P L D 2023 Lahore 564

Before Safdar Saleem Shahid, J

PROVINCE OF PUNJAB and others---Petitioners
Versus
WASEEM ARSHAD and others---Respondents
Civil Revision No. 205 of 2016/BWP, heard on 4th October, 2021.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 30---Punjab Land Revenue Act (XVII of 1967), S. 45---Specific Relief Act (I of
1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Acquisition of
proprietary rights---Restriction on variation of entries in records---Scope---
Respondents filed a suit seeking a declaration as to their ownership of the suit land and
alleged that the order by the Board of Revenue whereby it had cancelled the allotment
in favour of original allottee, was void ab initio and requested for a permanent
injunction as consequential relief---Trial Court decreed the suit whereas Appellate
Court dismissed the appeal filed by petitioners---Validity---Collector's order had
confirmed the original allottee's proprietary rights through a registered deed ---Original
allottee had subsequently sold the land to the predecessor-in-interest of the respondents,
who had transferred it to the present respondents---Despite occupying the land since
1993, the revenue authorities had neither issued any notice nor raised any objection ---
Revenue authorities had failed to provide evidence that the original allottee was not
entitled to the land or that he had violated the scheme's conditions---Original allottee
had complied with the scheme, paid the required amount, and received Patta Malki yat
for the original allotted land---Revenue authorities had initiated proceedings against the
original allottee but had not involved the present respondents---Provincial Government
had no right to claim ownership---Punjab Land Revenue Act, 1967 stipulates that
reviews of mutations or revenue records should be done within a specific time and if
any fraud is detected it can only be challenged through a civil suit---Revenue authorities
had no right to take action when the revenue record showed a registered sale deed and
the names of the new owners---No notice was issued to the new owners during the
proceedings---Board of Revenue's order, after the issuance of Patta Malkiyat and
registration of the conveyance deed, was unlawful---Revision petition was dismissed.
Province of the Punjab, through District Officer, Toba Tek Singh and others v.
Nazir Ahmed and 9 others 2008 SCMR 749 and Province of Punjab through Collector
and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD 441 ref.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 30---Acquisition of proprietary rights---Scope---After confirming proprietary
rights and registration of conveyance deed, allottee would become absolute owner of
the land.
Abdul Rehman Bhatti and another v. Member (Colonies), Board of Revenue,
Punjab, Lahore and another 2006 CLC 543 rel.
(c) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 30---Acquisition of proprietary rights---Scope---After payment of full price of
land such person becomes absolute owner of the same and property comes out of the
ambit of Colony/Revenue authorities and after the grant of proprietary rights and
registration of conveyance deed no further action can be taken by the revenue
department including Board of Revenue---Revenue authorities cannot cancel the
allotment of the land---Thereafter, under such circumstance, no proceeding can be done
under S. 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 and no
order can be passed.
(d) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 30---Acquisition of proprietary rights---Scope---After proprietary right and
registered sale deed, the powers of the revenue authorities to review or to take any
action regarding the revenue record/allottee, allotment of land on the allegation of fraud
or any other illegality is against the law.
Noor Ahmad v. Member, Board of Revenue 1986 MLD 2065 and Muhammad
Tariq v. Member, Board of Revenue, Punjab, Lahore and others 2007 CLC 1123 rel.
(e) Administration of justice---
----Nobody can be condemned unheard.
Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst.
Qaisra Elahi and others 2005 SCMR 678 ref.
(f) Civil Procedure Code (V of 1908)---
----S. 9---Courts to try all suits unless barred---Scope---Civil court is the court of
ultimate jurisdiction and as such, it has jurisdiction to interfere in the matters where
illegality is committed.
Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521; Muhammad
Nazir Khan v. Ahmad and 2 others 2007 YLR 1696 and Muhammad Jaffar Khan and
others v. Muhammad Ali Tariq and others 2015 MLD 763 rel.
Malik Shah Nawaz Kalyar, A.A.G. for Petitioners.
Ahmad Mansoor Chishti for Respondents Nos. 1 and 3.
Date of hearing: 4th October, 2021.
