Rana Bhagwandas, J.--Aforementioned petitions under Article 188 of the Constitution, seeking review of the judgment of this Court dated 3.7.1997 in Civil Appeal No, 141 of 1995 arise out of somewhat unusual and unique facts and circumstances. For the sake of reference, we would refer .Syed Wajihul Hassan Zaidi as petitioner and Government of Punjab "as respondent.
2. Petitioner, while posted as Superintendent Police, Jhelum and in occupation of S.P. House, on 17.11.1959 submitted C.H. Form for transfer of House Bearing No, B-XII-12-S-26, situated in Civil Lines, Jhelum, in view of the then prevailing Settlement Scheme No, 1 under the Settlement and Rehabilitation laws. The said house was transferred to him vide P.T.O. No, 693 dated 11.1.1960.
Transfer price of the evacuee property and evaluated at Rs, 45,120/- and the petitioner was called upon to pay the same in cash in 36 equal monthly instalments or to have it adjusted against the amount of deferred payment shown in his Compensation Book. Evacuee owners of the property as per settlement record were said to be Dhan Raj Shah and Tulsi Das Shah residents of Jhelum in equal shares. Initial P.T.O. did not contain measurement or details regarding khasra numbers of land granted to the petitioner. However, subsequently on 18.10.1968, in pursuance of order dated 1.5.1968, passed by Additional Rehabilitation Commissioner Khasra Nos, 168, 171 to 191, 379 to 398 and some land behind "nallah" was included in the P.T.O. It may be pertinent to point out that these khasra numbers belonged to evacuee Sardar Mohan Singh resident of Rawalpindi. Seemingly, when the petitioner followed up the matter for issuance of Permanent Transfer Deed with regard to S.P. House, it transpired that no valid order for transfer of land in excess of three times the plaint area of S.P. House had been passed in his favour. Accordingly. Deputy Settlement Commissioner, Jhelum, while processing his case for issuance of P.T.D. submitted a report of the Additional Settlement and Rehabilitation Commissioner, Rawalpindi on 6.1.1968 asserting that file pertaining to transfer of the said house was not traceable. The record produced by the petitioner, however, disclosed that P.T.O. No, 693 dated 11.1.1960 against evaluation price of Rs, 45,120/-recited that "assessm ent of uncovered area will be communicated later on". The above report of Deputy Settlement Commissioner was founded upon earlier note of his predecessor dated 1.2.1961 reflecting that an area of 131 kanals 6 marlas was shown as attached with the S.P. House, out of which 48 kanals 1 marla was suggested to be transferred to the claimant free of cost while extra price was chargeable for submarining 83 kanals 5 marlas. In any event, market value of extra land showing Rs, 200/- per kanal was considered to be very low. Likewise, genuineness of the manner of recovery of amount towards evaluation price of excess land by the office was also suspected.
Consequently, P.T.D. Bearing No, 202/1.1 was issued in favour of petitioner on 30.11.1968 with following essential particulars :-- "House and open Land No, B-XII-12-S-26, Khasra Nos, 168, 171 to 191, 379 to 381 measuring 131 kanals 17 marlas permanently transferred to Syed Wajihul Hassan Zaidi."
3. It may not be out of context and would rather be pertinent to observe that Deputy Settlement Commissioner, in his report dated 6.1.1968 made specific observation that without any valid order regarding approval of transfer some amount was shown to have been adjusted to cover the value of excess land procured by the petitioner. It may also be significant to note that price of excess area of land was collusively got adjusted by the petitioner from the Compensation Book after the price of the house was got reduced by Rs, 22,560/- towards 6A.1960, through lower staff of Settlement Department, when same was not even factually transferred to him. One Muhammad Ramzan, challenged proprietary right of the petitioner over an area of land comprising Khasra No, 178 by filing an appeal before the Additional Settlement Commissioner, Rawalpindi Division, which was dismissed on 14.10.1972. Against this order, he preferred Revision No, 26 of 1972 before the Settlement & Rehabilitation Commissioner, Rawalpindi Division. This revision was partly accepted vide order dated 8.11.1973 and case was remanded to the Deputy Settlement Commissioner, Jhelum with the following directions :-- "After hearing the parties and perusal of the relevant record whatever the merits of the case of the petitioner may be, I have not been able to lay my hands upon any orders whereby the suit khasra number alongwith host of other khasras has been transferred to the respondent. As rightly pointed out by the learned counsel for the petitioner, the order to which a reference has been made pertains to the determination of the market value of the excess land allowed to the respondent but it does not say anywhere that certain khasra numbers have been transferred to the respondent. In such circumstances when the very order transferring the disputed khasra number along with other khasra numbers is lacking it would have been proper for the learned lower Court to have either inquired into the matter himself or ordered inquiry in this regard to find out as' o what precisely been transferred to the respondent and whether the khasra number in question was included in the transfer order. If not, he should have been, a finding as to whether the said khasra number also stood transferred to the respondent if it constituted evacuee trust property in which case the matter should have been referred to the Chairman Evacuee Property Trust Board, Pakistan who is possessed of the requisite powers in such matters.
