MUHAMMAD SIDDIQUE Versus HAWABAI

1. The petitioner Muhammad Siddique has filed this Constitutional Petition calling in question the order of the Notified Officer (Mr.Mukhtar. Ahmed Khan), dated 19‑3‑1983, whereby the transfer of the Property NQ.LY‑7/18 (428 sq. yards), Moosa Lane, Karachi in favour of the petitioner was declared void, directing that the said property be brought to the notice of the Land Utilization Department of the Board of Revenue Sind, for disposal under the Scheme prepared under section 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) hereinafter called as 1975 Act. The petitioner's case which has a chequered history started from 3‑12‑1959 when he applied for transfer of the disputed property, an open plot, in the prescribed form (OP Form). After the necessary enquiry the Deputy Settlement Commissioner (DSC), by his order, dated 14‑6‑1960 (X‑1) transferred the plot to the petitioner and issued P.T.O. No.04978 and P.T.D., dated 23‑8‑1962 (X‑2) in his favour. Following the transfer of the plot as aforesaid, the petitioner's name was mutated in the Excise and Taxation record (vide extract from the said record X‑3) .

2. On 27‑4‑1968 one Sidique son of Ishaque made an application to the D . S. C . , seeking cancellation of the transfer of the plot in question inter alia on the grounds that petitioner (Siddique son of Pir Muhammad) impersonated as Sidique son of Ishaque and that he misrepresented the facts and played fraud with the Settlement authorities. The said application was contested by the petitioner who averred that the application was misconceived inasmuch as that it suffered from laches, that it was male fide and that the author thereof namely, Sidique son of lshaque had no locus standi. He also questioned the jurisdiction of the Settlement authorities to entertain such application after the case‑ was finally closed with the issuance of the P T. D. and Settlement authorities had become functus officio. By his order, dated 23‑8‑1968 (X‑7), the D.S. C. rejected the said application. Unsatisfied with this order, Sidique son of Ishaque took the matter in appeal which too failed vide order of the Additional Settlement Commissioner (Judicial), dated 7‑11‑1968 (X‑8). Thereafter the said Sidique son of Ishaque filed revision application wherein he challenged both the orders passed by the DSC and the Additional Settlement Commissioner (Judicial). The revision application also met the same fate namely that it was dismissed by the Settlement Commissioner by his order, dated 16‑4‑1969 (X‑13).

3. About a month later on 25‑5‑1969 one Ibrahim son of Khamisa joined hands with Sidique son of Ishaque in filing Writ Petition No.488/69, challenging therein the transfer of the disputed property to the petitioner (vide X‑14). The petition was however dismissed as withdrawn because the petitioners wished to file Suit (vide order, dated 5‑9‑1964 X‑15) . In October, 1969 they filed suit No.1962/69 against the petitioner for declaration that the transfer of the disputed plot in his favour was void, having been obtained by fraud and misrepresentation. However on the petitioner's application under Order VII, rule 11, C.P.C., the plaint in the said Suit No.1962/69 was rejected by the order, dated 6‑11‑1970 (X‑18) . Prior to rejection of the plaint in the Suit No.1962/69, the petitioner had also filed Suit No.87/1969, on 5 12‑1968 against Sidique son of Ishaque and Ibrahim son of Khamisa for ejectment and damages, (vide plaint X‑9) which was decreed by order, dated 23‑8‑1979 (X‑20). The said decree was called in question only by Sidique son of Ishaque in the Civil Appeal No.282/79 but without any success vide order, dated 10‑8‑1981 (X‑21). Once again both Siddique son of Ishaque and Ibrahim son of Khamisa jointly filed revision (No.223/1981) against the order of the appellate Court passed in Appeal No.282/79 but the same was withdrawn. Accordingly the said revision was dismissed by order, dated 13‑12‑1981.

4. Before filing of the Suit No.87/1969, the petitioner filed two separate Rent Cases Nos. 331/1968 and 332/1968 against Sidique son of Ishaque and Ibrahim son of Khamisa respectively, which were allowed by one common order, dated 18‑2‑1979. By this consolidated order the said respondents were given two months' time for vacating the disputed premises.

5. Not contented with the long drawn litigation having already taken place between the parties, Sidique son of Ishaque and Ibrahim son of Khamisa approached the High Court yet in another Constitutional Petition No.156 of 1982 challenging the transfer of the disputed plot in the petitioner's favour but the same was dismissed in limine by order, dated 30‑11‑1982 (X‑26). Meanwhile the petitioner's name was recorded in City Survey record in 1963 as owner of the disputed property vide extract from the said record (X‑27). Additionally the Government of Sind also issued Sanad in favour of the petitioner (X‑28).

6. Notwithstanding the litigation hereinabove, the first four respondents: namely, Mst. Hawa Bat widow of Ishaque, Abdul Ghani son of Suleman and Khamisa and Muhammad both sons of Ibrahim moved the Settlement Commissioner in February,, 1983 by application (X‑29) for cancellation of the transfer of the disputed plot in favour of the petitioner. A copy of E.P.R. (X‑29) was also filed with the application. Pursuant to the application Notice was issued to the petitioner who filed his objections. The respondent No.6 (Mr. Mukhtar Ahmed) to whom the application was entrusted for disposal, allowed the same by the impugned order, dated 19‑3‑1983. 1 have heard the detailed arguments addressed at the Bar spread over three days. With the assistance of the learned counsel for the parties I have also gone through the mass of documents produced by the parties. All the learned counsel were equally eloquent rather emphatic in articulating their respective view points. But the points which were vehemently contested by them may be stated as under:

(1) That after the issuance of the P.T.D. in favour of the petitioner, the Settlement Commissioner had become functus officio and had no jurisdiction to reopen the case relating to the disputed property.

