Province vs Akhtar Ali

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

JUDGMENT

C.R.No.541-D/2015

Province of Punjab through VS. Akhtar Ali etc. District Collector, Bahawalnagar etc.

Date of hearing 09.02.2026 Petitioners by Rai Mazhar Hussain Kharal, Assistant Advocate General Respondents by Syed Mujahid Ayub Wasti, Advocate Ch. Muhammad Iqbal, J:- Through this Civil Revision, the petitioners have challenged the validity of the judgment & decree dated 25.11.2013 passed by the learned Civil Judge, Bahawalnagar who decreed the suit for declaration of the respondents and also assailed the judgment & decree dated 20.03.2015 passed by the learned Additional District Judge, Bahawalnagar who dismissed the appeal of the petitioners.

2.Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration alongwith permanent injunction against the petitioners/defendants and contended that land measuring 104 Kanal situated in Chak No.216/9-R, Tehsil Fortabbas was leased out to Lal Din, the predecessor-in-interest of the respondents/plaintiffs under Five Years Temporary Cultivation Lease Scheme. After the death of Lal Din, inheritance mutation was incorporated in favour of the respondents/plaintiffs. On 17.07.1995, proprietary rights were granted to the respondents/plaintiffs on the basis of order dated 30.08.1995 and Pata Malkiat was issued on 10.09.1995. The Collector,

C.R.No.541-D/2015 2

Bahawalnagar vide order dated 11.08.1998 forwarded a reference to the Member, Board of Revenue for cancellation of Pata Malkiat of the respondents/plaintiffs which was accepted on 14.03.2002. The respondents filed first review application which was dismissed by the Member, Board of Revenue on 11.02.2009. The respondents filed second review application which was also dismissed on 18.05.2009. The respondents/ plaintiffs challenged the validity of orders of the revenue hierarchy through civil suit. The petitioners/ defendants filed contesting written statement and contended that the suit land was never given/allotted to the predecessor-in-interest of the respondents whereas Pata Malkiat was obtained on the basis of fraud as such it was cancelled and land was resumed in favour of the state. The trial Court framed issues, recorded evidence of the parties and decreed the suit vide judgment & decree dated 25.11.2013. The petitioners filed an appeal which was dismissed by the appellate Court vide judgment & decree dated 20.03.2015. Hence, this civil revision.

3.Arguments heard. Record perused.

4.The controversy involved in this case is centered upon Issue No.1 which is reproduced as under:

“Whether plaintiffs are owner in possession of suit property and impugned orders of defendants dated 11.08.1998, 14.3.2002, 11.02.2009 and 18.05.2009 are against the law and facts, ex-parte without notice and are liable to be set aside, if so, on what grounds? OPP” To dislodge the onus of the aforesaid issue Akhtar Ali (P.W.1) appeared as sole witness and reiterated the assertions made in the plaint. During cross examination, he deposed that: ےسرکیل1975" ارایضدتموعہیریمےداداوکاالٹوہیئیھت۔ارایضاکتشاپچناسلےئلیکاالٹوہیئیھت۔اسل ںیم وفت وہ ایگ اھت۔۔۔وتعیس االٹنمٹ وہیئ یھت ہک ہن1978 کت ےئلیک االٹ وہیئ یھت۔۔۔۔ امہرا دادا اسل1980 ںیمریمےوادل ےدراوا تقوق تیکلازار یھت۔۔۔ریما1979وہیئےھجماسابرےںیمملعہنےہ۔اسل " ںیمرظناثیندارئیکیھت۔BORںیموفتوہایگاھت۔۔۔ںیم ےہلصیفرہبقےکالخف2002وادل

C.R.No.541-D/2015 3

Conversely, Adil Khan, Colony Clerk (D.W.1) deposed that:

"رہبقدتموعہیدمایعنوکیھبکیھبیسکیھبمیکسےکتحتاالٹہنوہاےہ۔اورہنیہاباضہطبدلخدایایگ ےہ وک اکی29.06.95 وکیئ دراوا ت قوق تیکل دارئ یک ہکلب79 اور ہن یہ دمایعن ے اتعب ونسٹ دراوا تدارئرکےتوہےئادتساعیکیئگہکرہبقدتموعہیاعریضاکتشںیماالٹایکایگےہسجیکالص لسم مگ وہ یکچ ےہ۔ مثنہ لسم رپ ہٹپ لسم رار ایک راوے سج رپ ریغ یدص ق االٹنمٹ ری ناونین الخف وک ہٹپ تیکل ری ناونین وطر رپ رار رک دای ایگ وج دعب ڑپاتل و ارازت رظن اثین امتم17.7.95 وااعقت ااکحامت دتموعہی وسنمخ رک ےت وہےئ ہٹپ تیکل یک وسنمیخ ےک ےئل وبرڈ آف رویوین وک رحتری اہک ایگ اور "رہبققحبرساکرطبضرکایلایگ۔رہبقدتموعہیےسدمایعناکوکیئقلعتواہطسہنےہ۔

