JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
(i)
W.P. No.10941 of 2011
Jahangir Siddique Khan
Versus.
Secretary Ministry of Defence
Government of Pakistan, Rawalpindi.
(ii)
W.P. No.102-R of 2011.
Province of Punjab.
Versus.
The Chief Settlement Commissioner etc.
J U D G M E N T.
Date of Hearing
Petitioner By
Respondents
No.1 & 2 by
Respondent
No.3 by
16.2.2015.
Rana Nasrullah Khan Advocate.
Mr. Akhtar Qureshi Standing Counsel for Pakistan.
Mr. Muhammad Iftikhar-ur-Rashid AAG and Mr.
Muhammad Ahmad Bani Advocate.
MAHMOOD AHMAD BHATTI, J: By this single judgment,
Writ Petition No.10941 of 2011 and Writ Petition No.102-R of
2011 are being decided together for a simple reason that they
are inextricably tied up with each other.
2.
Through writ petition No.10941 of 2011, Jahangir
Siddique Khan, the petitioner has sought a direction to the
respondents not to cause harassment to him. It is further prayed
by him that the respondents be restrained from interfering with
Writ Petition No.10941 of 2011.
2
his possession over the land measuring 419 Kanals, 19 Marlas,
situated in village Laleywali, Tehsil Pasrur, District Sialkot.
3.
In Writ Petition No.102-R of 2011 it was prayed by
the Province of the Punjab that the order dated 30.8.2010
passed by the Chief Settlement Commissioner, Punjab, Lahore,
respondent No.1 dismissing an application moved by it to hold
an inquiry afresh as to the foundational order of allotment dated
30.10.1964 in favour of respondents Nos.2 to 6 and the
subsequent transfers made in favour of respondents Nos.7 to 10
be declared illegal, fraudulent and without any basis.
4.
Putting in a nutshell, the facts germane to the disposal of
these petitions are that land measuring 630 Kanals, 07 Marlas,
situated in village Laleywali, Tehsil Pasur, District Sialkot was an
evacuee land that was allotted to Munshi, Abdul Ghani, Raj Din,
Muhammad Sharif and Lehar Din, sons of Shah Muhammad
vide R.L-II No.42 on 31.10.1964. After its confirmation, the
allottees alienated land measuring 210 Kanals, 09 Marlas in
favour
of
one,
Shahzadi
Parveen,
daughter
of
Shah
Muhammad, whereas the rest of the land measuring 419
Kanals, 19 Marlas was transferred to Jan Muhammad son of
Hashmat by means of mutation No.370 attested on 28.6.1965.
Jan Muhammad, the aforementioned in turn transferred it to
Muhammad Siddique Khan, father of the petitioner through
mutation No.381 attested on 15.3.1966. Muhammad Siddique
Khan made the gift of the entire land to his sons, namely,
Mansoor Siddique Khan, Taimoor Siddique Khan and Jahangir
Writ Petition No.10941 of 2011.
3
Siddique Khan, (the petitioner herein) vide mutations Nos.472,
473 and 474 attested on 4.6.1997. Since the Forest Department
was in occupation of the land in question, it threw a challenge to
the original allotment made through R.L-II No.42 dated
31.10.1964. At first, the proceedings were carried out by the
defunct Settlement authorities. Thereafter, the Notified Officer
upheld the original allotment order vide order dated 6.12.1978.
The Forest Department did not take it lying down and filed
W.P.No.479–R of 1980. It was the refrain of the Forest
Department that the land in question was reserved for a forest
and under no circumstances could it be allotted. However, this
Court did not find merit in the contention raised by the Forest
Department, dismissing the writ petition by the order dated
27.2.1991. This led to the filing of C.P. No.387-L of 1991 before
the Hon’ble Supreme Court of Pakistan. As it is, this petition was
dismissed by the apex Court by the order dated 26.11.1991. It
seems that the Forest Department did not budge an inch from
its stand and did not allow the petitioner and his brothers to
enjoy the possession of the land, who were obliged to file
W.P.No.22046 of 1997, which was allowed by the order dated
3.12.1998. However, the Forest Department was allowed to cut
down the trees grown by it on the land in question and take
them away. At the same time, it was observed that if the Ministry
of Defence is interested in acquiring the land for the purposes of
defence, it could do so by invoking the provisions of the Land
Writ Petition No.10941 of 2011.