JUDGMENT
SAFDAR SALEEM SHAHID, J.---This civil revision has been directed
against the judgment and decree dated 16.07.2013, passed by the learned Civil Judge,
Bahawalnagar and the judgment and decree dated 10.10.2015, passed by Additional
District Judge, Bahawalnagar, whereby suit for declaration filed by respondents was
decreed and the appeal of the petitioners was dismissed, respectively.
2. Brief facts of the civil revision are that respondents filed suit for declaration
alleging that they are owners in possession of the chunk of land better flashed in the
head-note of the suit through regular proprietary rights and that the order dated
10.06.2009 by petitioners Board of Revenue is void ab-initio and the permanent
injunction was also sought for as a consequential relief. The suit was resisted on legal
and factual grounds. Out of the pleadings, learned Civil Judge framed the following
issues;-
1. Whether order dated 10.06.2009 of defendant No.2 is illegal, void, without
jurisdiction and inquiry and ineffective upon the rights of plaintiffs and is liable
to be set aside? OPP
2. Whether plaintiffs are entitled to a decree for declaration and permanent
injunction as prayed for? OPP
3. Whether plaintiffs have got no cause of action and locus standi to file the instant
suit? OPD
4. Whether suit of plaintiffs is bad for non-joinder of necessary parties? OPD
5. Whether this court lacks jurisdiction under section 36 of Colonization Act? OPD
6. Whether false and frivolous suit has been filed by the plaintiffs and defendants
are entitled to recover special cost? OPD
7. Relief.
Then both the parties were invited to produce their evidence in support of their
respective stance and the learned civil court after hearing arguments and perusing the
available record decreed suit of the respondents vide impugned judgment and decree
dated 16.07.2013. The petitioners being dissatisfied with the judgment and decree
passed by the learned civil court preferred an appeal before the learned Additional
District Judge but the appeal against the said judgment could not fetch the desired result
as learned Additional District Judge hold that if public functionaries had not acted
within the four corners of their jurisdiction and its order is based on mala fide and in
excess of jurisdiction or otherwise not in accordance with law, the civil court has
ultimate jurisdiction to decide the matter in question. Furthermore, the assertion of the
petitioners that the respondents did not exhaust initial departmental remedy and the
civil court was devoid of jurisdiction that suit suffers from non-joinder and misjoinder
of parties. Further adds that the violation terms and conditions was fatal and through
gross representation wrongful gain has been procured; the mutations are based on fraud
and the respondents were not bona fide purchaser; no issue about bona-fide purchaser,
fraud, misjoinder of parties was bothered to be framed.
3. Counsel for the petitioners argued that issues were not properly framed by the
court. The main grievance of the petitioners was that the allotment to original allottee
was not legal. The District Collector was not competent to allot alternate land to
Muhammad Siddique on two counts firstly. Since the vires of the terms and conditions
have not been complied with by the original allottee; secondly, there is no provision to
allot alternate land to the defaulters therefore, the violation of the terms and con ditions
renders the whole proceedings unenforceable in the eye of law. The suit land was
neither allotted to the original allottee nor to the respondents and order in question has
rightly been passed by the Board of Revenue. The civil court has no jurisdiction to
adjudicate the matter in question under section 36 of the Colonization of Government
Lands Act. The respondents have not availed departmental remedy before instituting
the suit.
4. Counsel for the respondents, on the other hand, resisted the arguments and
argued that the original allottee was allotted 100 kanal land under five years temporary
cultivation scheme, afterwards, the suit land come within the prohibitory zone and the
allottee was given suit land alternatively and on application of the original allottee,
proprietary rights were given to him of the said allotted land. The father of the
respondents purchased the suit land vide sale deed dated 04.06.1992 and mutation
No.159 was also sanctioned accordingly. The impugned order regarding the resumption
of suit land is against the law, without jurisdiction and the respondents have proved this
fact through cogent and convincing evidence before learned trial Court. Counsel for the
respondents referred in this regard "Province of the Punjab, through District Officer,
Toba Tek Singh and others v. Nazir Ahmed and 9 others" (2008 SCMR 749) and
"Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4
others" (2004 MLD 441).
