MUHAMMAD BARAN and others vs MEMBER (SETTLEMENT AND REHABILITATION), BOARD OF REVENUE, PUNJAB and others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---These Appeals through leave of the Court are directed against the judgment of the Lahore High Court; whereby Writ Petitions arising out of settlement cases filed by the appellants herein, were allowed with a direction for remand of the cases to the Member, Board of Revenue. Leave to appeal was granted on noticing facts and points involved as under: "Facts giving rise to the present petitions are, briefly, that one Fayyazuddin (respondent No,4 herein), who was a claimant displaced person, got his claim verified to the extent of 7753 PIUs in 1973. Against this verified claim he was allotted land to the extent of 7700 Units in Mauza Charar, Tchsil and District Lahore. He then sold the said land to the present petitioners. Subsequently, on 3- 7-1977 Member (Settlement and Rehabilitation) Board of Revenue, Lahore, issued a letter to the Deputy Commissioner, Lahore, wherein allotments of Fayyazuddin (respondent No,4) and some others, made in different villages, were declared as invalid and void ab inilio on the ground that they had obtained the same fraudulently.

2. ' The petitioners who purchased land from Fayyazuddin, filed separate ' writ petitions before the High Court and which were taken up together by a Division Bench of the High Court, which, by its judgments dated 1812-1982, set aside the order of the Settlement Commissioner dated 3-71977, declaring it to be without lawful authority and of no legal effect and remanded all the matters to the Member, Board of Revenue for entrustment to the notified officer to ascertain the correct position.

3. ' The petitioners seek leave to appeal against the judgments of the High Court noted above.

4. ' The grievance of the petitioners is that the High Court could not remand the case to the Member, Board of Revenue, because after the repeal of the relevant laws by Act XIV of 1975, with effect from 1-7-1974, no settlement officer or a 'notified officer' could assume jurisdiction in any settlement matter which was not pending on 1-7-1974, when the aforementioned Act, which, inter alia repealed the Displaced Persons (land Settlement) Act, 1958, came into force. For this contention he relied on subsection (2) of section 2 of the aforementioned Act which reads as follows:-- "2.'Repeal of certain laws.--(1) The following Acts and Regulations are hereby repealed, namely:-- (i).

5. (ii).

6. (iii)..

(iv) Displaced Persons (Compensation and Rehabilitation) Act, 1958, and

(v) Displaced Persons (Land Settlement) Act, 1958.

(2) 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 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'.

7. ' The learned counsel argued that considering that the Member, Board of Revenue had revoked the said allotment in 1977, when the Act (XIV of 1975) had already come into force, as is obvious that he (i,e, the Member, Board of Revenue) had passed the order of revocation of the allotment of Fayyazuddin respondent was not pending in any Court of Law, no settlement office or 'notified officer' had jurisdiction to deal with the matter. In support of this contention the learned counsel relied on Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCM R 228.

8. ' As against this learned counsel for the respondent/Government Department submitted that Fayyazuddin had made an application (Ex.PI) in 1973, to themChief Settlement Commissioner praying for payment of cash compensation for his unutilized PIUs and that this matter had not yet been disposed of when his allotment in Mauza Charar was revoked. On this basis he argued that the matter of allotment of land made to Fayyazuddin was still pending on 1-7-1974 when the Act (XIV of 1975) came into force.

9. ' But according to petitioners' counsel as the order of allotment in favour of Fayyazuddin had been finally decided and stood unchallenged, the pendency of any ancillary matter cannot be said to have the effect of keeping the matter of allotment of land in his favour "pending'.

10. ' After hearing the learned counsel for the parties we feel that the matter needs further consideration. Leave is therefore granted for this purpose."

11. ' Mr. S.M. Zafar who argued the main case while the other learned counsel appearing for the other appellants adopted his arguments, reiterated the point noticed in the leave grant order. He has addressed further arguments and cited case-law to contend that after the repeal of Settlement Laws the only opening left by the legislature for dealing with the settlement cases was contained in Section 2(2) of the Repealing Act (XIV of 1975) which is quoted in the leave grant order. According to him this small opening is possible only in pending cases as is provided in the first part of Section 2(2). He further argued that the use of the expression "pending before the authorities' shall also control the jurisdiction and power of the High Courts and the Supreme Court even if the matter is brought before them in Constitutional (Writ) jurisdiction.

12. ' Learned counsel appearing for the respondents' side vehemently opposed the stand of the learned counsel for the appellants. They brought to our notice some of the allotments made to their clients even prior to the allotment made to the appellants' side and strongly asserted/levelled accusation of fraud and misrepresentation against the appellants' side. When questioned as to why they kept silent for a long time their plea was that the allotments to the appellants' side were never brought to light and that it was in addition a clandestine affair. Mr. S.M. Zafar in return said that the allotments relied upon by the caveators might themselves be the result of fraud. He, however, did not argue the point that the appellants' side had not committed any fraud or forgery.

13. ' The entire argument of Mr. Zafar is that all cases of fraud and forgery and misrepresentation which were not pending at the time of repeal were safe from scrutiny either by the Settlement Authorities and even also by the High Court in its Writ jurisdiction. Therefore, the High Court by remanding the case to the Board of Revenue itself fell into error. It had no jurisdiction to re-open the subject of fraud and forgery because the cases were no more pending before any Settlement Authorities at the time. Writ petitions were entertained. Further, he stated that the only remedy for the victims of fraud would be by way of civil suits in the Courts of general jurisdiction.