(2) That after repeal of the evacuee laws including Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as 1958‑Act) the Settlement authorities ceased to exist and could not act as such authorities in respect of the disputed plot under any circumstances.

(3) That even Notified Officer provided in 1975‑Act was not competent to deal with the disputed property, as exercise of jurisdiction vested in him was contingent on certain conditions which were non‑existent.

(4) That respondent No.6 namely, Mr. Mukhtar Ahmed Khan acted mala fide for personal gains and with a view to harm the interests of the petitioner as all proceedings before him culminating in the impugned order were coram nonjudice, illegal and void ab i nitio.

(5) That the respondent No.6 acted in utter lack of jurisdiction as he could neither reopen the whole case nor could sit in judgment over the orders passed by superior judicial authorities including High Court from time to time.

(6) That the allegations of impersonation and misrepresentation and fraud attributed to the petitioner are false and uncalled for as not only the transfer of the plot in his favour was made by the competent authority after thorough inquiry, but also the said allegations were scrutinized at various legal forums and found without any substance.

(7) That the petitioner had never been in possession of the disputed plot nor had he constructed any house thereon and as such he was not entitled to transfer of the plot which is therefore, illegal and without lawful authority.

(8) That even if the impugned order is declared to be without jurisdiction, it will not be justified for this court to perpetuate the injustice by upholding the order of transfer of the disputed property in favour of the petitioner which is not only void being without jurisdiction but is also based on misrepresentation and fraud and was without jurisdiction.

7. It was first contended by the learned counsel for the petitioner that since the case relating to the transfer of the disputed plot to the petitioner was finally closed with issuance of the P.T. D. , the Settlement Commissioner or, for that matter any other Settlement authority had no jurisdiction to reopen the case and decide it afresh. In support of his contention the learned counsel cited several authorities. The first case relied upon in this connection is of Anwar Hussain v. Sarfraz Ahmed P L D 1971 S C 669 wherein it was held:

8. "There can be no dispute with the general principle that after title has passed on to the person in whose favour a P.T.D., has been issued the Settlement authorities become functus officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act are, however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of powers conferred on it by section 35 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. Under rule 4 subject to the provisions of the Act, the Rules and the Schemes a transferee in whose favour a record of permanent transfer has been made under rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interests appurtenant thereto transferred to him and to transfer or alienate the same in accordance with the normal law. Under rule 6 any person may, in writing, inform the Settlement authority concerned of the discovery of any error in an entry or about fraud or misrepresentation in obtaining permanent transfer of the property. If the Settlement authority is of the opinion that an error exists for which the transferee is not responsible he may correct it. If the information discloses serious allegations against the transferee, the Settlement authority may hold an inquiry into the allegations and a reasonable opportunity given to the parties for being heard. As a result of the inquiry the Permanent Transfer Deed may be amended, varied or cancelled."

9. The next case on which reliance was placed is reported as Haji Habib v. Haji Muhammad and another 1981 C L C 543. In this case the attention of the learned Single Judge was also invited to the reported case of Anwar Hussain. After taking into consideration the dictum laid down in the said case of the Supreme Court and the rules on which it was based, the learned Single Judge expressed his views as under:

10. "It is pertinent to point out, however, that in the case dealt with by their Lordships the dispute arose out of an order passed by the Deputy Settlement Commissioner on 29‑10‑1963 on an application for demarcation of a house transferred under the Settlement Law and the decision proceeds on the basis of rules 6 and 7. These two rules were deleted on 2‑3‑1964 and 27‑12‑1964 respectively. In absence of rules 6 and 7, therefore, it seems no further power was left with the Settlement authorities to deal with the property in which title had passed to the transferee under the P.T.D. to alter, vary or amend such P.T.D. even on the ground of misrepresentation or fraud."

11. The third case in the same context is of Chaudhry Abdul Haque v. Mst Mustujab Bano and others 1982. S C M R 1103 wherein it was held: "But this submission is misconceived as the transfer under the Displaced Persons (Compensation and Rehabilitation) Act was a grant and regulated by the Permanent Transfer Rules which in effect did not permit the demarcation of the property. The other substantial reason was that the issuance of the P. T . D. took the property out of the compensation pool and, therefore, the Settlement authority could not exercise any jurisdiction over it under the Displaced Persons (Compensation and Rehabilitation) Act, which functions and powers were exercised so long as it remained therein." Apart from above cases, reference has also been made to some other cases on behalf of the respondents. Attempt has been made to show that even after issuance of P.T.D. the Settlement authorities do possess the power to uncover the cases of fraud etc The first case referred to is of Mohammad Anwar v. M.A. Wasti 1975 S C M R 372. In this case the Supreme Court was pleased to observe‑‑

12. "The second limb of the argument, namely, that after the issuance of the P.T.D. in the petitioner's favour, the matter could not have been reopened, conveniently overlooks the further well‑settled proposition that in the circumstances of the case, the question whether P.T D. in favour of the petitioner was issued in proper exercise of the authority of Settlement Commis sioner is open to judical scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of the 1961 Rules does not foreclose the jurisdiction of the Settlement authority or for that matter the High Court to uncover the cases of fraud or illegalities even after the issue of the P.T.Ds."

