SHAH KHANAM USMANI Vs Board of Revenue etc

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

W.P.No.12451/04/2017

Mst. Shah Khanum VS. Member (Judicial-V), Board of Revenue / Chief Settlement Commissioner etc.

Date of hearing : 11.03.2022, 22.03.2022, 24.03.2022 & 25.03.2022 Petitioners by : Sardar Qamar Sultan, Barrister Haroon Duggal, Ahmad Raza, Advocates for petitioners in W.P.No.89-R/2012 & W.P.No.12451/04/2017 Mian Rafaqat Ali, Advocate for petitioner in W.P.No.10498-R/2017 Mr. Ameer Hamza Dogar and Ahmad Danish, Advocates for the petitioner in W.P.No.12469/2017 Malik Noor Muhammad Awan, Advocate for the petitioner in W.P.No.13392/04/2017 Mr. Ghazanfar Khalid Saeed and Sohail Arshad Warraich, Rashid Yamin Kazmi, Advocates for the petitioners in W.P.No.14058/2017 & W.P.No.12081/04/2017 Mr. Muhammad Shahzad Shaukat, Advocate for the petitioners in W.P.No.55606/2017 Malikzada Hameed-ur-Rehman Khokhar, Advocate for the petitioner in W.P.No.69194/2017 Ch. Azhar Siddique Cheema, Advocate for the petitioner in W.P.No.233137/2018 Rai Ahmad Raza and Ali Hur Jamal Advocates in W.P.No.23143/2017. Nemo for the petitioner in W.P.No.58738/2019

Respondents by : Mr. Asif Mehmood Cheema, Additional Advocate General Mr. Waseem Iqbal Butt and Riaz Ahmad Shad, Advocates for Settlement Department Hafiz Abdul Rehman Shahid, Advocate for P.H.A Sahibzada Muzaffar Ali and Irfan Haider Goraya, Advocates for L.D.A.

Ch. Muhammad Iqbal, J:- Through this single judgment, I intend to decide the titled Writ Petition [No.12451/04/2017] as well as following petitions, as common questions of law and facts are involved in all these case:

1.Writ Petition No.89-R/2012

2.Writ Petition No.10498/2017

3.Writ Petition No.12081/04/2017

4.Writ Petition No.12469/04/2017

5.Writ Petition No.13392/04/2017

6.Writ Petition No.14058/04/2017

7.Writ Petition No.23143/2017

8.Writ Petition No.55606/2017

9.Writ Petition No.69194/2017

10.Writ Petition No.233137/2018

11.Writ Petition No.58738/2019

W.P. No.89-R/2012 & W.P.No.12451/04/2017

2.Brief facts of these cases, as stated in the writ petitions, are that Col. (R) Hamid Hassan Khan [hereinafter referred to as the “alleged allottee”] was a displaced person, who allegedly having verified claim, obtained land measuring 75 Kanal in Moza Ichraa, Lahore by the Chief Settlement & Rehabilitation Commissioner against Khata RL.II. No.42 dated 04.04.1961. From the above alleged quantum of land, the alleged allottee sold out land measuring 51 Kanals 17 Marlas 81 Sq. Ft. to different vendees, (the petitioners in other connected writ petitions). After the death of alleged allottee, the land measuring 30 Kanals 09 Marlas 132 Sq. Ft. was devolved upon his legal heirs including Mst.Shah Khanum (daughter) through inheritance mutation No.25841 dated 25.05.1991. Lahore Improvement Trust succeeded by Lahore Development Authority [hereinafter referred to as the “L.D.A.”] acquired the said land for establishment of New Garden Town Scheme, Lahore in 1969 and awarded different exempted plots in lieu of acquired land to the ostensible owners. That on disclosure of some fraud qua the suit land the petitioner [Shah Khanum] approached the Chief Minister Inspection Team which referred the matter to the Anti-Corruption Establishment, Punjab. The matter was then referred to Chief Settlement Commissioner, Punjab, who, after probing the record,

declared the alleged allotment at Khata RL.II.42 in the name of so-called allottee Col. (R) Hamid Hassan Khan, as bogus and fictitious vide order dated 09.02.2009. This order was challenged by the petitioner through Writ Petitions [No.64-R/2009 & No.79- R/2009] which were allowed by this Court, by setting aside the order dated 09.02.2009, remanded the case to the Chief Settlement Commissioner for fresh decision. In post-remand proceedings, the Chief Settlement Commissioner, Punjab vide order dated 30.12.2011 again declared the allotment of Col. Hamid Hassan Khan as based on fraud and ordered for its resumption in favour of the state and its disposal through unrestricted open public auction. Hence, Writ Petition No.89-

R/2012.

3.Further Mst. Shaheen Jadoon, granddaughter of Col. Hamid Hassan Khan, also filed a complaint viz Plot No.68 Ahmad Block Garden Town, Lahore, whereupon the Member (Judicial-V), Board of Revenue / Chief Settlement Commissioner / Administrator (Residual Properties) / Notified Officer, Punjab initiated inquiry proceedings and while hearing the concerned parties again vide order dated 13.03.2017 declared the alleged allotment in favour of the Col. (R) Hamid Hassan Khan as fraudulent, cancelled the same and also declared all the subsequent mutations / alienation of the said land as illegal and passed order to dispose of the property through unrestricted open public auction. Hence, Writ Petition No.12451/04/2017.

4.Writ Petition No.69194/2017 Mohsin Abbas Khan Vs. Member (Judicial-V) etc.

Brief facts of the case, as stated in the writ petition, are that Col. (R) Hamid Hassan Khan, predecessor-in-interest of the petitioners, a displaced person having verified claim in Khata RL.II. No.42 allegedly got allotted land measuring 55 Kanal 16

Marla bearing Khasra Nos.5357, 5416, 5393, 5369, 5370, 5261, 5348, 5442/1 , Moza Ichra, Lahore. The said land was acquired by Land Improvement Trust (now L.D.A.) for establishment of New Garden Town Scheme, Lahore. The petitioner purchased land measuring 05 Kanal 18 Marla and 126 Sq. Ft. in Khasra No.5348 from Col. Hamid Hassan Khan. That on the application of one Mst. Shaheen Jadoon the matter was probed by the Chief Settlement Commissioner who vide order dated 13.03.2017 declared the allotment of Col. (R) Hamid Hassan Khan as fraudulent and cancelled the same as well as all the subsequent alienations.

5.Writ Petition No.10498/2017 Arif Rehman Chughtai Vs. Member (Judicial-V) etc.

Khan Abdul Rehman Chughtai, the predecessor of the petitioner, purchased land measuring 11 Kanal 06 Marla 06 Sq. Ft. situated Moza Ichra, Ferozpur Road, Lahore against total paid consideration of Rs.86,000/- from Col. (R) Hamid Hassan Khan and has also obtained declaration as exclusive owner of the aforesaid land through decree of the civil suit dated 13.12.1973. The Lahore Improvement Trust (Now LDA) acquired the aforesaid land in question for the establishment of New Garden Town Scheme and plot No.98 measuring 08 Kanal 13 Marla 68 Sq. Ft., in lieu of the aforesaid land, was exempted in favour of father of the petitioner.

Further, the petitioner purchased plot No.97-B measuring 01 Kanal 07 Marla 42 Sq. Ft. & Plot measuring 01 Kanal 18 Marla 50 Sq. Ft. (Total 3 Kanals 5 Marlas 92 Sq. Ft) from L.D.A against total paid consideration of Rs.89,87,927/-. After receipt of the amount, possession was delivered vide letter dated 26.10.1993 and 10.09.1996. After the death of Khan Abdul Rehman Chughtai, the petitioner became owner of aforesaid

properties by way of inheritance. Thereafter, the Chief Settlement Commissioner, Punjab vide order dated 13.03.2017 cancelled the allotment of Col. (R) Hamid Hassan Khan, from whom the predecessor of the petitioner had purchased the land in question.

6.Writ Petition No.12081/04/2017 Khaleeq Ahmad Ansari Vs. Province of Punjab etc.

Brief facts of this case, as stated in the writ petition, are that the petitioner is in possession of House No.80-B Garden Block, New Garden Town, Mouza Ichhra, Lahore; that the property in question is evacuee one and in possession of the petitioner since long. The respondents, instead of making allotment of the property in question in favour of the petitioner, passed impugned order dated 13.03.2017 for cancellation of allotment made in favour of the alleged allottee Col. (R) Hamid Hassan Khan. The petitioner, through this petition, has prayed for setting aside the impugned order dated 13.03.2017 and requested for sale of the plot in question to him as per market price.

