MUHAMMAD HUSSAIN vs LAL KHAN And Other
This matter arises from a petition for leave to appeal against the dismissal of a writ petition by the High Court, concerning land originally allotted to the petitioner as a Jammu and Kashmir refugee, which he later had allotted in the name of a respondent and subsequently sold to his sons. A pre-emption suit was filed against the sale, prompting the petitioner to challenge the allotment in revision, which was allowed by the Settlement Commissioner upon the respondent's concession. Upon an application by the pre-emptor alleging fraud and misrepresentation, the Settlement Commissioner recalled the order and directed a rehearing, a decision upheld by the High Court despite arguments regarding the repeal of evacuee property laws. The core legal question was whether the Settlement Commissioner retained jurisdiction to entertain the application and recall the order after the repeal of the relevant evacuee laws. The Supreme Court held that given the petitioner's conduct and the fraudulent manner in which the initial order was obtained, discretionary relief was rightly refused by the High Court on technical grounds of jurisdiction. The petition for leave to appeal was accordingly dismissed.
- Whether the Settlement Commissioner has jurisdiction to recall an order secured through fraud and misrepresentation after the repeal of the evacuee property laws?
- Does a party obtaining an order through collusion and concession have the right to claim finality of such an order?
- Is the High Court justified in refusing discretionary relief under constitutional jurisdiction to a party whose conduct involves fraud?
- Evacuee Property and Displaced Persons Laws (Repeal) Ordinance 1974
ORDER
M.S.H. QURESHI, J.--An area measuring 79 Kanals 12 Marlas in village Sangla, Teshil Kharian, District Gujrat, which is in dispute, had been in temporary allotment of petitioner Muhammad Hussain as a Jammu and Kashmir refugee since 27-10-1952. However, acting as attorney of Sher Ali (respondent 2), he got it allotted in the latter's name. The relevant proposal was accepted on 21-2-1972 and confirmed the next day. Again, acting as such attorney, Muhammad Hussain sold the property in favour of his sons and the necessary mutation of the sale was entered at No.2043 on 30-9-1972.
The sale was, however, sought to be pre-empted by Lal Khan, respondent 1, by a suit instituted on 28-9-1973. Muhammad Hussain, thereupon, moved a revision petition on 30-1-1974 before the Settlement Commissioner challenging the allotment made in favour of Sher Ali on the ground that the land being in his (Muhammad Hussain's) temporary allotment as a Jammu and Kashmir refugee it could not be allotted to Sher Ali. In the proceeding, Sher Ali appeared and as he conceded the petition and there being no other party the Settlement Commissioner, by order, dated 5-3-1974, allowed the petition. This order was, however, challenged by Lal Khan by an application made before the Settlement Commissioner on 13-11-1974, on the ground that Muhammad Hussain had no locus standi to have moved the revision petition, nor had Sher Ali any locus standi to have confessed judgment as the land had already been transferred in favour of other parties who had not been impleaded in the proceeding. The learned Settlement Commissioner holding that the previous order had been prima facie secured by fraud and misrepresentation, recalled the same, restored the revision petition and direction that the vendees and Lal Khan should be afforded opportunity of hearing, vide his order, dated 8-2-1975. Against this order, Muhammad Hussain came to the High Court in Writ Petition No.97-R of 1975. The contention was that after the repeal of the Evacuee Property Laws by Ordinance XV of 1974 followed by Act XIV of 1975, effective from 1-7-1974, the Settlement Commissioner had no jurisdiction to have entertained and decided Lal Khan's application filed before him on 13-11-1974. Lal Khan's locus standi to have moved his application was also questioned. These contentions were, however, repelled by the High Court on the ground that the earlier order passed by the Settlement Commissioner on 5-3-1974 was void and as such the revision petition had rightly been ordered to be reheard. Consequently, the writ petition was dismissed on 14-4-1976.
2. Learned counsel urges before us that the Evacuee Property and Displaced Persons Laws (Repeal)
Ordinance (XV of 1974) having been promulgated on 30-9-1974, the Settlement Commissioner had no jurisdiction to have entertained Lal Khan's application instituted on 13-11-1974 and to have set aside his earlier order, dated 5-3-1974 which had acquired a finality.
3. Considering the conduct of Muhammad Hussain petitioner and the manner in which the order, dated 5-3-1974 had been obtained from the Settlement Commissioner, we are of the view that the High Court had rightly refused to grant him the discretionary relief on the technical ground of jurisdiction. No proper case is made out for grant of leave and as such the petition is dismissed.