5.The respondents alleged that the suit land was initially leased out to Lal Din, the predecessor-in-interest of the respondents/plaintiffs under Five Years Temporary Cultivation Scheme in 1975 but in this regard no lease granting order was ever produced by the respondents/plaintiffs and without any valid lease order, the alleged allotment order was obtained by the respondents of the state land measuring 104 Kanal situated in Chak No.216/9-R, Tehsil Fortabbas, District Bahawalnagar. The respondents/plaintiffs did not produce any alleged Pata Malkiat and by practicing fraud and concealment of facts, gave application in the year 1992 for grant of proprietary rights or its alternate allotment and the District Collector issued order for alternate allotment of land to the predecessor-in-interest of the respondents/plaintiffs and issued Pata Malkiat whereas the Board of Revenue, Punjab vide notification No.4967-95/4115-CL.III dated 31.10.1995 has held that the District Collector is not competent to allot alternate land as such the District Collectors were barred to make any such orders of allotment or alternate allotment. For ready reference, notification dated 31.10.1995 is reproduced as under:-

“Subject: - Allotment of alternate land under Grow More Food Scheme, Ejected Tenants Scheme and Temporary Cultivation Lease Scheme dated

MR. Shahzad Hassan Pervez, Member (Colonies), Board of Revenue, Punjab.

Memorandum:

Reference this office circular No.1144-A-95/1016-CI, dated 27.07.1995, on the above subject.

2.It has been noticed that allotment of alternate land under Grow More Food Scheme and Ejected Tenant Scheme is being made irrespective of the fact whether the allottee applied before the cut off date i.e. 31.03.1981 and further that the last date for finalization of these cases i.e. 30.06.1989 as provided in Board of Revenue memo. No. 390-87/2460-CL.III, dated 4.5.1988 read with memo, No. 4591-89/4464-CL.III, dated 20.9.1989 has lapsed.

3.Similarly the lessees whose tenancies were out-side the prohibited zone on the crucial date i.e. 3.9.1979 or 20.4.1983, as the case may be, when provision for grant of proprietary rights were made, were to be allowed to select and apply for alternate land out-side the prohibited zone upto 30.6.1989 and thereafter Collector concerned could not entertain any claim as conveyed vide Colonies Department circular No. 390- 86/2498-CLI, dated 08.05.1988.

4.Instances have come to the notice of the Board of Revenue that Collectors have allotted alternate land to the allottees/lessees under the afore-mentioned four schemes even after the last date provided for the purpose as mentioned above.

5.You are, therefore, requested to scrutinize all such cases wherein alternate allotments have been made by you or your predecessor after the crucial dates and a report on case to case basis be forwarded to the Board of Revenue within a month positively.

6.The Board of Revenue has, further, been pleased to order that in future no alternate allotment shall be made by the District Collectors but cases of genuine allottees whose eligibility stands determined by a competent authority/Court at any forum shall be forwarded to the Board of Revenue for scrutiny. After the receipt of permission of the Board of Revenue in this regard, the District Collector will then proceed to make allotment of state land available free of encumbrances and out of prohibited zone”.

6.Further, as the allotment order obtained by the respondents/plaintiffs is based on fraud and forgery which garners no sanctity in the eyes of law as fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws.1

Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Mst. Nazeeran and others Vs. Ali Bux and others (2024 SCMR 1271)

7.Furthermore, Section 30(1) of the Act ibid provides that the allottee/lessee in respect of state land shall always be bound by the conditions set out in Schedule II of the Act ibid and the provisions of the Act ibid shall be applicable to the proprietors of such land. For ready reference, Section 30(1) of the Act ibid is reproduced as under:

“30. Acquisition of proprietary right.– (1) Notwithstanding anything entered in any statement of conditions issued under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreements with, or under rules issued by the Provincial Government, has acquired proprietary right in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above-mentioned Act; provided always that he shall in respect of such land be bound by the conditions set out in Schedule II of this Act and be bound by the other provisions of this Act applicable to proprietors of land.”

