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Petitioner: HAQ NAWAZ ETC. VS Respondent: Lt.Col. MUHAMMAD HANIF KHAN MALIK ETC.
Court Name: Board of Revenue Judge(s): A. K. Khalid Title: HAQ NAWAZ ETC. vs Lt.Col. MUHAMMAD HANIF KHAN MALIK ETC. Case No.:R.O. R.Nos, 558 to 561 of 1971-72 and 780 of 1972-73 Suo Moto Revision No,
370 of 1977-78 Date of Judgment:1977-12-21 Reported As: PLD 1978 Rev. 41 Punjab Result: Order accordingly Judgment ORDER R. 0. R. Noe. 538 to 561/71.72 were filed on 24-1972 against the order dated 26-10-1971 of the Additional Commissioner (Revenue), Sargodha by which the appeals of the petitioners calling in question the allotments of State land in Rath Dullewala, District Mianwali, allowed by the Collator, by way of exchange, in favour of the respondents, wore rejected both on merits as well as on point of limitation. 2. R. 0. It. No, 780/72-73 was filed on 17-4.1973 against the order dated 18-1-1973 by which the Additional Commissioner declined to interfere with the order dated 16.1-1970 of the Deputy Commissioner/Collector, Mianwali allowing alterations in the Register Girdawari for Kharif 1967 and Rabi 1968 pestaining to Khasra Nos, 2226, 3006 and 3336 of village Seelwan. 3. Simultaneously a miscellaneous application was moved to the then Advisor to the Governor, Punjab, alleging that Lt.-Col. Muhammad Hanif respondent had fraudulently obtained multiple allotments of State land under the Resettlement of Chashma Barrage Displaced Persons Scheme, 1968, and that an inquiry should be held into the mattes. The Commissioner, Sargodha Division who was accordingly, deputed to hold the inquby, submitted a report on 19-4.1975 holding, inter aila, that Lt.-Col. Muhammad Hanif had transferred his excess lands in the revenue estates of Seelwan and Ohalughara of Mianwali District to his relatives through Mutation Nos, 5247 and 1922 attested respectively on 10-2-1968 and 14.4-1969 after these lands had been acquired under the Lend Acquisition Act, 1894 for the construction of Chashma Barrage, and on the basis of these Mutations
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got multiple allotments of State land in his own name as well as in the names of his relatives and subsquently bad them improperly exchanged with lands in Rath Dullewala. Upon this the Board of Revenue in exercise of its revisional powers under section 164 of the Land Revenue Act, accorded permission for the review of the aforesaid two mutations by Collector, Mianwali, ride memo. No, 1924-75/4061-C-IV, dated 9-12-1975. Consequently both the mutations were cancelled by the Assistant Collector. wed Rasul etc. Challenged the legality and propriety of these orders before the High Court in Writ Petition No, 8 of 1976, among other., on the ground that the same were passed in their absence without giving them an opportunity of being heard. On receiving pars-wise comments from the Board of Revenue, Mr. Justice Dr. Naseem Hasan Shah heard the writ hi Ilmine on 14-4-1976 and passed the following order t- ilt appears that some proceedings between the parties are also pending before the Member, Board of Revenue and the apprehension is that if the respondents succeed In those proceedings they may be granted allotment of the land presently in possession of the V onore. This shows that certain aspects of the matter are still being looked into by the Board of Revenue. I, therefore, consider it appropriate to await the decision of the Board of Revenue before proceeding thither in the case, because it would not be proper to fetter the hands of Board of Revenue In any way whatsoever. However, in older to avoid any further complication, I would direct that in case the respondents are granted allotment of the land presently in possession of the petitioners, they will not be dispossessed as a result of the aforesaid allotment order." S. The official representative of the Board of Revenue who appeared before the High Court that his Lordship bad verbally desired that the matter should be judicially by the Board of Revenue after hearing all concerned. Accordingly all the revision petitions were taken up for hearing and simultaneously notices were also issued in exercise of suo, moto revislonal jurisdiction under section 164 of the Land Revenue Act, 1967 to all those who were affected by the order of the Board of Revenue dated 9-12-1975 according permission to review Mutation No, 5247 and 1922 and the orders consequently passed by the Assistant Collector revoking these mutations allegedly without notice, to appear and present their objections, if any. On 22-2-1977 all the parties appeared through their counsel and addressed arguments at considerable length. They also placed their written arguments on the record. 6. Since all the revision petitions as also the suo mow revision under section 164 emanate from the same subject-matter, they will be &weed of by one order. 