4
Acquisition Act, 1894. In the operative part of the aforesaid
order dated 3.12.1998, it was held as under:“This petition is, therefore, disposed of with the
direction that if the matter pertaining to acquisition of
land or for alternative accommodation by negotiations
and settlement with the petitioners, is not finalized
within three months, the respondents shall restore
possession of the land to the petitioners without
further delay.”
5.
There is another aspect of the case. Undeterred by the
order dated 26.11.1991 passed by the Hon’ble Supreme Court
of Pakistan, the Province of the Punjab filed C.M.No.1316 of
1999 under Section 12(2) CPC, in W.P. No.479-R of 1980,
which was dismissed by this Court by the order dated
26.3.2004.
6.
Since the respondents herein did not comply with the
order dated 3.12.1998 passed in W.P.No.22046-1997, the
petitioner
and
others
approached
Member
(Judicial-
II)/Settlement Commissioner (Lands), Board of Revenue, Punjab
who redressed their grievance by the order dated 9.9.2005,
directing the District Officer (Revenue), Sialkot to put the
petitioner and others into possession. The District Officer
(Revenue)/Collector,
Sialkot
in
turn
ordered
the
DDO
(R)/Collector Sub-Division Pasrur to comply with the order dated
9.9.2005 passed by the Member Board of Revenue regarding
the delivery of the possession of the land in question to the
petitioner and others. The revenue officer/Tehsildar Pasrur
Writ Petition No.10941 of 2011.
5
himself went to the spot and possession of land measuring 419
Kanals, 19 Marlas was delivered to the sons of Muhammad
Siddique Khan, including the petitioner herein through Qalba
Rani. The r’apt No.293 dated 25.3.2009 was recorded to this
effect.
7.
It seems that the Forest Department continued to create
obstacles. The Pak Army was made to jump in the fray, who
evinced its desire to acquire the land in question. Obviously, the
Province of the Punjab was leaning on the Army to bolster up its
case.
8.
The comments were called for from the respondents in
Writ Petition No.10941 of 2011. In their comments, it has been
insisted that the original allottees carried out deception and
committed fraud. Therefore, the various orders either passed by
the Settlement Authorities or the Notified Officer are liable to be
recalled. In this respect, extensive references were made to the
case law. It was prayed by them that, “it is clearly proved that
the allotment was obtained fraudulently on bogus, forged and
fabricated documents, which was liable to be cancelled, thereby
dismissing the writ petition”. In short, the comments so furnished
by the Province of the Punjab are almost an echo of its
standpoint adopted in the connected Writ Petition No.102-R of
2011.
9.
In support of the petition, the learned counsel for the
petitioner in Writ Petition No.10941 of 2011 reiterated the
Writ Petition No.10941 of 2011.
6
contentions raised by him in the writ petition. It was urged by
him that all the authorities throughout Pakistan are duty bound
to carry out the orders passed by the Hon’ble Supreme Court of
Pakistan. It was pointed out that the petitioner and his brothers
never resisted the efforts of the Pak Army to acquire the land,
but no proceedings were initiated at its end. However, an
exception was taken to the stance of the Forest Department,
which has lost its case up to the Hon’ble Supreme Court of
Pakistan.
10.
Conversely, the learned Law Officers have vigorously
argued that the original allotment made in favour of Munshi and
others was fraudulent and when the original allottees had no title
to the land in question, they could not make alienation thereof in
favour of Muhammad Siddique Khan, predecessor-in-interest of
the petitioner. According to them, when the basic order is void,
the superstructure built thereon is to come down crashing with it.
In any case, when the Pak Army is in the need of the land in
question, the petitioner and his brothers cannot be allowed to
retain the possession thereof. In a word, the Law Officers stuck
to their stance adopted in Writ Petition No.102-R of 2011.
11.
I have heard the learned counsel for the parties and
perused the documents annexed to the two writ petitions.
12.
It is not in dispute that land measuring 630 Kanals, 07
Marlas, situated in village Laleywali, Tehsil Pasrur, District
Sialkot was allotted to Munshi, Abdul Ghani, Raj Din,
Muhammad Sharif and Lehar Din sons of Shah Muhammad vide
Writ Petition No.10941 of 2011.
