MANSOOR AHMAD Versus CHIEF REHABILITATION COMMISSIONER

This judgment will dispose of Writ Petition No. 621‑R of 1968 entitled Manzoor Ahmed etc. v. Chief Settlement and Rehabilitation Commissioner etc. and Writ Petition No. 636‑R of 1968 entitled Abdul Hamid etc. v. Chief Settlement and Rehabilitation Commissioner etc.

2. The dispute in this case relates to the transfer of property bearing No. P/44, Ward No. 2, Lyallpur, which is a residential‑cum‑commercial property. It is a double‑storeyed building comprising of a two‑door‑shop and a room on its back on the ground floor, and a residential flat on the first floor. A portion of this property is on the bazar side and an other portion is in the lane. There are also two stair‑cases each on the bazar side and the lane side leading to the first floor. The entire first floor along with three stair‑cases‑(two on the lane side and one on the bazar side)‑has been in possession of Messrs Manzoor Ahmed and Zahoor Ahmed etc. who are petitioners in Writ Petition No. 621‑R/1968. The fourth stair‑case and the portion underneath it on the bazar side has been in possession of petitioner No. 1 in Writ Petition No. 636‑R/1968. During the earlier settlement operations on 18‑11‑1959 the Deputy Settlement Commissioner transferred the whole of this property to Manzoor Ahmed and Zahoor Ahmed petitioners in Writ Petition No 621‑R/1968. Against the aforesaid order five appeals were filed; one by Ghulam Mohammed and Mohammad Ali; second by Maulvi Ghulam Rasul; third by Malik Mohammad Sher (local) (respondent); fourth by Abdul Hamid and the fifth by Fazal Din. The Additional Settle ment Commissioner accepted the appeals of Abdul Hemid and Fazal Din petitioners in Writ Petition No. 636‑R/1968 and half of the shop in the ground floor was transferred to them and the rest of the property was allowed to remain with Manzoor Ahmed etc. The Additional Settlement Commissioner in his order held that "the stairs on the cloth goal side have been converted and used as shops by some of the appellants" before him, The order of the Additional Settlement Commissioner is dated 13‑7‑1960.

3. Against the aforesaid order of the Additional Settlement Commis sioner three revisions were filed; one by Manzoor Ahmed and Zahoor Ahmed; second by Abdul Hamid and Fazal Din and the third by Malik Mohammad Sher Tiwana (local) (respondent). (He only claimed that the property should be disposed of by auction). The Settlement Commissioner by means of his order dated 27‑12‑1962 dismissed all the three revisions and maintained the order of the Additional Settlement Commissioner. Abdul Hamtd and Fazal Din then associated themselves with Mohammad Shafi petitioner No. 3 an 1 Mohammad Ibrahim petitioner No. 4 in Writ Petition No. 636‑R/ 1968 and a joint P. T. O. was issued in their favour. It appears that Malik Mohammad Sher Tiwana (local) who was interested only in getting the property disposed of by auction gave up the pursuit but Manzoor Ahmed and Zahoor Ahmed etc, filed Writ Petition No. 959‑R/1963. Similarly Fazal Din and Abdul Hamid filed Writ Petition No. 1840‑R/1963. The writ petition filed by Manzoor Ahmed etc. was dismissed by J. H. Rizvi, J. on 7‑2‑1964. The writ petition of Fazal Din and Abdul Hamid was withdrawn by them on 18‑2‑1966.

