MUHAMMAD SHAFI Versus MAUJ DIN KHAN

Facts leading to this petition are that the petitioner purchased in public auction property No. 315/1-2 situated in Main Bazar, Khushab, District Sargodha for a sum of Rs. 44000 some time in December, 1963. For pay ment of a part of the transfer price, the petitioner entered into two agreements of association with one Rai Fazal Ahmad for Rs. 29,000 and Rs. 398 on 7-3-64 and 21-4-64. It may be mentioned here that one Ghulam Sabir Qureshi who moved the ball rolling was a marginal witness of these agreements: These agreements of association were accepted and the aforesaid two amounts; after necessary verification from the Head Office, Lahore etc. were adjusted towards the transfer price. After necessary certification by the Assistant Accounts-, Officer that full payment had been made, Syed Hameed Hussain, the Deputy Settlement Commissioner passed an order permanently transferring the pro perty to the petitioner. The petitioner, was accordingly, issued Permanent. Transfer Deed on 26-5-1966.

2. Some time in the year 1968, the aforesaid Ghulam Sabir appears to, have filed an application before the Settlement Commissioner that the Com pensation Book of Rai Fazal Abmad which had been adjusted towards tbe transfer price of the property purchased by the petitioner was bogus one. The Settlement Commissioner on 31-10-1968 sent the papers to the Deputy Settlement Commissioner. The later submitted a report to the Additional Settlement Commissioner. Syed Hameed Hussain, as Additional Settlement Commissioner, passed an order that the agreements of association based on forged entries were bogus, the same were cancelled. This is vide order dated 20.4-1969. The petitioner filed an appeal on the grounds that Syed Hameed; Hussain -had himself approved the agreements of association as the Deputy Settlement Commissioner, therefore, he could not act an Additional Com missioner in the same case and to annul the agreements. Further, that the order appealed against was passed without notice and without affording an. opportunity of being heard to the petitioner. The appeal was accepted and the case remanded for fresh decision after hearing the petitioner. On remand, Syed Hameed Hussain took up the matter again, as Additional Settlement Commissioner and held that entries in the Compensation Book of Rai Fazal Ahmad had been tampered with, therefore, the petitioner was liable to pay the amount already adjusted from the said Compensation Book. This is vide, order dated 15-12-69. The petitioner filed another appeal before the Settle ment Commissioner but the same was dismissed vide order dated 15-1-1970. The petitioner has filed this petition under Article 98 of the late Constitution of 1962 challenging the aforesaid orders.

3. Learned counsel appearing for the petitioner has submitted that the orders of the Settlement authorities are without jurisdiction because after issuance of the Permanent Transfer Deed, the Settlement authorities had: become functus officio. Secondly, it is contended that the petitioner submitted the agreements of association and the Compansation Book of Rai Fazal Ahmad before the Settlement authorities for approval and adjustment of the transfer price. If the entries in the Compensation Book of Rai Fazal Ahmad had been tampered with and were bogus, as is now being said, the Settlement authorities should have said so at the time of adjustment, the petitioner would have been saved from loss and being cheated and so also the Department. At that time, the Settlement authorities, after necessary verification from their own record, and from the record of the Central Record Office, Lahore, found the entries to be genuine. An Assistant Accounts Officer of the Deputy Settlement Com missioner's Office certified that adjustment had been allowed and full transfer price paid and, then, Syed Hameed Hussain, as Deputy Settlement Com missioner, transferred the property permanently to the petitioner and issued Permanent Transfer Deed. On the application of Ghulam Sabir, two years later Syed Hameed Hassain, as Additional Settlement Commissioner, had come to hold that the entries in the Compensation Book were bogus and as the petitioner had derived benefit, he was liable to make the payment. It is submitted that there is something wrong somewhere that without finding out as to who committed fraud and how and in spite of the petitioner's protest that a criminal case be lodged to find out the truth, the petitioner is, instead, being made liable to make good the loss. The learned counsel submits that if something wrong had gone by the Compensation Book, the Settlement Department itself is responsible for the same. It itself verified the authenticity of the entries, got it verified from its Central Record Office, Lahore, the Assistant Accounts Officer issued a certificate. In these circumstances, if a loss has come about, the authorities should search their own conscience, follow their own officials and make up the loss or suffer it. They cannot pester the petitioner who acted bona fide and put the papers before the authorities. It is pointed out that as held by the Additional Settlement Commissioner, "the tampering of figures was so thin and delicated that it would not be detected by any body in the normal course of scrutiny, and was only disclosed by Ghulam Sabir". If that is so, how on earth, the petitioner could have detected the tampering. He bona fide purchased the deferred amount and submitted the Book before the authority. Lastly, it is contended that the entries in the Compensation Book of Rai Fazal Ahmad have not been adjudged upon in proper proceedings after recording evidence of all the persons concerned.

