Begum Jaan etc. vs M.B.O.R etc.

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

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BEGUM JAN, ETC.

Versus.

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT

COMMISSIONER/ADMINISTRATOR (RESIDUAL PROPERTIES)/

NOTIFIED OFFICER, PUNJAB, ETC.

JUDGMENT.

Date of hearing: 10.03.2026 Petitioners by: Ch. Imran Hassan Ali, Advocate.

Respondent No.1 by: Ms. Rahat Farooq Raja, Assistant Advocate General Punjab and Mr. Muhammad Zafar- ul-Hassan Joya, Advocate/Legal Advisor.

Respondents No.3(B), 4 and Mr. Arshad Majeed Malik, Advocate. 5 by:

Respondents No.2(A) to 2(L), 3(A) and 3(C) to 3(G) are ex-parte.

Mirza Viqas Rauf, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is in the form of certiorari seeking annulment of order dated 19th March, 2019 passed by respondent No.1 on the application of respondents No.2 to 5 (hereinafter referred to as “respondents”) whereby they requested for cancellation of allotment of petitioner No.1 (hereinafter referred to as “petitioner”) as well as transfer of the land in their favour in terms of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter referred to as “Act, 1975”).

2.Learned counsel for the petitioners contended that the respondents being the tenants in the land in question were having no locus-standi to move the application to respondent No.1 for cancellation of allotment of the petitioner. It is contended with vehemence that respondent No.1 was not vested with any authority to proceed with the

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application of the respondents and as such impugned order is coram non judice. Learned counsel submitted that even otherwise, the respondents are estopped to call in question the allotment in favour of petitioner in terms of Article 115 of the Qanun-e-Shahadat Order, 1984. It is emphatically argued that respondent No.1 has wrongly assumed the jurisdiction in the matter and the impugned order is patently illegal. In support of his contentions, learned counsel placed reliance on Dr. MUHAMMAD IQBAL and 9 others v. MEMBER, BOARD OF REENUE/ CHIEF SETTLEMENT COMMISSIONER, LAHORE and onother (PLD 2010 Lahore 249), SAGHEER MUHAMMAD KHAN and 5 others v. MEMBER (JUDICIAL-V) BOARD OF REVENUE, PUNJAB and 4 others (PLJ 2009 Lahore 682) PROVINCE OF THE PUNJAB through Member Board of Revenue, (Residual Properties), Lahore and others v. MUHAMMAD HUSSAIN through Legal Heirs and others (PLD 1993 Supreme Court 147) and NOOR MUHAMMAD through L.Rs. v. Mst. MUZAFFAR BIBI and otthers (2006 SCMR 25).

3.Conversely, learned counsel representing the respondents tried to defend the impugned order with the submission that there is ample material on record to show that the allotment in favour of petitioner was fraudulent.

4.On the other hand, learned Law Officer as well as learned counsel representing the respondent No.1 halfheartedly controverted the submissions of learned counsel for the petitioners.

5.Heard. Record perused.

6.The proceedings in the matter started with an application of the respondents moved to respondent No.1 with the request that the allotment in favour of petitioner be cancelled being fraudulent and without jurisdiction and after cancellation the land may be transferred in their favour under section 3 of the Act, 1975. The respondent No.1 while assuming the jurisdiction upon the application proceeded to pass the

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impugned order holding that the evacuee land measuring 111-Kanal 5- Marla was fraudulently got transferred by the petitioner through mutation No.192 dated 13th April, 1978. It was also observed that since the respondents are in cultivating possession over the land measuring 37- Kanal 11-Marla bearing Khasra No.5939 and 23-Kanal 5-Marla bearing Khasra No.5941, so they fulfill the required criteria as laid down in section 3 of the Act, 1975 and they are allowed to purchase the same at current market price to be assessed by the District Price Assessment Committee. With regards to the remaining land, it was, however, observed that it be put into unrestricted public auction after fulfillment of legal requirements.

7.Before pondering upon the propriety and the legality of the impugned order, it would be apposite to first have a synopsis of the relevant facts. The petitioner being the refugee of Kashmir was allotted evacuee agricultural land measuring 111-Kanal 5 Marla situated in village Toham Mehram Khan, Tehsil Talagang, District Chakwal to which effect, mutation No.192 dated 30th April, 1978 was sanctioned. The respondents being the tenants of land measuring 37-Kanal 11-Marla bearing Khasra No.5939 and 23-Kanal 5-Marla bearing Khasra No.5941 (part of land allotted to the petitioner) moved the application at hand with twofold prayers, firstly that the allotment of the petitioner be cancelled while declaring it as fraudulent and secondly to transfer in their names the land in their occupation, in terms of section 3 of the Act, 1975. The application moved by the respondents was accordingly acceded.