7. The circumstances leading up to these revisions briefly are that Government acquired private lands in various villages including Seelwan and Ohslegbara of Mienwali District, for the construction of Chashma Barrage. Notifications under section 4 of the Land Acquisition Act, 1894 in respect of village Seelwan was issued on 18.64965 and in respect of Gbalughara on 2-6-1965. 8. In order to rehabilitate the displaced persons of these villages, Government promulgated a scheme known as the Resettlement of Clashing Barrage Displaced Persons &helm 1968 (hereina (ter called as the scheme). In pang. 14 of this Scheme it was provided that a Denton holding half acre of irrigated land or two acres of Baran, land under cultivation in the affected area will be given 15 acres of land and a person owning more than 15 acres of land an equivalent area but no one will get more than 50 acres of Irrigated land. It was further provided that an owner who was left with 90 acres or more after acquisition would not be considered entitled to get any land. 9. Lt.-Col. Muhammad Hanif respondent owned land measuring 1,774 kanals and one marks in village Seelwan and 295 kanals in village Ghalushara. Since village Seelwan and three other villages, namely, Bhan Summble, Kaaba Aheeran and Kundian Niche were situated in Dam area
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and were to be inundated first. a special Scheme for the rehabilitation of the evlctees of these four villages was promulgated on 11-4-1968 and the land for this purpose was reserved in villages Rath Nitro Shaheed, Buland, Rode, Nawan Sasso, Lucco, Peelowains of Tehsil Khushab. Lt.-Col. Muhammad Hanif was allotted maximum area of 50 acres in Rath Nlkroo Sbaheed on 15-7-1968 in lieu of his land abandoned b/ him in village Seelwan. 10. It is alleged that in order to grab more Land Lt.-Col. Muhammad Hanif respondent transferred, by way of benamt transaction, 243 tam* and 10 marks of his land in village Seelwan to his nine relatives for Rs, 12,000 vide Mutation No, 5247, which was attested on 10.2-1968. By way of this sale each transferee got 8 kanals and 2 marks of cultivated land which happened to be below the floor of eligibility (I.e. 16 kanals) prescribed under clause 14 of the Sci.Eme. In order to obviate this condition an application in the name of Rab News; one of transferees and a real nephew of Lt.-Col. Muhammad Hanif wu moved before the District Collector for the correction of entries in the Register Girdawari of village Solemn for Kharif 1967 and Rabi 1968, palisades to Klusn Nos, 2226, 3336 and 3006. A Naib-Tahsidar was accordingly deputed and he after making certain inquiries at the spot CM 3-7-1968 and 10-84968 submitted a report on 31.12-1969 recommending the following variations in the classification of soil in the relevant Khasra numbers. ees....Orocomeammoolar*.s..... Wawa araseoNsarabemealal.....m.Somem.....weemmiwalonotoomMow.olosIlwx vaollawsNeollese.... Khasra No, Area Existing entries in Classification reported Register Girdawari. By Naib-Tabsildar. .1IIMINOMII.11.*1611111111........* osse._maimusameame. Wmell aareadtaa.111.01117111MININIII*111.~F K M K M 8t M 2226 86 3 28 3 Sallab 83 3 Saab 58 - Bantu Qadeem {{BLUR PAGE}} 3336 33 15 12 - Sailab 20 10 Sailab 13 5 Banjar 13 5 Banjar Qadeem Qadeem 1 10 Abadi 3006 26 10 /7 Sailab 26 10 Sailab On the basis of this report, the District Collector passed an order on 161-1970 allowing correction in the entries of Register Girdawari for Kharif 1967 and Rabi 1968 changing thereby the classification of banjo. 'lades's; area into that of cultivated sagab arm. In this way the share of each one of nine transferees in the cultivated Mid) area was increased from 8 konall 2 miles to 16 kanatr which made them eligible for allotment of alternate land to a limit of 15 acres each under the Resettlement Scheme. H. As a result, allotments were obtained in the names of all the nine transferees on 4-8-1971 in village Maken, Tehsll Khushab, District Sargodha. Subsequently on 28-104970 Lt.-Col. Muhammad Hanif moved an application before the Resettlement 0 " coriCol loot or for the exchange of his own land allotted to him in Rakh Nikroo Shaheed as well as the land obtained in the name of his nine transferees in village Maken. The Collector thereupon hastily proceeded to resume the land under section 24 of the Colonisation of Government (Lands) Act, 1912 by his order dated 29.10-1970 and then by a subsequent order dated 10-3-1971 purported under section 10 of the Colonisation of Government (Lands) Act, 1912 transferred these allotments to the area of Rakh Dullewala in District Mianwali, which was reserved for evictees of village Ghalughara. 12. Similarly in 1969, Lt.-Col. Muhammad Hanif gifted away his entire land measuring 295 kanals in village Ohalughara in favour of his 15 close relatives including his mother, sister, wife, sister-in-law
