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Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE JUDICIAL DEPARTMENT

Writ Petition No. 174-R of 2011 Ch. Zafar Hussain, etc. Versus 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 2

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 3

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 transferee’s 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

W.P.No.174-R-2011 4

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

W.P.No.174-R-2011 5

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) (Ibad-ur-Rehman Lodhi) Judge Judge Approved for reporting. Judge Judge

*M.Fayyaz*