8.It is an admitted position that mutation for allotment of land in favour of petitioner was sanctioned way back in the year 1978, which was called in question by the respondents through an application in the year 2014 after about 35 years, which at the face of it was considerably belated and suffered with laches. The respondents, since have called in question the allotment of petitioner, being tenants in part of the land in question, so they were also confronted with a question of estoppel as

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ordained in Article 115 of the Qanun-e-Shahadat Order, 1984, which is reproduced below for ready reference: - 115 Estoppel of tenant and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given.

9.It would not be out of context to mention here that the respondents while moving the application though did not specifically concede their status as tenants of the petitioner but to this effect, overwhelming material is available on record, which even could not be refuted by the respondents.

10.Next comes the authority of respondent No.1 to adjudicate the matter in issue. It though evinces from the impugned order that at the time of passing it, respondent No.1 was wearing four hats e.g. Member Board of Revenue, Chief Settlement Commissioner, Administrator (Residuary Properties) and Notified Officer but from the tenor of the impugned order and more specifically its operative part, it clearly signifies that respondent No.1 assumed the jurisdiction, being Chief Settlement Commissioner, Punjab.

11.Needless to mention that with the promulgation of Act, 1975, certain laws relating to evacuee property and rehabilitation of displaced persons were repealed and as a result thereof, entire hierarchy of the settlement department was done away with the exception of Notified Officer, who after the repeal of evacuee laws can function but having a limited and restricted jurisdiction of proceeding with, adjudicating and deciding the pending cases alone, which is quite clear from the bare language of section 2 of the Act, 1975, which reads as under: -

2.Repeal of certain laws. (1) The following Acts and Regulations are hereby repealed, namely:--

(i)the Registration of Claims (Displaced Persons) Act, 1956,

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(ii)the Pakistan Rehabilitation Act, 1956,

(iii)the Pakistan (Administration of Evacuee Property) Act, 1957,

(iv)the Displaced Persons (Compensation and Rehabilitation) Act,

(v)the Displaced Persons (Land Settlement) Act, 1958,

(vi)the Scrutiny of Claims (Evacuee Property) Regulations, 1961, and

(vii)the Price of Evacuee Property and Public Dues (Recovery) Regulations, 1971.

(2)Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(3)Any proceedings transferred or remanded to an officer in pursuance of sub-section (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.

(4)The final orders passed under sub-section (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related.

From the above, it can safely be observed that with the repeal of the evacuee laws, the office of Chief Settlement Commissioner is no more in existence and the powers so exercised by respondent No.1 are absolutely without lawful authority.

12.In somewhat similar circumstances, in the case of Dr. MUHAMMAD IQBAL and 9 others supra, it was held as under: -

4.Heard. I am amazed, dismayed and astonished to note as to under what authority of law, the Governor or the Government of Punjab could issue the Notification conferring upon the respondent the powers of Chief Settlement Commissioner and designated him to be so regarding the post/office which is non-existent (in law), rather has been expressly abolished since 1975 by the repeal provisions, on account of which, the entire hierarchy of the Settlement Department has been done away with; it is only the "Notified Officers", who after the repeal of evacuee law can function, but having a limited and restricted jurisdiction of proceeding with, adjudicating and deciding the pending cases alone;

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it is so very clear from section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), which reads as below:---

"Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."

Thus, notwithstanding the Notification, to which reference has been made by the learned counsel for the respondent, the said office/officer does not enjoy any power as the Chief Settlement Commissioner, but only can act as the Notified Officer, therefore, the cognizance in the matter and exercise of the power on account of that, is grossly and absolutely without lawful authority; moreover, the Settlement Department including the Chief Settlement Commissioner after the repeal of the evacuee law has been rendered functus officio to consider any question relating to any allotment/transfer of the evacuee property, which had been made under the settlement laws when those were in force and (then) prevailing; and obviously and undoubtedly has no authority to reopen a case now in 2008/2009 regarding the transfer made before 1969, as the matter is duly, and squarely covered by the rule of past and closed transaction, besides, the Notified Officer can only proceed in the pending proceeding, whereas this is not true for the present case; the following judgments are relevant to support the above view:---

Aminuddin v. Settlement Commissioner and others (1973

SCMR 624)

"The learned counsel appearing in support of this petition has sought to assail the correctness of the conclusion of the High Court, but we are of the opinion that after the repeal of Rules 6 and 7, there was no power left in the Settlement authorities to correct even the clerical mistakes in the P.T.D. This is now well-settled and, therefore, we can find no ground upon which any just exceptions can be taken to the conclusion arrived at by the High Court."