5. Arguments heard. Record perused.
6. The question before this court is regarding the jurisdiction of the Member Board
of Revenue; and the revenue authorities in respect of taking cognizance of the land in
dispute. "Whether after the allotment of the land and confirming of the proprietary
rights and issuance of the registered sale deed in favour of one person, the revenue
authorities can take cognizance and can cancel the allotment?" The grievance of the
petitioners is that the court has not properly framed the issues. This was the stance of
the petitioners that the Deputy Commissioner was not empowered to allot alternate land
to Muhammad Siddique the original allottee of the land. In this regard no issue was
framed and in absence of framing of that issue the right of the petitioners was primarily
injured. The case of the respondents was that the land was originally allotted to one
Muhammad Siddique under the cultivation scheme for 05 years in 1975 in Chak
No.292/HR. This area afterwards was declared in the prohibitory zone and on the
application of the original allottee the land was allotted in the other place in Chak
No.292/HR and 223/HR. Under the order dated 22.03.1992 of the Collector the land
was allotted which was confirmed through registered deed and proprietary rights were
given to Muhammad Siddique vide order 02.04.1992. The allottee Muhammad
Siddique sold out the land to the predecessor-in-interest of the respondents who
transferred the land to the respondents. During all this period, the revenue authorities
did not take notice of the affairs. The mutations were sanctioned according to the
procedure and since then, the respondents are occupying the land and their names are
appearing in the revenue record as owners. The revenue authorities had never issued
any notice to the present respondents.
7. The basic question is regarding the allotment of Muhammad Siddique the
original allottee;
1. Whether Muhammad Siddique was not allotted the land?
2. If he was allotted the land, whether he did not deposit the required amount in
the government treasury necessary for obtaining Patta Malkiyat?
3. Whether he violated any condition/did not fulfill the condition for allotment of
land under the scheme?
The revenue authorities had not brought anything regarding all those factors. Neither
the petitioners replied or produced any evidence that the original allottee Muhammad
Siddique was not entitled for the allotment of the land nor they had brought any
evidence that he did not comply with the conditions for the allotment of the land under
the said scheme. As per record, he deposited the amount and Patta Malkiyat was issued,
thereafter, the land originally allotted to Muhammad Siddique came within the region
of prohibitory zone. On the request, he was transferred the land in other place by the
then competent authority. Originally he was allotted the land and as per law when his
land was cancelled due to prohibited zone, he was entitled to get the alternate land. He
was then issued Patta Malkiyat and on the same, his name was incorporated in the
revenue papers. Thereafter, he transferred the land to predecessor-in-interest of the
present respondents who transferred the land in the name of the present respondents
and present respondents are occupying the land since 1993. During this all period, the
revenue department had not given any notice to the present respondents, nor, had filed
any application against them before any competent forum. No inquiry was conducted
against them and even in the inquiry against Muhammad Siddique the original allottee,
they were not joined and heard by the revenue authorities throughout. The documents
tendered by the petitioners reflect that they initiated the proceedings against
Muhammad Siddique the original allottee. And the revenue officials filed the
applications for the cancellation of Patta Malkiyat under section 30(2) of the
Colonization of Government Lands (Punjab) Act (V of 1912) against Muhammad
Siddique the original allottee. The question is, that the revenue authorities also had not
concluded in any of the inquiry conducted by them, that Muhammad Siddique was not
allotted any land. He was originally allotted the land as per his entitlement and this is
an admitted fact by the revenue authorities. But with a different version that the same
was then cancelled by the revenue authorities. The proceedings initiated by the revenue
authorities against the original allottee cannot be given any authenticity. The petitioners
have not brought any record that any notice for the proceedings was given to the original
allottee; or his version was brought on record. The other important factor is that he was
allotted the alternate land by the Deputy Commissioner and that order is available on
record and under that allotment order he was given proprietary rights and also the
ownership deed was confirmed in his favour. Thereafter, his name was incorporated in
the revenue record as owner and legally after the inclusion of the name of original
allottee in the revenue record as owner; the province of Punjab had no right to claim
ownership. Under the provision in Land Revenue Act that if any mutation or revenue
record is required to be reviewed that can be reviewed within a specific time and if the
ownership/entries of the revenue record are alleged on the basis of fraud, that can only
be changed after filing this civil suit before the competent court of jurisdiction. The
revenue authorities have no right then to itself take cognizance of the same. And
specifically when the revenue record is available and according to revenue record the
land has been transferred through registered sale deed and name of the new owners are
appearing in the revenue record. It is against the natural justice that no notices were
issued to the new owners who had been occupying the land at the time of making of the
inquiry or taking proceedings by the revenue authorities. After the issuance of Patt a
Malkiyat by the Deputy Commissioner and registration of Patta Malkiyat, the order
passed by the Board of Revenue is absolutely against the law. It is settled law that after
confirming proprietary rights and registration of conveyance deed, allottee would
become absolute owner of the land. The reliance is placed on "Abdul Rehman Bhatti
and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another"
(2006 CLC 543) that after payment of full price of land such person becomes absolute
owner of the same and property comes out of the ambit of Colony/Revenue authorities
and after the grant of proprietary rights and registration of the conveyance deed no
further action can be taken by the revenue department including Board of Revenue.
