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Judgment Sheet
LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

Writ Petition No.4168 of 2012/BWP.

Mohammad Jafir and 4 others.

Versus
Province of Punjab through District Collector, Bahawalpur etc.

JUDGMENT

Date of hearing: 18.11.2015.

Petitioners by: Mr. Nadeem Iqbal Chaudhary Advocate.

Respondents by: Malik Mumtaz Akhtar, Additional Advocate
General with Muhammad Latif, Halqa
Patwari.

Shujaat Ali Khan, J: - Through this petition, under

Article 199 of the Constitution of Islamic Republic of Pakistan,

1973 (the Constitution), the petitioners have groused against

communication, dated 05.10.2011 (impugned letter) addressed

by the Additional District Collector, Bahawalpur (respondent

No.2) to the Secretary (Colonies), Board of Revenue, Punjab,

Lahore whereby matter was referred for cancellation of Patta

Malkiyat issued in favour of the petitioners.

2. Unnecessary details apart, the petitioners were allotted

various chunks of land, described in Para No.2 of this petition,

in November 2005, under Chief Minister’s Programme for

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

Allotment of Land to Landless Peasants of the Province,

circulated through Notification, dated 01.09.2003. On payment

of requisite dues, Pattas Malkiyat/Conveyance Deeds were

issued in their favour and their names were incorporated in

revenue record by way of sanctioning different mutations.

Respondent No.2, through impugned letter, started proceedings

for cancellation of allotment made in favour of the petitioners

while exercising powers under section 30(2) of the

Colonization of Government Lands (Punjab) Act, 1912 (the

Act) aggrieved whereof the petitioners have filed instant

petition.

3. The legal formulations put forwarded by the learned

counsel for the petitioners are to the effect that after execution

of Conveyance Deeds in their favour the District

Collector/Additional District Collector became functus officio

thus they could not move for cancellation of land allotted to the

petitioners while pressing into service the provisions of section

30(2) ibid; that after grant of proprietary rights the petitioners

have incurred considerable amount on the improvement of land

in question and it would be unfortunate if they are deprived of

the fruits of their hard-toil efforts; that impugned cancellation

proceedings have been initiated on the ground that land allotted

to the petitioners fall within the prohibited zone whereas land

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

for allotment under the aforesaid Notification was earmarked by

the then District Collector, after spot verification, and in case of

any omission or commission on the part of competent authority

the petitioners could not be penalized; that the impugned

cancellation proceedings are conducted at the back of the

petitioners, thus, they are being condemned unheard and that

the impugned cancellation proceedings are violative of Article

10-A of the Constitution. In addition to his oral submissions,

learned counsel has referred to the cases reported as Ilam Din v.

Muhammad Din (PLD 1964 SC 842), Tehsil Municipal

Administration (City) Ex-Municipal Committee Bahawalpur

and another v. Ghazanfar Ali and another (Unreported order

dated 04.03.2010 passed by apex Court of the country in Civil

Appeal No.728-L/2006), Muhammad Asghar v. Member Board

of Revenue and others (2009 MLD 1023), Abdul Rahman

Bhatti and another v. Member (Colonies), Board of Revenue,

Punjab, Lahore and another (2006 CLC 543), Bashir v. The

Province of Punjab etc. (NLR 2005 Revenue 52), Province of

the Punjab through Collector, and 2 others v. Nazir Ahmad and

9 others (2004 YLR 1650), Muhammad Sharif etc. v. The

Border Area Committee, Lahore etc. (NLR 2002 Civil 250),

Anjuman Talim-ul-Islam (Regd.) Sheikhupura v. Province of

West Pakistan Punjab Province and 2 others (PLD 1983 LHR

294), Mst. Khurshid Begum and 7 others v. Inam Rabbani and

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

another (1979 CLC 570), Ali Muhammad v. Mst. Rabia Bibi

and 3 others (PLD 1971 Baghdad-ul-Jadid 38), unreported

judgment of this Court passed in W.P. No.419 of 2006 and

Rehmat Ullah and others v. Muhammad Ismail and others

(PLD 1958 W.P. (Rev.) 77).