13. On the basis of the above authority it was submitted by Mr. Ali Ahmed Fazeel, the learned counsel for the respondents that the view taken it the Karachi case, of Haji Habib was incorrect. The learned counsel thought that the above‑reported case of the Supreme Court was no brought to the notice of the learned Single Judge of the Sind High Court and hence the conclusion reached in the case of Haji Habib was not in consonance with the rule laid down in the aforesaid case of the Supreme Court.

14. However, another case of Faizul Haque Khan v . Abdul Hami 1976 S C M R 424 relied upon by the said learned counsel supports the view taken in the Karachi case of Haji Habib. It reads as under:

15. "We are also unable to agree with the view of the Settlement Commissioner and the High Court that even after a P.T.D. he been issued, the Settlement Authorities can deal with the property. Under the P.T.D. Rules a P.T.D. could under rule only be cancelled on the ground that it had been obtained by fraud or misrepresentation or in contravention of any of the provisions of the Act but after rule 7 was deleted by a Notificatic issued on the 27th December, 1964, even this power disappearance as held by this Court in the case of S.Anwar Hussain Sani Sarfraz Ahmed P L D 1971 S C 669; and Aminuddin v . Settleme Commissioner 1973 S C M R 624."

16. Again in the later case reported as Mst. Fazal Bibi and other v Settlement Commissioner and others P L D 1983 S C 163 the view taken by the Supreme Court is as follows: "The jurisdiction of the Settlement authorities to interfere with the P.T.D. is not attracted where a complaint is made, but it could be interfered with, if at all, only on proof of alleged forgeries or nullities and not merely for re‑examining the case afresh. The scope of this jurisdiction has been exhaustively dealt with in a decision of this Court, that is, Anwar Hussain Sani v. Sarfraz Ahmed."

17. In yet another case of Muhammad Ayoub v. Sadakat Khan and another 1984 S C M R 1402, the view taken by the Supreme Court is expressed in the following words:

18. "Similarly on the facts of the case the view of the learned Judge in the High Court that the Settlement Commissioner had no power of revision after P.T.D was issued (to respondent) is not in consonance with the rule laid down by this Court in Muhammad Ismail v. Settlement Commissioner and another 1973 S C M R 407."

19. In the recent case reported as Moin Nawaz Jang and another v. Riaz Ahmed P L D 1985 Kar. 530, it was held as follows: '

20. "It is clear that once P.T.D. has been issued in respect of any property, the Settlement authorities cease to have any jurisdiction in relation to that property unless it is necessary either to rectify some clerical error or undo wrong resulting from misrepresentation or fraud." In yet another case reported as Muhammad Sadiq v. Muhammad Rafiq 1985 S C M R 376 the Supreme Court took the view as reproduced below "Besides, in this case the Permanent Transfer Order had been issued in favour of the appellant and the Settlement authorities were for all purposes functus officio except to reopen the proceedings on the ground of misrepresentation or fraud as held by this Court in the case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan P L D 1975 S C 331."

21. The law laid down in the above authorities is that after P. T. D. is issued in respect of any property forming part of the compensation pool, it stands permanently transferred to the person in whose favour the P.T.D. is issued and thereby it goes out of the compensation pool and so also out of the reach of the Settlement authorities who become functus officio and cease to have any jurisdiction in respect of the said property. In other words the power and jurisdiction of the Settlement authorities extend only to the property forming part of compensation pool. Nevertheless the said authorities are not prohibited from rectifying any clerical error or such other defect even after issuance of the P. T. D. Almost in all the cases cited above, it has further been held by the Supreme Court that the Settlement authorities retain the power of scrutiny of the P.T.D. if the same has allegedly been secured by fraud or misrepresentation or some gross illegality. However, in the Karachi case of Haji Habib referred to above, the learned Single Judge had taken the view that after deletion of rles 6 and 7 the Settlement authorities were left with no power of interference with the P. T. D. even on the grounds of fraud and misrepresentation. Although this view found approval in the Supreme Court's case of Faizul Haque Khan, contrary view was however expressed in the earlier case of Mohammad Anwar. In the recent case of Mohammad Sadiq hereinabove the Supreme Court has once again reiterated that after issuance of P.T.D. the Settlement authorities for all purposes were functus officio except to reopen the case on the ground of misrepresentation and fraud.