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end nephew in consideration of Rs, 5,000 through Mutation No, 1922, sanctioned on 14-1-1969. Consequently, each of the transferees obtained allotment of 15 acres in lieu of this land and subsequently on 17-64971 got it exchanged with bettor had in the area of Sarwar Rhel in Rath Dullewala. 13. In the same way the other relatives of Lt.-Col. Muhammad Hanif, namely, Baabir Ahmed, Umar Hayat and Muhammad Raman respondents also got their allotted lands exchanged with the area in Rakh Dullewalc 14. When the petitioners who were also claiming allotments in Rath Dullewala as evictees of village Ohalughara came to know about the multiple allotments made in that village, by way of exchange, in favour of Lt.-Col. Muhammad Hanif and his relatives, they filed appeals before the Additional Commissioner, Sargolha, which were dismissed on the point of limitation as well as on the question of locus small of the petitioners to contest these allotments. Hence these revision petitions. 15. The learned counsel for petitioners contended with great vehemence that the sale of land by U - Col. Muhammad Banff in village Seelwan to his relatives through Mutation No, 5247 suctioned on 10-2-1968 was not valid inasmuch as it was made after the land in question had already been acquired under the Land Acquisition Act, 1894 and the power of the owner to dispose of or otherwise deal with it without the sanction of Collector had come to an and after the publication of notification under section 4 on 18-6-1965 in view of clause Numbly of section 24 of the said Act. The validity of the sale was also assailed on the ground; fiestip that it was made without the sanction of the Collector; 'secondly that the possession was not delivered to the nine transferees as would appear from the absence of any entry to that effect in the Register Girdawari; third0 that the sale was not motivated by butines principles in that the land was to he inandsted in the summer of 1%8 and the proceodings of taking actual 11Cilidik112 of it had already started; and foot* that the sale transaction was beearni and was grossly under-valued, the price paid being Rs, 12,000 only. In view of this, the learned counsel argued that the sale in question was void ab bill* and no valid claim for any alternate antomenb under the Resettle-meat Scheme could be based on it. 16. The learned counsel then argued that the order dated 16-1.1970 of the District Collector allowing corrections in the entries of Register Girdawari of Kharif 1967 and Rabi 1968 pertaining to Khasra Nos, 3006, 3336 and 2226 of village Seelwan comprising Mutation No, 5247 were against law and procedure and therefore unsustainable. It was submitted that by altering the entries of Register Girdawari on the plea of clerical errors, the Collector had made a ;permanent change not only in the Register Girdawari but also in the last larnabaudis -which could not be legally effected except through mutation of sehayiktafai ay. Required by section 44 of the Land Revenue Act, 1967. Further. That the change thus made in the soil classification of the three Khasi.% numbers had resulted in increes4 of the cukioced sallab area which illegally brought each one of the nine Iranderve5 within Ow door of ellgibility prescribed under the Scheme for allotment of alternate land. 17, The Wilsfacd counsel also sabciltted that if tht Mutation No 5247 was presumed to b valid and the order of the Colirster making corrections L the Xnasia Justified, the nine traroaferees- could not get alternate land because aocording to Board of Revenue letter No, 65 54- 69/2768-CSI, dated 27-11-1969 only the owners at the time of publication of notification under section 4 of the Land Acquisition Act were entitled to got alternate land. 18. With regard to the transfer by Oft of the land in village Ghalughare in favour of I5 donee* through Mutation No, 1922. Sanctioned on 14.4-196P the learned counsel. Sotoontted that it aufered ::scare 4r 444, tram the tame legal iniirminft as the tale irensaction elected through Mutation No, 5247, namely, that she land in question already stood acquired under the Land Acquisition Act and
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the OWMT was left with no power to dispose of or deal with it, that the poeseacion of the lend was not delivered to the donee,. That the gift was made tot not any services rendered by the donee* to the donor, that the transfer was grossly under-priced. The price being Rs, 5,000 only and that the trawler was motivated by the desire to create multiple el gibilities for Obt4i0i0e? Ii'tcraeste lands through the transform, e, en though Lt.-Col. Mohammad Boni! Hod elreedy obtained !Narinsum allotment of 50 &AU stn Rokh Shaloted against his total owneiship as long ago as 15-7,1968 and no i'lrihet allotment couid be obtained in -Ole; names of the doctor under the Scheele to lieu of any subseqoent ttansfer made out of the same ownership, 19. Finally, the learned ,;:otiatal !Of the petitioners submitted that allotment' mane under /...9t,A toio4 oAies h' private Itesty could not be eachanged without ezpress ono of'i Cove4linsent .And therefore t WWI not competent to the Collector to transfer them by way of exchange to Rakh Dullewala. The learned counsel also objected to the circumvention of law by the Collector by first resuming the land of the respondents under section 24 of Coloniastion of Government (Lands) Ace, 1912 and then rnakios fresh allotments to them under section 10, in the area reserved for Sarwar Kbel in Rath Duliewela. Accordingly, he argued that theme orders of the Collector were without lawful authority and therefore void and nonexistent in the eyes of law. 20. As aeatnet the above, the learned counsel for the respondents submitted Ora the petitioners had no right to claim the land allotted to the respondents, that they had already been allotted land as trvictees in the line of Samar Khel Tribe and that mere assertion that they might be allotted land in *Lae it was cancelled from the names of Lt.