHC 8424 Result: Petition Allowed Judgment Judgment: Ch. Muhammad Iqbal, J. Through this single judgment, we intend to decide the following matters as common questions of law and facts are involved in these cases: i. Writ Petition No.26860/2021 ii. Writ Petition No.27943/2019 iii. Writ Petition No.23118/2011 iv. Applications under Section 12(2) C.P.C. [C.M. Nos.1, 4 & 6 of 2019] filed against order dated 26.09.2018 and application under Section 12(2) C.P.C. [C.M. No.2 of 2020] filed against order dated 27.02.2020 passed by this Court passed in titled Writ Petition No.23118/2011. W.P.No.26860/2021. 2. Brief facts of this case are that Karam Ali, predecessor-in interest of the respondent No.2, was declarant and vide order dated 12.10.1977 his holding was determined as 12691.260 PIUs and the land equivalent to 4819 PIUs was found in excess which was resumed from his holding in village Karak Muhammada. Against order dated 12.10.1977 the declarant filed appeal before the Land Commissioner, Sargodha which was accepted and the case was remanded to the Deputy Land Commissioner with the direction to give the declarant an opportunity of fresh choice. After remand, Karam Ali did not appear and vide ex-parte order dated 15.05.1978 the earlier order dated 12.10.1977 was maintained. Respondent No.2 assailed the order dated 15.05.1978 through an appeal which was accepted on 03.12.1979 and case was again remanded for fresh decision. The Deputy Land Commissioner vide order dated 01.03.1981 declined the plea of the respondent No.2. The Revision Petition filed by Karam Ali was dismissed by the Chief Land Commissioner, Punjab on 03.09.1981.
---
## Page 2
Against said order, revision petition was also dismissed by the Member, Federal Land Commission vide order dated 17.11.1981. Karam Ali challenged the aforesaid orders through Writ Petition No.305/1982 which was dismissed on 05.05.1985. Against the said order, Karam Ali filed a Civil Petition No.352-R of 1985 which too was dismissed by the Hon'ble Supreme Court of Pakistan on 06.12.1986. Without disclosing the aforementioned series of litigation, Karam Ali again filed a revision petition before the Chief Land Commissioner who dismissed petition on 03.08.1998. The respondent No.2 filed civil suit which was also dismissed on 04.11.2010 but his appeal was accepted on 09.08.2011 and the case was remanded to the learned trial Court for fresh decision. Respondent No.2 again filed Revision before the Chairman, Federal Land Commission against orders dated 03.12.1979 and 03.01.1981 without disclosing the fate of earlier litigation upto the Hon'ble Supreme Court of Pakistan. The said revision was allowed by the Chairman, Federal Land Commission, Islamabad on 07.02.2011. Against the said order, the petitioners filed titled Writ Petition [No.26860/2021]. Writ Petition No.27943/2019 3. Brief facts of the case as contained in this writ petition are that Karam Ali, predecessor-in- interest of the respondents No.2 to 8, was declarant and vide order dated 12.10.1977 his holding was determined and excess land was resumed. The matter was challenged by Karam Ali upto the Hon'ble Supreme Court of Pakistan but remained upheld. Thereafter, the resumed land was allotted to Ghulam Muhammad. Subsequently, the petitioners purchased portions of the land in question from Ghulam Muhammad (and his successors). Writ Petition No.23118/2011 4. The petitioners through this writ petition have assailed the validity of order dated 07.02.2011 passed by the Chairman, Federal Land Commission, Islamabad who accepted the revision petition of the respondent No.2 on the ground that after resumption of the excess land from the declarant Karam Ali, predecessor-in-interest of the respondent No.2, some portion of the land was allotted to the some of the petitioners whereas other petitioners have purchased the land from said allottees. C.M. Nos.1, 4 & 6 of 2019 and C.M. No.2 of 2020 [applications u/s 12(2) C.P.C] in Writ Petition No.23118/2011 5. Through the applications [C.M. Nos.1, 4 & 6 of 2019] under Section 12(2) C.P.C., the applicants have prayed for setting aside the order dated 26.09.2018 whereby the titled Writ Petition [No.23118/2011] was dismissed as withdrawn on the basis of a compromise between the parties out of the Court whereas through another application [C.M. No.2 of 2020] under Section 12(2) C.P.C. the applicants have prayed for setting aside the order dated 27.02.2020 whereby the titled Writ Petition was dismissed as withdrawn on the basis of a compromise between the parties out of the Court. 