22. The next argument of the learned counsel for the petitioner was that after the repeal of all evacuee laws including the 1958 Act, the Settlement authorities as such ceased to exist and, therefore, they could not deal with any property which does or does not form part of the compensation pool even on the grounds of fraud and mis-representation. No doubt with promulgation of 1975 Act, all evacuee laws including the 1958 Act stood repealed and with repeal of these laws all authorities including Settlement authorities provided therein disappeared. Consequently the question of undoing of any illegality in relation to transfer of any property under any Settlement scheme by such defunct authorities or otherwise their interfering with such transfer of the, property even on the grounds of misrepresentation and fraud did not arise. The authorities who are non‑existent cannot be expected to act l one way or the other in respect of any matter connected with they property, they had dealt with earlier when they were alive. Thus the Settlement Commissioner who was no longer in existence could not entertain the application for cancellation of transfer of the disputed plot in the petitioner's favour nor could he entrust such application as such authority to any of his subordinates for disposal. All such actions on his part were illegal and void ab initio. In this connection reference has been made to some authorities.

23. The first case is Mst. Noori Begum v. Muhammad Ahmed and others 1982 C L C 2500 wherein following observations were made:

24. "Evacuee laws were repealed by the Evacuee Property and Displaced Persons (Repeal) Act, 1975. Subsection (2) of section 2, inter alia, embodies that upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette. In the instant case nothing was pending at the time of the repeal. All the Settlement officers appointed under various laws, otherwise, ceased to exist as such."

25. Another case is of Muhammad Younus v . Muhammad Younus Khan 1981 S C M R 899 wherein it was held

26. "We heard Mr. A . H . Na jafri on behalf of the petitioner but he was not able to show that proceedings before the Settlement authorities regarding transfer of the disputed land were pending before the target date as mentioned in the Ordinance, 1974 i.e. 1‑7‑1974. Consequently, we are clear that the order of the Settlement Commissioner holding that the revision petition of Ahmed was not maintainable is unexceptionable and that the High Court has rightly refused to interfere with the said order."

27. The third case is of Sher Afzal Khan v . Razi Abdullah 1984 SCMR 228 wherein ‑the Supreme Court observed as follows:

28. Apart from the reasons that found favour with the learned Chief Justice of the High Court, with which we agree fully, we find that the undisputed fact remains that the P.T.D. issued in favour of the first respondent covered the whole property which remained in the field until the repeal of the Settlement Laws, which accordingly was a past and closed transaction. We do not see how, after the repeal of these laws, the authorities under the new dispensation that come into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent."

29. In the fourth case reported as Head Master Muslim High School No.l Rawalpindi v. Asghari Khanam 1984 S C M R 332 it was held that the intention of the Repealing Act of 1975 clearly was that after 1‑7‑1974 no fresh revision petitions could be brought before the Settlement Commissioner. Thus forum for revision before Settlement Commissioner was not kept alive by the 1975‑Act after the said date.

30. The next case in the same context is of Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569. In this case following observations were made:

31. "Undoubtedly, it has not been expressly laid down in the Evacuee Property and Displaced Persons Laws (Repeal) Act that with the repeal of the Displaced Persons (Compensation and Rehabilitation) Act the rights conferred and remedies provided by the Displaced Persons (Compensation and Rehabilitation) Act shall no longer be available. It is, therefore, to be seen whether by enacting the Evacuee Property and Displaced Persons Laws (Repeal] Act, the Legislature had, by implication, taken away the said rights and remedies The authority reported as Sungreen & Co. Ltd.,. Karachi, which was cited by learned counsel for the petitioner, however, deals with the precise question involved in the case in hand. The view expressed in that case by Mr. Justice Zaffar Hussain Mirza (now a Judge of the Supreme Court) was that if any proceeding did not fall within the purview of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, the provisions of section 6 of the General Clauses Act could not be made use of for launching that proceeding."

32. In the case of Mst. Iqbal Sidiqui v. Assistant Settlement Commissioner P L D 1984 Lah. 291, it was held as under:

33. "The latest view of the Supreme Court is that even in matter of fraud, the designated authorities under the repealing law have no jurisdiction to reopen the matters which are transactions past and closed. Reference may be made to Sher Afzai Khan and others v Haji Razi Abdullah and others 1984 S C M R 228. It has been held in the cited precedent that where a P.T.D issued in favour of a party remained in the field until the repeal of the Settlement Laws, it would be a past and closed transaction. It was further observed‑‑

34. We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent '

35. In view of this enunciation, I must observe that I am obliged to hold that the proceedings initiated against the present petitioners after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, at the behest of a venomous and vindictive person who has his own axe to grind and for ulterior purposes are thus brutum fulman and void ab initio."

36. In the case reported as Raja Hassan Akhtar and others v. Akbar Khan and others 1981 S C M R 503 it was held:

37. "The writ petition was dismissed with observation that the petitioner was free to prosecute all his claims in the suit filed by him. That is correct but it escaped the attention of the learned Judge that the Deputy Settlement Commissioner had no jurisdiction whatsoever to cancel the P.T.D. of the second respondent after promulgation of the Act XIV of 1975."

38. The above‑cited authorities lend all the support that the argument of the learned counsel for the petitioner needed, that following the repeal of evacuee laws and on coming into force of the 1975 Act, the Settlement authorities ceased to exist and the powers vested in them under the repealed evacuee laws were extinguished. Therefore, the Settlement Commissioner or any of his subordinates had absolutely no jurisdiction to reopen the case of the transfer of the disputed plot to the petitioner, much less cancel the said transfer. Having arrived at the above conclusion the next question that arises for determination is whether any of the authorities specified in the 1975‑Act was competent to undo the transfer of the disputed plot in favour of the petitioner. The argument of the petitioner's counsel was that no such authority is‑ empowered to do so, as is clear even from some of above‑reported cases. In order to appreciate his arguments it is to be examined as to what authorities are provided in the 1975 Act and what their powers are and in what circumstances they can act and exercise their powers. In this connection reference may be made to subsection (2) of section 2 of the 1975 Act which reads as under: "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed there under shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."