In view of the discussion made above the revision petition is accepted partially and the case remitted to the learned Deputy Settlement Commissioner for holding an inquiry as indicated above and in case he comes to a conclusion that the suit khasra number has not been transferred to the respondent then it shall be excluded from the transfer documents of the respondent and in case his finding is otherwise then the case shall need a reference to the Chairman, Evacuee Trust Board, Pakistan, as indicated above."
4. Aforesaid order was not challenged by the petitioner and proceedings remained pending till promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, (XIV of 1975)
(hereinafter referred to as Repealing Act, 1975).
5. It appears that, in pursuance of this order, Deputy Settlement Commissioner examined the question of transfer of aforesaid khasra numbers in favour of the petitioner and found that Khasra No, 178, claimed by Muhammad Ramzan, was also transferred in favour of the petitioner but, during the course of hearing, petitioner fraudulently claimed that he had voluntarily surrendered the said khasra number in favour of the Chairman, Evacuee Trust Property Board through his letter dated 28.3.1974, who, in turn, had taken over the possession of the said khasra on 30.3.1974. In fact, he had surrendered only one marla out of said khasra number as asserted by him before the Lahore High Court in Writ Petition No, 181-R of 1990 decided on 14.7.1992. It was, therefore, considered unnecessary to refer the issue of transfer and resumption of this khasra number to the Chairman Evacuee Trust Property Board. It seems that this order of the Deputy Settlement Commissioner was not seriously highlighted at the hearing of the petitioner's appeal in 1995 and the issue of transfer of excess land remained 'pending. However, on the basis of noting recorded by the Settlement Authorities, vide order dated 15.2.1978 by Chief Settlement Commissioner (Member Board of Revenue Punjab) and directed of Settlement Commissioner (Urban) dated -17.2.1978, Deputy Settlement Commissioner Jhelum, on 13.3.1978, issued show-cause notice to the petitioner to explain as to why illegal transfer of S.P. House and the land in vicinity procured by him be not cancelled. This notice contained the following allegations against the petitioner, which he was called upon to face :- "(1) Under Settlement Scheme No, 1 and evacuee property can be transferred to the occupant provided he is in its physical possession on or before 20.12.1958. You occupied the property in the capacity of Superintendent of Police, Jhelum on your posting in 1959.
(2) Under the rules three times of the plinth area could be transferred to the legitimate transferee but you got transferred the entire area of the Bungalow in question, which was many a times more than the entitlement of legal transferee.
(3) You got the property transferred illegally despite the fact that your possession was after the target date.
(4) You got transferred an area of 179 kanals and 7 malras of another property having no concern whatsoever with Bungalow No, B-XII-12-S-26, Civil Lines, Jhelum. The evacuee owners of the Bungalow in question and that of the land are different.
(5) The price of the excess land of the Bungalow in question as well as the price of the other land was not paid."
6. The petitioner challenged the said notice through Writ Petition No, 451,11 of 1978 before the Lahore High Court, which was later withdrawn on 2.4.1990. Subsequently, the case was taken up by Deputy Settlement Commissioner/Additional Deputy Commissioner (General), Jhelum, i,e, Notified Officer, who directed resumption of the property of the petitioner in favour of Government of -Public vide order dated 8.7.1990. This order was challenged by the petitioner through Writ Petition No, 181-R of 1990 before the Lahore High Court, which was accepted and the case was remanded for re- adjudication to the Member, Board of Revenue/Chief Settlement Commissioner. It appears from the record that on remand the Notified Officer, vide order dated 12.7.1993, validated transfer of S.P.