6. The petitioner filed application [C.M. No.1/2019] under Section 12(2) C.P.C. for recalling the order dated 26.09.2018 whereby the Writ Petition [No.23118/2011] was dismissed as withdrawn. Alongwith the said application, the petitioner filed an application [C.M. No.2/2019] for restraining the respondents to interfere into the possession of the petitioners wherein this Court vide order dated 12.02.2019 passed injunctive order in respect of possession of the petitioners. The petitioners through this petition have submitted that the respondents, in violation of the order dated 12.02.2019 passed by this Court, have taken possession of the land in question from the petitioners. Legal heirs of Riaz Hussain filed ejectment petition before the Assistant Commissioner against the petitioner in which application under Order I Rule 10 C.P.C was filed by Noor Muhammad. The petitioners when came to know about the objection petition that the matter is pending before this Court and ejectment petition was adjourned sine die vide order dated 11.01.2021 on the ground of restraining order of this Court. Again on 15.02.2021, in the presence of the injunctive order, an application was filed for resurrection of the ejectment petition for issuance of warrant of
---
## Page 3
possession which was dismissed. The appeal was accepted without notice to the petitioners and case was remanded to the Assistant Commissioner. Muzaffar Abbas again filed an application for implementation of order dated 26.05.2021 and the Assistant Commissioner accepted the ejectment petition on 23.11.2021. The petitioners have contended that in the presence of restraining order passed by this Court, warrant of possession was issued and the crops of the petitioners were removed from the land in question illegally and also the possession was taken in violation of the order of this Court. The petitioners have prayed for restitution of the possession as well as initiation of contempt of Court proceedings against the respondents for violating the injunctive order passed by this Court. 7. We have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance. 8. The controversy revolves around the issue of resumption of land from Karam Ali declarant and its further allotment to others as well as the order dated 07.02.2011 of the Chairman, Federal Land Commission, Islamabad, who accepted the Revision Petition of respondent No.2/ Riaz Hussain. Admittedly, Karam Ali was the declarant and his holding was determined by DLC under Land Reforms Regulations, 1972 on 12.10.1977 as under:- "Mr. Karam Ali son of Barkhurdar has filed his declaration form LR-1977-I under the Land Reforms Act-II 1977, for the area owned by him in Jhang district as detailed below. Sr. No.Name of Village Area A.K.M.PIUs 1. Kurk Muhammadi 174 319406.332 2. Noor Allah Dad. 51 5102138.727 3. Chak No.438 17 021146.209 Total 243 81312691.268 2. On verification by the field staff /Sub Assistant Land Commissioner / Assistant Land Commissioner, Chiniot, which has been further verified by the Sadar Land Reforms Office, the holding of the declarant in Jhang District come out to 240.950 acres equivalent to 12819 PIUs." Karam Ali challenged the said determination through an appeal before the Land Commissioner which was accepted and the case was remanded to the Deputy Land Commissioner but Karam Ali did not appear in the post-remand proceedings and an ex-parte order was passed against him by the Deputy Land Commissioner on 15.05.1978. He challenged the order dated 15.05.1978 through an appeal which was accepted by the Additional Chief Land Commissioner on 03.12.1979 and the case was remanded to the Deputy Land Commissioner for fresh decision. The Deputy Land Commissioner, in post-remand proceedings, declined the plea of Karam Ali, predecessor of respondent No.2, vide order dated 01.03.1981 with following observation: "Assistant Land Commissioner/Assistant Commissioner, Chiniot was directed to prepare fresh evaluation in terms of PIUs of the holding of the declarant and indicate in his report any discrepancy or error in the earlier computations on the basis of which the orders dated 12.10.1977 and 15.5.1978 of Deputy Land Commissioner were passed. The case was remanded for incorrect evaluation in terms of PIUs of the declarant's holding in Village Noor Ullah Dad and Chak No.238. In the fresh scrutiny as attested by Assistant Land Commissioner there has been increase in area of 2 acres, 1 kanal and 8 marlas but a decrees of 78 PIUs in Village Noor Ullah Dad. As regards Chak No.238, there has been no change in either the holding or the PIUs. This fact has been admitted by the learned counsel for the declarant. However, the counsel of the declarant made a request that correct of girdawari relating to Kharif 1976, in respect of the classification of land entered in the record may be carried out, as it is against the position obtaining on ground. It is explicitly clear in the order of learned Additional Chief Land Commissioner dated 3.12.1979 that there is no ground for any change in the evaluation in terms of PIUs of the declarant's holding in Mauza Kurk Muhammadi.