39. It would appear from the above provision of the law that only) the officers notified by the Provincial Government in the official Gazette, popularly known as notified officers, have been authorised to deal with the following categories of cases:

(a) All proceedings which, immediately before the repeal of the evacuee laws, were pending before the authorities appointed under such laws;

(b) All cases decided by the Supreme Court or a High Court after the repeal of the said evacuee laws, which would have otherwise been remanded to the authorities appointed under the said laws. The case relating to the transfer of the disputed plot was neither a pending proceeding before any authority under the evacuee laws nor was it remanded by the Supreme Court or a High Court subsequent to the repeal of the said laws. It was rather finally closed with issuance of the P.T.D Therefore, it was not covered by either of the above two categories of cases falling within the ambit of powers vested in the notified officer. The assuming of the role of the notified officer by the respondent No.6 and passing of the impugned order by him in that capacity had, therefore, absolutely no legal backing and as such all the proceedings before him including the order emanating there from were void and without any lawful authority. The same legal position is illustrated in the above‑reported cases.

40. However it was forcefully urged on behalf of the respondents that even if it is held that the respondent No. 6 was not clothed with any power either as a Settlement authority or as a notified Officer and consequently the impugned order passed by him was without lawful authority, yet such finding by itself would not render the transfer of the plot in favour of the petitioner valid, which is otherwise void being without jurisdiction as the same was obtained through fraud and misrepresentation. Therefore, the argument of the learned counsel for the respondents was that the High Court cannot exercise its writ jurisdiction so as to perpetuate the injustice. In support of his arguments he placed reliance on the following authorities:

(i) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236.

(ii) Mehr Dad v. Settlement and RehabilitatiotlfuCommissioner P L D 1974 S C 193.

(iii) Chief Settlement Commissioner v Muhammad Fazil P L D 1975 S C 331

(iv) Nazim Ali v. Mustafa Ali 1981 S C M R 231.

(v) Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 S C 413.

(vi) Gul Muhammad and others v. The Additional Settlement Commis sioner and others 1985 S C M R 491.

41. In the first case of Raunaq Ali it was held:

42. "This is no doubt correct, but it is also now well‑established that where an inferior Tribunal or Court has acted wholly without jurisdiction or as Rubinstin puts it in his book on 'jurisdiction and illegality' taken any, action 'beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity: that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful." proceeding further in the same judgment the Supreme Court observed:

43. "In the same manner, in the instant cases, if the High Court in its extraordinary jurisdiction under Article 98 of the Constitu tion of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction. " in the second case of Mehr Dad, the Supreme Court took the following :

44. "A bare perusal of the above will show that the learned Settlement and Rehabilitation Commissioner did not go into the question whether the property in dispute is an evacuee property or not or whether the property was constructed by the appellant and whether it was Shamlat Deh or not. His order is based on conjectures and surmises and clearly indicates that he has not applied his mind and has assumed jurisdiction without dealing with the points involved in the matter In these circumstances, it was open to the High Court to consider the nature of the property in dispute and to find out whether on the facts of the present case, the order of the Settlement Commissioner is liable to be set aside."

45. In the third case of Muhammad Fazil it was held:

46. "In all those cases it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill‑gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice."

47. In the fourth case of Nazim Ali the Supreme Court was pleased 0 observe:

48. "Therefore, before a person can be permitted to invoke this discretionary power of a Court it must be shown that the order to be set aside had occasioned injustice .... If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." In the fifth case of Shams‑un‑Nisa, following observations were made by the Supreme Court:

49. "It has been repeatedly held by this Court and also by the High Court that the writ jurisdiction should not be exercised in aid of injustice...........Thus, if the effect of setting aside the order of the Chief Settlement Commissioner was to restore the unjust order of the Settlement Commissioner the High Court ought not to have exercised its writ jurisdiction for bringing about such a result." In support of the above view, in the same judgment the Supreme Court also referred to P L D 1973 S C 236; P L D 1974 S C 106; P L D 1968 Lah. 166, P L D 1972 Kar. 60; P L D 1975 S C 331; 1978 S C M R 367 and 1976 P L C 98.