4. Conversely, learned Additional Advocate General, while

defending the impugned letter submits that since no adverse

order has been passed against the petitioners, instant petition is

premature; that the Collector enjoys power to cancel allotment

in favour of the petitioners while pressing into service the terms

and conditions of allotment; that in view of Clause 8 (xvi) of

the Notification dated 01.09.2003 any person could file

complaint before the District Collector challenging eligibility of

any allottee and that the land having been fallen within the

prohibited zone would be utilized for public purposes and it is

settled principle of law that public interest should be given

preference over the individual and that Constitutional petition is

not maintainable against an investigation or mere issuance of

notice, thus, instant petition merits dismissal. To fortify his

contentions, learned Law Officer has relied upon the cases

reported as Khalid Mehmood Ch. and others v. Govt. of the

Punjab through Secretary Livestock and Dairy Development

(2002 SCMR 805), Virasat Ullah v. Bashir Ahmad, Settlement

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

Commission (Industries) and another (1969 SCMR 154), M/s

Chakwal Textile Mills Ltd., Rawalpindi Road, Chakwal and

another v. Director Social Security Rawalpindi and 2 others

(2012 PLC 270), Muhammad Manzoor through Legal Heirs

and others v. Province of Punjab through District Officer

Revenue, Vehari and others (2011 CLC 1235), Mughal-e-Azam

Banquet Complex through Managing Partner v. Federation of

Pakistan through Secretary and 4 others (2011 PTD 2260),

Niaz A. Baloch v. Chairman National Accountability Bureau

and 2 others (2008 P.Cr.L.J. 1463), Province of Punjab and 2

others v. Muhammad Shoaib and another (2006 CLC 1265),

Tariq Mahmood v. Air Cdre. (R) Nayyar Q. Khawaja and 4

others (2003 P.Cr.L.J 1512), Muhammad Akhtar Sherani and

35 others v. The Punjab Textbook Board, Lahore and 4 others

(2001 PLC (CS) 939), Khawaj Din and another v. Member,

Board of Revenue/Chief Settlement Commissioner, Punjab,

Lahore and 7 others (1997 MLD 1047), Province of Punjab

through Deputy Commissioner/Collector of Sargodha, District

Sargodha v. Muhammad Akram (PLD 1993 LHR 114), Ahsan

Saleem v. Government of the Punjab and others (PLD 1993

LHR 118) and Muhammad Mahmood Ali v. Pakistan through

Secretary, Ministry of Finance (1984 CLC 142).

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

5. I have heard learned counsel for the parties at

considerable length in addition to scanning the documents

annexed with this petition as well as those forming part of

report and parawise comments in addition to going through the

case-law sited at the bar.

6. The crux of the arguments of the learned counsel for the

petitioners is that after having been declared as full-fledge

owners upon issuance of Conveyance Deeds, the Additional

District Collector has no authority to proceed against them in

terms of section 30(2) ibid whereas learned Additional

Advocate General has taken the stance that as per terms and

conditions of allotment, the District Collector can scrutinize the

allotment at any time and in case of any deficiency on the part

of the allottees he can proceed against them. In this scenario, to

resolve the controversy between the parties a perusal of section

30(2) of the Act is of paramount consideration, which for

convenience of reference is reproduced herein below: -

“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
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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

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.
(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.”

A cursory glance over the afore-quoted provision of law shows

that power to look into allegation of fraud or misrepresentation

or eligibility of any person, who was granted proprietary rights,

vests with the Board of Revenue. Admittedly, the impugned

cancellation proceedings have been initiated by respondent

No.2, on the application of one Muhammad Afzal son of Barkat

Ali, thus, the same cannot be blessed with stamp of

authenticity.

7. It is imperative to note that allotment in favour of the

petitioners has been recommended for cancellation on the

ground that land allotted to them fall within prohibited zone.

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

There is no cavil with the proposition that land falling within

prohibited zone is immune from allotment under any scheme,

especially under the scheme announced in the year 2003.