7.Writ Petition No.12469/04/2017 President Association of Fatima Jinnah Old Graduate Vs. Assistant Commissioner etc.

Brief facts of the case, as stated in the writ petition, are that the petitioner (Association of Fatima Jinnah Old Graduates) purchased Plot No.76-A measuring 02 Kanal, Garden Block, Garden Town Lahore from one Awais Sajjad through a registered sale deed dated 26.06.2014. That Col. (R) Hamid Hassan Khan executed a registered sale deed in favour of Malik Liaqat Hussain and Nazeer-ud-Din on 25.01.1962 regarding land measuring 03 Kanal 17 Marla 117 Sq. Ft bearing Khasra No.5416, Khata RL.II. No.42 Moza Ichhra Lahore. The said land was acquired by the Lahore Improvement Trust (now L.D.A.) in 1967 and subsequently, a letter dated 23.01.1974 was issued to aforesaid vendees for exemption of land in question. Land measuring 02

Kanal 11 Marla 153 Sq. Ft was exempted on account of acquisition and remaining 01 Kanal 06 Marla 125 Sq. Ft. land was purchased by aforesaid persons for consideration of Rs.35126.43. Malik Liaqat Hussain and Nazeer-ud-Din executed sale deed dated 03.10.1977 in respect of the aforementioned land in favour of Mst. Riffat Nazir and Mst. Nargis Jehangir, who further sold the land to Dr. Muhammad Aslam through sale deed dated 24.06.1978. On 19.12.1993 the L.D.A. sub-divided the land in question into two portions i.e. Plot No.76 measuring 01 Kanal 19 Marla 51 Sq. Ft. and Plot No.76-A measuring 01 Kanal 19 Marla 02 Sq. Ft. (property in question). Dr. Muhammad Aslam sold the property in question to one Zaigham Sultan on 09.04.1994 who further alienated the same to Awais Sajjad, from whom the petitioner had purchased the same. The petitioner further contended that on 05.04.2017, he received a notice from the Assistant Commissioner/Collector, Tehsil Model Town, Lahore wherein he was asked to relieve the possession of the property in question i.e. Plot No.76-A on the ground that the allotment in favour of the alleged allottee Col. (R) Hamid Hassan Khan has been declared bogus and the subsequent transactions / alienations have also been set aside through order dated 13.03.2017 passed by the Chief Settlement Commissioner, Punjab. The petitioner, through this petition, has prayed for setting aside the impugned order dated 13.03.2017.

8.Writ Petition No.14058/04/2017 Abdul Rehman Vs. Chief Settlement Commissioner, Board of Revenue Punjab.

Brief facts of the case, as stated in the writ petition, are that petitioner purchased House No.78-Garden Block, New Garden Town, Lahore bearing Khasra No.5442 from Sh. Muhammad Rafique Akhtar on 26.05.2005 and Transfer Letter dated 26.05.2005 was duly issued by L.D.A. The petitioner

further contended that he received a notice dated 05.04.2017 from the Assistant Commissioner/Collector, Tehsil Model Town, Lahore wherein he was asked to relieve the possession of the property in question i.e. Plot No.78 on the ground that the allotment in favour of the alleged allottee Col. (R) Hamid Hassan Khan has been declared bogus and the subsequent transactions / alienations have also been set aside vide order dated 13.03.2017 passed by the Chief Settlement Commissioner, Punjab. The petitioner, through this petition, has prayed for setting aside the impugned order dated 13.03.2017.

9.Writ Petition No.23143/2017 Ijaz Khanum Aman Ullah Vs. Member (Judicial-V), Board of Revenue etc.

Brief facts of the case, as stated in the writ petition, are that Shaikh Saleem Ali, real brother of the petitioner, was owner of plot No.88 Garden Block, New Garden Town, Lahore vide registered sale deed No.11205 dated 01.10.1963 and Transfer Letter dated 28.10.1996 was duly issued by L.D.A. Shaikh Saleem Ali died issueless on 9.11.2016 leaving behind the petitioner [Mst. Ijaz Khanum Aman Ullah] and respondent No.7 [Mst. Iffat Rabia Hakeem, widow] as his legal heirs. Thereafter, the Chief Settlement Commissioner, Punjab vide order dated 13.03.2017 cancelled the allotment of Col. (R) Hamid Hassan Khan, from whom the predecessor of the petitioner had purchased the land in question. Hence, this writ petition.

10.Writ Petition No.55606/2017 Tahir Ahmad Vs. Member Board of Revenue etc.

Brief facts of this case, as stated in the writ petition, are that the petitioners and their predecessors-in-interest had contended that they purchased the properties as mentioned hereunder from Col. (R) Hamid Hassan Khan:

a. Father of the petitioner No.1 purchased land measuring 2 Kanals, bearing Khasra No.5393 vide registered sale deed No.11925 dated 29-12-1961.

b. Petitioner No.2 purchased plot No.93-Garden Block vide registered sale deed No.26559, dated 13-11-1974. c. The mother of petitioners No.4 & 5 purchased land measuring 02 Kanals and 178 Sq. Ft. vide registered sale deed dated 02-07-1960 and then gifted the Petitioner No.4 & 5 their respective properties vide registered gift deeds dated 19-07-1987 and 20-08-1986.

d. Petitioner No.5 was gifted land measuring 01 Kanal 12 Marla through registered gift deed dated 08-09-1977. e. Petitioner No.6 purchased land measuring 3 Kanals, 12 Marlas through registered sale deed dated 08-09-1977. The said plot was divided into two plots (plot no. 91-A and 91-B), the said division is evidenced vide letter dated 08-04-1982 issued by the Lahore Development Authority. The Chief Settlement Commissioner, Punjab vide order dated 13.03.2017 cancelled the entire alleged allotted land measuring 79 Kanal 04 Marla 63 Sq. Ft. of Col. (R) Hamid Hassan Khan and passed direction to dispose of the said land through unrestricted public auction. Hence, this writ petition.

11.Writ Petition No.13392/04/2017 Akhtar Begum Vs. Member Board of Revenue, Chief Settlement Commissioner etc.

The petitioner purchased land measuring 05 Kanal 08 Marla 126 Sq. Ft. bearing Khasra No.5348 situated in Moza Ichra, Lahore from Col. (R) Hamid Hassan Khan, who was the alleged allottee of the said land. The said property was acquired by Lahore Improvement Trust (L.D.A) for establishment of New Garden Town Scheme, Lahore and the aforesaid land / plot stood exempted in favour of the petitioner. The petitioner after sanction of the site plan, constructed a house upon the land in question. Thereafter, the Chief Settlement Commissioner, Punjab vide order dated 13.03.2017 cancelled the allotment of Col. (R) Hamid Hassan Khan, from whom the petitioner had purchased the land in question. Hence, this writ petition.

12.Writ Petition No.233137/2018 Dr. Ghulam Abbas Vs. Member Board of Revenue Chief Settlement Commissioner

The petitioner purchased plot No.93-A, measuring 02 Kanal, Garden Block, New Garden Town, Lahore from Mst. Zohra Haider through a Transfer Letter No.1459/1900 dated 15.08.1996 issued by the L.D.A. The petitioner received a notice 05.04.2017 from the Assistant Commissioner/Collector, Tehsil Model Town, Lahore wherein he was asked to relieve the possession of the property in question i.e. Plot No.93-A on the ground that the allotment in favour of the alleged allottee Col. (R) Hamid Hassan Khan has been declared bogus and the subsequent transactions / alienations have also been set aside vide order dated 13.03.2017 passed by the Chief Settlement Commissioner, Punjab. The petitioner, through this petition, has prayed for setting aside the aforesaid order dated 13.03.2017.

13.Writ Petition No.58738/2019 Attique Ahmad Vs. Member Board of Revenue

Brief facts of this case, as stated in the writ petition, are that Dr. Riaz Ahmad Shaikh, predecessor-in-interest of the petitioners, was owner of land measuring 03 Kanal 17 Marla bearing Khasra No.5351 Ichhra Lahore, who had purchased the same from Col. (R) Hamid Hassan Khan. Thereafter, the Chief Settlement Commissioner, Punjab vide order dated 13.03.2017 cancelled the allotment of Col. (R) Hamid Hassan Khan, from whom the predecessor of the petitioners had purchased the land in question hence the above petition. As no one has appeared on behalf of the petitioner as such it is being decided on the basis of available record.

