W.P.No.2691 of 2010.

Jaffar Ali etc.

MBR etc.

18.09.2012. Malik Ghulam Siddique Awan, Advocate for the

petitioner.
Mr. Faisal Zaman Khan, Addl. Advocate General for
respondent No.1.
Mr. Khalid Mehmood Rana, Advocate for respondent
No.2.
The dispute relates to land measuring 101 Kanals 1
Marla situated in Chak No.548/GB Tehsil Tandlianwala
District Faisalabad. Ghulam Ali and Muhammad Saeed
were declared eligible for allotment of alternate land on
29.12.1981 on the basis that they were affectees of
Mangla Dam. On 23.06.1983, alternate land was allotted
to them under Grow More Food Scheme. Possession was
delivered to Allah Yar, attorney of petitioners No.2 and
3. On 20.01.1984, petitioners No.2 and 3 entered into an
agreement to sell with Muhammad Amir, respondent
No.2 agreeing to transfer the property to him as soon as
the proprietary rights in the property were granted to
them. Possession of the land was also delivered to
Muhammad Amir.
2.

Subsequently, petitioners No.2 and 3 moved an

application with the competent authority praying that the

tenancy be transferred in favour of Jaffar Ali, petitioner

W.P.No.2691 of 2010.

No.1. On gaining knowledge of the said application,

respondent No.2 filed a suit for declaration and
injunction. The learned trial court granted injunction in
favour of respondent No.2. In the meantime, on
10.01.2009, on the statement of petitioners No.2 and 3,
the concerned EDO (R) transferred the tenancy in favour
of petitioner No.1. Against the said order ROR
No.245/2009 was filed with the Member Board of
Revenue by respondent No.2. Vide order dated
24.07.2009, the Member Board of Revenue passed an
order cancelling initial allotment in favour of petitioners
No.2 and 3 inter alia on the following grounds:a)

Allotment in favour of petitioners No.2 and 3 in

the year 1983 was bogus. The signatures of the Colony

Assistant on the allotment document were forged.
b)

Property in question was in illegal occupation of

Allah Yar, the attorney of the petitioners No.2 and 3.

c)

The agreement with respondent No.2 did not create

any rights.
The learned Member Board of Revenue, therefore,
passed an order of resumption of land in favour of the
Government.
3.

Petitioner No.3 filed a review application on

06.08.2009. Vide order dated 27.01.2010, the said

application was dismissed.

4.

W.P.No.2691 of 2010.

The learned counsel for the petitioners submits that

there was no evidence before the Member Board of

Revenue (MBR) on the basis of which he declared the
allotment letter in favour of the petitioners as forged. He
further submits that the MBR had no jurisdiction in the
matter and in any event the exercise of jurisdiction by
respondent No.1 was violative of provisions of Section
30(b) of Colonization of Government Land (Punjab) Act,
1912.
5.

The learned counsel for respondent No.2 submits

that notwithstanding the order passed by the Member

Board of Revenue, the rights of respondent No.2 arise out
of an independent agreement to sell and could not have
been defeated by virtue of the impugned order. He
further submits that respondent No.2 has been non-suited
without giving any express findings regarding the
validity of the agreement in his favour.
6.

The learned Addl. Advocate General has made

following submissions:i)

The order passed by the Member Board of

Revenue gives findings on the factual aspects of the

matter insofar as he has found that the signatures of the
Colony Assistant on the allotment document were forged.
This matter requires a factual inquiry. Therefore, a civil

W.P.No.2691 of 2010.

court of competent jurisdiction is the correct forum to

resolve this issue instead of this Court.
ii)

This Court can only examine jurisdictional defects

in exercise of its constitutional jurisdiction. It is not the

case of any side that Member Board of Revenue did not
have jurisdiction to pass the impugned order.
iii)

Admittedly, respondent No.2 Muhammad Amir

filed a suit for declaration and permanent injunction. The

learned counsel for respondent No.2 admits that the said
suit is still pending. Muhammad Amir had no right to
approach Board of Revenue in view of the fact that he
was admittedly claiming right on the basis of an
agreement to sell, which does not confer any right of
allotment.
iv)

Petitioner No.1 Jaffar Ali got the tenancy right of

the land in question transferred by virtue of an order

passed by the EDO (R). He submits that the said transfer
was illegal in view of the fact that the injunctive order
passed in favour of respondent No.2/Muhammad Amir
was still in filed. Therefore, in view of the findings of the
Member Board of Revenue that the initial allotment of
leasehold rights in favour of petitioners No.2 and 3 was
illegal, the entire edifice built on that basis came down
and is non existent. He submits that the rights of Jaffar
Ali as well as Muhammad Amir emanate from the rights

W.P.No.2691 of 2010.

of petitioners No.2 and 3. If it is found that petitioners

No.2 and 3 had obtained rights fraudulently, the rights in
favour of petitioner No.1 Jaafar Ali and respondent No.2
Muhammad Amir would automatically stand extinguish.
7.