4. Manzoor Ahmed etc. filed a letters patent appeal bearing No. 128 of 1964 which was dismissed by a Division Bench of this Court on 8‑10‑1964. The said petitioners i.e. Manzoor Ahmed etc. then filed a Civil Petition for Special Leave to appeal bearing No. 353 of 1964 but without any success as the same was dismissed by the Supreme Court on 27‑1‑1965. This will show that during the aforesaid round of litigation Malik Mohammad Sher Tiwana (respondent) did not assert his rights and the dispute remained confined between the petitioners in Writ Petition No. 621:‑R/1968 and the petitioners in Writ Petition No. 636‑R/1968. The petitioners‑in Writ Petition No. 636‑R/ 1968 also went out of the scene when they withdrew their earlier writ petition bearing No. 184'‑R/1963 and were contented with having received one‑half of the shop of the ground floor etc. However, only Manzoor Ahmed etc. I.e. petitioners in Writ Petition No. 621‑R/1968 at that time filed letters patent appeal and also went to the Supreme Court in proceedings arising out of their earlier Writ Petition No. 959‑R/1963. Throughout those proceedings, the learned Single Judge of this Court as well as the Division Bench and the Supreme Court maintained the manner of division of the property as had been made by the Settlement and Rehabilitation Authorities. The P. T. Ds. were issued somewhere in 1966 and the property thereafter went outside the compensation pool. r 5. It has been submitted by the department in their written statements that later on the Director of Enforcement sent a communication to the Chief Settlement and Rehabilitation Commissioner pointing out the defect in the manner of division of this property and the corresponding transfer on that basis to the petitioners in the present two writ petitions. The Chief Settle ment and Rehabilitation Commissioner took up the case and despite objection having been taken to his jurisdiction passed an order on 22‑6‑1968 which is the subject‑matter of challenge in the present two writ petitions. The Chief Settlement and Rehabilitation Commissioner observed that in the case the following six issues emerged out of the reference made by the Director of Enforcement:‑

"(1) Whether the previous proceedings with respect to the transfer of the shop are vitiated on account of fraud having been played on the Settlement Courts by the transferees?

(2) Whether the orders which are vitiated by fraud and false representation are without jurisdiction and are nullity in the eyes of law and do not require to be set aside formally and are just to be ignored by the Settlement Authorities?

(3) Whether the orders of the Settlement Authorities in so far as they pertain to the present shop, on the basis of possession over the stair cases, which are merely appurtenance to the residential portion on the first floor, were passed without jurisdiction and are nullity in the eyes of law?

(4) Whether the mere refusal of the High Court of West Pakistan and Supreme Court of Pakistan to interfere in exercise of their extra ordinary writ jurisdiction with the impugned orders of the Settlement Authorities could be deemed to lend any validity to the otherwise invalid and void orders?

(5) Whether with the promulgation of the Settlement Scheme No. VIII Malik Mohammad Sher Tiwana, has acquired a right to the transfer of the shop in his exclusive possession and has also now got a locus standi to agitate against the invalidity of the transfer and fraudulent procurement of the property ?

(6) Whether the shop in dispute is to be deemed to be available for transfer since the previous orders are nullities"?

As regards the first two issues the Chief Settlement Commissioner without indicating as to what the fraud alleged on the part of the transferees was held that "in the circumstances of the present case the plea of fraud is well founded and fraud vitiates even the solemnest proceedings".

6. As regards the third issue the Chief Settlement Commissioner held that:

"It has been laid down by the Supreme Court of Pakistan, m a case reported as P L D 1966 S C 719 that a property cannot be trans ferred to a person on the basis of his possession over an appurtenance of main residential premises. The same principle would apply with equal force to the case of a business premises. If the principle, laid down in this decision, is to be followed to its logical conclusions, the transfer of the shop to the occupants of the stair‑cases would be clearly without jurisdiction and of no legal effect."

7. As regards the fourth issue, the Chief Settlement Commissioner held as follows: ‑

"As regards the 4th issue regarding the decision of Supreme Court of Pakistan and High Court of West Pakistan in the present case, the correct position is that the writ petition and petition for Special Leave to Appeal were dismissed in limine. The High Court and Supreme Court had thus refused to grant any relief to the petitioners and also refused to interfere in exercise of the extraordinary jurisdiction with the orders of the Settlement Authorities. Therefore, in this case, the theory of merger would have no application. It may also be noted that these decisions of the High Court and Supreme Court were ex parts as regards other‑persons interested or concerned with the shop. The local occupant, Malik Mohammad Sher was not even a party to these proceedings. Thus he is not bound by these decisions in any manner. The question of fraud and false representation was neither agitated nor discussed by the superior Courts and they merely repelled the conten tions, raised by the petitioners, before them and refused to interfere.

This circumstance, in itself, would not be sufficient to preclude the Settlement Authorities from holding an order to be nullity and from ignoring it."