14.The legal heirs of the claimant allottee Col. Hamid Hassan Khan as well as all subsequent purchasers from the said allottee

question the validity of the impugned order dated 13.03.2017 on the ground that the allotment of Col. Hamid Hassan Khan fell under the past and closed transaction which cannot be reopened after 5 decades; that after repeal of the evacuee laws in 1975 the Notified Officer/ Chief Settlement Commissioner has no jurisdiction to probe into the matter which stay remote from the term “pending proceedings” as enunciated under Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975; that the subsequent purchasers have the protection of Section 41 of the Transfer of Property Act, 1882 as they have bonafidely purchased their respective properties/ plots etc. against paid consideration thus their transactions are protected under the law.

15.The original record of the Settlement Department regarding the alleged allotment in favour of Col. (R) Hamid Hassan Khan was requisitioned on the application of one of the petitioners. The said record was examined by all the learned counsel for the parties in open Court in presence of Secretary (S&R), Board of Revenue.

16.I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance. I have also perused the written arguments submitted by the learned counsels for the petitioners.

17.The entire controversy revolves around that “as to whether Col. (R) Hamid Hassan Khan was a lawful allottee of the evacuee land measuring 79 Kanal 04 Marla 63 Sq. Ft against Khata RL-II No.42 in Mouza Icchra Lahore or otherwise”. After partition of sub-continent, Col. (R) Hamid Hassan Khan migrated from state of Patiala, India to the newly established state of Pakistan. He filed his claim on the basis of an alleged copy of registered sale deed as well as letter of Domadar Dass, Director of Rural Rehab:,

Patiala before Claim Officer (Land), Lahore. On the above claim- application, the Deputy Claim Officer, Lahore passed following order on 23.09.1959:

“IN THE COURT OF SH. ZAWAR AHMAD, CLAIM OFFICER

(LAND), LAHORE.

CASE No.373 Registration No.11990 Name and address Col. Sardar Hamid Hassan Khan Of the claimant S/O Sardar Zafar Ahmad Khan 3-Garden Town, Lahore.

ORDER

The claimant is present and has been heard.

The claimant produced copy of registered sale deed E.X.P.C and copy of Letter of Domodar Dass, Director of Rural Rehab: Papsi, Patiala E.X.P.A. According to the above sale deed E.X.P.C. and letter E.X.P.A. the claimant abandoned the following area within the urban limits of estate Patiala H.B..No.33.

Nature of rights Chahi Total Ownership B. B. B.B.

(Thirty Bigha and three Biswa only)

The claim is verified accordingly.

Announced. Deputy Claim Officer 23/9/59 (Land) Central Record Office, Lahore.”

But neither the original sale deed, mentioned in the aforesaid order, has been produced by claimant [Col. (R) Hamid Hassan Khan] nor the same is available on the record. The details of the sale deed i.e. sale deed number, volume number, date of sale deed, description of the property etc. has not been mentioned by the Deputy Claim Officer in the aforesaid order. The petitioners, being transferees from said alleged allottee, were under obligation to prove the validity of said alleged sale deed but no such original sale deed is produced before any competent forum. Thus, it can conveniently be held that no such sale deed was in existence but mere on the basis of copy of the alleged sale deed [which is also not available on record] or oral assertions, said

claim of the alleged claimant [Col. (R) Hamid Hassan Khan] was allegedly got verified.

18.Thereafter, Col. (R) Hamid Hassan Khan approached the Claim Officer (Land), Central Record Office, West Pakistan, Lahore for change of category / classification of land from agricultural to garden land on the ground that the land abandoned by alleged allottee in Mouza Lehal & Patiala Khas, state of Patiala, India was of superior quality. On the basis of oral request of the claimant, the Claims Officer (Land) Central Record Officer, Pakistan, under Schedule IV changed the classification of land to that of superior quality (garden land) on 28.06.1961without obtaining specific information as prescribed under Schedule IV from the alleged allottee Col. (R) Hamid Hassan Khan and even no valid document in this regard is available on record. Thus in the absence of any reliable trustworthy evidence-information, the classification of land could not be changed. For reference, Schedule IV of The Registration of Claims (Displaced Persons) Rules, 1955 promulgated on 01.04.1955 and gazetted on 08.04.1955, is reproduced as under:

SCHEDULE IV

FOR AGRICULTURAL LAND AND GARDENS IN URBAN AREAS

Situation:

(a)Name of urban area where property lies (state whether a Corporation, a Municipal Committee, a Notified Area Committee, a Town Area Committee, a Small Town Committee, a Sanitary Committee or a Cantonment).

(b)Police Station

(c)Tahsil/Taluka.

(d)District

(e)Province/State.

I. Land

1.Survey numbers, with area of each survey number.

2.Classification:

(a)Cultivable.

(b)Uncultivable

3.Whether land was:

(a)flow irrigated,

(b)lift irrigated,

(c)well-irrigated

(d)canal irrigated, or

(e)barani.

4.Extent of applicant”s interest in the property. State the names and addresses of co-sharers, if any, their relationship with the applicant and the extent of share of each.

5.Land revenue or rent assessed on the end. II. Garden and garden land.

1.Area: Survey numbers with area of each survey number.

2.Approximate number of plaints under each variety.

3.Nature of irrigation, if any.

4.Extent of applicant”s interest in the property. State names and addresses of co-sharers, if any, their relationship with the applicant and the extent of share of each.

Land revenue or rent assessed on the land.

5.Nature of applicant”s interest, whether proprietor, tenant, etc. State exact nature of tenancy.

All the aforesaid proceedings were conducted by the Settlement Authorities on the oral assertions of the Col. (R) Hamid Hassan Khan and without the basis of any valid document, category of the land was changed. Furthermore, there is tempering in the order dated 28.06.1961 including the change of the date as 27.06.1961 to 28.06.1961 which also shakes authenticity of the said order. Thereafter, on 03.07.1961, Col. (R) Hamid Hassan Khan filed a Form UR-1 and on the basis of the said order, entitlement certificate was issued on 08.07.1961. Further, as per record neither any order for allotment of the land in question ever passed by the competent authority is available on record in favour of alleged allottee nor any allotment order is furnished or referred by the petitioners before this Court.

Moreover the original record of Central Record Room as well as the record of Mouza Lehal, Mouza Patiala Khas, State of Patiala India received to Settlement Department, Pakistan, was requisitioned and perusal whereof shows that Col. (R) Hamid Hassan Khan was not found owner of a single inch of land in the aforesaid Mouzas of state of Patiala. Even the petitioners have not placed on record any valid document to show that Col. (R) Hamid Hassan Khan was owner of land in Mouza Lehal and Patiala Khas, State of Patiala India. The above record has not been controverted by the petitioners through any trustworthy documentary evidence, as such, the entire Claim filed by him was based on fraud but despite that the alleged claimant fraudulently obtained entitlement certificate and got entered his name in the revenue record without any valid order of the competent authority.

19.Further as per the revenue record of Moza Ichhra, Lahore pertaining to years 1953-1954, the land in question was shown as evacuee and the name of Col. (R) Hamid Hassan Khan is mentioned in the column of cultivator as “Rehabilitation Commissioner care of Col. Sardar Hamid Hassan Khan”. As per the subsequent entries in the Revenue record the name of Col. (R) Hamid Hassan Khan was recorded as Tayyandar in column of cultivation and in the column of ownership, the Central Government is shown as owner of the land which (land) was further devolved upon the Provincial Government. Furthermore, there is nothing on record to show that on which basis, the name of Col. (R) Hamid Hassan Khan was incorporated in the revenue record as Tayyandar. Mere an unauthorized entry in the revenue record showing the claimant as Tayyandar cannot be termed as valid allotment of the land, as such the above Tayyandar had no allotment order in his favour and was denuded of any valid title over the land in question. Even otherwise, the claimant asserted his

ownership on the basis of alleged copy of sale deed in his favour but subsequently by taking somersault he got his status determined as Tayyandar, whereas in presence of the record received from India, which demonstrate the non-ownership of the claimant, no question of determination of the alleged claimant as Tayyandar arises. Further in the Register of Haqdaran Zameen, the status of Col. (R) Hamid Hassan Khan was changed from Tayyandar to “owner” without any valid order by the Settlement Authorities. Thus a visible fraud has been committed by the alleged claimant / allottee while procuring the evacuee land and it is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws and any order obtained through fraud, misrepresentation of true facts, cannot assume the status of past and close transaction and that illegal order always remain vulnerable to the legal proceedings of investigation. Reliance in this regard is placed on cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Qutubuddin and others Vs. Sardar hidayat Ullah Khan Mokal and another (1976 SCMR 524), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Sindh Irrigation and Drainage Authority Vs. Government of Sindh and others (2022

SCMR 595).