However, the said ouster clause is not applicable in the matter,

under discussion, for the reason that the land, subject matter of

instant petition, was allotted by the competent authority after

due verification of its status through revenue field staff.

Moreover, the question as to whether a piece of land falls

within prohibited zone is to be determined from the date of

allotment to any person under any scheme and not from the

time of grant of proprietary rights. In this regard, I stand guided

by the judgment of apex Court of the country reported as

Province of Punjab through District Collector v. Ghulam

Muhammad (1994 SCMR 975) wherein while dealing with the

said query it has inter-alia been observed as under: -

“2. The respondent/tenant had been allotted land on

temporary cultivation scheme which had to be resumed
and thereafter he was settled on alternate land. When the
question of conferment of proprietary rights to such
tenants arose, the respondent was held not entitled to it
on the ground that his allotted land fell within the
prohibited zone and secondly it was excluded from
allotment on the basis of being a part of `KHUSK BIAS'
river. On both these points the instructions of the Board
of Revenue existed. As regards the prohibited zone, the
instructions were that the distance should be measured
as required when the allotment was made and not as
when the proprietary rights are conferred. On this test,
the allotment of the respondent was beyond three miles
limits then applicable to him when he got the allotment
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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

but within five miles i.e., with the limits when he was to
be given proprietary rights…..” (emphasis provided)

The afore-quoted observation of apex Court of the country

leaves no ambiguity that the question as to whether a particular

chunk of land falls within the prohibitory zone is to be

determined according to the situation prevalent at the time of

allotment. There is nothing on record to show that at the time of

allotment in favour of the petitioners the land in question fell

within the prohibited zone. Further, reply to ground (vii) in

Report and Parawise comments, submitted by respondents No.2

to 6, clarifies the exact position which for facility of reference is

reproduced herein below: -

“(vii) The area of lots of the petitioners were not falling

in prohibited zone at the time of allotment. The same was
included in prohibited zone later on.”
The afore-quoted portion from the report and parawise

comments is sufficient to conclude that at the time of allotment

the land in question did not fall within the prohibitory zone

rather it came under shadow of the same later on. The approach

of the respondents towards cancellation of the land allotted in

favour of the petitioners being violative of the law laid down by

the august Supreme Court of Pakistan in the afore-referred case

does not qualify the test of a bona fide order.

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

8. Admittedly, impugned cancellation proceedings have

been initiated on the application of one Muhammad Afzal S/o

Barkat Ali, R/o Chak No.21/FW, Tehsil Hasilpur, District

Bahawalpur. The Hon’ble Supreme Court of Pakistan in the

case of Member (Colonies)Board of Revenue and others v.

Ghulam Muhammad and another (2003 SCMR 1931) has

finally put to rest the question regarding powers of the

Collector to cancel land allotted to a person by way of

execution of Conveyance Deed, on general complaint of

anybody. While dealing with the issue, under discussion, the

apex Court of the country has laid law to the following effect: -

“4. We have considered the contentions and have gone

through the documents appended with this petition. It is
reflected from the perusal thereof that the respondents
were allotted disputed land under Fifteen Years Scheme
in the year 1971. They were handed over the possession
through Rapt No.47 dated 12 10 1972. The cancellation
was made through an order dated 6 7 1977 by the
Deputy Commissioner having no jurisdiction simply on
the ground of general complaints. Said order was set
aside by the Additional Commissioner and the case was
remitted to the Assistant Commissioner/Collector for
reconsideration. This remand order was even upheld by
the learned Member, Board of Revenue through his order
dated 29 5 1983.