8. As regards the fifth and sixth issues the findings recorded by the Chief Settlement Commissioner read as follows:‑

"As regards 5th and 6th issues so far as the locus standi of Malik Mohammad Sher is concerned, it is no doubt clear that now under the Settlement Scheme No. VIII if the shop is undisposed, then he would become entitled to its transfer as ban for transfer of shops to locals is no more effective. The question of entitlement of applicant Malik Mohammad Sher, hinges on the meanings to be given to the words has not been disposed of", in the context in which they have been used in the Scheme. The real intention seems to be to include these properties which have not been disposed of so far and this would include also those properties, which have not been disposed of in law i.e. void transfers. If the purported orders of transfer, already ‑made with respect to a property are without jurisdiction and nullities in the eyes of law, then those orders are no orders in the eyes of law, and such void orders cannot furnish the foundation for disposal of a property.. In view of this contention, the Settlement Authorities should go into the entire case de novo for the purpose of determining whether the previous proceedings were vitiated by fraud and whether the orders of transfer were without or with jurisdiction. If it be found ultimately that orders of transfer were void, then to give a declaration that the proceedings and orders were without jurisdiction would be an act covered by the rulings given by the Supreme Court of Pakistan in the case of Mohammad Jamil Asghar and Altaf Hussain referred to above."

After recording the above findings the Chief Settlement and Rehabili tation Commissioner held that:‑

"Consequently orders of transfer are without jurisdiction, void ab initio and nullity in the eyes of, law then anything based upon them would automatically fall to the ground, with all the superstructures based upon them. An extract from a decision of Supreme Court of Pakistan reported as P L D 1958 S C (Pak.) 104, may be reproduced in extenso with advantage:

Whether the Legislature clothes an order with finality, it always assumes that order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in it, in the eye of law such order being void and non‑existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void orders on which they are founded.

The mere fact that any party has already obtained a Permanent Transfer Deed would not be a circumstance, which would constitute a hurdle in the way of the Department because Permanent Transfer Deed is based on the orders of the transfer and by itself it cannot give validity to invalid order of transfer. Inter alia for all the reasons stated above I send this case to the Settlement Commissioner (Urban) for disposal in accordance with law and procedure."

As mentioned earlier the transferees have challenged the aforesaid order.

9. During the course of proceedings before the Chief Settlement Com missioner the situation became crystal clear as to who was behind the curtain who was trying to get reopened the matters which had been got settled in the earlier round of litigation which went right up to the Supreme Court. Malik' Mohammad Sher Tiwana. (respondent) filed an application before the Chief Settlement Commissioner to the effect that he may be impleaded as a party in those proceedings inasmuch as he was the person who was in occupation of the shop in the ground floor and knew the relevant transfer history of the case. Needless to mention that even though Malik Mohammad Sher Tiwana had given up the pursuit after the order of the learned Settlement Commis sioner dated 27‑12‑1962 when his revision was dismissed, neverthless he appeared on the scene by mans of the aforesaid application before the Chief Settlement Commissioner who (as conceded in the written statements of the department) was pleased to make him a party by means of his order dated 6‑1‑1968 and also made certain observations in his favour in his order dated 22‑6‑1968. Before me also it was only he who raised arguments through his learned counsel in support of the impugned order of the Chief Settlement Commissioner..