I have heard the learned counsel for the parties and

gone through the record. The rights of petitioner No.1

and respondent No.2 emanate from the right, title and
interest of petitioners No.2 and 3. It is an admitted fact
that petitioners No.2 and 3 were found entitled to
allotment of alternate land vide order dated 29.12.1981 in
lieu of their land, which came under the Mangla Dam
Scheme. Consequently, vide order dated 23.06.1983, land
measuring 101 Kanals 1 Marla situated in Chak
No.548/GB, Tehsil Tandlianwala District Faisalabad was
allotted to them under the Grow More Food Scheme.
Possession was also delivered to the attorney of
petitioners No.2 and 3. Petitioners No.2 and 3 entered
into an agreement to sell with Muhammad Amir,
respondent No.2 and agreed to transfer the rights in the
property in his favour as soon as proprietary rights were
granted to them under the law. However, it appears that
subsequently petitioners No.2 and 3 also moved an
application that the tenancy be transferred in favour of
petitioner No.1. Litigation inter se the parties was already
pending before the learned subordinate courts when the

W.P.No.2691 of 2010.

tenancy was transferred by the EDO(R) in favour of

petitioner No.1.
8.

Respondent No.2 Muhammad Amir filed an ROR

before the Member Board of Revenue alleging that he

was in possession of the property in question, the tenancy
was transferred during pendency of a restraining order in
his favour passed by a court of competent jurisdiction
and was therefore, liable to be set aside. In deciding ROR
the learned Member Board of Revenue recorded a
finding that the allotment in favour of petitioners No.2
and 3 in 1983 had been undertaken on the basis of a
bogus document. Although he recorded other findings
but his findings on fraud have been the focus of the
arguments addressed by the learned counsel for the
petitioner. The question requiring determination by this
Court is whether in recording findings of fraud the
learned Member Board of Revenue acted within
jurisdiction and in a lawful manner. The response to the
said question has to be in the negative for the following
reasons:i)

Section 30(b) of the Colonization of Government

Land (Punjab) Act, 1912 is significant in this respect. It

provides that in case the Member Board of Revenue is
satisfied that a person has acquired tenancy rights by
means of fraud, he may after giving such person a

W.P.No.2691 of 2010.

reasonable opportunity of showing cause, pass an order

resuming the land in respect of which the proprietary
rights have been acquired. It would be useful to
reproduce the provisions of Section 30(b) for ease of
reference:30(b) 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 from any reasons 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.
It is not denied by any of the parties that provisions
of Section 30(b) were not duly followed by the Member
Board of Revenue. This fact is also evident from a
perusal of the impugned order.
ii)

The impugned order as well as the revision petition

filed by respondent No.2 indicates that none of the

parties alleged fraud in the matter. The said question was
taken note of by the Member Board of Revenue himself.
He did not lack jurisdiction to examine the question of
fraud. However, in case he was satisfied that fraud has
been committed, he was required to follow the provisions

W.P.No.2691 of 2010.

of Section 30(b) ibid, confront the parties, give them

reasonable opportunity to defend themselves and
thereafter pass an appropriate order. The parties were
never confronted with the question of fraud. The learned
Member Board of Revenue unilaterally and in isolation,
considered the question of fraud and passed the
impugned order directing resumption of the land in
question. This constitutes an illegality in exercise of
jurisdiction and is fatal to the impugned order.
iii)

As far as the question of fraud is concerned, this

Court is of the opinion that the petitioners as well as

respondent No.2 have been condemned unheard and have
been presented with a fate accompli without having been
given a reasonable opportunity to present their point of
view. Had they been provided an opportunity to defend
themselves, interest of justice would have been better
served and the learned Member Board of Revenue would
have had a more wholesome view of the, facts and
circumstances on the basis of which he could have passed
a more reasoned and legally sustainable order. This
having not been done, the requirements of administration
of justice have not been fulfilled.
9.

For reasons recorded above, this petition is

allowed. The impugned order of the learned Member

Board of Revenue dated 24.07.2009 is hereby set aside.

W.P.No.2691 of 2010.

The matter is remanded to the learned Member Board of

Revenue with the direction to confront the petitioners as
well as respondent No.2 with the allegations of fraud,
grant them reasonable opportunity of showing cause to
present their point of view as envisaged by Section 30(b)
and other relevant provisions of the Colonization of
Government Lands (Punjab) Act, 1912 and thereafter
pass an appropriate order in accordance with law. The
petitioners as well as respondent No.2 shall appear before
the Member Board

of Revenue on

26.09.2012,

whereafter he shall proceed with the matter as

expeditiously as possible.
10.

Petition allowed in the aforenoted terms.

(IJAZ UL AHSAN)
JUDGE
A.Rehman.

Approved for reporting.