50. In the sixth case of Gul Muhammad, the honourable Supreme Court expressed its views as under:

51. "As regards the general principle that the discretionary consti tutional jurisdiction cannot be exercised in aid of injustice, one of the earlier decisions on the subject is that of Tufail Muhammad v . Raja Muhammad Zia Ullah Khan and another P L D 1965 S C 269 and a more recent case is that of Begum Shamas‑un‑Nisa v. Said Akbar Abbasi and another P L 1982 S C 413 wherein it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all the circumstances and it would have been proper exercise of its discretion of it had not interfered with the order of the Chief Settlement Commissioner in that case, even if it felt that the order of the " Chief Settlement Commissioner, whereby he rendered the order of the Settlement Commissioner as null and void was not strictly " legal. "

52. The legal position that crystalizes from the aforementioned precedent cases is that the writ jurisdiction can neither be invoked nor be exercised in aid of injustice. That is to say that the High Court in exercise of its constitutional jurisdiction cannot come to the rescue of a person seeking its stamp or approval for the order or action which is patently unjust, being without jurisdiction and hence void ab initio It was submitted on behalf of the respondents that the transfer order of the disputed plot was secured by the petitioner by dubious methods namely impersonation, mis‑representation and fraud. Elaborating the arguments it was contended that as required by law the petitioner was neither in possession of the disputed plot nor had he raised permanent construction thereon and as such he was not qualified for applying for the plot in question. It was further submitted on the respondents' behalf that the petitioner's application was based on distortions of facts and that he indulged in impersonation inasmuch as that he declared himself as Sidique‑ son of Ishaque for the purpose of obtaining the disputed plot. The learned counsel for the respondents also stated that the plot in dispute actually consisted of seven tenements which were in occupation of as many persons whose names appeared in the E.P.R. (Evacuee Property Record) prepared as a result of the survey conducted in 1949‑50 and the petitioner's name was not mentioned in that record. It was also argued that during the entire litigation in respect of the disputed plot the petitioner did not give his residential address as being the address of the disputed plot which also showed that he had never remained in possession of the plot. In short the thrust of the arguments of the learned counsel for the respondents was that if the Court is convinced that the petitioner had obtained the plot by unfair means then in view of above authorities it could not exercise its constitutional jurisdiction in his favour and his petition was liable to be dismissed. The learned counsel also pressed for dismissal of the petition on the ground that the petitioner having employed unlawful means in securing the plot, has not approached the Court with clean hands. In this connection the learned counsel for the respondents has derived support from the case reported as Zafarullah v. Board of Intermediate and Secondary Education and another 1982 SCMR 571 wherein it was held:

53. "In any case, no exception can be taken with the view that prevailed with the learned Single Judge in the High Court in refusing to exercise the discretionary jurisdiction of the High Court under Article 199 of the Constitution on the ground that the petitioner had not approached the Court with clean hands."

54. Another case on the same point is of Nadeem Ahmad v. Principal/ Chairman Admission Board, King Edward Medical College, Lahore 1985 S C M R 310 wherein it was held:

55. "We are, therefore, of the view that the High Court was justified in dismissing their writ petition as well as their I . C . As because being a discretionary jurisdiction, the Courts have always refrained from issuing writs in favour of persons who do not come with clean hands."

56. It may now be examined if the petitioner has not approached this Court with clean hands and that the transfer of the disputed plot to the petitioner was so unjust that it could not be allowed to be perpetuated by .exercise of writ jurisdiction by this Court. " Admittedly the order in question was passed by the Deputy Settlement Commissioner whose jurisdiction to pass such order has however not been questioned. What is disputed is that the conditions on which the D.S.C. was to exercise his jurisdiction were not satisfied. The property which is the target of the respondents' attack was admittedly an open plot. Building sites (i.e. open plots) were to be transferred in accordance with para 13 (iii) of the Schedule to 1958 Act. It reads as follows:

(iii) In unauthorized possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent of such market value:

57. Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwelling or shops so as to form a cluster or colony."

58. The law stated above clearly shows that transfer of building site (open plot) was contingent upon satisfaction of two conditions: first, that the person seeking the transfer was in unauthorized possession of the plot, second, that the said person had raised a permanent building on the plot. The procedure to be followed for disposal of building sites is prescribed In the Settlement Scheme No. VI. As stated in this Scheme the application for transfer of the plot is to be made in f the prescribed form mentioning therein the given details. On receipt of such application the D.S.C. shall proceed to scrutinize the same and if he is satisfied after spot inspection, where necessary, that the applicant has raised permanent construction on the building site he shall communicate his orders in the prescribed manner. However para.7 of the scheme gives the D.S.C. power to hold judicial enquiry if he considers it necessary in accordance with the Settlement Scheme No. 1 Para 8 of the Scheme No.l provides that the D.S.C. shall make such enquiries as may be necessary from any officer or authority for the purpose of ascertaining the entitlement of the applicant to retain the property applied for. In taking a decision in such cases he shall also take into consideration the claims of all other persons who may have, applied for the same property.

59. In the instant case the admitted position is that petitioner applied for transfer of the disputed plot in the prescribed form (OP Form). At this stage it seems necessary to dispose the respondent's allegation that the petitioner had impersonated as Sidique son of Ishaque, the predecessor‑in‑interest of respondent Mst. Haws Bai and applied for the plot in his name. A bare look at the 'P' Form in which the petitioner had applied for the plot would bring to light the falsity of the allegation. The said form has been filed by the respondents. It clearly shows that against column (2) of the form the petitioner's father's name is given as Pir Muhammad and not Ishaque. Thus the allegation of impersonation is false.