20.Much emphasis is laid on the lack of jurisdiction of the Chief Settlement Commissioner / Notified Officer to probe any matter of allotment after repeal of the evacuee law in 1974, suffice it to say that it has already been observed in the preceding paragraph that the alleged allotment is based on manifest fraud and forgery and it is settled law that any evacuee land obtained by committing misrepresentation of the facts and fraud in that

eventuality, the Chief Settlement Commissioner, being successor of Custodian of the evacuee land / property and Claims Officer, has jurisdiction to initiate inquiry or take cognizance of the matter regarding transfer of the evacuee land. This issue of jurisdiction of the Chief Settlement Commissioner/Notified Officer has been settled by the Hon”ble Supreme Court of Pakistan in a judgment reported as Messrs Beach Luxury Hotels, Karachi Vs. Messrs Anas Muneer Ltd and others (2016 SCMR 222) wherein it is observed that when a matter of alienation of evacuee land is re-opened, the Settlement Authority has the jurisdiction to re-examine all the facts pertaining to the title of the parties from the very inception of claim and to decide the matter according to available record as per law. In another judgment cited as Virasat Ullah Versus Bashir Ahmad, Settlement Commissioner (Industries) and another (1969 SCMR 154), the Hon'ble Supreme Court of Pakistan has observed as under:- “We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Commissioner which merely required that the petitioner should disclose his credential as the transferee of the property in dispute. The leaned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no apparent reason why the petitioner wants to avoid this examination. The grievance of the petitioner at this stage is baseless and premature. This petition is dismissed.”

(emphasis supplied) The above said view has been reiterated in case reported as Chief Settlement Commissioner, Lahore V. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Muhammad Siddique Vs M.B.R/C.S.C, Punjab and others (2017 MLD 572). Further Section 21 of the General Clauses Act, 1897 confers an inherent jurisdiction to an authority or its successor authority to reverse its earlier erroneous or illegal order. Similarly if any benefit has been obtained from authority by practicing misrepresentation or fraud, the same forum is vested with inbuilt inherent jurisdiction

to undo its wrong. In this regard the Hon”ble Supreme Court of Pakistan in a case titled as Muhammad Baran and others Vs. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) has held that if any order is obtained from the authorities through misrepresentation, fraud and forgery, in that eventuality the same authority can undo such illegal order either on its own motion or on the information received to it through any application. In the case of obtaining evacuee land through fraud, the settlement authority may reverse such allotment order and in such like matter, the superior Courts can withheld the exercise of their discretionary writ jurisdiction to annul the order of authority, even though it was clearly without jurisdiction. Relevant portion of the judgment (supra) is reproduced as under:- “Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter “was clearly without jurisdiction.”

Further, in another judgment reported as Shamrooz Khan Vs. Muhabbat Khan and another (1989 SCMR 819), the Hon”ble Apex Court held that the Settlement Authorities have jurisdiction to issue notices on the complaint wherein it reveals that the order of transfer of evacuee land was procured on the basis of fraud and non-existent documents. The relevant portion of the judgment (supra) is reproduced as under:- “The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore V. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a

matter within its jurisdiction could be pre-empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court.

We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs.”

21.In view of the aforesaid facts and circumstances of the case, the Chief Settlement Commissioner, Punjab rightly passed the impugned order dated 13.03.2017 and declared the alleged entries in record [i.e. Khata RL.II. No.42 and as Tayyandar] in favour of Col. (R) Hamid Hassan Khan as fraudulent and cancelled the same and ordered for disposal of the land / property in question through unrestricted open public auction. For reference, relevant portion of the impugned order dated 13.03.2017 is reproduced as under:

“7. I have carefully examined the previous reports and fresh report prepared by the Patwari Halqa dated 03.03.2017 and also minutely gone through the whole record on the basis of which reports have been prepared. According to the entries of Register Haqdaran Zameen for the year 1953-54, in different khatas land is owned by Evacuees Non-Muslims, and in column of cultivation name of Col. Sardar Hamid Hassan exists. Detail of land under possession of Col. Sardar Hamid Hassan Khan in year 1953-54 is as under:- Sr. Khata Khasra Area Ownership Cultivation No. No. Column Column.

1 898/2039 5393 02-K, 00-M, Rai Bahadur Rehabilitation 196-Sq.ft. Janki Das Commissioner C/o Col. Sardar Hamid Hassan Khan.

2 Ibid 5351 27-K, 10-M, Ibid Ibid 107-Sq.ft.

3 Ibid 5435 24-K, 18-M, 06- Ibid Ibid Sq.ft.

4 Ibid 5492 04-K, 13-M, Ibid Ibid 219-Sq.ft.

5 936/2085 5357 07-K, 02-M, 42- His Highness Ibid

Sq.ft. the Maharaja

6 936/2086 5374 11-K, 06-M, 06- Ibid Ibid Sq.ft.

7 939/2089 5369 05-K, 13-M, Mr. R. K. Ibid 181-Sq.ft. Armory.

8 915/2062 5370 04-K, 00-M, Narindar Ibid 144-Sq.ft. Singh

9 Building 5416 03-K, 17-M, Wadia Ibid 117-Sq.ft. Parkash

10 Building 5442 06-K, 00-M, Sardar Ibid 104-Sq.ft. Jagjeet Singh

11 928/1/20 5361 06-K, 00-M, Hazari Lal Ibid 76 141-Sq.ft.

12 905/2052 5348 05-K, 18-M, Parti Dewi. Ibid 126-Sq.ft.

Total 109-K, 03-M, Ibid 39-Sq.ft.

According to the entries of Register Haqdaran Zameen for the year 1957-58, in khata No.772/2165 bearing khasra No. 5393, 5351, 5435, 5492, khata No. 804/2208, khasra No. 5357, 5374, khata No. 807/2211, khasra No. 5369, khata No. 786/2188, khasra No. 5370, khata No. 816/2220, khasra No. 5416, 5442, khata No. 796/2198, khasra No. 5361 and khata No. 778/2179 khasra No. 5348 are owned by Evacuees/Non-Muslim, but in column of cultivation name of Col. Sardar Hamid Hassan Khan exists C/o Rehabilitation Commissioner. Detail of land under possession of Col. Sardar Hamid Hassan Khan in year 1957-58 is as under:

Sr. Khata No. Khasra Area Ownership Cultivation No. Column Column.

1 772/2165 5393 02-K, 00-M, Rai Bahadur Rehabilitation 196-Sq.ft. Janki Das Commissioner C/o Col. Sardar Hamid Hassan Khan.

2 Ibid 5351 27-K, 10-M, Ibid Ibid 107-Sq.ft.

3 Ibid 5435 24-K, 18-M, Ibid Ibid 06-Sq.ft.

4 Ibid 5492 04-K, 13-M, Ibid Ibid 219-Sq.ft.

5 804/2208 5357 07-K, 02-M, His Highness Ibid 42-Sq.ft. the Maharaja

6 Ibid 5374 11-K, 06-M, Ibid Ibid 06-Sq.ft.

7 807/2211 5369 05-K, 13-M, Mr. R. K. Ibid 181-Sq.ft. Armory.

8 786/2188 5370 04-K, 00-M, Narindar Ibid 144-Sq.ft. Singh

9 816/2220 5416 03-K, 17-M, Wadia Ibid

Writ Petition No.12451/04/2017 20

117-Sq.ft. Parkash

10 Building 5442 06-K, 00-M, W. Tulsi Ibid 104-Sq.ft. Daas

11 796/2198 5361 06-K, 00-M, Hazari Lal Ibid 141-Sq.ft.

12 778/2179 5348 05-K, 18-M, Parti Dewi. Ibid 126-Sq.ft.

Total 109-K, 03-M, 39-Sq.ft.

