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Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE JUDICIAL DEPARTMENT

Writ Petition No.
Ch. Zafar Hussain, etc. Versus

174-R

of 2011

Border Area Committee, etc.

JUDGEMENT

Date of hearing

29.05.2012

Petitioners by Mr. Nauman Qaiser, Advocate. Respondents by Mr. Muhammad Siraj-ul-Islam Khan, Addl. Advocate General Mr. Amir Zahoor Chohan, Advocate.
.

IBAD-UR-REHMAN LODHI, J:

The area of

400-Kanals was allotted to an Army Personnel i.e. Lt. Col. Bashir Ahmad Qureshi in the year 1962 and proprietary rights were conferred to the said allottee. Mutation No.5 was sanctioned in favour of allottee on 27.12.1970. On the event of death of allottee, the property was devolved to his legal heirs and mutation of inheritance was sanctioned having No.47/1984. In 1985, the legal heirs of original allottee after obtaining No Objection Certificate from Border Area Committee/General Headquarters transferred the said land in favour of respondent No.6 and this reflected in mutation No.50/1985. Respondent No.6 sold the land to Muhammad Anwar, predecessor in interest of the petitioners, on 13.05.1997 through a mutation. On 17.07.2007 the Border Area

W.P.No.174-R-2011

Committee cancelled the allotment of the land in favour of respondent No.6. Said cancellation was challenged by predecessor in interest of the present petitioners through W.P.No.45-R/2008 and this Court vide order dated 13.01.2009 remanded the matter back to the Border Area Committee for decision afresh which Committee on 01.02.2010 refused to interfere in the earlier cancellation which again resulted in filing W.P.No.37-R/2010, the matter was remanded to the Committee. The Border Area Committee sticked to its earlier findings and again refused to recall the cancellation vide order dated 02.11.2011 which is impugned herein in this petition.

2.

The question to be answered is that when once a No

Objection Certificate was obtained by the original allottee, whether for any further transaction of land a fresh No Objection Certificate would still be required by the subsequent purchaser and in order to resolve this issue we have in front of us West Pakistan Border Area Regulations, 1959.

3.

The Regulations as noted above underwent a change in

Punjab by way of the West Pakistan Border Area Regulation, 1959 (Punjab Amendment) Ordinance, 1981 (Punjab Ordinance III of 1981). In Section 11 Schedule III (b) of the amending Ordinance, it is the legal position that the allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Headquarters. The concept of cancellation of allotment is provided in paragraph 10(a) which

W.P.No.174-R-2011

provides that if in view of Committee scrutinizing the allotment of any State land or immovable evacuee property within any Border Area, the Committee is satisfied that any allotment was made to a person not eligible for allotment, may proceed to cancel such allotment and direct the allottee to surrender forthwith the property to the Deputy Commissioner or the Committee. Here the missing of word subsequent purchaser is conspicuous and it is clear that the allotment from the name of original allottee can be cancelled but once it is further transferred and that too after obtaining the No Objection Certificate from the General Headquarters or Border Area Committee by the original allottee then the power to cancel the land from the subsequent transferees name would not be within the powers of the Border Area Committee. 4. In view of paragraph 10 of Schedule under the regulations,

allotment from the name of allottee is liable to be cancelled for breach of any of the conditions contained in paragraphs 5, 6 and 9 but no allotment is liable to be cancelled finally till the allottee has been given a fair chance to explain his such conduct complained against. 5. Once an original allottee, who has been accommodated under

Rehabilitation Settlement Scheme has been allowed to transfer his property under a No Objection Certificate issued by the General Headquarters or Border Area Committee, then in case of transfer to another individual the terms and conditions which were applicable to the allottee would come to an end and the subsequent purchaser

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would be considered a free citizen of Pakistan and would be at liberty to deal with his acquired land in any manner which deems fit and proper. The subsequent purchaser would no more be bound to observe the conditions which were made applicable to the original allottee under the West Pakistan Border Area Regulation, 1959 and the subsequent matters would be regulated under the Supreme Law i.e. Constitution which guarantees every citizen under Article 23 thereof to have a right to acquire, hold and dispose of property in any part of Pakistan and by virtue of Article 24 of the Constitution, it is again fundamental right of a citizen of Pakistan that he will not be deprived of property. The lands allotted under the Regulations, 1959 are undoubtedly situated within the Pakistan and thus are subject to be held with under the provisions of Constitution. The findings arrived at by the Border Area Committee whereby the allotment in favour of respondent No.6 (a subsequent transferee) was cancelled only for the reason of there being no NOC from General Headquarters or Border Area Committee is declared an act to have been taken by the Border Area Committee without lawful authority and of no legal effect and same is set aside. The transfer of the land in favour of the

predecessor in interest of the petitioner is declared to be in accordance with law and protected under the Constitutional provisions and it is declared that once a No Objection Certificate is issued by the Border Area Committee to the original allottee for transfer of the land, allotted to the said allottee by the Border Area

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Committee, then for subsequent transaction, no fresh No Objection Certificate from Border Area Committee or as the case may be the General Headquarters would require.

6.

In view of above, this petition stands allowed.

(Ijaz Ahmad) Judge

Approved for reporting.

(Ibad-ur-Rehman Lodhi) Judge

Judge
*M.Fayyaz*

Judge