5. In the process of remand the Assistant Commissioner

with the powers of Collector minutely considered the
case of the parties. He came to a definite conclusion that
the allotment of the respondent was genuine and valid.
This determination has not been even interfered by the
learned Member, Board of Revenue. The respondent was
simply ousted that subsequently on 2.12.1985 the
disputed land was allotted to the petitioners under
Atomic Energy Oustees Scheme. However, in spite of the
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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

said allotment the possession, of the disputed land

remained with the respondents. It is also reflected from
the record that at the time of issuance of notification
entitling the respondents to secure proprietary rights the
disputed land was not included in any permanent scheme.
The respondent in spite of the fact that his allotment was
determined as genuine and valid has been embroiled in
uncalled for litigation for the last about three
decades…..”(emphasis provided)

Afore-quoted portion from the judgment of august Supreme

Court of Pakistan affirms the view that a Collector cannot

cancel land allotted to a person under the Act while dealing

with general complaint. Thus, the impugned order, when

visualized in the light of the fact that at the time of allotment

the land in question did not fall within the prohibited zone, does

not qualify the test of valid order.

9. Learned Additional Advocate General has repeatedly

argued that impugned cancellation proceedings have been

initiated by respondent No.2 while exercising powers conferred

under Notification, dated 01.09.2003, coupled with terms &

conditions of the Conveyance Deed. A perusal of Conveyance

Deed shows that under clause 11(f) thereof arbitration has been

provided and if respondent No.2 was of the opinion that there

was some irregularity or illegality in issuing Conveyance Deed

in favour of the petitioners he could press into service the said

clause. Further, respondent No.2 has recommended for

cancellation of land allotted to the petitioners which provide

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

them a valid cause of action and it would be unfair if impugned

cancellation proceedings, which otherwise are violative of

terms & conditions of the Conveyance Deed, Notification dated

01.09.2003 and verdict of apex Court of the country, are

allowed to continue.

10. It is important to observe over here that land allotted to a

person under the Act can only be cancelled by the Board of

Revenue when it is established that the same was immune from

allotment on account of having been earmarked for any public

purpose. The said situation came under discussion before apex

Court of the country in the case reported as Rehmat Ali v.

Muhammad Ramzan through Legal Heirs (2001 SCMR 1283)

relevant portion whereof is reproduced herein below: -

“7. The case law and the provisions of section 30(2) of

the Colonization of Government Lands (Punjab) Act,
1912, cited by the learned counsel for the appellant are
not relevant and applicable to the facts of the present
case. From the narration of facts it is crystal clear that
the land in dispute was reserved for permanent
settlement of the Islamabad oustees. The respondents
had paid the entire price and the Deed of Conveyance
was also registered in their favour. Even, the record
does not show that the land in question was ever
allotted to the appellant under the Grow More Food
Scheme. The contentions of the learned counsel for the
appellant are not tenable. It is borne out from the
record that after the allotment of land to Muhammad
Ramzan, the predecessor in interest of the respondents,
had been dragged unnecessarily by the appellant in this
litigation. Further remand of the case as observed by
the Member, Board of Revenue, without any allotment
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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

order in favour of the appellant, as discussed above,

would be an exercise in futility.”(emphasis provided)

If we adjudge the act of respondent No.2 towards cancellation

of allotment in favour of the petitioners, on the touchstone of

the afore-quoted judgment, the answer in definite is that the

impugned cancellation proceedings are wholly untenable for the

reason that there is nothing on record to show that the land

allotted to the petitioners was earmarked for any public purpose

excluding it from allotment under the Act coupled with the fact

that at the time of allotment in favour of the petitioners the

same did not fall within the prohibited zone.

11. It is very sorry state of affairs that on the one hand

respondent No.2 has started proceedings for cancellation of

land allotted in favour of the petitioners on the ground that the

same fall within the prohibited zone and on the other while

filing report and parawise comments alongwith other

respondents, he has adopted the plea that at the time of

allotment in favour of the petitioners the land in question did

not fall within the prohibited zone. The inconsistent attitude of

the respondents smacks some foul play on their part which

being against the spirit of principles of good administration

cannot be approved of rather deserves to be deprecated with full

vigour. If the public functionaries, who otherwise are supposed

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

to minimize the agonies of the citizens while performing their

duties within the four corners of law, are allowed to use their

portfolios to multiply the miseries of the masses then our social

set up is bound to be ruined and our solidarity as a nation would

be at stake.