First time the mention of RL-II khata No. 42 is found in Register Haqdaran Zameen for the year 1961-62, in khata No. 1016/3473, khasra No. 5351, khata No, 1016/3474, khasra No. 5435, khata No. 1016/3475, khasra No. 5492, khata No. 1016/3489, khasra No. 14046/5393, khata No. 1047/3538, khasra No. 5357, khata No. 1047/3539, khasra No.5374, khata No. 1050/3544, khasra No. 5369/2/2, khata No. 1050/3545, khasra No, 5369/2/1, khata No. 1029/3515, khasra No. 5370, khata No. 1058/3558, khasra No. 5416, khata No. 1022/3504, khasra No. 5348, khata No, 1039/3528, khasra No. 5361 and khata No. 1105/3615, khasra No. 5442/1 are owned by Evacuees/Non-Muslims but in column of cultivation name of Col. Sardar Hamid Hassan Khan exists C/o Rehabilitation Commissioner as “Ta”ayundar.” Detail of land under possession of Col. Sardar Hamid Hassan Khan in year 1961-62 is as under: Sr. Khata No. Khasra Total Area Ownership Allotted Cultivation No. Column on RL- Column.

II 42

1 1016/3489 14046/ 02-K, 00- Rai 02-K, Rehabilitation 5393 M, 48- Bahadur 00-M, Commissioner Sq.ft. Janki Das 196- C/o Col.

Sq.ft. Sardar Hamid Hassan Khan.

2 1016/3473 5351 27-K, 10- Ibid 21-K, Ibid

M, 107- 00-M,

Sq.ft. 00- Sq.ft.

3 1016/3474 5435 24-K, 18- Ibid 04-K, Ibid

M, 06- 00-M,

Sq.ft. 00- Sq.ft.

4 1047/3538 5357 07-K, 02- His 07-K, Rehabilitation M, 42- Highness 02-M, Commissioner Sq.ft. the 42- C/o Col.

Maharaja Sq.ft. Sardar Hamid Hassan Khan.

5 1047/3539 5374 11-K, 06- Ibid 11-K, Ibid

M, 06- 06-M,

Sq.ft. 06- Sq.ft.

6 1050/3544 5369/2 02-K, 11- Mr. R. K. 05-K, Ibid /2 M, 217- Armory. 03-M, Sq.ft. 209- Sq.ft.

7 1050/3545 5369/2 02-K, 11-

Writ Petition No.12451/04/2017 21

/1 M, 217-

Sq.ft.

8 1029/3515 5370 04-K, 00- Narindar 04-K, Ibid M, 144- Singh 00-M, Sq.ft. 144- Sq.ft.

9 1058/3558 5416 03-K, 17- Wadia 03-K, Ibid M, 117- Parkash 17-M, Sq.ft. 117- Sq.ft.

10 1105/3615 5442/1 05-K, 00- W. Tulsi 05-K, Ibid M, 104- Das 00-M, Sq.ft. 104- Sq.ft.

11 1039/3528 5361 06-K, 00- Hazari Lal 06-K, Ibid

M, 140- 00-M,

Sq.ft. 144- Sq.ft.

12 1022/3504 5348 05-K, 18- Parti 05-K, Ibid M, 126- Dewi. 18-M, Sq.ft. 126- Sq.ft.

Total 75-K,

10-M,

Sq.ft.

13 1016/34 5492 04-K, Cancelled 04-K, Ibid 75 13-M, from 13-M, 219- Hanif 219- Sq.ft. Khan & Sq.ft.

Wajiha Latif on PTDs

Grand Total 107-K, 80-K, Ibid

12-M, 04-M,

Sq.ft. Sq.ft.

8.A photocopy of Register RL-II bearing khata No.42 has been placed on record whereas neither the original nor its certified copy could be made available. According to the said khata RL-II No. 42 urban and rural land about 75-kanals 16-marlas 156-sqft. has been shown allotted to Col. Sardar Hamid Hassan Khan. There is also another photocopy of khata RL-II No. 42, the entries and script of which differ with the first copy. According to the above said photocopy of the RL-II, the following khasra numbers have been shown allotted to Col. Sardar Hamid Hassan Khan:- Serial No. Khasra No. Rural (Land)

1 5374 11-K, 06-M, 06-Sq.ft.

2 5357 07-K, 02-M, 12-Sq.ft.

3 5416 03-K, 17-M, 117-Sq.ft.

4 5393 02-K, 06-M, 03-Sq.ft.

Writ Petition No.12451/04/2017 22

5 5369 05-K, 03-M, 81-Sq.ft.

6 5370 04-K, 05-M, 44-Sq.ft.

7 5361 06-K, 00-M, 40-Sq.ft.

8 5348 05-K, 18-M, 126-Sq.ft.

9 5442/1 05-K, 00-M, 104-Sq.ft.

Total 50-K, 16-M, 156-Sq.ft.

Serial No Khasra No. Urban (Land).

1 5351/1 21-K, 00-M, 00-Sq.ft.

2 5435 04-K, 00-M, 00-Sq.ft.

Total 25-K, 00-M, 00-Sq.ft.

Grand Total 75-K, 16-M, 156-Sq.ft.

Thereafter, 51-kanals, 17-marlas, 81-sqft. was sold by Col. Sardar Hamid Hassan Khan to different persons and it changed many hands. Detail of sold land by Col. Hamid Hassan as “Taayundar” in revenue record is as under:

Sr. Mutation & Vendee Khasra Khata Entries in Jamabandi Land No Date. Column Measuring

1 4726 Bilqees 5370 1029/3515 Cultivation. 1961-62 04-K, 00- Jahan M, 144- 20.09.1961 Sq.ft.

2 4835 Akhtar 5348 1022/3504 Ibid 1961-62 05-K, 18- Begum M, 126- 16.10.1961 Sq.ft.

3 5010 Liaquat 5416 1058/3558 Ibid 1961-62 03-K, 17- Hussain M, 117- 13.02.1962 etc. Sq.ft.

4 5154 Zubaida 5369/2/ 1050/3045 Ibid 1961-62 02-K, 11- Rasheed. 1 M, 217- 01.06.1962 Sq.ft.

5 5155 Mumtz 5369/2/ 1050/3044 Ibid 1961-62 02-K, 11- Niazi. 2 M, 217- 01.06.1962 Sq.ft.

6 5747 Shamim 5351/1 1859/3330 Ibid 1968-69 04-K, 00- Rehana M, 16- 21.03.1963 etc. Sq.ft.

7 8087 Mumtaz 5351/7/ 1856/3327 Ownership. 1968-69 01-K, 14- Begum. 2 M, 30- 02.03.1967 Sq.ft.

8 8891 Muhamm 5351/2/ 1855/3326 Ibid 1968-69 03-K, 00- ad 1 M, 00- 31.03.1968 Rafique. Sq.ft.

9 8936 Riaz 5351/3/ 1855/3326 Cancelled 1968-69 03-K, 17- Ahmad. 1 M, 00- 27.06.1968 Sq.ft.

10 9562 Din 5351/3/ 1853/3323 Ibid 1968-69 00-K, 15- Muhamm 1 M, 05- 22.02.1969 ad Sq.ft.

11 10258 Dr.Riaz 5351 2523/4537 Ibid 1972-73 03-K, 17-

M, 07-

Writ Petition No.12451/04/2017 23

29.12.1969 Ahmad. /1 Sq.ft.

12 10259 Maryam 5351 2523/4537 Ibid 1972-73 04-K, 00- Hafeez /1 M, 08- 29.12.1969 etc. Sq.ft.

13 8088 Jameela 5351/7/ 1857/3328 Ibid 1968-69 02-K, 00- Khanum. 2 M, 00- 02.03.1967 Sq.ft.

14 4998 Ali 5393/2 1016/3489 Cultivation 1961-62 02-K, 00- Ahmad M, 48- 13.02.1962 Khan. Sq.ft.

15 8056 Begum 5351/11 1858/3329 Ownership 1961-62 00-K, 08- Musthari. /1 M, 209- 27.02.1967 Sq.ft.

5435/3 04-K, 00-

M, 32-

Sq.ft.

16 5087 Abdul 5361 1039/3528 Cultivation. 1961-62 06-K, 00- Wahid. M, 140- 21.04.1962 Sq.ft.