And revenue authorities cannot cancel the allotment of the land. Thereafter, under such
circumstance, no proceeding can be done under section 30(2) of the Colonization of
Government Lands (Punjab) Act (V of 1912) and no such order can be passed. The
order of the Member Board of Revenue dated 10.06.2009 is against the law. The
concerned persons could not heard. It is against the natural justice because this is a
settled principle that nobody can be condemned unheard. Reliance is placed on "Hazara
(Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and
others" (2005 SCMR 678).
8. Furthermore, after proprietary right and registered sale deed, the powers of the
revenue authorities to review or to take any action regarding the revenue record/allottee,
allotment of land on the allegation of fraud or any other illegality is against t he law. In
"Noor Ahmad v. Member, Board of Revenue" (1986 MLD 2065 [Lahore]" it is hold
that;
"Once proprietary rights have been conferred on a tenant, under subsection (2)
of section 30 of the Colonization of Government Lands (Punjab Act, 1912),
before resuming the land he is required to be given a show-cause notice. The
impugned order does not reflect that a reasonable opportunity, to defend the
order in question as envisaged by section 30(2) ibid was provided to the
petitioner."
In "Muhammad Tariq v. Member, Board of Revenue, Punjab, Lahore and others" (2007
CLC 1123) it is hold that;
"Natural Justice" is not capable of any precise definition, whether or not, the
rule of natural justice has been violated in a particular case, must be determined
in a particular case, must be determined in the light of rights violated. Reference
is placed on Ijlas Ahmad Siddiqi v. The Municipal Committee, Multan and
another PLD 1967 Lah. 408."
9. So far as the objection of the petitioners regarding the jurisdiction of civil court
is concerned. It has been settled down by this court and by the august Supreme Court
of Pakistan that civil court is the court of ultimate jurisdiction. And as such the civil
court has jurisdiction to interfere in the matters where illegality is committed. Reliance
is placed on "Muhammad Nazir Khan v. Ahmad and 2 others" (2008 SCMR 521).
"When action of authorities was without jurisdiction and void, plaintiff was
within his rights to maintain suit before civil court---Bar of S.36 of Colonization
of Government Lands (Punjab) Act, 1912 would not apply and civil court could
competently proceed to entertain and adjudicate the suit."
"Muhammad Nazir Khan v. Ahmad and 2 others" (2007 YLR 1696).
"Where Revenue Authorities Act beyond the provisions of law and without
jurisdiction, bar of jurisdiction of civil court contained in S.36 Colonization of
Government Lands (Punjab), Act, 1912, does not apply."
"Muhammad Jaffar Khan and others v. Muhammad Ali Tariq and others" (2015 MLD
763).
"Where any entry in revenue record was changed without backing of law or
order of competent forum, such entry would not create or confer any right on
the person in whose favour such entry had been made---Manipulated entry was
mismatched by other entries and was not sustainable under the law."
All the remaining issues have been decided according to their merits. The petitioners
were unable to answer the above mentioned queries. The order passed by both the learned
courts below are according to law. All the issues have been settled according to their
merits. There is no misreading or non-reading of the evidence. The petitioners were
unable to point out any portion of evidence which was non-read or misread by the court.
The law was properly appreciated. There is concurrent finding of fact which cannot be
interfered unless any illegality or irregularity are pointed out. There is no merits in the
revision petition, the same is dismissed.
SA/P-11/L Revision Petition dismissed.