-Col. Muhammad Hanif and others did not give them any right to the said land nor they had any knee eicatil to die appeal& tevisions or application for review of the mutations. 21. It was also submitted that the revision petitions were hopelessly barred by limitation and as the benefit of tezeon 5 of the Limitation Act was not available by virtue of applicaeility of section 29, therefore the delay could not be condoned merely on the the pie e that the petitioners were not aware of Me impugned orders and bad cone to know about them only after the respondents were phy'llesily put in possession of the land in the area cutout itii for Sarwar Khel in Rakh Dullewala, 22. The leNrevi sxsanoci further argued that as tee respondents hate continued in potreesion of the land in question for more than three yearn they were ptotected undo proviso to section 16 or the Colonizstiln ;if Government ands; 1r12,. And could not therefeee be deprived of the land at this ;tap, 23. With regard to the question of sew mote exercise of frVikt3311i jurisdiction by the Board of Revenue under section 164 of the Land Reveaue Act. 1967, the learned counsel contended that it was not competent, ,fierrip because proceedings were initiated on an application moved by the petitioner and seoonay because revision petitions pertaining to the same subject-matter were already pending before the Board of Revenue. 24. Al for the transfer of land in village &teleran, the learned counsel submitted that the same was made through mutation duly attested by a revenue officer after payment of full price at market rate and after possession was delivered at the spot. He maintained that the Collector was fully competent to allow correction of obvious clerical errors occurring in the existing entries of the Reg Girdawari and that correction through mutation of mita indroj was not a legal requirement in such cases. As regards Mutation No, 192t of village Ghalughara, the learned counsel pointed out that it was made with the sanction of the Land Acquisition Collector, that the possession was immediately delivered to the dances of the gift, which was complete in all respect& that it was also incorporated in the
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jornabandi and its bona fide cannot be questioned after a lapse of about 8 years. The transferees were also paid cash compensation under the award and they were duly allotted land in Rakh Dullewala. Finally, the learned counsel submitted that Lt.-Col. Muhammad Hanif and other respondents have already invested lees af rupees and if the lands were cancelled from thole nemelp at this stage they would suffer 414 itanlena. Wm, 25. From the above disputations made at the bar and the written arguments and other material placed on record, the questions that fell for consideration are- (a) whether the petitioners had a locus staadt to challenge the allertmenta made to the respondents by way of exchange; (b) whether the appeals before the Additional Commissioner were barred by limitation and, if so, whether they could be decided on merits without getting over the bar of limitation; (c) whether the Board of Revenue was competent to allow review of the impugned mutations and interfere with allotments obtained without entitlement In exercise of its revisional jurisdiction under section 164 of the Land Revenue Act, 1967; (d) whether the trensfes of land in village Seelvan through Mutation No, 5247 after the publication of notification under section 4 of the Land Acquisition Act, 1894 was valid; (s) whether it was compteat to the Collector to allow corrections in the entries of Register Girdawari which continued to be incorporated in the last Jo/nobs:tens, on the plea of clerical errors; (f) whether the allotment of alternate lands in favour of Lt.Col. Muhaaimad Banif and his nine transferees and its subsequent exchange with the lands in Rath Dullewala was valid and according to law u.d Government instillations; (fir whether the transfer of land by gift in village Gbalashara on 14-4.1969 ride Mutation No, 1922 was valid and whether the donees were entitled to get alternate allotments after the donor had already taken maximum allotment of 50 acres against his total ownership authorised under the 19 c 8 Scheme; (h) whether it was lawful for the Collector to allow exchange of land sold by private treaty without the express sanction of the Government and whether the procedure adopted by him in so doing was warranted by law; (I) whether the respondents were entitled to the benefit of section 16 of Colonization of Government (Lands) Act, 1912 in view of their continued possession of the land for more than three years. 