Under the above provision once land owned by the government is declared in the colony area that would always remain under the subject of the Act ibid. Further, grant of colony land through conveyance deed etc. is not absolute sale and nature and character of the said land remains as colony land and Colonization of Government Lands (Punjab) Act, 1912 is applicable to the subject land despite the grant of proprietary rights and its execution through conveyance deed.2

8.Further, under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, the Board of Revenue has jurisdiction to take cognizance of the matter wherein the lease or proprietary rights whereof were obtained through misrepresentation of the real facts or by practicing fraud and the said authority has been empowered to cancel the said allotment of a state land which was obtained by means of fraud and Muhammad Siddique and others Vs. Muhammad Sharif and others (2012 SCMR 1387)

misrepresentation. For the facility of ready reference, Section 30(2) of the Act ibid is reproduced as under:-

"30. Acquisition of Proprietary rights. (2) if, at any time, the Board of Revenue is satisfied that any person had acquired under this Act, tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit.”

In Mian Asghar Ali’s case3, the Hon’ble Supreme Court of Pakistan held as under:- “4. Review Petitioner challenged the said judgment through Civil Petitions No.2466 to 2468 of 2004, before this Court, wherein leave was declined vide judgment dated 16.12.2004; since reported as Mian Asghar Ali v Province of Punjab through District Collector and others (2006 SCMR 936), operative part whereof is reproduced here in below:- “Independent thereof any intervention with the impugned order would tantamount to encouraging perpetuation of patent illegal devices to protect the illegitimate gains reaped by the political vultures for unjust enrichment at the cost of public exchequer which has eroded the very moral fabric of the society.”

13.We have examined the record with the assistance of Petitioner and learned ASC for the Respondents. As noted in the narrative above, in detail that the order for the cancellation of conveyance deed through private treaty (dated 29.10.1994), was passed by the Member (Colonies) BoR through detailed order dated 4.7.98 (page 78 CPLA NO.2364 of 2015) pursuant to various representation and essentially on the directions made in WP No. 4039 of 1995. Therefore, it cannot be said that the impugned sale was either cancelled on the direction of the Chief Minister or for that matter in dictated exercise of jurisdiction/force command, of the Chief Executive of the Province. It may be observed that it was the Review Petitioner, as observed by this Court, in earlier round culminated into judgment reported as Mian Asghar Ali (Supra) who “exerted political influences with provincial hierarchy got 8 marlas plus prime commercial land situated within the compound of Municipal Committee, Sahiwal from Member BOR, securing relaxation of ban from Chief Minister, Punjab, precipitating in sale deed dated 29.10.1994, in violation of Municipal committee’s Policy keeping the later in darkness” against, which the Civil Review Petitions, were also dismissed as withdrawn and matter of cancellation of conveyance deed for all practical purposes attained finality and a fait accompli. No exception to the cancellation of sale deed obtained by the Review petitioner by misrepresentation and through Mian Asghar Ali Vs Govt. of Punjab through Secretary (Colonies) BOR, Lahore & Others (2017 SCMR 118)

fraudulent means, by the Member (C) BOR, under section 30(2) of Colonization of Government Land Act, 1912 could now be agitated in subsequent proceedings, founded entirely on different cause of action obliquely.

14.It may not be out of place to mention that the controversy raised by the Petitioner culminating into present Review Petition is not arising out of the order (dated 4.7.1998), of cancellation of sale deed by way of private treaty but, the order dated 16.06.2010 passed by the Member (Colonies) BoR, whereby his request for the allotment of alternate land was declined for valid reasons.”

(emphasis supplied) This principle has been reiterated in Province of Punjab through Collector, Sheikhupura VS Anjuman Talim-ul-Islam and others”.4

9.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 such wrong. In this regard, the Hon’ble Supreme Court of Pakistan in Muhammad Baran’s case5 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 an illegal order either on its own motion or on the information received to it through any application. 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. Reliance is also placed on Dadu Khan’s case6.

10.As per available revenue record, the land in question is state land which is admittedly a public asset and the Courts of law are ultimate custodian of the public properties, public interest and while dealing with matters relating to such properties/assets or interests, it is inalienable obligation of the courts to be Province of Punjab through Collector, Sheikhupura VS Anjuman Talim-ul-Islam and others” (PLD 1987 SC 123), “Syed Mazhar Hussain Shah through L.Rs VS Member, Board of Revenue, Punjab, Lahore and others” (2006 SCMR 959) and Muhammad Manzoor VS Province of Punjab and others (2011 CLC 494 Lahore) Muhammad Baran and others Vs. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD

1991 SC 691)

Dadu Khan (deceased) through LRs and 3 others Vs. Ghulam Abbas and 23 others (2022 SCMR 1893)

extraordinary careful and cautious and assure itself to the extent of certainty that no mischief is being played with the state assets. An unalienable obligation is placed upon the courts to keep abreast itself with law and facts of such cases 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.7