17 24519 Central 5374 3436/7917 Ibid. 1988-89 01-K, 00- Govt. M, 115- 05.12.1988 Sq.ft.

To 51-K, 17- tal M, 81- Sq.ft.

As per revenue record and vide Jamabandi 1972-73, Col. Hamid Hassan Khan was left with 27-kanals 06-marlas 207-sqft instead of 23-kanals 16-marlas which was transferred to his legal heirs vide mutation No. 25841. The additional 04-kanals 13-marlas falling in khasra No. 5492, khata No. 1016/3475 seems to have also been included in the left over area thus 27-kanals 06-marlas 207-sqft. land was mutated to the legal heirs of Col. Sardar Hamid Hassan Khan with the collusion of the then revenue field staff. The detail of land inherited by his legal heirs is as under:- Sr. Khasra No. Khata No. Jamabandi. Rural (Land) No.

1 16442/14045/5393 3735/7916 1992-93 00-K, 06-M, 171-

Sq.ft.

2 5492 Ibid. Ibid. 04-K, 13-M, 219- Sq.ft.

3 16420/5442 Ibid. Ibid. 05-K, 00-M, 104- Sq.ft.

4 5357 Ibid. Ibid. 07-K, 02-M, 42- Sq.ft.

5 5374 3736/7917 Ibid. 11-K, 06-M, 06- Sq.ft.

Total 28-K, 09-M, 92- Sq.ft.

Deduction of mutation No.24519, Khasra No.5374 01-K, 00-M, 115- Sq.ft.

Writ Petition No.12451/04/2017 24

Balance Land Left with Col. Sardar Hamid Hassan Khan. 27-K, 06-M, 207- Sq.ft.

It is not out of place to mention here that khasra No. 5492 measuring 04-kanals 13-marlas 219-sqft was not included in allotment of Col. Sardar Hamid Hassan Khan but was found fraudulently allotted on PTDs of Muhammad Hanif S/o Jahaz Khan and Mst. Wajiha Latif whose PTDs were declared as bogus vide order of my predecessor dated 09.02.2009. It is also necessary to mention here that vide mutation No. 24519 land measuring 01-kanal 0-marla 115-sqft. was cancelled from khasra No. 5374. It is clear that Khasra bearing No. 5492 (04-K, 13-M, 219-Sqft) is still being counted in the inheritance of Col. Sardar Hamid Hassan Khan which is evident from inheritance mutation No. 25841 dated 25.05.1991. However, khasra No. 5374 (01-K, 00-M, 115-Sqft) has been excluded from the entitlement of Col. Sardar Hamid Hassan Khan vide mutation No. 24519 dated 05.121988. Thus total land under use of Col. Sardar Hamid Hassan Khan was 79-kanals 04-marlas 63-sqft.

9.I have minutely gone through the file No. 3358 of Central Record Room and report of Patwari Central Record Room dated 26.01.2017 purported to be in the name of Col. Hamid Hassan Khan S/o Zafar Ahmad Khan of Patiala Khas, Tehsil Patiala, Hadbast No.

33.He had submitted his claim form UR-1 on 28.09.1959 on the basis of order dated 23.09.1959 passed by Claims Officer. Entitlement Certificate of 30-Bighas, 03-Biswas equal to 513 PIUs has been shown to be issued on 27.11.1959. The file also contains an appeal No. 11996 before Claims Commissioner and it is said to be remanded but no details of remand has been given. On 27.06.1961, on the basis of oral evidence the entitlement has been enhanced to the category of garden PIUs equal to 30-Bighas, 03Biswas, but the date 27.06.1961 has been tempered substituting 28.06.1961. The claimant filed a new UR-I form on 03.07.1961 on the basis of this order and entitlement certificate was issued to him on 08.07.1961 in which enhanced 252 PIUs were added in 513 PIUs (total 765 PIUs) and category of land was also changed to Bagh (garden). On 24.05.1968 the said entitlement certificate was found cancelled. The file also contains fresh proceedings regarding the record received from India. The noting on the file which is in vernacular is reproduced below:

انبک ملنس رسر حدمح خ ن نودس رسر حا ر خ د نو3358/425/UR-Iہلسلسبدجدیمیکسرسٹیفیکیٹربمنی لیصحتدعلضایٹپہلیکڑپاتلدنمحہجذلییکیئگےہ33اگحڈواٹدوالوہحابتبباہقومعضایٹپہلدحتسبربمن3ربمن 4 )اکذغ تیک ڑپاتل ےس ولعمک م وہ ےہ ہکانب ک م بالئ رہہی ذہ ںیموکیئ حہبقربآح ںیہن وہات۔لثمڈیشویلربمن1( ربآح لند لنالمہظحیک یئگ ےہسج ےس ولعمک م وہ ہکہلصیف ڈیٹپمیلکرنشمکڈنیل اطمقبحاکحڈ ںیہن وہ ےہ373 ربمنی وسب وظنمحرفامایےہ۔ سےلصیفوکح رظنحےتھکوہےئلبق زںی3 ٹیگھہ33۔ہکلبایبوبالئدررگیایبانتےللنحہبق )ویٹناکرسٹیکفیٹرب ےئعلضالوہحاجحیوہاکچےہ۔765(بالئےکقحںیم ) ڈنایےسایٹپہل نصاکحاکیحڈآاکچےہ ساکہلصیفاطمقبحاکیحڈوہاناچےیہاھت۔ یسوصحتںیمانمبسمکحرفامای2( اجدے۔ذہل حوپحٹرمب ردحہمکحشیپےہ۔ Sd/- 25.07.1967

Writ Petition No.12451/04/2017 25

انجباعیل حوپحٹ اباللصفم ےہجمعبیدیومعضایٹپہلںیمیسکمسقاکحہبقںیہن ےہ روعدی حلنس دمح خ ن نویکلثمرےنھکی ےسہتپاتلچےہہکروعدی حدمح خ ناکحہبقومعضلہل19ںیمےہدہربآح لنےکدعبڑپاتلشیپوہےئ Sd/- 26.07.1967

انجباعیل بسح مکحلومعضلہلربمن19لیصحتدحایتسایٹپہلیکڑپاتلیکیئگےہنکیلانبک م بالئوکیئحہبقربآح ںیہنوہات۔ یسیوصحتںیم سرپایکاکححد یئیکاجےئ۔ذٰہل انمبسمکحرفامایاجدے۔ Sd/- 02.08.1967

انجباعیل حوپحٹ ابال لصفم ےہ ۔لنس رسر ح دمح خ ن نو ےک انک م ومعض لہل ربمن 19د ومعض ایٹپہل نص لیصحت د علض ایٹپہل ںیموکیئحہبق ںیہنےہ۔ہیحہبقزابیناہشروتںرپہلصیف آےنےک دعبالم ےہ دح اقحتسق رسٹیفیکیٹدصتقیوہلن ایگ بانمبسمکحرایاجدےےکاطمقبہلصیفحہبقرایاجدےہکہن۔دخبتمانمبس اکحک مدخبتمانبئدلیصحت ح شیپوہےئ Sd/- 02.08.1967 حوپحٹ ابال لصفم ےہ ۔دعب المہظح دمکح حبال ےہ ۔حاکیحڈ آح ہ ںیم روعدی ح ےک انک م وکیئ حہبق ربآح ںیہن وہ زابین اہشروتںرپدصتقیوہاناپایایگےہ۔ Sd/- 03.08.1967

OSD

ومببجہلصیفدجتدیایکاجدے Sd/- OSD 17.01.1968

۔۔۔۔دمحم رش ف لیمعلنے حز ق Sd/- 23.01.1968 وموصہلومحہخ14.05.1968رب ےئ رج رسٹیکفیٹ اقحتسق۔۔۔۔ دبع رلز قوٹپ حی Sd/- 15.05.1968 لیمعمکحوہہ یےہ۔ذہل رسٹیکفیٹ اقحتسقعلضایکاجانانمبسےہ ۔ Sd/- 15.05.1968

Sd/- 23.05.1968

Sd/- 24.05.1968

OSD

According to the note the OSD had suggested to decide the matter of entitlement of Col. Sardar Hamid Hassan Khan afresh. The note is as under:

ومببجہلصیفدجتدیایکاجدے۔ Sd/-OSD 17.01.1968 After the note of OSD, the whole proceedings have been shown to be conducted by Patwari and no specific order for issuance of entitlement certificate by the competent authority is on the face of the file. Patwari himself noted that he had received this file on 14.05.1968 for issuance of entitlement certificate but no order in this date exists on the face of file which confirms the order of any competent authority. After the note of Patwari dated 15.05.1968 another note has been found in file which depicts that order has been complied, therefore, entitlement certificate be sent back to district concerned. Thereafter, the file after signatures without any note of any authorities has been referred to OSD but no further proceedings are thereon the file. However, another entitlement certificate dated 24.05.1968 is also attached with the file but no relevancy has been shown between the RL-II khata No. 42 and entitlement certificate dated 24.05.1968 purported to be issued with collusion of the then settlement functionaries. The copy of the said RL-II khata No. 42 shows that the land on the RL-II khata No. 42 was confirmed on 29.02.1960 and 26.09.1962 including both urban and rural lands. This land was confirmed on the basis of earlier entitlement certificate dated 08.07.1961, which later on was cancelled on 24.05.1968, therefore, any allotment and subsequent transaction on the basis of RL-II khata No. 42 are without lawful authority and fraudulently.