7
R.L-II No.42 on 11.2.1964. It is also indisputable that land
measuring 419 Kanals, 19 Marlas out of land measuring 630
Kanals, 07 Marlas was transferred to Jan Muhammad vide
mutation No.370 attested on 28.6.1965. It has also not been
disputed that Jan Muhammad Made transfer of this land to
Muhammad Siddique Khan, father of the petitioner vide mutation
No.381 dated 15.3.1966, who in turn made a gift thereof to his
sons, namely, Mansoor Siddique Khan, Taimoor Siddique Khan
and Jahangir Siddique Khan vide mutations Nos.472, 473 and
474 attested on 4.6.1997. The respondents also could not deny
that they filed W.P.No.479-R-1980, but remained unsuccessful. It
has not been denied by them either that Civil Petition No.387-L1991 did not find favour with the Hon’ble Supreme Court of
Pakistan; rather it upheld the original allotment order, rejecting all
the contentions of the Forest Department to the effect that the
land in question was reserved for the Forest Department and
could not be allotted to any private person. It is admitted on all
hands that the Forest Department or the Province of the Punjab
did not file any review petition seeking to revisit the order dated
26.11.1991 passed by the apex Court. C.M. No.1316 of 1999
filed by it to wash out the effects of the order dated 27.2.1991
passed in Writ Petition No.479-R of 1980 also came a cropper,
which was dismissed on 26.3.2004. Again, they did not take
issue with the petitioner regarding the filing of W.P.No.22046 of
1997 and the direction passed therein. If the Forest Department
did not fell the trees on the land in question, it has only itself to
Writ Petition No.10941 of 2011.
8
blame. Nothing has been brought to my notice as to when and
where the proceedings were initiated under the Land Acquisition
Act, 1894 to acquire the land in question for the Pak Army. It
goes without saying that the matter cannot be left in limbo. Under
Article 23 of the Constitution of the Islamic Republic of Pakistan,
1973, every citizen has the right to acquire, hold and dispose of
property in any part of Pakistan. No doubt, the State can acquire
the land, as has been provided for under Article 24 of the
Constitution of the Islamic Republic of Pakistan, 1973, but the
idea of taking forcible possession of the land and that too without
making any compensation is alien to the Land Acquisition Laws.
Furthermore, this is abhorrent to the express provisions of Article
24 of the Constitution of the Islamic Republic of Pakistan, 1973.
It is also violative of Article 4 of the Constitution of Islamic
Republic of Pakistan, 1973. The very fact that no concrete steps
have been taken for acquiring the land subsequent to the
disposal of W.P.No.22046 of 1997 on 3.12.1998 speaks volumes
for the lethargy and procrastination of the authorities concerned.
The leaning of the Province of the Punjab on the Pak Army is
unfathomable, to say the least.
13.
From the facts stated in the preceding paragraphs, it
has become obvious that the Province of the Punjab did not bow
its head to the judgments of this Court as well as those of the
august Supreme Court of Pakistan. Its functionaries did not take
those judgments lying down. Their constant refrain is that the
original allotment order dated 31.10.1964 passed in favour of
Writ Petition No.10941 of 2011.
9
Munshi and others was obtained by perpetrating fraud and
carrying out deception. The last order in the series passed
against the Province of the Punjab by the apex Court on
10.8.2011in C.P. No.20-L of 2008 titled Province of Punjab v.
Muhammad
Siddique
(deceased)
through
LRs
is
worth
reproducing hereunder:
“This petition has been field against the judgment dated
24.10.2010 passed by the Lahore High Court, Lahore
concluding para therefrom is reproduced herein below:
“I have gone through the copies of the documents
placed on record. I find that earlier the matter of the
original allotment in favour of the vendor of the private
respondents was brought to this court by the petitioner
Province in W.P. No.479-R/80. The case was heard ad
decided on 27.2.1991 with reference to a judgment
dated 9.1.1991 of the Honorable Supreme Court of
Pakistan in C.P. No.307/81 holding that the allotment
having been made in favour of the original allottee on
31.10.1961 at a point of time before 27.2.1965 shall hold
good. The writ petition was accordingly dismissed. This
judgment was not questioned before the Honorable
Supreme Court of Pakistan but an application was filed
under section 12(2) CPC (C.M. No.1316/99) which has
since been dismissed on 26.3.2004. Not only this but the
said respondents filed W.P. No.22046/97 in this court
which was decided on 3.12.1998 and the petitioner
Department was directed to deliver possession of the
land to them. Respondent No.10 has passed the
impugned order in view of all the said judgments passed
by this court as well as the Honorable Supreme Court of
Pakistan and has directed that the said judgments be
implemented in letter and spirit. This writ petition
Writ Petition No.10941 of 2011.
10
accordingly is found to be frivolous and is dismissed but
without any order as to costs.”
2.