11.In response to the objection of learned counsel for the respondents that if the state land was illegally allotted by the Collector, then what action has been taken against the delinquent officer/official, learned Law Officer has filed a copy of the inquiry report and submitted that on receiving the complaints regarding illegally issuing of the Pata Malkiat of state lands in various districts including the Pata Malkiat issued by Malik M. Feroz Khan, the then Collector, the then Chief Minister initiated an inquiry. That Malik M. Feroz Khan remained posted as Collector, Bahawalnagar w.e.f 19.08.1991 to 04.01.1993. The Inquiry Committee observed that total number of Pata Malkiat under reference are 3225. In paragraph No.12 of the said report, it was found that 191 cases of irregular or illegal allotments and grant of proprietary rights / Pata Malkiat of state land measuring 23554 Kanal was disposed of during the period of Malik M. Feroz Khan. The findings of the Inquiry Committee submitted through a summary to the then Chief Minister are reproduced as under:

“12. The Committee, through scrutiny of the record, has detected 191 cases of irregular allotments in which serious irregularities and Illegalities have been committed while granting P.Rs. and patta milkiyats to the respective allottees. The total area that has been allotted irregularly comes to about 23554 kanals and pertains to the incumbency period of Malik Order dated 20.01.2026 rendered by the Hon'ble Supreme Court of Pakistan in C.P.L.A No.1600-L/2014 titled as Province of Punjab through District Officer Revenue/Collector, District Bhakkar & 3 others Vs. Zulfiqar & 8 others., Al-Shafique Housing Society Vs. P.M.A (PLD 1992 SC 113), Abdul Haq Indher Vs. Province of Sindh (2007 SCMR 907), Taj Muhammad Vs. Town Committee (1994 CLC 2214) and Sindh Peoples Welfare Trust Vs. Government of Sindh (2005 CLC 713)

Muhammad Ferozo Khan. Scheme-wise and tehsil-wise detail of the same in given as, under:- S.No. Title of Tehsil No. of Total Scheme irregular allotted allotment area cases

1.Grow More i)Fortabbas 35 4599-19 Food ii)Haroonabad 4 403-08 iii)Chishtian 14 1426-16 Total 53 6419-3

2.Temporary i)Fortabbas 71 7801-8 Cultivation ii)Haroonabad 7 892-0 iii)Chishtian 60 8441-3 Total 138 17143-

13.List indicating the cases of irregular/illegal grant of P.Rs. and patta milkiyats alongwith the nature of irregularities committed and the officers/officials found responsible is at Annex.D & E. Defective cases are mainly those in which alternate land was allowed to allottees falling in prohibited zones and P.Rs. were conferred.

38.The following illegalities and irregularities are found to have been committed while granting P.Rs. and patta milkiyats under temporary cultivation schemes:-

i)72 Patta milkiyats (conveyance deed) for 8072.kanals of land have been allowed by Malik Muhammad Foroze Khan by ignoring the condition of 90% cultivation level essentially required to be achieved by the allottee before grant of patta milkiyat. List at Annex.N. The files indicate that patta milkiyats have been allowed by him despite report by the field staff that the land, in question was "Ghair Mumkin tibba".

ii)Proprietary rights were given by Malík Muhammad Feroze Khan in 62 cases of allotments of temporary cultivation schemes, i1legally as the applications to the effect of exercise of option by the respective allottees were made after expiry of the cut of date i.e. 29.2.1980 and 31.5.1983 fixed by the B.O.R. vide notifications of 3.9.1979 and 20.4.83 respectively. List of such cases at Annex.O.

iii)Malik Muhammad Feroze Khan former Dy. Commissioner, Bahawalnagar allowed alternate land to 68 allottees of temporary cultivation scheme in 1ieu of their allotted lands falling in the prohibited zones against the policy of BOR which provide this facility to only those allottees whose lands were initially outside the prohibited zone but came within prohibited zone on account of extension in city limits, whereas the city limits had not been extended in Bahawalnagar. List of such cases is at Annex.P. Malik Muhammad Feroze Khan has even granted alternate land to allottees falling in non- prohibited zone. List of 33 such cases is at Annex.O.

iv)Allotment of surplus land of lessees, for which they were not to be allowed P.Rs. was allowed to be made to zaily mazaraeen (sub-tenants) for grant of P.Rs. vide BOR policy instructions notified vide No.3215-79/3973- CIII dated 3.9.79. The maximum limit was 12 1/2 acres per eligible sub-tenant of surplus land. The date for making application by the sub-tenants under this policy expired on 30.4.80. No such right was granted under the subsequent policy notified by the B.O.R. in the year 1983. Hence allotment and grant of P.Rs to zaily mozareen (sub tenants) on the application made after the above mentioned cut of date is without lawful authority. Malik Muhammad Feroze Khan has allowed allotment of land to 29 zaily mozaraeen after the afore-mentioned cut of date. The allotment is, therefore, illegal. List of such cases is at Annex.B.

v)It has been detected that in nine cases the. P.Rs. and patta milkiyats were granted despite the fact that their land stood resumed long ago and they had also exhausted the appellate forums for restoration of their allotments. List of such cases is at Annex.S.