4. Mr. Parvez Butter, Advocate who appears for Ghulam Sabir who had got himself impleaded as a respondent on the ground that he was a necessary party to be heard because it was on his initiative that the matter had been taken up, has submitted that the petitioner is not entitled to relief as he has not come to Court with clean hands and is not entitled to the transfer of the property.

5. The self-impleaded respondent, Ghulam Sabir, appears to be the villain of the piece. He is an attesting witness of the agreements of associ ation. If he knew that entries in the Compensation Book were forged, why did he become party to the commission of what is an offence. Further, what was his interest in filing a complaint before the Settlement Commissioner except being a busy body, if not malignant. He chose to become a party to contest the petitioner's cause. It is too difficult these days to believe that he is acting pro bono publico. Therefore, it is held that he has no locus standi whatsoever to contest the present proceedings.

6. The orders passed by Syed Hameed Hussain, as Additional Settlement Commissioner smack of something other than straightforward and legal. In the first instance, be cancelled the agreements of associations, on an office report, without issuing a notice to the petitioner. Secondly, he had accepted these agreements of association as Deputy Settlement Commissioner. H could not sit to cancel the same as Additional Settlement Commissioner, therefore, the impugned order passed by the Additional Settlement Commissioner Syed Hamid Hussain, cannot be sustained as no one can act as a original Court or authority and an appellate authority in the same cause. I the case of Mubarak Ali Bhatti v. Fayaz All Khan, District Manager, Provincial Transport Service, Lyallpur and others (P L D 1963 Lah. 8), Mr. Fayaz Ali Khan was the Chairman of the Screening Committee who recommended the removal of the employee. The latter filed an appeal. It was heard by Mr. Fayaz Ali Khan, as the appellate authority. It was held by a learned Division Bench of this Court presided over by the then learned Chief Justice, M. R. Kayani, in which the leading judgment was delivered by the then Mr. Justice Sardar Muhammad Iqbal, now my Lord, the Chief Justice that "the hearing of an appeal by an authority who has himself participated in the original proceedings is contrary to law". In the case of the King v. Salford Assessment Committee Ex parte; Odgen. ((1937) 2 K B 1); "An officer of a rating authority, whose duty was to attend the meetings of the rating committee for the purpose of taking minutes of their proceedings, and so would obtain knowledge of all the transactions of the rating authority, was appointed by the assessment committee for that area acting clerk to that committee and would have to advise the assessment com mittee upon matters of procedure. The assessment committee would have to consider an objection by the rating authority to a proposal to amend the valuation list. An application was made to prohibit the assessment committee from acting on the resolution appointing the office rating clerk to the assessment committee and also from acting upon a resolution directing him to remain in attendance on the committee during the hearing of the objection to the appellants proposal to amend the valuation list and the deliberations of the committee thereon on the ground that if the officer were present at the meeting of the assessment committee when this objection and proposal were being heard, and advised that committee on procedure, it would be impossible to hold that it was a cause where justice appeared manifestly arid undoubtedly to be done". Reliance was also placed on Rex v. Essex Justices, Ex parte: Perkins wherein it had been observed that "the question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered ; the question is whether he was so related to the ease in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice". Thus, it is quite clear that even where there can be a suspicion that justice was not being done, the proceedings are liable to be quashed, in the case of R. v. East Kerrier Justices Ex parte :Mundy (1952 Q B D 144)' where after the justices had retired to consider the guilt' and had come to the conclusion of finding the accused guilty, the clerk obtained an informa tion from the police officer and informed the Justices in the retiring room for considering the question of sentence on account of previous conviction. The final order was challenged by means of an application in the nature of certiorari Lord Goddard, C. J. observed "that it has been said over and over again that decision must be the decision of the justices not the decision of the justices and their clerk, still less the decision of the clerk, and, if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justices, or may take some course which it is for the justices alone to take". Devlin, J. observed that "I should like to state what I believe to be the principle on which the Court is acting. We are not dealing with a case of actual injustice. If we were, that would be the end of the matter, and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done, and, accordingly, we are dealing with matters of form. The Courts have held in the past that it is important not only that justice should be done. but also that it should be seen to be done, and that a person who has been found guilty by the justices should know there has been no actual injustice". In the case of R v. Stafford Borough Justices, Ex parte: Ross (1962 All E R 1 Q B D 540) it was observed that "it has always been a principle of our law that justice should manifestly be seen to be done". Thus, from the above it is quite clear that Syed Hamid Hussain, who had acted as a Deputy Settlement Commissioner in the case in the first instance could not have exercised powers as an Additional Settlement Commissioner in the same cause. His order, thus, lacks jurisdiction and is contrary to the rules of natural justice. His order was challenged on the aforesaid ground before the Settlement Commissioner but the latter did not give it any consideration. The same ground has been urged in this petition. The objection is patently fundamental and goes to the root of the matter.

