Writ Petitions Nos. 25768, 29643 and 32654 of 2014, decided on 23rd April, 2019.
Punjab Land Revenue Act (XVII of 1967)—
—-S. 3—Displaced Persons (Land Settlement) Rules, 1959, R. 7-A—Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 16—Displaced person—Allotment of evacuee property by the Settlement Authorities—Petitioner being allottee of evacuee property filed suit for possession which was decreed—District Collector thereafter cancelled the said allotment on the grounds that allottee had failed to present copy of Register RL-II and that no mutation had been attested—Validity—Title/allotment in favour of petitioner could be disputed before judicial forum where decree had been passed—Once matter had been finalized on judicial side then the same could not be reopened on administrative side—Disputed property was not assessed to land revenue and was exempted from the operation of provisions of Punjab Land Revenue Act, 1967—District Collector was not competent to take cognizance of the property falling in the urban limits or was constructed one—Title in evacuee property stood transferred and vested in its transferees on making a record of transfer by the competent authority on settlement side which itself would be complete regardless of the fact whether transferee had obtained copy of such order or not—Petitioner was in possession of the suit property and allotment order had been implemented in the revenue record—Settlement Department even after repeal of relevant laws was not competent to reopen the matter which was not pending at the time of repeal of Settlement laws—Attestation of mutation in favour of displaced person was not necessary rather the confirmation of his land could directly be given effect in the record of rights—Land on which a displaced person was permanently settled would vest in him—District Collector was not competent to interfere with or render any direction in the matter of allotment made in settlement of claims—Impugned order had been passed without lawful authority—Non-availing of alternate remedy would not debar High Court to annul such an order in constitutional jurisdiction—Impugned order was quashed, in circumstances—Constitutional petition was allowed accordingly.
Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380; Chuttan and others v. Sufaid Khan and others 1987 SCMR 503; Commissioner of Income-tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410 and Member Board of Revenue/Chief Settlement Commissioner, Lahore and 2 others v. Mst. Sajida Parveen and others 2010 SCMR 1942 rel.
Muhammad Shahzad Shaukat and Atif Mohtashim Khan for Petitioner (in Writ Petition No.25768 of 2014).
Syed Muhammad Kaleem Ahmed Khursheed for Petitioners (in W.P.No.29643 of 2014).
Ch. Riasat Ali and Amer Farooq for Petitioner (in W.P.No.32654 of 2014).
Shadab Hassan Jarfi, Addl. A.G. for Respondent.
Date of hearing: 23rd April, 2019.
JUDGMENT
CH. MUHAMMAD MASOOD JAHANGIR, J.—By means of Petition in hand as well as connected Writ Petitions Nos.29643 and 32654 of 2014, the vires of order dated 17.09.2014 passed by respondent have been called in question whereby it was held that ownership/ confirmation of the subject land to the claimants was not perfect and declared it to be titled by Provincial Government directing the Revenue Field Staff to correct revenue entries in its favour. As common questions of law and facts are involved in all the connected matters, hence it will be appropriate to decide the same conjunctively through this single order, however, for reference, source point will be the file in hand.
2. Briefly put, Ameer Hussain the father of the present petitioner being a claimant/displaced person had been allotted urban property measuring 62 Kanals 11 Marlas in Sheikhupura city, which was duly implemented in the Revenue Record. Subsequently a part of it was encroached by Liaqat Memorial High School, Sheikhupura compelling the allottee to institute suit for possession, which after full-fledged trial was decreed. In the meantime the school was nationalized and Appeal against the decree was preferred by the Province of the Punjab through the District Collector/respondent, which did not succeed and Civil Revision preferred before this Court also failed. The decree having become final was brought before the Executing Court, which was satisfied. Thereafter impugned order referred in para-1 ante was passed by the respondent on the grounds; firstly that the allottee failed to present the copy of Register RL-II to prove his allotment and secondly that it was directly given effect in the Revenue Record without attestation of mutation.
3. It is argued by learned counsel for the petitioner that previous litigation pertaining to Liaqat Memorial School was finalized against District Collector/respondent, who for that grudge re-opened the past and closed chapter. It was also added that had there been no allotment/title of the petitioner, the respondent might have resisted the suit on this ground as well, which having not been agitated before the Court of ultimate jurisdiction at that point of time could not be subsequently pressed, but the respondent became judge of his own cause and erred in law to pass the impugned order. It was next argued that under section 3 of the Land Revenue Act, 1967 jurisdiction of the Revenue Authority/Hierarchy had been taken off with regard to urban as well as constructed properties, but the respondent while omitting to take notice thereof targeted the petitioner through the impugned order which having been passed without lawful authority and aimed at ulterior motive cannot be maintained. In contra learned Law Officer supported the impugned order with the addition that it could only be assailed in Appeal and without availing provided remedy, this Court cannot invoke its jurisdiction under Article 199 of the Constitution.