41.Malik Muhammad Feroze Khan, former Dy. Commissioner, Bahawalnagar is responsible for all the illegal allotments detected during the scrutiny, lists of which are placed at Annex. D&E. He seems to have dolled out state land in all 191 cases in a kingsly manner, not caring for the rules policy provisions and instructions issued by the BOR from time to time. His irresponsible attitude has resulted into fraudulent and illegal allotment 23554.kanals during his tenure as Deputy Commissioner, Bahawalnagar.

43.Case files of irregular allotments detected during the scrutiny indicates that in most of the cases the decision for grant of proprietary rights has been given on the same date on which the application was made. The, cases were processed in a great hurry and normal procedure of obtaining, field report was ignored or not considered necessary. The cases indicate

that Malik Muhammad Feroze Khan, former Deputy Commissioner used to endorse applications of the allottee to the Head Clerk, Colony by putting his initials. The Colony Clerk (Sayyah Navees) prepared note on the note sheet and routed it through Head Clerk (Colony) to the Deputy Commissioner. In some of the cases he submitted report, to the Deputy Commissioner directly by-passing the normal channels of Head Clerk and General Assistant Colony. Some of the reports submitted by Sayyah Navees are grossly misleading. However, in many of the cases of irregular allotments, he appears to have been over-ruled by the Deputy Commissioner. Similar is the position of Head Clerk, Colony Branch, who was supposed to check the factual position and indicate whether the case was fit for allotment and the request was genuine or otherwise has failed to perform his duty properly. He appears to have been simply endorsing the reports prepared by Colony Clerk (Sayyah Navees), thus remaining non-committal.

44.The orders passed by Malik Muhammad Feroze Khan cannot be considered proper judicial orders as large number of cases have been decided on the same date on which the application was made and proper procedure of fixing the case in Peshi and making entry in the Peshi Register was not followed.

45.Mr. Zia Ahmed Khan Shami, former General Assistant (Revenue) is also at fault as he endorsed, faulty reports submitted by the Colony Branch officials to the Deputy Commissioner. He prepared misleading report in the case of M/s Muhammad Siddique s/o Din Muhammad allottee and Mushtaq s/o Meraj bin and 9 others sub-tenants of Chak No.29/G. Tehsil Chishtian indicating that the area is under barani cultivation. However, he did not point that the applicants were not in cultivating position since before Kharif. 1977 and their applications were time-barred i.e. submitted after the cut of date of 30.4.1980. On the basis of this mis- leading and contrary to the facts report the Deputy Commissioner allowed patta milkiyats of 1000 kanals in the names of sub-tenants which is an irregularity and illegality. Following case files are also quoted as precedents:-

1.Muhammad Ibrahim s/o Chiragh Din, Chak No.306/H.R. Tehsil Fort Abbas. 80 kanals.

2.Abdul Qadir s/o Abdul Rahim, Chak No. 97/F, Tehsil Chishtian. 160 kanals.

46.H/s Ajmal Pervez Mohal, the then Naib Tehsildar Daharanwala and Muhammad Sadiq, Patwari are responsible for making field reports contrary to the factual positions directly to the Deputy Commissioner by- passing the normal channels. In the case of Muhammad Ibrahim s/o Pir Bakhsh. Chak No.203/Murad. Tehsil Chishtian involving 124 kanals. they submitted report that the area is under barani cultivation, whereas the Khasra Gardarvi document does not support this

version. The allottee succeeded in getting patta milkiyat through their blessings in the form of false and fraudulent report which is evident from the fact that it is silent about level of cultivation achieved by the lessee.. The patta milkiyat cannot be granted unless the allottee has brought 90% of the allotted area under cultivation. This fact has been generally ignored by the Deputy Commissioner at the time of allowing patta milkiyat to the allottees.

51.During scrutiny the Committee has also detected following three cases of illegal allotmnets of residential plots (Ahatas):- S.No. Name of Chak No. Plot Size Name of the Allottee the D.C.

who granted patta milkiyat.