14. ' The High Court in its impugned judgment took a brief notice of the nature of fraud involved in this case. If what is stated in the impugned order of the High Court, or for that matter in the order of the Board of Revenue which was impugned before the High Court, is taken on its face value the appellants could not be granted any relief in exercise of Constitutional (Writ) jurisdiction. It will be so even if there is some defect, legal or otherwise, in the orders impugned before the High Curt in the said jurisdiction. See Begum Shams-un-Nisa v. Said Akbar Abbasi and another (PLD 1982 Supreme Court 413).

15. ' It was held that even if the Chief Settlement Commissioner was not legally justified in declaring an action to be without lawful authority, the result sought to be achieved by the order of the Chief Settlement Commissioner nevertheless being just and proper and the effect of setting aside order of the Chief Settlement Commissioner being to restore unjust orders and actions of subordinate functionaries, the High Court "ought not to have exercised its writ jurisdiction for bringing about such result since writ jurisdiction cannot be exercised in aid of injustice". It was also held that the High Court in exercise of the writ jurisdiction is "not bound to interfere in all circumstances" even if the "order of the Chief Settlement Commissioner was not lawful". To the same effect in an earlier ruling of this Court in the well-known case of Nawab Syed Raunaq Ali ect. v Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236). In somewhat more strong phraseology, this Court had held that "an order in the nature of certiorari or mandamus is a discretionary order.

16. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it causes a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked.

17. ' Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that "it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction". Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter "was clearly without jurisdiction."

18. 'Assuming for the sake of arguments advanced that the Board of Revenue passed an illegal order as no proceedings were then pending and even if such order would have been without jurisdiction, in the circumstances of this case, the High Court after correctly stating the legal position could withhold the relief in its entirety and could also dismiss the Writ Petitions filed by the appellants as they had soiled hands. But the High Court did not adopt this course because it had refrained fron examining the questions of fraud and forgery though there was no bar for it to have examined and uphold the finding by the Board of Revenue. However, to be fair to the learned counsel for the appellants, it is perhaps for this very reason that (the High Court did not give any finding on the question of fraud and forgery) he did not even assert that no fraud and forgery had been committed by the appellants side. At this stage, a short procedural question arises, namely, whether the High Court in its Constitutional (Writ) jurisdiction can withhold the relief only in its entirety in the cases governed by the dictum referred to above in the cases of Raunaq Ali and that of Begum Shams-un-Nisa? The answer is very simple. As it is within the power and discretionary jurisdiction of the High Court to withhold the entire relief, necessary corollary would follow that it may grant only a partial relief. In the present case the High Court instead of dismissing the appellants' Writ Petitions in their entirety, allowed only a partial relief to them; namely, re- examination of the issue of fraud and forgery in their presence; because the contention raised before the High Court was that they had not been afforded opportunity of hearing. It seems to be a fair approach to a case like the present one in which there are several other parties who claim to be allottees of the same land prior to its disputed allotment to the appellants. Not only this, the appellants have sold away the land to third parties, many of whom might be innocent purchasers.

19. For, example, one party which would be deeply interested in the result of this judicial exercise is the Cantonment Defence Housing Society -popularly known as Defence Society.

20. For all the above reasons, this Court is not bound to set aside the order of the High Court, even if it suffers from an infirmity; which otherwise not only advances justice between the main parties but also is fair and proper, vis-a-vis, the interest of innocent purchasers. The effect of this restraint on the part of this Court would be tha; if the order of the High Court is upheld, it would mean that the remand order would be operative by virtue of the second part of Section 2(2) and the functionaries concerned would give effect to it notwithstanding any jurisdictional or other defect in the order of the Board of Revenue.

21. ' In the light of the foregoing discussion these appeals merit to be dismissed. There are two ways of achieving the end result of fairness and justice in such like difficult cases. One, to dismiss the appeal; and the other if there is any serious hurdle in doing so, the leave to appeal order can be withdrawn. Although there is no serious hurdle in dismissing these appeals as discussed and held above yet all these cases can be disposed of by the withdrawal of the grant of leave to appeal. We .

22. Before closing this judgment it is necessary to take note of a very interesting feature of the arguments advanced in this case, vis-a-vis, the use of the word 'pending' in the first part of section 2(2) and its avoidance in the second part. Nevertheless learned counsel for the appellants remained of the view that the word 'pending' would also control the second part. In other words according to him both parts are to be read conjunctively. If that is so, according to him, the High Court would have no jurisdiction to interfere with an order of a Settlement Authority even if obtained through fraud if a case was not pending at the time when the High Court entertains the matter. If the word 'pending' used in the first part is read, according to the interpretation by the learned counsel, as having controlling effect on the power and the jurisdiction of the High Court under Article 199 of the Constitution, to this extent such provision would (then) be controlling the jurisdiction and power of the High Court under Article 199.

23. ' Admittedly the legislation in question is not of Constitutional nature through which the power of the High Court (this Court also) under Article 199 could be curtailed. The legislation in question to that extent would be ultra vires the Constitution. Article 199 of the Constitution is not subject to any law but is only subject to the Constitution. This aspect of the Provision and its interpretation was not brought under discussion during the hearing of the appeals, therefore, it will be unfair to the learned counsel to give a final decision on this question which in the circumstances of this case is no more necessary. This question might be examined in any other proper case.

24. ' There is another aspect also which needs brief notice, Learned counsel suggested that the parties at this stage might approach the Civil Court. It is doubtful whether the Court of general jurisdiction will be able to give proper relief to the parties in this case at this stage. Supposing it comes to the same conclusion as the High Court that the allegation of fraud and forgery has to be examined by the functionaries concerned, then it might not be possible for it to remand the case as the High Court did. Other difficulties might also arise, therefore, in the entire circumstances the approach of the High Court being fair and proper, is upheld.

25. ' In the light of the foregoing discussion, findings, order and observations, all these appeals stand disposed of. There shall be no order as to costs.