We called upon the learned counsel for the
petitioner that in view of the history of the case, which
has
been
narrated
hereinabove,
the
Provincial
Government owe an obligation to implement the
judgment in letter & spirit passed on 13th December,
1998 in respect of the subject matter, which has already
been determined to the extent of 630-kanals and 7marlas, as it is evident from the reference of other
judgments noted hereinabove and other documents on
record, but instead of implementing the judgment,
delaying
tactic
are
being
applied
without
any
jurisdiction.
3.
It is important to note that in the judgment dated
3rd
December,
1998
learned
Judge
has
also
suggested/ pointed out alternate available options, if
are to be exercised by the government but instead of
following anyone of them, the implementation of the
judgment is being delayed without any justification. In
such like cases, the government should have not filed
petition for leave to appeal knowing well that it has
already lost the case at different forums including
before the High Court u/s 12(2) CPC.”
14.
the
The fresh application moved by the petitioner before
Chief
Settlement
Commissioner,
Punjab,
Lahore,
respondent No.1 in Writ Petition No.102-R of 2011 was not
maintainable for a variety of reasons. To begin with, no
“proceedings were pending” before him in terms of Section 2(2)
of the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975. It has been so held by the Hon’ble Supreme Court of
Writ Petition No.10941 of 2011.
11
Pakistan in the case of “Nawabzada Zafar Ali Khan and others
v. Chief Settlement Commissioner/Member, Board of Revenue,
Punjab, Lahore and others” (1999 SCMR 1719), the relevant
extract wherefrom is reproduced as under:
“Only such maters which are 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 effect. Therefore, on the
established principle of law entire edifice construed
over it shall automatically crumble and fall to the
ground.” (Emphasis added)
Writ Petition No.10941 of 2011.
15.
12
The above law was reiterated in the cases of
“Government of Punjab, Colonies Department, Lahore and
others v. Muhammad Yaqoob” (PLD 2002 SC 5) and “Member
(S&R)/Chief Settlement Commissioner, Board of Revenue,
Punjab, Lahore and another v. Syed Ashfaque Ali and others”
(PLD 2003 SC 132).
16.
In the case of “Dr. Muhammad Iqbal and 9 others v.
Member, Board of Revenue/Chief Settlement Commissioner,
Lahore and another” (PLD 2010 Lahore 249), it was
underscored
that
the
office
of
the
Chief
Settlement
Commissioner Punjab, Lahore no longer exists and it was not
vested with any authority to look into the allegations of fraud and
misrepresentation in relation to the proceedings that fall within
the category of past and closed transaction.
17.
No Court or authority can be allowed to reopen a
matter, which stands concluded by the Highest Court of the
Land. Otherwise, it would open the floodgates of confusion and
throw the administration of justice into chaos, anarchy and
disarray. Such a warning was sounded by the apex Court in the
cases reported as “Abdul Majid and others v. Abdul Ghafoor
Khan and others” (PLD 1982 SC 146) and “Mst. Zainab through
Attorney v. Mst. Muni and others” (2004 SCMR 1786). Viewed
thus, the order dated 30.8.2010 passed by respondent No.1 in
Writ Petition No.102-R of 2011 is unexceptionable. Furthermore,
since the original allotment order dated 30.10.2064 has
repeatedly been upheld by this Court as well as by the Supreme
Writ Petition No.10941 of 2011.
13
Court of Pakistan, it cannot be set aside just at the whims of the
Province of the Punjab or the Forest Department for that matter.
The earlier orders passed by the competent Courts of law
between the same parties and relating to the same subject
matter do constitute and operate as res judicata.
18.
It bears repeating that the Province of the Punjab
has dug its heels. Its dogged determination to undo the orders of
the superior Courts is hard to understand. If its efforts have not
been crowned with success or it has failed to persuade the
superior Courts, it does not mean that it is to be allowed to go on
with carrying out litigation endlessly at the expense of the
exchequer. Writ Petition No.102-R of 2011 is frivolous and
vexatious and the petitioner is burdened with costs of
Rs.30,000/-
to be paid to respondents Nos.7 to 10.
Consequently, Writ Petition No.102-R of 2011 is dismissed with
costs of Rs.30,000/-, while Writ Petition No.10941 of 2011 is
allowed, restraining the respondents from causing harassment
to the petitioner. They shall also desist from interfering with the
possession of the petitioner and his brothers over the land
measuring 419 Kanals 19 Marlas, situated in Village Laleywali,
Tehsil Pasroor, District Sialkot.
(MAHMOOD AHMAD BHATTI)
JUDGE
Approved for reporting.
Judge.
Zulfiqar *