60. However the construction that existed on the plot, as had been certified by the S.D.O. Settlement in his reported dated 8‑6‑1960 on reference from the D.S.C. (page 471), was raised not by the petitioner himself. He claimed to have purchased the construction from one Abdul Karim son of Hussain for Rs.800. In this connection he has placed reliance on the photo copy of the document, dated 25th November, 1959 executed between the two (X‑34). The said Abdul Karim had, in turn, purchased the construction from Seth Yousuf Hussain who again bought the same from Madhavji. It is,. ,pot necessary to go into the validity of these sale transactions which are referred only to ascertain firstly, that the construction on the disputed plot was not built by the petitioner himself and secondly that he came into possession of the said plot by purchasing the said construction.

61. As against the above plea of the petitioner, the respondents' case is that whole of the plot comprised seven tenements which were in occupation of different persons including Ibrahim (father of respondents Khamisa and Muhammad) and Siddique son of lshaque (predecessor‑in interest of respondent Mst. Hawa Bai). In support of their contention they have relied upon the extract from Evacuee Property Register (page 495). The entries in this document no doubt establish the possession of the aforesaid persons alongwith four others of the respective portions (G‑1 to G‑7) of the disputed plot mentioned against their names. Since these entires pertain to the year 1949‑50, it is not necessary that the possession of the said occupants continued until 25th November, 1959 when the petitioner claims to have acquired the building on the disputed plot and hence also its possession. Moreover the material date of possession for purpose of the transfer of the plot was the date on which the application for the transfer was made. Photo copy of the "P" form on which the petitioner had applied for the transfer as stated above has been produced by the respondents themselves rather than the petitioner. It is at page 491 tend seems to have boon submitted on 1‑12‑59. This date is obviously subsequent to the date (25‑11‑1959) on which the petitioner claims to have purchased the construction of the disputed plot and entered into possession thereof. Had the predecessors in‑interest of respondent Mat. Hews Bai. Khamisa and Muhammad alongwith four others been in possession of the disputed plot on the relevant date, nothing prevented them from applying for transfer of the portions of the plot in their possession. It appears from the counter affidavit filed by respondent Khamisa that it is not the case of the respondents that when the petitioner applied for the plot, they too had submitted their application for its transfer. In this connection it is worth perusing clauses (a) and (c) of para. 4 of the counter‑affidavit. In clause (a) attempt has been made to show that although one or two occupants of the plot fought for their rights on the basis of having filed 'P' Forms, they could not establish having submitted such forms. In clause (c) it is admitted: "The fact, however, remains that there were five other occupants of the plot who had not applied for the transfer of the property..." This clearly shows that neither any of the respondents nor their predecessor‑in‑interest were in possession of the plot. Even if they had been in possession, they were not holding the same in their own right but were in occupation of the plot with consent or agreement of the person to whom the building raised on the plot belonged. In their counter‑affidavit, the respondents have of course been vehement in denying the petitioner's case with regard to his possession of the plot and raising of the structure thereon. But they have not shown who had built the structure in their occupation if they had not built it themselves and ‑how they came to occupy it or allowed to continue in possession of the said structure belonging to somebody else.

62. On the other hand it seems the petitioner was able to satisfy the D.S.C. that he had purchased the structure from one Abdul Karim son of Hussain, and with its purchase, the possession of the plot on which the structure stood also passed on to him. (t was not mentioned who was actually occupying the building at that time. The building i structure which seems to have changed hands must have been raised by the person who was originally in possession of the plot. The respondents have not produced any authentic material to rebut the petitioner's claim that h0_ had purchased the structure on the plot and thereby had acquired its possession. May be his possession was not physical but only constructive. The question would arise if the structure purchased in the above circumstances would entitle him to transfer of the plot. The argument of the learned counsel for the respondents was that unless the petitioner was in actual physical possession of the plot and further that he had himself got the structure raised on the said plot, the D.S.C. had no jurisdiction to sanction transfer of the plot in his favour. When he was asked to cite any authority in support of his contention he showed his inability to do so. I have given my best thought to the requirements of para 13(iii) of the Schedule to 1958 Act under which open plots are to be disposed. In my opinion the words 'any person' used in the said para do not restrict the transfer of the plot to any particular class or category of persons. Similarly the scope of the` words "and that person has constructed a permanent building on it" in that pan is not limited to the person in actual physical possession. The intention appears to be that the structure raised on the plot should belong to or be owned by a person in possession of the plot. To me there is no difference between getting structure built through contractor, for some fixed amount and purchasing the same at some specified price. The argument may be advanced that in the case of purchase, possession follows the purchase of the building though the intention is that building of the structure should follow the possession. This argument too is devoid of any substance. The purchaser of the building which includes possession of the plot, in fact, steps into shoes of the person originally occupying the,(plot. With sale of the structure raised by such person, he also transferred his rights to buy the plot. Accordingly whoever owns the structure and thereby holds the possession of the plot at the time of applying for its transfer would be the eligible applicant for the plot. Therefore to say that the petitioner has not been in physical possession of the plot or that he has not raised the construction on it himself is without any legal consequence. It has already been pointed out that the petitioner had purchased the construction built on the disputed. plot and thereby had entered into possession thereof. It has also been held that the respondents have failed to‑rebut the petitioner's claim in this regard. Moreover this is a question of fact which could only be decided by the authority having jurisdiction, by holding an enquiry if necessary. It seems on receipt of the 'P' Form in this case the D.S.C. referred the matter to XEN, Settlement and the report submitted by him indicated that permanent structure with specified accommodation was constructed on the disputed plot. However the learned counsel for the respondents attacked both the 'P' Form as well as the XEN's report. As for the 'P' Form the objection was that the personal address given by the petitioner in the form shows that he was not residing at the plot and secondly he had not given the details of accommodation in the said form indicating thereby that he had net raised the construction. So far XEN's report is concerned he pointed out that the XEN's observation that the house he inspected at the site was constructed by the petitioner, was not based on any authentic proof before him and as such his observation in that regard was without any force.