10.I have myself examined the record of both the estates in Jamabandi of Mauza Lehal and Patiala Khas and it has been found that Col. Hamid Hassan S/o Zafar Khan has got no entitlement in these Indian Estates. Therefore, it has been established that Col Sardar Hamid Hassan has got prepared the record of his allotment on the basis of false oral evidence, Allotment on the basis of oral evidence was only permissible if the record from India was not available but here the record from India of both the estates claimed by the claimant i.e. Patiala Khas and Lehal is available in which no record of ownership or any right of the claimant has been found. This fraud was unearthed as back as on 17.01.1968 when OSD had written note for action but the allottee manipulated to conceal the fraud and another entitlement certificate was issued on 24.05.1968 without order of the competent authority. Astonishingly the proceedings on RL-II were shown started in 1960 and confirmed in 1960 and 1962 whereas the final entitlement certificate was issued in 1968 whose reference is not made on RL-II No. 42. In the meantime Col. Sardar Hamid Hassan Khan had sold most of his land to different persons fraudulently and with concealment of facts. I, therefore, cancel the entitlement certificate dated 24.05.1968 as well as declare orders of Claims Commissioner dated 23.09.1959 and 27.06.1961 void being passed on oral and insufficient information. I also declare RL-II Khata No.42 void and is cancelled being prepared on the basis of bogus entitlement certificates dated 27.11.1959 and 08.07.1961.

11.Both the photocopies of RL-II and file of claim of Col. Hamid Hassan are full of doubts and entries therein are bogus and fake. It is a well settled law that the Settlement Authorities being the Custodian of record are the best judge to determine about veracity, correctness and genuineness of own record, thus this court has ample jurisdiction to check the genuineness of the allotment of Col. Hamid Hassan, which has been found bogus. It is also a well settled law that fraud vitiates even the most solemn proceedings as dictum laid down in PLJ 1991

SC 428(PLD 1991 SC 691), PLD 1975 SC 331, 1993 SCMR 618,

1985 CLC 2569 Lahore, 1987 SCMR 192, 1995 CLC Pesh 1394, 1984 CLC 1636 Lah, PLJ 1994 Lah 174, 1990 CLC 1174, 2007

SCMR 459, PLD 1991 SC 1, 2003 SCMR 543, 1993 SCMR 21, PLJ

2004 Lah 1298, PLD 2004 SC 801, 1998 SCMR 1087, NLR 2009 Civil 94, KLR 2010 Civil Cases 114. Thus illegal allotment does not create vested right to the allottee. The present occupants/vendees will have to face the consequences of fake title of their vendor/allottee. The allotment, inheritance and subsequent alienations made in favour of these vendees are also illegal and of no legal consequences. No one can be allowed to retain ill-gotten gains and reap the fruit of fraud. Consequently, illegal allotment on the basis of RL-II khata No. 42 over khasra Nos. 5374, 5357, 5416, 5393, 5369, 5370, 5361, 5348, 5442/1, 5351/1 and 5435, alienated by Col. Sardar Hamid Hassan through different mutations and his inheritance mutation including khasra No. 5492 totally 79-kanals, 04-marlas, 63-sqft is declared as a product of fraud and is cancelled, His legal heirs and subsequent vendees have no right over his allotment. They are sailing with the allottee and are bound to sink with him. Exemptions of plots by LDA if any over these khasras are also declared without legal authority.

12.Deputy Commissioner/Collector, Lahore is directed to resume the whole allotment of land measuring 79-kanals 04-marlas 63-sqft. on the basis of RL-II khata No. 42 purportedly to be made in the name of Col. Sardar Hamid Hassan Khan and all subsequent sale mutations thereon including mutation of inheritance No. 25841 dated 25.05.1991. He is further directed to dispose it of through unrestricted public auction. The auction committee shall be headed by the Additional Deputy Commissioner (Revenue), Lahore. Secretary (S&R), Board of Revenue, Punjab, Assistant Commissioner, Model Town, Lahore and nominee of Director General, LDA shall be the members of the committee. The highest auction amount / bid money shall be deposited under head No. G-11226 “Deposits in favour of the Chief Settlement Commissioner, Punjab” which shall be subject to final approval of the Chief Settlement Commissioner, Punjab under rules / policy. Secretary (S&R), Board of Revenue, Punjab is directed to follow up the case and intimate this court about outcome of the matter. With these observations, the cases are disposed of.” (emphasis supplied)

22.As regard to the plea of the petitioners in W.P. No.10498/2017, W.P.No.12081/04/2017, W.P.No.12469/04/2017, W.P.No.13392/04/2017,W.P.No.14058/04/2017, W.P.No.23143/2017, W.P. No.55606/2017, W.P. No.69194/ 2017, W.P. No.233137/2018 & W.P. No.58738/2019 that they are bona fide purchasers of the land

in question and have protection of law, suffice it to say that admittedly they derived alleged right from their vendor namely Col. (R) Hamid Hassan Khan whose allotment has been declared as fraudulent and same has been cancelled, thus subsequent purchasers who only stepped into shoes of their vendor are debarred to claim any better title than that of their vendor and they (subsequent purchasers) have no protection under Section 41 of Transfer of Property Act and if any infirmity, deficiency or flaw subsequently emerges in the title of owner / vendor that shall always travel with the land and subsequent purchasers are precluded to raise plea of protection of bona fide purchaser under Section 41 of the Transfer of Property Act. As the alleged allotment in favour of Col. (R) Hamid Hassan Khan has been declared as bogus and forged, as such, the petitioners/subsequent purchasers have to soar and sink with their vendor/transferor and they are debarred to claim any better title. Reliance can be placed on the cases titled as Muhammad Yamin and others Vs. Settlement Commissioner and others (1976 SCMR 489), Bashir Ahmad and Others Vs. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199), Talib Hussain & Others Vs Member, Board of Revenue & Others (2003 SCMR 549), Province of the Punjab through Collector, Sheikhupura & Others Vs. Syed Ghazanfar Ali Shah & Others (2017 SCMR 172) and Abdul Hamid Vs. M.B.R. and others (1994 CLC 1160).

23.As regard the case of Khaleeq Ahmad Ansari [petitioner in W.P.No.12081/04/2017] who being an unauthorized occupant showed his willingness to purchase the land / property in question through private treaty on market price and he filed affidavit before the Chief Settlement Commissioner in this regard. For reference, the relevant portion of the affidavit is reproduced as under:

Writ Petition No.12451/04/2017 29

ومعض رھچہ باہق لیصحت5348 رمےل رسخہ ربمن8 انکل1 ۔ ہی ہک نم محلف حہبق دعت ری4" ٹنیک علض الوہح ابر یگیئ تمیق دقن وج افلض دع تل نیعت لنے رخدی لنےن وک ایتح وہں دح افلض "دع تلیکاجبنےسرییئگتلہمںیمحمقزخ ہنرساکحںیمعمجلن رداگن۔ In this regard it is observed that the above request is untenable, as the said evacuee property is situated in the heart of the Lahore City and the superior Courts of this country have settled this issue that the evacuee property, either urban or agricultural, can only be disposed of by the authorities through unrestricted open public auction. A learned Division Bench of this Court has resolved this issue in a latest judgment cited as Malik Allah Ditta and others Vs. Member, Board of Revenue/(Judicial-V)/ Chief Settlement Commissioner / Notified Officer, Punjab, Lahore and another (2022 CLC 414) wherein it is held that the Notified Officer / Chief Settlement Commissioner has no jurisdiction to alienate the evacuee land through any private treaty and the only mode for disposal of the state assets is to put the same to unrestricted transparent open public auction. The relevant portion of the judgment (supra) is as under:-