10. Learned counsel for the contesting respondents raised a preliminary objection submitting that as the order of the Chief Settlement Commissioner was only of an interim nature and not a final order, inasmuch as, he had not decided anything in the case himself and had rather simply forwarded it to the Settlement Commissioner for disposal in accordance with law and pro cedure, therefore, against such an interim order no writ petition was maintain able. (Learned counsel, however, agreed that if the view of this Court be that the Chief Settlement Commissioner had himself determined this matter in any manner then he would not be able to support the same, because, the learned counsel conceded, the order of the Chief Settlement Commissioner in that perspective would be in excess of his jurisdiction, inasmuch as, he possessed no revisional jurisdiction on the relevant date to examine the validity of the order of his subordinates due to the deletion of subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation Act XXVIII of 1958 hereby called the Act). The preliminary objection raised by the learned counsel for the contesting respondents is not well‑founded, because, a simple persual of the order of the Chief Settlement Commissioner will show that he has virtually determined the main case, has recorded categorical findings on various points and has in fact sealed the fate of the matter and the transmission of the case thereafter to the Settlement Commissioner is only a formality who would be left with no option but to dispose of the same in accordance with the necessary procedure. The relevant extracts from the order of the Chief Settlement Commissioner have been reproduced in extenso. They show that (lie Chief Settlement Commissioner after writing that fraud vitiates everything has held under issues Nos, I and 2 that "in the circumstances of the present case the plea of fraud is well founded" though as observed by me earlier he did not point out as to what was the fraud practised by the writ petitioners and on whom. Similarly on issue No. 3 lie held that the transfer to the con cerned writ petitioners on the basis of their possession over staircases was without jurisdiction. Certain writ petitioners were in possession of first floor along with the relevant staircases but considering that the overall basis for transfer to various transferees was only staircases, he held as reproduced above (though as is evident from the relevant order this assumption was not wholly correct). On issue No. 4 he held that the decisions of High Court and Supreme Court were not binding on Malik Mohammad Sher Tiwana respondents he was not a party in those Courts. However, the Chief Settlement Commissioner forgot to notice that Malik Mohammad Sher Tiwana had voluntarily gone out of the scene, after the order of the Settle ment Commissioner dated 27‑12‑1962 when he filed no writ petition against the rejection of his entitlement. It is pertinent at this stage to reproduce a passage from the order of the Settlement Commissioner. He: held that "as regards the revision petition of Malik Mohammad Sher i do not know where he stands. He is a local and has no right under the law to the transfer of the shop. At the same time a shop which is in occupation of displaced persons or they are in occupation of a portion of it, it cannot be put to auction for the benefit of a local. I do not find any reason to accede to the request of Malik Mohammad Sher". To re‑open a case for the benefit of such a person who had not cared to pursue his right anywhere further, it would thus appear, on the facts and in the peculiar circumstances of the present case was not justified on the part of the Chief Settlement Commissioner. No portion of property had been transferred to Malik Mohammad Sher Tiwana and the writ petitioners were, therefore, not required to make him a party in the course of their earlier writ petitions in this Court. The Chief Settlement Commissioner was, therefore, not authorised to whittle down the rigour of the earlier decision of the Supreme Court and the High Court on the ground of non‑impleadment of Malik Mohammad Sher Tiwana. On issues Nos. 5 and 6 and in the ultimate conclusion the Chief Settlement Commissioner again made strong observations in favour of Malik Mohammad Sher Tiwana and took the view that the earlier orders of transfer were without jurisdiction, void, ab initio and nullity in the eye of law. He considered that in cases of present type it could be held that despite earlier transfer orders the property "has not been disposed of". All these findings will show that the Chief Settlement Commissioner had virtually sealed the fate of the case and has recorded definite findings and to say, therefore, that his order is still not a final order in those respects is not correct: The preliminary objection raised by the learned counsel for the contesting respondents is hereby repelled.

11. The next point to be seen is whether the Chief Settlement Com missioner had the jurisdiction to decide the matter on 22‑6‑1968 when he passed the impugned order. It is well known that subsection (2) of section 20 of the Act was deleted with effect from 13‑1‑1962 by Ordinance II of 1962. This was the only provision of law which bestowed revisional jurisdiction. on the Chief Settlement Commissioner and, if on the relevant date he did not possess any such jurisdiction it is not understandable as to under which jurisdiction he was recording the various findings hereinbefore reproduced. Another provision of law authorising the reopening of cases was contained in the Central Government Notification No. S. R. O. 824(K)/61 dated 1‑9‑1961 (generally known as Notification for informants) but as laid down in Muhammad Siddiq etc. v. Chief Settlement and Rehabilitation Commr., Lahore etc. (PLD 1966 SC 123), Abdul Karim v. Sh. Muhammad Rafique, Settlement Commr. with powers of Chief Settlement and Rehabilitation Commr., Lahore and others (PLD 1966 Lah 33) and Allah Ditta v. Haji Jan Mohammad and others (PLD 1974 SC 113) this Notification lost its efficacy after the relevant amendment in the main Act with the necessary legal effect that any reference made by the informant at least for cancellation of transfer documents was incompetent and misconceived. Since the point aforesaid is already covered by the authorities hereinbefore mentioned I need net go further deep into it. Learned counsel for the contesting respondents as earlier mentioned, conceded that if the order of the Chief Settlement Commissioner was an operative ant final order which contained positive legal and factual findings in various relevant aspects of the matter then he would not to able to support the same. I have already held that it is a final order in various respects and as such on the admission of the learned counsel himself cannot be sustained.