Therefore, the order of Syed Hamid Hussain, Additional Settlement Com missioner, is void altogether, and, any superstructure built thereon auto matically falls through.

8. Petitioner had been issued Permanent Transfer Deed. The Settle ment authorities have, thus, become functus officio. Reliance may be placed on Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 SCMR 8). Even if it were a case of fraud or misrepresentation, the Settlement authorities would have no jurisdicticn in the matter as held by their Lordships of the Supreme Court in the case of Mst. Jehan Ara Begum v. Bashir Ahmad arid others in Civil Appeal No. 39 dated 28th March, 1974, wherein it was observed that "the question whether the Settlement authorities could set aside the P.T.D. on the ground of fraud and misrepresentation was recently considered by this Court in Civil Appeal No. 109 of 1969 (Haji Faizul Haque Khan v. Syed Abdul Homid and others). It was observed in that case as under :-

"We are also unable to agree with the view of the Settlement Commis sioner and the High Court that even after a P.T.D. has been issued, the Settlement authorities can deal with the property. Under the P.T.D. Rules, a P.T.D. could under rule 7 only be cancelled on the ground that it has been obtained by fraud or misrepresentation or in contra vention of any of the provisions of the Act but after rule 7 was deleted by a notification issued on the 27th of December, 1964, even this power disappeared, as held by this Court in the case of S. Anwar Hussain Sami v. Sarfraz Ahmad and Aminuddin v. Settlement Commissioner."

It was, further, observed that any party having a grievance on the ground of fraud or misrepresentation can only challenge the Permanent Transfer Deed before a Civil Court, if so advised. In this view of the matter, there was no jurisdiction in the Settlement authorities to pass the impugned orders. If they cannot blame themselves, or follow their officials who are equally responsible, they may take any other appropriate action in accordance with law which might be open to them than what they had sought to achieve through the impugned orders. These are totally without jurisdiction and contrary to law.

9. For the foregoing reasons, this petition is accepted, impugned orders are declared to be without lawful authority and of no legal effect. However, the petitioner shall bear his own costs.

S.A.H. Petition accepted.