Mst. Jehan Ara Begum v. Bashir Ahmad and others (1975 SCMR "In this view of the matter, the Settlement Commissioner was perfectly justified in holding that he had no power to cancel the P.T.D. on the ground of fraud and misrepresentation. In the circumstances of the present case, the proper remedy for respondent No.1 is to challenge the P.T.D. on the ground of fraud and misrepresentation before the Civil Court, if so advised."

Muhammad Shafi v. Mauj Din Khan and 3 others (PLD 1976 Lahore

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"(8). Petitioner had been issued Permanent Transfer Deed. The Settlement authorities have, thus, become functus officio. Reliance may be placed on Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1). Even if it were a case of fraud or misrepresentation, the Settlement authorities would have no jurisdiction in the matter as held by their Lordships of the Supreme Court in the case of Mst. Jehan Ara Begum v. Bashir Ahmad and others in Civil Appeal No.39 dated 28th March, 1974, wherein it was observed that "the question whether the Settlement authorities could set aside the P.T.D. on the ground of fraud and misrepresentation was recently considered by this Court in Civil Appeal No.109 of 1969 (Haji Faizul Hague Khan v. Syed Abdul Hamid and others). It was observed in that case as under:---

"We are also unable to agree with the view of the Settlement Commissioner and the High Court that even after a P.T.D. has been issued, the Settlement authorities can deal with the property. Under the P.T.D. Rules, a P.T.D. could under rule 7 only be cancelled on the ground that it has been obtained by fraud or misrepresentation or in contravention of any of the provisions of the Act but after rule 7 was deleted by a notification issued on the 27th of December, 1964, even this power disappeared, as held by this Court in the case of S. Anwar Hussain Sami v. Sarfraz Ahmad and Aminuddin v. Settlement Commissioner."

Bilqis Begum and others vs. Fazal Muhammad and others (1987

SCMR 1441).

"Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss.10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Constitution of Pakistan (1973), Arts.185 (3) & 199---Settlement authorities----Exercise of jurisdiction after repeal of Act---Transfer of evacuee property--- Order cancelling transfer challenged in writ jurisdiction---Question arising whether Deputy Settlement Commissioner, whose office ceased to exist on 1-7-1974, by repeal of Act, could assume jurisdiction, on directions of Chief Settlement Commissioner, to re- open transfer which stood finalized in all respects under repealed Act---High Court holding that this could not be done and view expressed by Deputy Settlement Commissioner that he had jurisdiction to decide matter as this was a pending case, was erroneous because application whereby instant case was reopened, was itself made for first time on 20-3-1976---Supreme Court affirming High Court's view, held, that impugned order of D.S.C. was contrary to law and was passed without lawful authority and declined to exercise its discretionary jurisdiction to grant leave."

Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others (1991 SCMR 1604).

"Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

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----S.10---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Constitution of Pakistan (1973), Art.185(3)---No case in respect of property in question, was pending before any of the Settlement Authorities or before High Court/Supreme Court---Effect---Property in question, having been transferred to appellant in 1964, he secured P.T.D., after depositing transfer price---Transfer of property in favour of petitioner, thus, attained finality---Evacuee Laws were repealed on 28th January 1975, on which date present case was neither pending before Settlement Authorities nor before High Court/Supreme Court--- Notified Officer, therefore, had no jurisdiction, whatsoever, to re- open the transaction which was past and closed---High Court, also could not remand the case to same Authority for any decision--- Order of High Court and that of Notified Officer were set aside."

Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others (PLD 1993 SC 147).

"....The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law."

Sved Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others (1999 YLR 1627).

"No proceedings were pending against the allotment of the petitioner at the time of the repeal of Settlement laws---Such an inquiry by Authorities, therefore, was without lawful authority, coram non judice and of no legal effect---Inquiry against petitioner was ordered to be quashed in circumstances."

Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719).

"Only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers". The Settlement or Rehabilitation Authorities by express positive assertion had no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning agricultural property was neither remanded by Supreme Court nor any such directions were made by the High Court whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation filed with regard to matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Therefore, proceedings drawn by Settlement Commissioner which culminated in passing of order, dated 26-2- 1992 were devoid of lawful authority and deemed to have no legal

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effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground."

Jamal-ud-Din v. Member, Board of Revenue and 4 others (2001 CLC "Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 10---Permanent transfer deed, issuance of---Powers of Settlement Authorities to interfere in allotment---Subsequent to issuance of title documents---Extent---After the issuance of title documents i.e. Permanent Transfer Deed, the property absolutely vests in the transferee and the Settlement Authorities become functus officio, subject to fraud or forgery.

