PLJ 2004
Present: muhammad muzammal khan, J.
BASHIR-Petitioner
versus
and 2 others-Respondents
C.R. No. 1291-D of 1995, decided on
23.12.2003. Colonization of
Government Lands
—Ss. 16 &
30(2)-Suit for delcaration-Resumption of land-Respondent No. 4 was allotted
land-After acquiring proprietary rights he transferred same to petitioner by
sale-Member (Colonies) Board of Revenue cancelled allotment on ground that land fall
within prohibited areas was also out come of fraud and misrepresentation-Suit
filed by petitioner for permanent injunction decreed by trial Court, set aside
in appeal by Addl. District Judge-Validity-Proviso to S. 16 of Act, 1912, conferring
jurisdiction on Respondent No. 2 to scrutinize tenancy/lessee rights under Act-Case of petitioner did not
relate to tenancy rights, thus Respondent
No. 2 was equipped with no authority to cancel allotment after receipt of price and execution of sale
deed-Undisputedly, power u/s 30(2)
of Act were given to Respondent No. 2 which could not have been delegated by him but he, admittedly, did not hold
any inquiry and after passing order
of cancellation, remitted case to its subordinates for that purpose-Course
adopted by Respondent No. 2 was no permissible under law-No concrete proof of fraud or
misrepresentation and thus even if it be
assumed that he had authority to cancel allotment of petitioner, being no proof of
pre-requisites, order resuming land of petitioner is--
Respondent
No. 2 having himself acted contrary to provisions of S. 30(2)
of Act, his order is ultra vires of this provision of law-Presumption is
that
acts done by statutory functionaries were done in good faith and in lawful
manner-Under
principle of locus poenitentia, respondents were not
justified
to act in complained manner to cancel land of petitioner-
Provision
of notice of hearing before cancellation was statutory provision
that
lawful transferee, held to be so concurrently by Courts below, was
entitled notice as well as hearing before order by Respondent No. 2--
Held: Appellate order is not only tainted with illegalities, but also
runs
counter
to law applicable, hence same is not sustainable-Appellate
Judgment
and decree passed by District Judge set aside and that of Civil
Judge
revived. [P.
1209, 1210 & 1211] A, B, C, D & E
Mr. Naveed Shaharyar, Advocate for Petitioner.
Mr. Ch. Muhammad Suleman, Addl. A.G. for Respondents.
Date of hearing : 4.12.2003.
judgment
This civil revision
assails judgment and decree dated 24.11.1994 passed by the District Judge,
2.
Precisely, facts relevant for the disposal of this
revision petition
are that
the petitioner filed a suit for declaration with permanent injunction
as
consequential relief against the respondents, asserting that he is owner in
possession
of land measuring 20 kanals 10 marlas of Chak No. 89/NB,
Tehsil & District, Sargodha.
He also asserted in his plaint that land
measuring
50 kanals and 5 marlas, as detailed in the plaint, was allotted
to
Muhammad Yousaf, Respondent No. 4, vide Letter No. 650, who acquired
proprietary
rights and took over the possession of the land whereafter he
transferred
the suit land, as mentioned above, in favour of the petitioner. It
was also
pleaded in the plaint that after transfer by sale in favour of the
petitioner,
as mutation was also sanctioned and he was shown as owner in
the
revenue record. Member (Colonies), Board of Revenue,
the
allotment of Muhammad Yousaf, allottee on the ground that the land
allotted to him fell within
the prohibited area, within five miles radius of the
municipal limit and thus, the allotment was
obtained through fraud and
misrepresentation. This
cancellation necessitated filing
of suit by the
petitioner.
3. The respondents being
defendants in the suit, contested it and
controverted
the assertions in the plaint by filing a written statement. On
the
basis of these controversial pleadings of the parties, trial Court framed
issues and recorded the
evidence. Learned trial Judge, who was seized of the
matter, after due appraisal of evidence vide
his judgment and decree dated 21.4.1992
decreed the suit of the petitioner and granted him the relief claimed.