63. I am not impressed by these arguments. The address other than that of the plot given by the petitioner in the 'P' Form, in my opinion, does not by itself prove that the petitioner was not in possession of the plot. As for his omission to give details of accommodation it would be noticed that he has stated the word "Hguse" against the column "whether the permanent construction is a House, a shop or any other type of accommodation". Further details of accommodation are mentioned by the XEN in his report after spot inspection. Moreover as stated above the petitioner does not claim that he had himself raised the construction on the plot and, therefore, the attack of the respondents' Advocate on the 'P' Form and XEN's report on this ground is meaningless. The learned counsel for the respondents has also assailed the 'P' Form on the ground that it was made only in respect of a portion of the plot namely, G‑1 and not for the whole plot. In this connection it would be seen that against the column "Area" applied for, 428 sq. yards are mentioned which is the area of the whole plot. It seems it was through oversight that he had mentioned the number of plot as G‑1. This is clear from the fact that the petitioner lost no time in seeking the necessary rectification vide hi% application at page 421 and the mistake was accordingly rectified vide the order of the D . S. C . at page 423. Thus the objection raised in this behalf by the respondents' learned counsel was untenable. Subsequent to issuing of the transfer order, P.T.O. and P.T.D. were also issued in favour of the petitioner and in this way the case relating to the transfer of the plot in the petitioner's favour stood closed. Despite that the petitioner had obviously been dragged in an unending litigation with regard to the same plot but to his good luck he emerged victorious at every legal forum, vindicating the correctness of the transfer of the plot to him. As a background of this case the entire litigation that has occurred between the parties has been state in the initial part of this judgment. It would be waste of time any space to recapitulate the same. Suffice it to say that almost in ever: case in which the transfer of the plot in the petitioner's favour was challenged, the main grounds of the' attack were impersonation misrepresentation and fraud. As has been stated above the petitioner' adversaries did not succeed in any case on these grounds. Perhaps i would be useful to refer to at least three cases from the long chain o litigation.

64. Before obtaining the impugned order of the notified officer, the last case that Sidique son of Ishaque and Ibrahim son of Khamisa hai filed was Writ Petition No. 156 of 1982 which was dismissed in limin vide order dated 30‑11‑1982, wherein it was observed:

65. "The petitioners have challenged in this petition order o Settlement authority rejecting their application for transfer o the premises bearing No. I.Y.7/18(G3), Lyari Quarters Karachi . . .. . . . ... . . . . . . . . . . . . . . . . .. . . . . . . . . . .It was also found b~ the Settlement authority that the property in question way transferred as late as on 2‑1‑1960 and not only provisional transfer order but a permanent transfer deed in respect there has since been issued to respondent No.4 The reasons given by the Settlement authority are unexceptionable as admittedly the property was transferred to respondent No.4 (petitioner) in the year 1961 whereas the petitioners approached the Settlement authority it the year 1969 for transfer of the property. There is no merit it this petition which is dismissed summarily."

66. It would appear that in the above writ petition in which predecessor‑in interest of at least three of the respondents in this case were parties, no argument was seemingly made, as has been argued in this case, that transfer order in favour of respondent No. 4 (who is petitioner it this case) was unjust, void and without lawful authority and hence was not sustainable in law and, therefore, the writ jurisdiction could nor be exercised in aid of the injustice. In any case no fault was found with the transfer order in the said writ petition which was not ever admitted to regular hearing.

67. The other litigation to which reference could be made with advantage was the Suit No.1962/1969 filed against the petitioner by predecessors‑in‑interest of the aforesaid three respondents for declaration that transfer of the plot in favour of the petitioner was void and was obtained through misrepresentation and fraud. The plaint of this suit was rejected on the application filed by the petitioner under section 7, rule 11, C.P.C. On the other hand the Suit No. 87/1969 filed for ejectment and damages against the said predecessors‑in interest of the three respondents, was however decreed. Both appeal and revision filed against the said decision also failed.

68. As for mala fides attributed to respondent No.6, suffice it to say that the case was entrusted to him by Settlement Commissioner. Since he had not initiated the action himself, his order can at best be held as erroneous and not mala fide.

69. In view of above discussion the order relating to transfer of the disputed plot in favour of the petitioner was neither without jurisdiction nor was obtained through impersonation, misrepresentation and fraud. Such order cannot be declared as unjust order. Consequently this Court will not be acting in aid of the injustice by leaving the said order in the field untouched. On the other hand as has been discussed in foregoing paragraphs the impugned order of the notified officer was absolutely without jurisdiction and as such could not be upheld. Accordingly the petition is allowed with no order as to costs and the impugned order is set aside, being void and without any lawful authority.

70. M . B . A . Petition allowed.