Note by this Court:---

(It may be added here that the cognizance on the basis of fraud etc. can only be taken when the evacuee law was in force but not after its repeal).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2(2)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Re-opening of matter---Permanent Transfer Deed was issued in favour of the petitioner on 24-4-1962-- -Settlement Authorities in the garb of application for inspection of the premises prepared a report, dated 24-9-1997, whereby the premises were stated to be owned by the Settlement Department and not transferred to the petitioner---Validity---Authorities did not act in accordance with law in re-opening of the matter on the basis of such application--- Report prepared by the Settlement Authorities was without lawful authority."

Syed Ahmad Nusrat Ullah and others vs. Member, Board of Revenue and others (2002 CLC 384).

"Where the Settlement Authority did not make any mention in the order that it was proceeding in the matter against the allottee in exercise of any purported suo motu jurisdiction, the Authority acted without jurisdiction and lawful authority in proceeding against the allottee and in cancelling his allotment---Order passed by the Settlement Authority was set aside---Constitutional petition was allowed accordingly."

Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob (PLD 2002 SC 5).

"Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

---S. 2---Term "pending proceedings" as used in S.2---Object and scope---"Pending proceedings" would mean an initial step taken as

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contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the evacuee laws".

Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others (PLD

2003 SC 132).

"The expression "proceedings" has not been defined in the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 but it is a very comprehensive term and generally includes a prescribed course of action for enforcement of a legal right, which would essentially involve the requisite steps by which judicial action is invoked. A "proceeding" would include every step taken towards the furtherance of a cause before a Court or a Tribunal where it might be sub judice. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceedings commence with the first step by which the machinery of law is placed into motion in order to take cognizance of a cause. Proceedings under the repealed laws would appear to commence with the application of a person entitled to the transfer of land out of evacuee pool under the schedule and the schemes framed thereunder. Normally, such application would be disposed of through an order passed by a Competent Authority designated under the law and any person dissatisfied with such order may seek remedy before the appellate and/or revisional forum provided by law. In such a case proceedings remain pending until their final conclusion by the highest authority prescribed under the law."

Sagheer Muhammad Khan and 5 others v. Member (Judicial-V) Board of Revenue, Punjab and 4 others 2009 YLR 1255.

"---Chief Settlement Commissioner is no longer an entity much less a legal entity---Even before the repeal of the laws once transfer documents had been issued questions arising as to their genuineness were to be decided by the Civil Court."

Sved Hassan Askari v. Board of Revenue, Punjab, Lahore and 2 others (PLD 2009 Lahore 78).

"---Allotment, cancellation of---Allegation of fraud and forgery--- Past and closed transaction---Authorities reopened the case of allotment of land in favour of petitioner on the plea of fraud and forgery---Validity---Mere allegation of fraud and forgery did not, ipso facto, vest the authorities with jurisdiction in a matter which had otherwise attained finality---If such a course was allowed to be adopted, then there would be no end to it---Issuance of memorandum and initiation of proceedings by authorities were without any factual or legal jurisdiction and were declared as of no legal effect---Official functionaries of State were expected to take maximum care before initiating proceedings in such matters on mere bald assertions of fraud and forgery."

The judgments referred to by the learned counsel for the respondent reported as The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331), Shamrooz

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Khan v. Muhabbat Khan and another (1989 SCMR 819) and Mst. Azam Jahan Ara Begum and 4 others v. Commissioner, Sargodha Division Sargodha and 3 others (2004 MLD 1053) are not germane and relevant to the propositions in hand.

13.To the above effect, reference can also be made to SAGHEER MUHAMMAD KHAN and 5 others supra. The relevant extract from the same is reproduced below: -

5.In the case of Province of the Punjab through Member Board of Revenue (Residual Prosperities) Lahore and others v Muhammad Hussain through Legal Heirs and others (PLD 1993 S.C 147) a decree was passed ex-parte, inter alia, against the Government of Pakistan sued through Chief Settlement Commissioner, Board of Revenue Punjah, Lahore. An appeal filed against the said decree was dismissed and so was the case with civil revision filed in this Court. The appeal was filed by the Province of Punjab (through Member Board of Revenue (Residual Properties) Lahore). I need to mention that lawyers of such eminence as Mr. Zaki-ud-Din Pal, Mr. K.M. Samdani (senior Advocates) and Mr. Saleem Saghal appeared for Provincial Government. Inter alia, the plea taken was that the property in-question had vested in the Provincial Government under the said Act, 1975 and the Chief Settlement Commissioner no longer exists. It was, thus, observed by the Hon'ble Supreme Court of Pakistan in para 7 of the judgment at page 153 of the report:--

"Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974-much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.

Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws."

I, therefore, am in complete agreement with the learned counsel for the petitioners that there is no such entity as a Chief Settlement Commissioner under any of the statutory dispensation in force after repeal of the said Act 1958.

14.While dealing with the proposition, one cannot ignore the case of PROVINCE OF THE PUNJAB through Member Board of Revenue, (Residual Properties), Lahore and others supra. The relevant extract from the same is reproduced below: -

7.If the trial Court, the appellate Court and the revisional Court had kept in view the requirements of section 79 of the Civil Procedure Code

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read with Order XXVII, C.P.C. they would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974--much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.

Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.

As regards the Collector of the District, the procedure prescribed was quite a simple one -- a straightforward one, for service on him. It is provided in Order XXVIII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort, at any stage, was made to effect service through the Government Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief in Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming that Collector represented ex-officio the province of Punjab and by impleading him the Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made.

15.The edifice of the claim of the respondents is rested upon section 3 of the Act, 1975, which for the ease of reference is reproduced below: -

3.Transfer of property.-(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under sub-section (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal:--

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(a)in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and

(b)in the case of rural properties, by the Board of Revenue of the province under a scheme to be prepared by the Provincial Government in this behalf;

Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land.

Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972.

(2)The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other person as the Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him in respect of such lands:

Provided that, only so much land shall be offered to such allottee as does not, together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972:

Provided further that, the temporary allottee or other person who purchases the land so offered to him shall not eject the tenant from such land except on the ground that he has failed to pay rent in accordance with the terms of his tenancy:

Provided further that in the event of a displaced person from Jammu and Kashmir State or any of his successors-in-interest being repatriated to that State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by that Government.

(Underlining supplied for emphasis)

16.Act, 1975 was, however, amended through Act XXXVIII of 2012 by virtue of which a material change was introduced in section 3 alongwith certain other provisions and sub-section (1) of section 3 was substituted to the following effect: -

“(1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under sub- section (3) of section 2, shall stand transferred to the Government, for disposal:--

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(a)In the case of urban properties, by the Government under a scheme to be prepared by it; and

(b)In case of rural properties, by the Government under a scheme to be prepared by the Government.”; and

(ii)In sub-section (2)—

(a)for the words “Federal Government”, the word “Government” shall be substituted: and

(b)in the third proviso, for the words “Provincial Government” and “that Government”, the words “Government” and “the Government” shall respectively be substituted.

From bare perusal of the amended version of section 3 of the Act, 1975, which was applicable at the relevant time, an opinion can easily be formed that respondents were not fulfilling the criteria for allotment at the time of moving the application.

17.There is yet another important aspect that land in question was allotted to the petitioner being Jamu & Kashmir refugee, which was immuned from the scrutiny of Chief Settlement Commissioner under the provisions of the Displaced Persons (Land Settlement) Act, 1958 but respondent No.1 being oblivious of this material fact proceeded to pass the impugned order, which is not tenable at all. Reference to this effect can be made to GHULAM MUHAMMAD and another v. AHMAD KHAN and another (PLD 1991 Supreme Court 391). The relevant excerpt is reproduced below: -

“This Court is Muhammad Din and others v. Allah Lok and others 1989 SCMR 323 has also held that the land temporarily transferred to Jammu and Kashmir refugees for purpose of their maintenance cannot be cancelled by the Chief Settlement Commissioner because it had, in fact, become the property of the Ministry of Kashmir Affairs in 1960 and was excluded from the compensation pool. Hence neither the Chief Settlement Commissioner nor his delegate had any jurisdiction to cancel the same and allot it to the informant”.

Reliance to above effect can also be placed on NAWAB DIN and another v. SHABBIR HUSSAIN and others (1994 SCMR 553) and NOOR MUHAMMAD through L.Rs v. Mst. MUZAFFAR BIBI and others (2006

SCMR 25).

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18.Above all, the allotment in favour of petitioner was questioned by the respondents being the outcome of fraud, which cannot be determined in summary proceedings. The questions canvassed in the application were rested on intricacy of facts for the resolution of which, office of the Chief Settlement Commissioner, even otherwise, was not a proper forum as such questions clearly fall within the jurisdictional domain of ordinary civil Court, being the Court of ultimate jurisdiction.

19.For the foregoing reasons, this petition is allowed. As a result thereof, impugned order dated 19th March, 2019 passed by respondent No.1 is set aside being illegal and coram non judice. No order as to costs.

(Mirza Viqas Rauf)

JUDGE

Approved for reporting:

JUDGE

Zeeshan