4. The respondents aggrieved of the decision of the
trial Court dated
21.4.1992, filed an appeal before the
learned District Judge, Sargodha, and
succeeded in getting the judgment and
decree of the trial Court set aside.
The learned District Judge, while accepting appeal, dismissed the suit
of the
petitioner vide his judgment and
decree dated 24.11.1994. The petitioner
came up in revisional jurisdiction of
this Court assailing appellate judgment
and decree, impugned herein, on the
multiples grounds. His petition was
admitted to regular hearing and is now fixed for final determination.
5. Learned counsel for the petitioner submits that
once the land
having been allotted to Muhammad
Yousaf, allottee, price of it having been
received, possession of the land having been transferred, Respondent No. 2
was not equipped with any lawful
authority, to cancel the allotment. He
further submits that petitioner was a bona
fide purchaser for lawful
consideration and his name appeared
in the revenue record but he was not
given any kind of notice, before
cancellation of allotment of Muhammad
Yousaf, and thus, order of Respondent
No. 2 regarding cancellation is
contrary to law as well as principles
of natural justice. It has further been
contended that the provision under which Respondent No. 2 proceeded to
cancel the allotment, were not
applicable to the case in hand and thus,
claimed that order of Respondent No.
2 is ab-initio void. Learned counsel for
the petitioner further elaborates his
arguments by saying that there was no
material available before Respondent No. 2 or the appellate Court to say
that
the land allotted to Muhammad Yousaf fell
within the prohibitory area as
claimed by the respondents. According to him, municipal limit at the
time of
allotment were to be looked into. He
alternative argued that had the land
been in prohibited zone even then it
could not have been cancelled under
law. Conversely, the learned
counsel for the respondents refuting the
arguments of the petitioner,
supported the judgment and decree, impugned,
and submitted that the land allotted
to Muhammad Yousaf is within the
prohibited zone and thus, on an
objection by the auditors, was rightly
cancelled. He also contends that under
Sections 16 and 30(2) of the
Colonization Government Lands
Act, 1912, Respondent
No. 2 was
competent to
cancel the allotment
obtained out of
fraud and
misrepresentation. Learned counsel
also urged that before cancellation, a
notice to the allottee was given and
the petitioner being transferee from the
original allottee cannot demand any notice.
6. I
have anxiously considered the arguments of the learned counsel
for
the parties and
have examined the
record, appended herewith.
Undeniably, the part of land, subject
of allotment of Muhammad Yousaf,
allottee, vested in the petitioner
and his name was duly reflected in the
revenue record which is shown to
have been produced before respondent No. 2
at the time of order of cancellation.
It shows that petitioner is recorded as
owner in possession. The petitioner
was a transferee from the allottee from whom the entire sale price was
received by the respondents and execution of documents,
in this behalf was completed and he when purchased this land, there was nothing pending in from of proceedings
for cancellation of the land from the name of the allottee. Section 30(2) of
the Punjab Colonization of Government Lands Act, 1992, reads as under:
"Section 30(2): If, at anything, 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 reduced the area of such land or pass such order as it may deem fit."
7. Respondent No. 2 had exercised its authority under
the provision
of law, above produced which it
itself says that Board of Revenue may
proceed for
cancellation of tenancy rights
obtained through fraud or
misrepresentation, after giving such
person a reasonable opportunity of
showing cause but in the instant case
no step in this behalf was taken by
Respondent No. 2. I had required,
during the course of hearing, the learned
counsel for the respondent to show
from his record any notice served on the
petitioner, including the original
allottee Muhammad Yousaf but he could
not do so. In a similar situation where original lessee after payment of
entire
lease amount, sold her rights to subsequent
lessee, who onward sold those
rights to another person but Board of Revenue after issue of suo-moto
notice
to the original lessee, cancelled transfer
in favour of subsequent transferees,
were declared as illegal, in the case
of Mian Bashir Ahmad vs. The
Government of Sindh through
Chief Secretary, Sindh Secretariat
and 3 others (1997
MLD 1847). Provision of notice of hearing before
cancellation was a statutory provision
that Muhammad Yousaf No. 2 a
lawful transferee, held to be so
concurrently by the two Court below, was
entitled notice as well as hearing
before order by Respondent No. 2 and thus
I conclude that this order was bad at law.
