Sheikh MUHAMMAD AMIN vs CHIEF SETTLEMENT COMMISSIONER PAKISTAN
The petitioner, a non-claimant displaced person, sought leave to appeal against the dismissal of his writ petition and letters patent appeal by the High Court, which had upheld the cancellation of the transfer of a bungalow forming part of an improperly combined property unit. The core legal question was whether the High Court was bound to interfere in its writ jurisdiction against an allegedly illegal order of a Settlement Authority when such interference would result in perpetuating an unauthorized transfer and aiding an injustice. The Supreme Court held that the High Court rightly exercised its discretion in refusing to interfere with the settlement authority's order, even if it suffered from legal flaws, because granting relief would restore property in excess of what was lawfully applied for and perpetuate an illegality. The key principle laid down is that the High Court, in the exercise of its discretionary constitutional writ jurisdiction, will decline to interfere with an impugned order—regardless of its strict legality—if doing so would result in the perpetuation of an injustice or an illegal benefit.
- Whether the High Court is bound to interfere in its writ jurisdiction against an order of a Settlement Authority that is allegedly without legal authority?
- Can the High Court refuse discretionary relief under writ jurisdiction if granting such relief would perpetuate an illegality?
- Whether a non-claimant displaced person is entitled to the transfer of property in excess of what was originally applied for?
- Section 10(b), Displaced Persons (Compensation and Rehabilitation) Act 1958
ORDER
1. NASIM HASAN SHAH, J.--The petitioner, a non-claimant displaced person from Jammu and Kashmir, was transferred 18 Kanals of land consisting of a bungalow occupied by a local Ch. Jalal Din, Advocate, and an open space used by the petitioner for a Dairy Farm.
2. On the information laid to the Directorate of Enforcement by respondent No.2 to the effect that the transfer of the bungalow to the petitioner (which was built over 11 Kanals of land) was irregular, the Director of Enforcement agreeing therewith made a reference of this alleged irregular transfer to Mr. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, who accepted it and deleted the bungalow occupied by Ch. Jalal Din, Advocate (Local). He, however, allowed the area on which Dairy Farm, measuring about 7 Kanals was being run, which was in possession of the petitioner to remain with him. The bungalow was deleted on the ground that the view of the Deputy Settlement Commissioner that the bungalow and the Dairy Farm formed one unit was entirely misconceived.
3. The petitioner filed a writ petition which was heard by Mr. Justice S. Anwar-ul-Haq (then a Judge of the High Court) who dismissed the same, inter alia, on the grounds that the petitioner was never in possession of the bungalow; he never applied for its transfer and that the bungalow was quite separate and distinct from the petitioner's Dairy Farm. The Letters Patent Appeal filed against this judgment by the petitioner was also dismissed by a Division Bench of the High Court. The petitioner now seeks leave to appeal to this Court.
4. The main contention raised by Mr. S.M.Zafar, in support of this petition, is that the order of Mr. Muhammad Rafiq, Settlement Commissioner was a nullity in law inasmuch as his order was passed on 30-6-1962 and on this date clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood repealed with the result that the learned Settlement and Rehabilitation Commissioner had no powers to deal with the case on that date (30-6-1962) inasmuch as with the repeal of clause (b) of section 10 of the Act the information laid by the respondent in connection with the alleged unauthorised transfer of the bungalow in favour of the petitioner had lapsed. Reliance in this connection was placed on this Court's judgment in Allah Ditta v. Haji Muhammad and others PLD 1974 SC 113.
5. We observe that this contention was also raised by the petitioner before the Division Bench hearing the Letters Patent Appeal but the same was rejected on the ground that, in the circumstances of the case, the petitioner was not entitled to obtain discretionary relief in writ jurisdiction because he could not be transferred any property in excess of what he had applied for and that if a writ was issued to restore the bungalow to him, this would amount to perpetuating an illegality. In coming to this conclusion the learned Judge relied on this Court's judgment in Wali Muhammad v . Sakhi Muhammad PLD 1974 SC 106.
6. We entirely agree with this approach of the High Court and would add further that this Court has again, in a recent judgment, namely, Begum Shams-un-Nisa v. Said Akbar Abbassi and another PLD 1982 SC 413 reiterated that the High Court in exercise of its discretionary writ jurisdiction is not bound to interfere in all circumstances and may refuse to do so even if the order of the Settlement Authority (in the precedent case the Chief Settlement Commissioner) was not strictly legal because the High Court should not exercise its writ jurisdiction, in aid of injustice.
7. The result is that there is no force in this petition which is, accordingly, dismissed hereby.
Cited by 2 cases
- P.IA. CORPORATION vs WAFAQI MOHTASIB (OMBUDSMAN) And 2 Other 1994 PLD Karachi 32
- Mst. BISMILLAH BANO and 9 others vs THE MEMBER, BOARD OF REVENUE 1990 MLD 977