GUL MUHAMMAD And Others vs THE ADDITIONAL SETTLEMENT COMMISSIONER And Other

1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the purchaser of an allotted property to examine whether his case had received proper consideration and examination in the High Court regarding cancellation of the original allotment itself.

2. Nek Muhammad was a claimant displaced person. He had filed a claim which was received after verification in Pakpattan, District Sahiwal He got his verified claim settled there. Notwithstanding this some surplus units of his claim were shown to have been transferred to District Jhang where allotments were made in the name of Nek Muhammad, among others, in Village Sultanpur, District Jhang. He received there an allotment of 277 Kanals 17 Marlas against 1500 P.I. Units on 7-11-1960. By Mutation No.899 attested on 29-12-1963 he sold his allotted land in favour of Saleem and Rafiq who in turn sold the land by to registered deeds to the appellants. Appellants Nos. 3 and 4 purchased 209 Kanals 17 Marlas and appellant No-1 purchased 67 Kanals 13 Marlas. The registered deeds are dated 14-3-1964.

3. A report was submitted to the Additional Settlement Commissioner about the illegality in the transfer of the surplus units of Nek Muhammad from Sahiwal to Jhang and its settlement there. On 18th of June, 1966 the Additional Settlement Commissioner permitted review of the allotment. On review, the Deputy Settlement Commissioner cancelled the allotment of Nek Muhammad in 1967.

4. The appellants filed an appeal before the Additional Settlement Commissioner against the cancellation of the allotment which was dismissed on 19th of September, 1967. Finally, the appellants filed a constitutional petition (No. 980/R/67) which was dismissed by the High Court mainly on the ground that a writ could not issue in aid of injustice.

5. The learned counsel for the appellants has taken up to grounds for challenging the order of the High Court. The first one is that all the proceedings leading up to the cancellation of the allotment in favour of their predecessor-in-interest are without lawful authority because after Act XIII of 1964 no power of review was available and none could be permitted in 1966 enabling review in 1967. The other ground is that the appellants being the bona fide purchaser for value without notice of the defect if any, were entitled to protection under section 41 of the Transfer of Property Act and their such a right is recognised in Officer-on-Special Duty, Central Record Office and others v. Bashir Ahmad and 9 others 1977 SCMR 208.

6. The learned Judge in the High Court did not go into the legality of the powers exercised implying thereby that no such power was possessed as was exercised for cancelling the allotment of Nek Muhammad. Nevertheless, for determining the entitlement of the appellants to the relief prayed for the entire case was examined in depth and more than one reason was given for not acting in aid of injustice. What transpired on facts is that the entire claim of Nek Muhammad stood satisfied in Sahiwal; that it was a case of illegal transfer from Sahiwal to Jhang and that so far as the appellants are concerned, it was a case of double allotment in the name of and against the claim of Nek Muhammad. Nek Muhammad had repudiated having got his claim transferred or having any surplus units requiring settlement or to have got it settled in District Jhang. This clearly establishes the equities against the appellants. The appellants had not impleaded Nek Muhammad and have not done so in the proceedings before us either. It being a case of double allotment. The appellants cannot claim protection for it. Their reliance on the decision in the case of Officer-on-Special Duty, is misplaced. That decision has been distinguished and the right of such a purchaser not recognised in Manzoor Ausain v. Fazal Husain 19841 SCMR 1027.

7. As regards the general principle that the discretionary constitutional 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 PLD 1965 SC 269 and a more recent case is that of Begum Shamas-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 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.

8. We find that the facts of the case of the appellants have been fully taken note of in para. 6 of the High Court Judgment which also takes note of the appellate order of the Additional Settlement Commissioner. It demonstrates beyond any shadow of doubt that grant of relief to the appellants on the facts and circumstances of the case would have been an action in aid of injustice and the High Court rightly refused the writ.

9. There is no merit in this appeal which is dismissed with costs.