8. Respondent No. 2 no doubt could proceed against
fraudulent
transfers of tenancy/lessee rights
obtained through misrepresentation under
Sections 16 and 30(2) of the Punjab Colonization of Government Lands
Act,
1912, but not with regard to land permanently settled on the allottees. These
provisions only related to tenancy/lessee
rights which were not involved in
the case in hand. The petitioner had
paid the entire price of land, had
deposited all the other incidental
charges and had taken over the possession
of the land and in such an eventuality
their allotment could not have been cancelled.
In the case of Malik Harbhagwan's case, it was held that transfers, once
made in favour of the petitioner could not be cancelled. This view was taken by this Court, in the case reported as Government
of Punjab Province vs. Malik Harbhagwan and another (1940 PLR
529) and it was decided that Collector
could see payment of purchase of money and the fulfillment of conditions
of sale, before executing sale-deed in favour of the allottee but thereafter he ceases with any authority to
intervene, after conferment of proprietary rights even though there has
been breech of some condition of sale-deed.
It goes without saying that proviso to Section 16 of the Act, 1912, which existed on the textbook earlier to 1978
conferring jurisdiction on Respondent
No. 2 to scrutinize tenancy/lessee rights under the Punjab Colonization of Government Lands Act, 1912, stood
removed w.e.f. 3.3.1948 through
Ordinance, XII of 1978. Case of the petitioner, as observed above, did not relate to tenancy rights, thus, Respondent
No. 2 was equipped with no authority
to cancel allotment in favour of Muhammad Yousaf, after receipt of price and execution of sale-deed.
9. Powers vesting in
Respondent No. 2 under Section 30.(2) of Act, 1912, also did not give him any authority to cancel land of
the petitioner but those powers to resume
even tenancy rights, are subject to certain prerequisites like fraud or misrepresentation. Assertions of fraud and
misrepresentation are factual in nature, which require some basis and
determination. Undisputedly, power under Section 30(2) of the Act, ibid were given to Respondent No. 2 as remarked above
which could not have been delegated by him but he, admittedly, did not
hold any inquiry and after passing the order
of cancellation, remitted the case to its subordinates for this purpose. The course adopted by Respondent No.
2 was not permissible under law. He had no concrete proof of fraud or
misrepresentation and thus even if it
be assumed that he had an authority to cancel allotment of the petitioner, there being no proof of the pre-requisites,
as noted above, his order resuming
land of the petitioner is void, on the face of it. Respondent No. 2 having himself acted contrary to provisions
of Section 30(2) of the Act, ibid,
his order is ultra vires of
this provision of law. My this view, gets support from a judgment given by this Court in alike facts, in the case
of
10. Respondent No. 2, even on the basis on which he
proceeded to
pass the order dated 29.8.1985 that the allotment falls within the
prohibitory
zone of five miles of the Municipal limits,
could not cancel it because once
land was made available for allotment,
it was transferred and it settled on
the petitioner, it would supercede all the notifications
imposing such
prohibitions. Under law, presumption
is that acts done by the statutory
functionaries were done in good
faith and in lawful manner, according to law
applicable at that time. Under the
principles of locus poenitentia, the
respondents were not justified to act
in the complained manner to cancel
land of the petitioner.
11. The appellate Court did not properly comprehend the
legal
proposition involved in the case and at the same time, relevant
provisions oi
law, as referred to above, escaped his
notice. Without their being anj
evidence, showing that cancellation
order by Respondent No. 2 was backed
by
some lawful authority
or any justifiable
basis and fraud
01
misrepresentation on part of the allotte, the order of Respondent No. 2
coulc
not have been sustainable, consequently,
appellate judgment is not onlj
tainted with illegalities, above referred, but also runs counter to the lav
applicable, hence, same is not
sustainable. I, accordingly, set aside tht
appellate judgement and decree dated
24.11.1994 passed by the Distric
Judge,
by the learned Civil Judge, stands
revived whereby suit of the petitioner wai
decree. There will be no order as to costs.
(B.T.) Petition accepted