---
## Page 4
In any case correction of girdawari at this stage even if the contention of the counsel for the declarant is substantiated, cannot be ordered in view of para 7.3 of Land Records Manual. The declarant, therefore, is allowed to give his choice for restoration of 78 units. " The Revision Petition filed by Karam Ali was dismissed by the Chief Land Commissioner, Punjab on 03.09.1981. For reference, relevant portion of order dated 03.09.1981 is reproduced as under: "3. From the record I find that in the first round of litigation the case came up before this court in revision. It heard by the then Additional Chief Land Commissioner who vide order dated 3.12.1979 remanded it to the Deputy Land Commissioner for fresh decision after hearing the petitioners. In pursuance of this remand order the Deputy Land Commissioner by his order dated 1.3.1984 re- determined the holding of the declarant Karam Ali. As a consequence of this re-determination it was found that an area of 2 acres, 1 kanal and 8 marlas (equivalent to 78 PIUs) was resumed in excess from the declarant. The petitioners were allowed to exercise choice in getting the area equal to 78 PIUs restored in their favour. However the Deputy Land Commissioner refused to go into the question of the alleged wrong entries of classification of soil in the revenue record pertaining to the holding of the declarant in village Kurk Muhammadi on the ground that according to para 7.3 of the Land Records Manual correction of Khasra Gardawari could not be made at that belated stage. Against this order the petitioners went up in appeal before the Land Commissioner, Sargodha, but it was rejected vide his impugned order dated 3.5.1981. 4. From the above recital of facts and as admitted by the learned counsel for the petitioner it is clear that the alleged wrong entries in the revenue record have not been corrected. It may be mentioned that the Land Commission authorities are to go by the entries of the revenue record for the purpose of determining the holding of a declarant under the provisions of Land Reforms Act, 1977 and they have no concern with the correction thereof. 5. It is clear, therefore, that there has been no illegality or material irregularity in the present case and I find no reason to interfere with the concurrent findings at the lower courts. The revision petition is accordingly rejected." Karam Ali assailed the aforesaid orders through Revision Petition which too was dismissed by the Member, Federal Land Commission, Islamabad on 17.11.1981 with following observation: "2. I have given consideration to the point raised by the counsel for the petitioners. I cannot accept his line of reasoning and agree with the CLC, Punjab that the Land Commission authorities have to go by the entries in the revenue record and cannot go outside such record for purposes of determining the holding of a declarant under the provisions of the Land Reforms Act, 1977. The Punjab Land Revenue Act provides ample remedies to those aggrieved with incorrect entries in the revenue record and if the petitioner failed to avail in time of the remedies available to him under the law he cannot expect to achieve his objective by resort to the Land Commission authorities. There being no illegality or impropriety in the impugned order I find no reason to interfere with it. The revision petition is, therefore, hereby dismissed." on 05.05.1985. For reference, relevant portion of the order dated 05.05.1985 is reproduced as under: "7. We have heard the learned counsel for the parties at length and gone through the record with their assistance. We have examined the record with care to see if there has been a wrong done to the declarant. In the beginning, the case of the declarant was that he would surrender land in village Kurk Muhammadi, the estate in question. There was no plea that the units of land in that estate were wrongly calculated. For the first time, the matter was urged before the learned Additional Chief Land Commissioner and he rejected the plea vide order dated 3.12.1979. This order was not challenged any further. Thereafter, it was not possible for any authority to allow this plea to be raised nor that could be given effect to. The report of Naib Tehsildar dated 8.11.1980 about the entries in Khasra girdawari contemporaneously made for Kharif 76 was not only belated but it would also be difficult for anyone to say what was the state of crops four years earlier. The report
---