4. Argument heard, record appreciated.
5. The play of round on the civil side, which finally culminated right up to the level of this Court followed by its realization was an admitted fact that the decree was passed under section 8 of the Specific Relief Act, 1877 and the declaration of the ownership was its inbuilt relief granted to the decree-holder. Reliance can be placed upon judgment reported as Hazratullah and others v. Rahim Gul and others (PLD 2014 SC 380). Moreover, the title/allotment of the petitioner at best could be disputed before the forum where judicial scrutiny proceeded for years and years, but no such defense was introduced at that point in time and once it was finalized on the judicial side, it was not permissible to be reopened on the administrative side. See Chuttan and others v. Sufaid Khan and others (1987 SCMR 503) and Commissioner of Income-tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410). It was also a proven fact that in connected matters prior to the impugned order, the predecessor of the respondent had also pronounced a similar order to annul the allotments, but its superior Authority while exercising appellate jurisdiction on the judicial side set aside the decision of his subordinate, which having not been agitated any further became final and could not be reopened on the executive side by the same Authority as well whose order stood already quashed and such practice is not permissible. In the case law referred herein above it was vividly held that administrative order may be set aside on the judicial side, but there is no legal panorama of a reverse case.
6. The other relevant feature of the case would be that section 3 of the Land Revenue Act, 1967 denuded the respondent or any other authority in the Revenue Hierarchy to take cognizance of the property falling in the urban limits or constructed one. The disputed property was not assessed to land revenue and also exempted from the operation of the provisions of the Act ibid, hence the impugned order on this score too having been passed without lawful authority was illegal.
7. Leaving aside all the legal aspects discussed herein above, the admitted position was that title in evacuee property stood transferred and vested in its transferees on making a record of transfer by the competent Authority on the settlement side, which itself would be complete regardless of the fact whether transferee had obtained an attested copy of such order or not. The original record might be available with the Settlement department, wherefrom his title could be verified, but the respondent was not perfect in passing the impugned order the reason that the petitioner failed to submit a copy of the Register RL-II. The identical proposition has already been dealt with by the apex Court in a case reported as Member Board of Revenue/Chief Settlement Commissioner, Lahore, and 2 others v. Mst. Sajida Parveen and others (2010 SCMR 1942) . The title in disputed property came to vest in the petitioner by virtue of entries made in Register RL-II long ago followed by its due implementation in the Revenue Record without any interruption coupled with long-standing continuous possession, which could not be bulldozed by the Authority having no jurisdiction even to take any step towards it. The Settlement Department even after the repeal of relevant laws was not competent to reopen the matter, which was not actively pending at the time of its repeal, and what to talk about the powers of the District Collector.
8. The other ground that without sanctioning mutation, the allotment made in favor of the petitioner could not be implemented in the Revenue Record was also not available to the respondent to pass the impugned order, who skipped to take notice of Rule 7-A of the Displaced Persons (Land Settlement) Rules, 1959 which reads as follow:-
7-A. Mutation. (1) After the acquisition of the land under Section 4, the Revenue Officer of the area concerned shall cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government shall be substituted for the evacuee holders of right in the estate.
(2) After the land has been finally allotted and settled as prescribed by the preceding rule, the Revenue Authority of the area concerned shall, for the purpose of making entries in respect of rights and interests of the allottees in the record of rights or register Haq Daran Zameen or in village form No.VII, as the case may be, treat the entries in R.L.II at par with those in a register of mutation and it shall not be necessary to sanction any mutation for the purpose.
The study of the same reveals that there was no necessity for the attestation of mutation in favor of the claimant/displaced person rather the confirmation of his land could directly be given effect in the Record of Rights. Moreover, section 16 of the Land Settlement Act, of 1958 made it clear that the land on which a displaced person was permanently settled would absolutely vest to him, therefore, there was no occasion for the respondent to check the vires of the allotment/confirmation of the land to any Refugee. The District Collector or the Deputy Commissioner under the Land Revenue Act, 1967 or even as Notified Officers was wholly incompetent to interfere with or render any lawful direction in the matter of allotment made in settlement of claims under the Displaced Persons (Land Settlement) Act ibid in respect of which no proceedings were open since before the repeal of Evacuee laws by Act XIV of 1974. The unwarranted assumption of jurisdiction amounted to flagrant abuse of authority and the Revenue Hierarchy as such was vested with no authority to interfere with the allotment made in favor of claimants/displaced persons, hence in the absence of such an authority, it inherently lacked jurisdiction to go behind the allotment made by the Settlement Authorities or act against Settlement Records on any pretext or pretended plea against the facts of the case.
9. Adverting to the resistance that without availing efficacious remedy writ jurisdiction cannot be exercised, suffice it to say that it is not the obsolete rule, but in exceptional cases for the ends of justice the strict observance of the said rule can be dispensed with and extraordinary remedy of constitutional jurisdiction in exceptional cases can be invoked. The order impugned herein is a void order, which was passed without lawful authority and non-availing of alternate remedy would not debar this Court to annul such an order in Writ jurisdiction, especially when the mala fide is apparent on the face of the record.
10. Resultantly all these Writ Petitions are allowed and the impugned order is quashed.
ZC/J-4/L Petitions allowed.