12. Apart from the concession of the learned counsel for the contesting respondents, even otherwise my own view also is that the Chief Settlement Commissioner acted without lawful authority in whittling down the efficacy of the orders of the Supreme Court and the High Court. In Article 190 of the Constitution it is laid down that all executive and judicial authorities shall act in aid of the supreme Court. The Chief Settlement Commissioner did not perform his constitutional duty when he did not act in aid of the Supreme Court and, rather tried to find exceptions to its decision. In Mata Prosad v. Nageshar Sahai (521 A 398 (P C)) it was written that _ "in view of the peculiar course adopted by the Subordinate judge in dealing with this case, and in order to prevent other Courts in India from failing into same error, their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular case. Nor is it open to them, whether on account of "judicial dignity" or other wise, to question its decision on any particular issue of fact. Any application for review of judgment on grounds permissible by law only lies to the Judicial Committee."

This principle was reiterated by the Federal Court of Pakistan (as then it was) in Fazal Elahi and others v. The Crown (P L D 1953 F C 35). 1 am of the view that the Chief Settlement Commissioner acted without lawful authority in recording the findings on the validity of a transfer which had been approved earlier by the Supreme Court and the High Court.

13. It may be noticed that the constructional structure of the property, the status of its occupants ' and applicants, the nature and extent of their possession and use were well before the Additional Settlement Commissioner, the High Court and the Supreme Court, all of whom, After attending to all those ‑matters, approved the manner of its division as adopted at that time. The Additional Settlement Commissioner as quoted earlier had held that stair cases had been converted and used by their occupants as shops. Merely because the Chief Settlement Commissioner or Malik Mohammad Sher Tiwana had different views in this respect, was no ground to again examine whether the aforesaid division was regular and consequent transfer was valid or not. In Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1965 S C 123) it was held that any alleged objection. in the manner of division of a property could not render a transfer made on that basis‑,as "irregular" so as to reopen the same at the instance of Enforcement Staff on the basis of an information in that respect laid by an informer. It is to be pointed out that in the instant case even the P. T. Ds. bad also been issued and as held in Aminuddin v. Settlement Commissioner and others (1973 S C M R 624) and Syed Murid Hussain Shah v. Mufti Muhammad Yousuf All and another (1974 SCMR 8) the Chief Settlement Commissioner thereafter possessed no jurisdiction to reopen this case or direct its re‑opening. It is to be remembered that the Chief Settlement Commissioner bad remitted the case to the Settlement Commissioner forgetting that the Settlement Commissioner was a party in the earlier writ petition in the High Court and the Supreme Court. The said Officer had filed parawise comments in the High Court and even at that stage supported his order. The said order on the peculiar facts and in the circumstances of the present case became res judicata between him and the transferees, because, there is no provision of law authorising him to re‑open it (and the principle of no estoppel against the statute is not applicable to this case). The fact that the writ petition was dismissed in limine is, however, immaterial especially when the Settlement Commissioner had filed his written reply. The Settle ment Commissioner having persuaded the High Court to maintain his order would not be in a position to himself go back against the same and any direction of the Chief Settlement Commissioner asking him to do so was from this point of view also illegal, inasmuch as, it compelled the Settlement Commissioner to do that which he could not do in the context of the present case and the developments which in the meantime bad taken place. The maximum that a Settlement Commissioner could do was to review the order of his predecessor but this jurisdiction too he did not possess after deletion of subsection (1) of section 21 of the Act. This shows that this is a case where neither the Chief Settlement Commissioner himself possessed any jurisdiction and nor could he confer any jurisdiction on a Settlement Commissioner. In section 22 of the Act it is clearly written that "save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court". The Chief Settle ment Commissioner could not destroy the finality of the earlier orders, in the face of the aforesaid section and the various other reasons and grounds highlighted by me above.

14. The upshot of the above discussion is that the order of the Chief Settlement Commissioner dated 22‑6‑1968 which has been impugned in this case is declared to be without lawful authority and of no legal effect against the petitioners and is hereby quashed. The petitioners should get their costs from the respondent (Malik Mohammad Sher Tiwana, who is now represented on record by his legal representatives).

K. B. A. Petition accepted.