## Page 5
has not been accepted by the D.L.C. nor by the appellate or revisional authorities. The reason advanced is that the entries were not sought to be corrected in accordance with law. No exception can be taken thereto. The contention of the learned counsel for the petitioners that the Land Reforms Authorities should have themselves classified the land and calculated the units on the basis of the position at the spot and not with reference to entries in khasra girdawari for Kharif 76 is without force for the reasons that not only that this was not asked from the Land Reforms Authorities at the relevant time, but no proof has been brought on the record either that the classification and entries in khasra girdawari for Kharif 76 were not accurate by production of either preceding or subsequent khasra girdawaris. The plea for re-calculation of units cannot succeed in circumstances of the case in these proceedings, especially for the reason that a case was made out in the petition relying on annexure E that the declarant had asked for re- calculation of units vide application dated 9.10.1977. From the original record, it appears that an application to this effect has been placed at page 329 which application does not conform to the contemporaneously made order of the same date by the D.L.C., which is about the surrendering of land in the estate in question. Nor the plea about re-calculation was made at the earliest before the D.L.C. as would appear from his order dated 12.10.1977. The contentions of the learned counsel for respondents authorities on the point and about interpolation have weight. The way the case has been made up would disentitle the petitioners from relief in the Constitutional jurisdiction. Out of the resumed land measuring about 92 acres, 40 acres have already been transferred in favour of the sitting tenants on 23.8.1984. These transferees have not been impleaded as parties in these proceedings. The contention of the learned counsel for the petitioners that with setting aside of the impugned orders, rights created in their favour would automatically lapse, loss sight of the elementary principle of law that nobody can be deprived of his rights without being heard. In view of what has been stated above, there is no force or merit in this writ petition. It is accordingly dismissed, but in the circumstances the parties shall bear their own costs. " The declarant challenged the order dated 05.05.1985 through Civil Petition No.352-R of 1985 which was dismissed by the Hon'ble Supreme Court of Pakistan on 06.12.1986 by holding as under: "We have gone through the remand order dated 3-12-1979. There is some force in the arguments of the learned counsel that it related to both the villages. It related to Karrak Mohammadi in the same manner as it dealt with the case relating to the village Noor Allahdad. But there is no force in the argument of the learned counsel that the High Court s decision on merits regarding re- classification of land and secondly re-calculation of Units is without any foundation. The impugned judgment shows clearly that the High Court examined the question in depth and did not accept the petitioners plea on merits regarding re-classification of land as against the existing entries in the revenue record. We after hearing the learned counsel in this behalf do not find any infirmity in the High Court judgment, legal or otherwise. Accordingly this petition is dismissed as without force." 9. As the matter in issue has finally been decided by the Hon'ble Supreme Court of Pakistan and the said verdict decision is actively binding upon for all the organs of the state as enshrined in Article 189 of the Constitution of the Islamic Republic of Pakistan. Reliance in this regard is placed on the cases cited as Muhammad Sharif Vs. Settlement Commissioner and others (2007 SCMR 707), Iffat Jabeen Vs. District Education Officer (M.E.E), Lahore and another (2011 SCMR 437) and Dr. Iqrar Ahmad Khan Vs. Dr. Muhammad Ashraf and others (2021 SCMR 1509). 10. Admittedly the Hon'ble Supreme Court of Pakistan finally decided the lis vide order dated 06.12.1986 and the matter has attained the status of finality and same could not be meddled with or re-adjudicated by any subordinate authority. After the lapse of 24 years, the respondent No.2, Riaz Hussain son of Karam Ali (declarant) by complete concealment of earlier round of litigation denovo filed Revision Petition before the Chairman, Federal Land Commission on 13.12.2010
---
## Page 6
challenging therein the order dated 03.12.1979 of the Additional Land Commissioner as well as order dated 01.03.1981 of the Deputy Land Commissioner, Jhang but the said Revision Petition was accepted by the Chairman, Federal Land Commission, Islamabad in clear violation of the dictum laid down by the Hon'ble Supreme Court of Pakistan. Thus when the matter has already been finalized upto the Hon'ble Apex Court, then it could not be re-opened for adjudication by any lower fora, Reliance in this regard is placed on cases cited as Abdul Majid and another Vs. Qazi Abbas Hussain Shah (1995 SCMR 429), Syed Hassan Mehdi and others Vs. Province of Punjab and others (PLD 2011 SC 916), Chief Commissioner Inland Tax through RTO, Zone-I, Federal Board of Revenue, Hyderabad and others Vs. Ghulam Mustafa Mari, Ex-Inspector, Income Tax, Revenue Division, FBR, Hyderabad (2019 SCMR 1657), Quetta Development Authority through Director General Vs. Abdul