26. Now taking up the first question we find that there was a persistent demand by the evictees of Chashma Barrage that they should be settled in compact blocks, villagewise and ware-wise (tribewise) near their home lands. The Board of Revenue accepted the demand in principle at a meeting hel on 29-4-1968 and decided that unirrigated State land might be allotted to( 4 these evictees near their present homes to satisfy their desire to settle vi wise and tribe-wise. Accordingly Rath Dullewala was earmarked for settlement of evictees from village Ghalughara. A scheme for the purpose was formulated by the Resettiment Officer/Collector in consultation with the representives of all the four wads of village Ghalushara and the following order of priority was approved for the purpose of allotment one after the other:- (i) Wari Awan (wart of the respondents). (M) Wari All Sher KUL (00 Wee Bahrain Khel. (A) Wari Sarwar Khel (warn of the petitioners). Four abadis were also carved out and reserved for each wars. According to this order of priority, allotment to Awans was started from the southeasterly direction first and after progressively accommodating Ali Sher Khels and Behram Khels, the residual area falling on the north/westerly direction of the Rath was earmarked for Samar Khel, the wars of the petitioners. Lt.-Col. Muhammad Hanif and his relatives were brought from vario places where they had already, been
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settled, and land allotted in th favour in tee area falling to the share of Sarwar Khel as a result of draw of lots. This resulted in denying the Sarwar Khel to be settled togethe in a compact block as decided by the Board of Revenue. The rights the present petitioners who belong to the wars Sarwar Khels have thus jeopardised because a large number of them have still not been allott any land and even those who were successful, the land offered to them heavily infested with sand dunes which was not acceptable to them. In view of these circumstances the petitioners had a right to be heard against the who obtained allotment without entitlement in the area reserved for th petitioners' tribe, and a fortiori, had a locus standi to challenge even th mutations and corrections in the revenue record by which eligibilities fo multiple allotments were erected. In this connection the decision of Kar High Court reported as Abdul Wall Ansari v. The Custodian, Evacuee Property Karachi (1) which was vehemently relied upon by the learned counsel for the respondents has no bearing whatsoever on the facts of the present case. 27. As regards the point of limitation, it may be observed that the! Can be no condonation of delay under section 5 of the Limitation Act, where an appeal or application is filed under the provision of Land Raven Act, 1967 which provides a special period of limitation of its own. Un therefore the case is brought under one of the exemptions of Part III the Limitation Act which deals with computation of a period of limitation, delay in filing an appeal or application for review cannot be excused by virtue of section 29 of Limitation Act read with section 167 of the Land Revenue Act, 1967. The petitioners in the present case have pleaded that the transfer of land by Lt.-Col. Muhammad Hanif through Mutations Noe. 5247 and 1922 and subsequent allotments obtained by him and h transferees on the basis of these mutations as also by his other rola were made in such a clandestine manner as the petitioner' could not corn to know about them till after 10.8-1971 when they bad already physical poseession of the land in Rath Dullewala. The appeals were accordingly filed on 15-9.1971 without wasting any time and were theref within time, u limitation starts in such cases from the date of knowlsdg of an order and not from the date it was patted. The plea is not without substance. There was definitely an element of concealment of facts about the whole proceedings of the transfer of land and the manner in which subsequent allotments were obtained, through exchanges, in P.Akh Dullewala. It is noteworthy that the transfer of lands by mutations in villages Seelwan and Gbalvghara was kept hidden even from the Land Acquisition Collector so mush so that when he announced the awards of these villages on 31-12-196i sad 29-1-1970, he had to observe in his proceedings that on scrutiny of the record he had not come across any transactions made through mutations in these villages during the pest fine years. Even the old girdawaris were PLD 1967 KaL 130 {{BLUR PAGE}} maintained throughout in the name of Lt.-CoL Muhammad Hanif himself in spite of the so-called change having occurred in the ownership of land in tavva of the…
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