1.Muhammad 227/GR 10.1 Malik Nawaz s/o Marla M. Feroz Manhga Khan

2.Riaz 272/HR 6 Marla Malik Ahmad s/o M. Feroz Ghulam Khan Hussain

3.M. Aslam 279/HR 8.5 Marla Malik Khawar s/o M. Feroz Ghulam Khan Muhammad

52.The above residential plots were carved out of non-sikni state land adjacent to the respective chaks boundaries. These plots were treated as ahatas and were basically allotted by Sufi Ghulam Mustafa, former A.C. Fort Abbas without any authority. The change of land use in respect of state land cannot be made at the level of A.C. or D.C, as these powers rests with the Government in the Board of Revenue. Malik Muhammad Foroze Khan, former Dy. Commissioner issued patta milkiyats in respect of these plots illegally by transgressing his powers. Sufi Ghulam Mustafa has since retired from Govt. service.

RECOMMENDATIONS

i)Disciplinary action is recommended against the officers and officials found responsible for the illegal and irregular allotments of land in Bahawalnagar District whose names are indicated in para (38) Malik Muhammad Feroze Khan is presently serving in the Ministry of Food & Agriculture,

Government of Pakistan, Islamabad. Secretary. SGA&ID may, therefore, make a reference to the Establishment for initiation of disciplinary proceedings against him on account of findings of this probe. Division

ii)The conveyance deeds (patta milkiyats), of a11 191 Irregular allotments detected during the scrutiny of the record may be referred to the Board of Revenue by the Deputy Commissioner. Bahawalnagar for cancellation under Section 30(2) of the Colonization of Govt. Lands (Punjab) Act, 1912 (as amended).

iii)The mutations done in the revenue record on the basis of proprietary rights and patta milkiyats issued illegally may be cancelled by the District Collector after cancellation of the conveyance deeds by the B.O.R.

iv)Dy. Commissioner. Bahawalnagar should make all out efforts to trace out 55 missing files as listed at Annex. I scrutinize the same and submit findings to the Chief Minister. through Commissioner, Bahawalpur Division.”

As per findings made in para 52 of the above inquiry report, “Recommendation (1)”, a reference has been made to the Establishment Division Government of Pakistan Islamabad for initiation of disciplinary proceedings against concerned Deputy Commissioner, thus the argument of the learned counsel for the respondents does not hold any force and same is accordingly repelled.

12.Furthermore, against order for resumption of the state land, the Civil Court has no jurisdiction to enter into the vested jurisdiction of the revenue hierarchy under Section 36 of the Colonization of Government Lands Act, 1912. For ready reference, aforesaid section is reproduced as under:- “36. Jurisdiction of Civil Court barred as regards matter arising under the Act. A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which Provincial Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act.”

In the above plain provision of law, the jurisdiction of Civil Court has expressly been declared as barred and Court of civil jurisdiction should avoid to encroach upon the jurisdiction of

special tribunal until and unless the special extraordinary unavoidable circumstances so warrant, otherwise civil suits are not maintainable as held by the Hon'ble Supreme Court of Pakistan in Muhammad Sharif’s case8 as under:

“After hearing learned counsel, we find that the petition has no merit. The Collector’s order of resumption, dated 7.2.1966, which had been the subject-matter of challenge in the civil suit, had been passed in pursuance of instructions received from the Board of Revenue, directing scrutiny of all such cases prior to grant of proprietary rights......... That being so, the concurrent finding of the three Court below that the suit was barred by section 36 of the said Act is not open to exception.” In Abdul Hamid’s case9, the Hon'ble Supreme Court of Pakistan held as under:

“The jurisdiction of the Civil Courts in this case is obviously barred under Section 36 of the Act. Consequently it is not a fit case for interference. The result is that this petition is dismissed.”

The Hon'ble Supreme Court of Pakistan in Alam Sher’s case10 has observed that:-

“Learned counsel was asked to demonstrate that the Civil Court was competent to decide the dispute between the parties in presence of clear bar as mentioned above. He, however, submits that the Civil Courts would always be competent where the judgments/orders are without jurisdiction or based on mala fide. The argument is without substance as the above provisions are mandatory in nature stating that Civil Court shall have no jurisdiction to entertain the dispute over which the Collector etc. had the authority to decide. Learned counsel was also unable to show as to how the orders passed by the competent Revenue Authority were without jurisdiction. In other words, the petitioners had remedy to move appeal/revision before the Member, Board of Revenue which they, admittedly. failed to avail of. We, accordingly, hold the view that Civil Court was not competent to interfere where the Revenue Courts/Authorities had the exclusive jurisdiction. Even on merits, the petitioners had no case inasmuch as they violated the conditions on which they were given the disputed land. They did not cultivate the land in accordance with the terms and conditions of their allotments. The land had, thus, rightly been allotted to the respondents as Islamabad affectees because it became available by operation of law. In such a situation, the judgments of the Courts below are not open to Muhammad Sharif Vs. Province of Punjab and another (1984 SCMR 1308) Abdul Hamid and others Vs. Province of the Punjab through Collector, Faisalabad and others (1989 SCMR 1741) Alam Sher through Legal Heirs Vs. Muhammad Sharif and 2 others (1998 SCMR 468)

exception. The petitions have been found to be without substance. These are, accordingly, dismissed.” (emphasis supplied) In Muhammad Ali’s case11, the Hon’ble Supreme Court held as under:-