12. Now coming to the case-law cited by the learned

Additional Advocate General I am of the view that the same is

not applicable to the facts and circumstances of the instant case

inasmuch as in the case of Khalid Mehmood Ch. and others

(supra) the order of this court dismissing a writ petition being

premature was upheld by the Hon’ble Supreme Court on the

ground that aggrieved persons approached this court without

awaiting the fate of matter after submission of their replies to

the Show Cause notices whereas in the instant case the

controversy revolves around the powers of respondent No.2 to

move for cancellation of allotment made in favour of the

petitioners. Likewise, in the cases of Virasat Ullah, M/s

Chakwal Textile Mills Ltd., Rawalpindi Road, Chakwal and

another, Mughal-e-Azam Banquet Complex, Niaz A. Baloch,

Tariq Mahmood and Muhammad Akhtar Sherani and 35 others

(Supra) the disputes pertained to notices issued by different

government functionaries whereas in the instant case the

dispute does not relate to any notice. Had respondent No.2

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

issued any notice to the petitioners the matter would have

entirely been different. As far as the case of Muhammad

Manzoor through Legal Heirs and others (Supra) is concerned,

controversy in pith and substance was regarding power of the

Civil Court to entertain a suit against an order passed by the

revenue authorities exercising powers under the Act whereas in

the instant case the preposition is entirely different. Insofar as

the case of Province of Punjab and 2 others (Supra) I have

noted that in the said case allotment was cancelled on the basis

of fraud, forgery and fabrication whereas there is no such

allegation against the petitioners that at the time of allotment of

land in their favour they either played any fraud or succeeded to

get allotment on the basis of bogus documents or they were

ineligible to apply under the aforesaid scheme. Now coming to

the case of Muhammad Mahmood Ali (supra) I am of the view

that the same is poles apart from the facts and circumstances of

the present case for the reason that in the said case it was held

that in the wake of alternate remedy writ petition was not

maintainable whereas in the case in hand no remedy is available

to the petitioners against the order impugned in the petition. In

the case of Khawaj Din and another (Supra) this Court has held

that investigation in a criminal matter cannot be interfered by

this Court in exercise of its Constitutional jurisdiction whereas

no question regarding investigation or probe is involved in the

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Writ Petition No.4168 of 2012/BWP.
(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

present case. Moreover, there was allegation of fraud in the said

case which is not position in the case in hand. Insofar as the

case of Province of Punjab through Deputy

Commissioner/Collector of Sargodha, District Sargodha

(Supra) is concerned, instead of lending any support to the

respondents, the same goes against them for the reason that in

the said case order of the Board of Revenue exercising powers

under section 30(2) of the Act was set aside on the ground that

allegation of misrepresentation or fraud on the part of the

persons allotted land under the provisions of the Act was made

out. As far as the case of Ahsan Saleem (Supra) is concerned,

same revolves around the provisions of West Pakistan

Maintenance of Public Order Ordinance 1960 and other statutes

and has no remotest relevancy with the preposition involved in

this petition.

13. The learned law officer has emphatically argued that the

instant petition is not proceedable for the reason that the

petitioners would be at liberty to challenge final order in

appropriate proceedings. There is no cavil with the preposition

that proceedings pending before an executive authority cannot

be thwarted at its inception depriving the said authority to

arrive at a conclusion but at the same time when an act of the

executive offends against vested right of a party the same can

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(Mohammad Jafir and four others Vs Province of Punjab through District Collector, Bahawalpur etc.)

be challenged before this court while invoking its

Constitutional jurisdiction.

14. As a necessary corollary to the discussion made in the

fore-going paragraphs, I have no hesitation to hold that the

impugned cancellation proceedings initiated by respondent

No.2 are wholly untenable. Consequently, instant petition is

accepted, impugned letter is set aside and the cancellation

proceedings are quashed, being void ab-initio, leaving the

parties to bear their respective costs.

15. Before parting with this order it is observed that if the

land in question is needed for any public purpose the

respondents can utilize the same for the said purpose after

adopting due process provided under the law.

JUDGE

Approved for Reporting.

JUDGE
G.R.*