Basit and others (2021 SCMR 1313). Moreover, after the decision of the lis by the Hon'ble Supreme Court of Pakistan, the Federal Land Commission was not competent to decide the matter, as such the impugned order dated 07.02.2011 was passed without jurisdiction and it is settled law that any order passed by an authority without having jurisdiction that order would be illegal and void ab-initio. Reliance is placed on the cases reported as Khuda Bakhsh Vs. Khushi Muhammad and 3 others (PLD 1976 SC 208), Bashir Ahmad Vs. Meer Aslam Jan (2007 CLC 1544), Messrs East-West Insurance Company Ltd. through Chairman & Another Vs. Messrs Muhammad Shafi & Company through Managing Partner & 2 Others (2009 CLD 960) and an unreported judgment dated 18.04.2017 rendered by a learned Division Bench of this Court in case titled as Sultan Vs. Federation of Pakistan and 4 others (Writ Petition No.28756 of 2014). 11. Furthermore, as the earlier Revision Petition regarding resumption of land of declarant Karam Ali was dismissed on merit by the Member, Federal Land Commission on 17.11.1981 which dismissal order was maintained by the Hon'ble Supreme Court of Pakistan in Civil Petition No.352-R of 1985 on 06.12.1986 and without disclosing the above, second Revision Petition filed by respondent No.2 containing the same set of facts, same property, same cause of action and between the same parties is not maintainable under the principle of res-judicata and Revision Petition of respondent No.2 was liable to be stifled in its inception. Reliance is placed on cases cited as Muhammad Chiragh-ud-Din Bhatti Vs The Province of West Pakistan Through Collector, Bahawalpur & 2 Others (1971 SCMR 447), Abdul Majid & Others Vs Abdul Ghafoor Khan & Others (PLD 1982 SC 146) and Sayed Dilawar Jan & 2 Others Vs. Meftah Uddin & 3 Others (2015 MLD 1408). 12. So far as argument of learned counsel for the respondents that the impugned order was passed by the Chairman, Federal Land Commission on 07.02.2011 whereas titled writ petition [No.26860/2021] was filed on 22.04.2021 after lapse of about 10 years and Writ Petition No.27943/2019 was filed on 08.05.2019 after passing of more than 8 years of passing of the impugned order, thus these petitions badly suffer from laches. As discussed above, the impugned order is declared as void ab-initio, thus no limitation runs against a void order as held by the Hon'ble Supreme Court of Pakistan in a case titled as Qazi Munir Ahmed Vs Rawalpindi Medical College and Allied Hospital through Principal & Others (2019 SCMR 648) as under:- "....Even otherwise, the order of petitioner's appointment was found to be void. Further, in terms of the law laid down by this Court in the judgment reported as Yousaf Ali V. Muhammad Aslam Zia (PLD 1958 SC 104), no period of limitation runs against a void order." Therefore, the argument of learned counsel for the respondents is without any force and same is hereby repelled. As discussed above, the impugned order passed by the Federal Land Commission is not sustainable and deserved reversal. 13. APPLICATIONS U/S 12(2) C.P.C IN WRIT PETITION NO.23118/2011 Now adverting to the applications under Section 12 (2) CPC for setting aside the order dated 26.09.2018 whereby the titled Writ Petition [No.23118/2011] was dismissed as withdrawn and also
---
## Page 7
order dated 27.02.2020 whereby once again the titled petition was dismissed as withdrawn on the basis of a compromise. Admittedly, the above Writ Petition was filed by as many as 25 petitioners on 10.10.2011 which was fixed for hearing before this Court on 18.10.2011 wherein notices were issued to the respondents but on the statement of Malik Amjad Pervez, Advocate, who was also counsel for the applicants, the writ petition was dismissed as withdrawn on 26.09.2018. For reference, order dated 26.09.2018 is reproduced as under: "Malik Amjad Pervaiz, Advocate for the petitioners along with Umar Hayyat, Petitioner No.12. Rai Wali Muhammad Kharal, Advocate on behalf of respondent No.2. Learned counsel for the petitioners has informed that matter has been settled and parties have entered into a compromise out of the Court, therefore, wishes to withdraw this writ petition. 2. Dismissed as withdrawn." The applicants in these applications have asserted that the writ petition was unauthorisedly withdrawn by the learned counsel without any specific permission of all the applicants/petitioners. That the applicants/ petitioners never entered into any compromise and they were not aware about the proceedings of the withdrawal of the Petition. The applicant/petitioner No.18 namely Muhammad s/o Maanik died in 2014 and petitioners/ Applicants No.18 & 19 never entered into any compromise rather only petitioner No.12 appeared with counsel which shows that the writ petition was withdrawn by the learned counsel on the basis of misrepresentation, as no specific permission was given to the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.