“4. We have heard the learned counsel for the petitioner at length. We find that the petitioner did not avail the statutory remedies of appeal and revision before the Commissioner and the Board of Revenue respectively against the orders passed by the Collector. The learned counsel failed to satisfy us that such remedies, even if availed, would have been an exercise in futility. The averments in the plaint do not spell out that the orders of the Collector were illegal or beyond the scope of the powers of the Collector and in any other way suffered from any jurisdictional defect so as to be amenable to the jurisdiction of the Civil Court in view of the dicta of this Court in Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Bashir Ahmad and others v. Manzoor Ahmad and others 1987 SCMR 1620. The High Court has taken a correct view that the plaint was liable to be rejected on account of bar of jurisdiction of Civil. Court under section 36 of the Act. The High Court has also given valid reasons for’ not remanding the case on the question of rejection of plaint independently of the stay matter in the peculiar facts and circumstances of this case. Therefore, we need not express any opinion on this aspect of the case. The impugned judgment does not call for any interference by this Court. This is not a fit case for grant of leave to appeal.”

(emphasis supplied) Reliance is placed on the Muhammad Nazir Khan’s case12.

13.It is worth mentioning here that on the date of institution of the suit, the Colonization of Government Land Act, 1912 is still in field and section 36 whereof expressly ousts the jurisdiction of the Civil Court to take cognizance of the matter in issue and if any declaration is issued by the Courts of civil jurisdiction that would patently be void ab-initio and nullity in the eyes of law and even the plaint of such suit was liable to be rejected under Order VII Rule 11 CPC and such frivolous civil lis Muhammad Ali Vs. Province of Punjab and others (2005 SCMR 1302) Muhammad Nazir Khan Vs. Ahmad and 2 others (2008 SCMR 521)

should have been burried at the very inception to save the precious time of the public.13

14.As the matter in respect of the state land has been finally decided by the revenue hierarchy and land was resumed in favour of the state and instead of assailing the said orders of revenue authorities through constitutional jurisdiction, respondents/ plaintiffs instituted a fresh civil suit which would amount to reopening of the controversy and such willful switch over is not allowed by the law. The Hon'ble Supreme Court of Pakistan in a recent pronouncement dated 20.01.2026 rendered in Province of Punjab’s case14 has held as under:

“12. Lastly, a rather disquieting feature in cases of the present nature is that the record indicates that the matter had already travelled through the revenue hierarchy, resulting in orders passed by competent authorities, including the Additional Commissioner (Revenue), Chief Settlement Commissioner and ultimately resumption in favour of the Government. Instead of assailing the final orders of the revenue authorities through constitutional jurisdiction or challenging the legality thereof in a summary suit confined to the existing record, respondents No.1 to 8 instituted a fresh civil suit which culminated into a full-fledged trial, with oral evidence and exhibits, thereby reopening the entire controversy as if it were a first instance dispute. This course is legally objectionable. This Court in Nausher Vs. Province of Punjab through District Collector, Khanewal and another (PLD 2022 SC 699) has comprehensively clarified the scope of civil court jurisdiction in such matters. It has been held: “in view of the general jurisdiction conferred by section 9 of the Code of Civil Procedure 1908 ("C.P.C."), Civil Courts have the ultimate jurisdiction, even where their jurisdiction relating to certain civil matters is barred, to examine the acts, proceedings or orders of those special tribunals and determine whether or not such acts, proceedings or orders have been done, taken or made in accordance with law... Accordingly, when a special tribunal is S.M.Shafi Ahmad Zaidi through Legal Heirs Vs. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338) and Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708) C.P.L.A No.1600-L/2014 titled as Province of Punjab through District Officer Revenue/Collector, District Bhakkar & 3 others Vs. Zulfiqar & 8 others

found to have acted not in accordance with the law under which it purportedly acted, its act does not come within the scope of the exclusionary provisions of the law that bar the jurisdiction of Civil Courts.” The above makes it clear that the civil court’s role is not to sit as an appellate authority over revenue tribunals, but to examine legality and lawfulness of their acts. The said judgment further explains:

“By examining and determining whether or not the plaintiff has been dealt with in accordance with law by the administrative tribunal or authority in making the impugned order, a Civil Court enforces this right of the plaintiff, and does not deal with and decide upon the merits of the lis decided in the impugned order by the administrative tribunal or authority in exercise of its exclusive statutory power.”