“6. Now adverting to the second question i.e. whether the Notified Officer has the jurisdiction to sell the evacuee land through private treaty”. Admittedly after the repeal of evacuee laws with effect from 01.07.1974 by promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all the evacuee land under Section 3 of the Act ibid by operation of law stood vest with the provincial government against the paid consideration thus the said land has attained the status of public property and its disposal has to be made as prescribed under the law, scheme policy on the subject and it is settled that when law requires a thing/act to be done in a particular manner that must be done according to the described modus operandi otherwise it wears no sanctity, effectiveness in the eyes of law. Admittedly the jurisdiction of the Notified Officer has been restricted to the pending proceedings as envisaged under Section 2 of the Act, 1975 and he has no unlimited power rather he had to exercise its jurisdiction with the precincts prescribed under the law regulations, rules, policies and instructions on the subject. Any unwarranted act of a state functionary is liable to be set at naught without any hesitation. Undoubtedly the public functionaries are the

ostensible custodians of the state assets and they cannot be allowed to dole the state assets upon their cherished / blue eyed persons at their own whims and fancies. Undeniably the sacred public assets can only be disposed of in extraordinary transparent manner by leaving nil space for doubts and in this regard the most transparent and suitable modus operandi which better serves the public cause is putting such disposable property to unrestricted public auction in order to fetch befitting better price. The object of the above mode is to eliminate the nefarious elements of favoritism, nepotism and the corrupt practices as well as to provide a fair equitable opportunity to every citizen of Pakistan to take advantage from public assets / opportunities and to improve his financial and social status. The Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Ramzan & Others Vs. Member (Revenue) Chief Settlement Commissioner & Others (1997 SCMR 1635) while deciding the mode of disposal of available evacuee properties, held that “... it should be disposed of through unrestricted public auction”. The above celebrated principal has been reiterated in case cited as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449) wherein the Hon”ble Supreme Court of Pakistan has manifestly settled the procedure for disposal of the state assets through transparent, unrestricted open public auction. Against the above dictum [2015 SCMR 1449], the so-called allottees / subsequent purchasers or encroachers/ illegal occupants filed four Review Applications [Nos. C.R.P. No.10/2015 in C.P No.1700/2011, C.M.A.No.5968/2015 in C.R.P.No.10/2015. C.R.P.No.11/2015 in C.P. No.1701/2011 & C.M.A.No.5969/ 2015 in C.R.P.11/2015] which have been decided by the Hon”ble Apex Court on 30.09.2020 by upholding the principles already laid down in the aforementioned case and granted only first right of refusal to the illegal occupants or encroachers after holding auction of the said land. The operative part of the order dated 30.09.2020 is as under:- “At the very outset, learned counsel for the review petitioner states that these review petitions be disposed of if the land, subject matter of the controversy is put to auction under the relevant laws. According to him, since the petitioner has been conferred land, which has been annulled by this Court, and if at all the same is put to auction under the relevant law, the petitioner be given firs right of refusal to the highest bid. Such offer is not opposed by the learned Additional Advocate General as also the learned counsel for the respondent. It is expected that the auction will be carried out in a most transparent manner with due publicity preferably within a period of six months. Accordingly, both the review petitions are disposed of in the above terms. As a natural corollary, C.M.As also stand disposed of.”

The above quoted verdicts of the Hon”ble August Court clearly set down the hallmark principle for disposal of evacuee land through unrestricted open auction and any deviation whereof shall be tantamount to the non-compliance of law which renders the very order of the authority as illegal and void in nature. In addition to the above the Hon”ble Supreme Court of Pakistan in its decision dated 02.01.2015 rendered in C.P. No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab & 2 Others Vs. Sagheer Muhammad Khan & Others, has conclusively set down a sacrosanct principle for disposal of public assets that the evacuee property which is also a public asset can only be disposed of through unrestricted and transparent open auction. The relevant portion thereof is reproduced as under:- “7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question.

According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms.” (emphasis supplied)

8.The land in question is admittedly a public property and the Courts of law are custodian of the public properties, public interest and while dealing with matters related to such properties and interests, it is the duty of the courts to be very careful and cautious and assure itself to the extent of certainty that no foul/mischief is being played with the state assets. An extraordinary obligation is placed upon the constitutional courts to keep abreast itself with law and facts of the case and when certain material facts unearthed before it then the matter should be decided as per law even without being influenced by respective pleadings of the parties. In this regard, reliance is placed on a judgment cited as Provincial Government through

Collector, Kohat and another Versus Shabbir Hussain (PLD 2005 SC 337), wherein the Hon”ble Apex Court of the country has held as under:-

12.Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Government agency”.

(emphasis supplied)

9.Moreover in the plethora of the hallmark dicta of the Hon”ble Apex Court of the country it is successively held that the state assets must be disposed of in fair transparent, universally recognized modus operandi of public auction, thus all the organs of the state are placed under mandatory obligation to comply with the orders of the Hon”ble Supreme Court of Pakistan as enshrined in Article 189 of the Constitution of the Islamic Republic of Pakistan and any deviation whereof that would indeed be nullity void ab initio in the eyes of law. 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).

As such it is crystal clear from the aforementioned discussion that the Notified Officer / Chief Settlement Commissioner has no jurisdiction to sell the evacuee land through private treaty and the only mode for disposal of the state assets is to put the same to unrestricted transparent open public auction but the Chief Settlement Commissioner while deciding the application in violation of above consistent law allowed the appellant to purchase the land on market price which in itself is a kind of private treaty, thus these findings being contrary to law are liable to be set aside.”

24.As regard the contention of the petitioner Arif Rehman Chughtai (W.P.No.10498/2017) that his father has purchased land measuring 11 Kanal 06 Marla 06 Sq. Ft. New Garden Town, Moza Ichhra, Ferozpur Road, Lahore from Col. (R) Hamid Hassan Khan against consideration through decree of civil court

dated 13.12.1973 and in lieu of aforesaid land, a plot No.98 measuring 08 Kanal 13 Marla 68 Sq. Ft was exempted in his favour, suffice it to say that as the land in question is “evacuee” one, thus as per law, the Civil Court has no jurisdiction to intrude into the jurisdictional realm of the settlement department under Section 41 of the Pakistan Administration of Evacuee Property Act, 1957 and Sections 22 & 25 of Displaced Persons (Land Settlement) Act, 1958 and even if any decree passed by the Civil Court, that would be without jurisdiction and nullity in the eyes of law or void ab-initio and same is inexecutable. Reliance is placed on the case titled as Muhammad Sadiq (decd.) through L.Rs & Others Vs Mushtaq & Others (2011 SCMR 239) and Allah Rakha (deceased) through LRs and others Vs. Additional Commissioner (Revenue) Gujranwala and others (2020 SCMR So far as Arif Rehman Chughtai”s claim that he had purchased plot No.97-B New Garden Town Scheme, Lahore measuring 01 Kanal 07 Marla & 42 Sq. Ft bearing Khasra No.5374 from L.D.A. (the acquiring agency of the land) after making payment of full consideration amount. As the aforesaid Khasra No.5374 was comprising on the evacuee land, as such, the L.D.A. was not competent to alienate / sale the aforesaid land to any person as per the principle laid down by the Hon'ble Supreme Court of Pakistan in a judgment cited as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449). Thus, the said sale has also rightly been cancelled by Chief Settlement Commissioner, Punjab. The petitioner, if so advised, may avail appropriate remedy against the L.D.A as per law.

25.Learned counsel for the petitioners have not been able to point out any illegality or material irregularity in the impugned

orders and has also not identified any jurisdictional defect calling for interference by this Court.

26.Resultantly, all these writ petitions are hereby dismissed being devoid of any merits and the impugned order passed by the Chief Settlement Commissioner, Punjab is hereby upheld. The Settlement authorities are directed to dispose of the above said land through unrestricted open public auction providing first right of refusal to the sitting occupants as per law.

(Ch. Muhammad Iqbal) Judge Approved for reporting.

Announced in open Court on 22.04.2022.

Judge Abdul Hafeez