The principle is that civil courts are not to conduct a fresh trial to re-determine factual controversies already adjudicated by statutory authorities, unless the impugned order is shown to be without lawful authority, or based on no evidence, or suffering from jurisdictional defect or result of mala fide. The Court in the same judgment further held:

“A Civil Court, therefore, may opt for the summary procedure provided in Rules 3 and 4 of Order XV, C.P.C., in such suits and treat the complete record of the proceedings conducted by the administrative tribunal as sufficient evidence.

This passage is of critical importance. It reinforces that once the revenue hierarchy has decided the matter, any civil challenge should ordinarily remain confined to examining the legality of such orders on the basis of the existing record, rather than permitting parties to initiate a fresh round of litigation by leading additional oral and documentary evidence through a full-fledged civil trial. In the present case, the respondents’ approach appears to have been to relitigate the entire controversy afresh, which not only defeats the statutory scheme but also amounts to an abuse of process. Such conduct is impermissible particularly in view of the doctrine of election, whereby a litigant, having consciously chosen one statutory remedy and pursued the same to its logical conclusion, cannot be allowed to reopen the matter through another forum merely because the outcome did not suit him. In Qazi Mumtaz Hussain and others v. Government of Sindh

through Secretary Revenue and others (2025 SCMR 939), this Court held:

“5. Indeed the jurisdiction of the Civil Court under the special circumstances could be exhausted but not in a case where the appellant and/or a litigant has attempted a forum other than the Civil Court, as in this case, by not only filing declaration under MLR 115 but also when the Deputy Land Commissioner Tharparkar, after assuming lawful jurisdiction, resumed the excess land; the appellants under the hierarchy of 1977 Act invoked the jurisdiction of Land Commissioner Mirpurkhas Division by filing their respective appeals which were taken to their logical end. By applying the principle of Doctrine of Election the appellants cannot be permitted to have another bite of the cherry by invoking original jurisdiction of Civil Court for a similar recourse. As per the doctrine of election a person aggrieved of an order/judgment may have a host of remedies to challenge the same but he shall have to elect one of those remedies and after choosing one he may not avail another remedy. Thus, the appellants themselves have chosen to be ousted from availing the jurisdiction of Civil Court long back when they opted to invoke the jurisdiction in pursuance of 1977 Act.” Similarly, in Mir Mujib-Ur-Rehman Muhammad Hassani vs. Returning Officer and others (PLD 2020 SC 718), this Court emphasized that permitting such successive rounds of litigation would directly offend the doctrine of election, and observed:

“16. If this was allowed, it would go entirely contrary to the "doctrine of election" which exists to ensure that once a litigant has made the choice of pursuing a certain course of action available to him or has abandoned a certain plea/action, that he is not allowed to reopen the same matter only because he has received unfavorable results as a result of his first choice.”

The Court further elaborated the doctrine by relying upon Trading Corporation of Pakistan v. Devan Sugar Mills Limited (PLD 2018 SC 828) in the following terms: “The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate

and pursue one out of a host of available concurrent or co-existent proceeding/ actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/ action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief.”

In view of the above authoritative pronouncements, it becomes manifest that the institution of a complete civil trial after exhaustion of statutory remedies before the revenue hierarchy is inconsistent with settled principles of law, and such a course cannot be permitted to perpetuate endless litigation or undermine finality attached to decisions rendered by competent statutory forums.”

In view of above, the findings of both the Courts below on issue No.1 being based on misreading and non-reading of evidence as well as against the record, same is hereby reversed and the said issue is decided against the respondents/plaintiffs.

15.As the decisions of the lower fora suffer from blatant misreading and non-reading of the evidence as well as mis- application of law, as such the same are not sustainable in the eyes of law and are liable to be set-aside and this Court is well within jurisdiction under section 115 CPC to interfere with illegal and perverse concurrent findings of the lower fora.15

16.Resultantly, this Civil Revision is allowed, the judgment & decree dated 25.11.2013 passed by the trial Court and judgment & decree dated 20.03.2015 passed by the appellate Court are set aside and consequently the suit for declaration filed by respondents is dismissed. No order as to costs. However, office is directed to dispatch copies of this judgment and the Nazim-ud-Din & Others Vs. Sheikh Zia-Ul-Qamar & Others (2016 SCMR 24)

relevant record to the Senior Member, Board of Revenue for further action as per law.

(Ch. Muhammad Iqbal) Judge

Approved for reporting.

Judge Abdul Hafeez