House and entire land in favour of the petitioner. Dissatisfied with this order, respondent- Government of Punjab filed Writ Petition No, 1060 of 1993 before the Lahore -Sigh Court, which was partly accepted vide judgment dated 12.9.1994, whereby transfer of surplus land to the petitioner was declared illegal whereas transfer of S.P. House, alongwith 35 kanals 8 markets of attached land and land measuring 12 kanals 18 marlas, previously constituting "barasti nallah" was validated.
Operative part of the judgment of the Lahore High Court reads as under :-- "15. For the foregoing reasons, the writ petition is partly accepted. The impugned order dated 12.7.1993 passed by Respondent No, 1 is maintained so far as it relates to transfer of main bungalow having total area of 35 kanals 8 marlas plus and measuring 12 kanals 18 marlas which was previously covered by Barsati Nallah. As regards the rest of the land/property the same is hereby declared to be without lawful authority and of no legal effect and quashed. The concerned authorities in the Settlement Department are directed to suitably, amend the P.T.O. and P.T.D. issued in favour of Respondent No, 3 omitting the additional entries as regards transfer of land comprising Khasra Nos, 168, 171 to 191 and 379 to 381 and instead entries shall be made regarding transfer of land measuring 12 kanals 18 marlas which was previously covered by Barsati Nallah. There will be no order as to costs."
7. Petitioner challenged this judgment through Intra Court Appeal, which was dismissed on 30.10.1994 as not maintainable. Feeling aggrieved, he. filed C.P.L.A. No, 503 of 1994 before this Court, in which leave was granted and petition was registered as Civil Appeal No, 141 of 1995. Government of Punjab also filed Civil Appeal No, 1029 of 1995 with leave of the Court from the said judgment of the High Court. Ultimately, both the appeals were dismissed by this Court vide judgment dated 23.1.1996 reported as Syed Wajihul Hassan Zaidi v. Government of Punjab (1996 SCMR 558).
Petitioner sought review of the judgment in Civil Review Petition No, 21 of 1996, which was allowed by this Court vide order dated 24.6.1996 in the following terms: "It seems that while disposing of the writ petition by the High Court and the appeal by this Court, the order of the Deputy Settlement Commissioner, Jhelum, dated 21.3.1974, passed pursuant to the remand order of the Settlement Commissioner dated 8.11.1973, was not noticed. The contention raised by the learned counsel for the petitioner is that in view of the above order of the Deputy Settlement Commissioner (against which no further proceedings were filed), no proceedings were pending on 1.7.1974, when the Repealing Act (Act XIV of 1975) came into force. The above contention has some force and needs further examination. We accept the review petition and recall the judgment dated 23.1.1996 passed in Civil Appeal No, 141 of 1995)."
8. After full length hearing, a Full Bench of this Court, vide judgment dated 3.7.1997 reported as Wajihul Hassan Zaidi v. Government of Punjab (1997 SCMR 1901), dismissed the appeal taking the view that the petitioner had obtained . surplus land and other area illegal and by manipulation from forum, which, under law at relevant time, had no jurisdiction. It was further observed that the High Court while passing the impugned judgment had fully protected the interest of the petitioner and sizeable property had been left for him.
9. Both the parties, being dissatisfied, filed separate Review Petitions Nos, 98 & 99 of 1998 respectively, seeking review of the judgment, which came up for hearing before this Court on 13.1.2000, when, after hearing Syed Sharifuddin Pirzada, learned Sr. ASC for the petitioner and Mr. Gulzarin Kiani, leaned ASC for the respondent-Government of Punjab, following order was passed :- - "We have partly heard this Review Petition. It is clarified that in so far as the area measuring 95 kanals 6 marlas belonging to Sardar Mohen Singh is concerned, the same could in no way form part of the house transferred to the petitioner as it belonged to a different evacuee. In so far the rest of the area is concerned, according to petitioner, it belonged to Dhan Raj Shah and Tulsi Das Shah and on part of it the house in dispute is situated. There is some confusion with regard to the total area of this portion, and the nature of the land.
Learned counsel for the respondents requests for time to produce documents showing the actual area of the part of the land as well as the names of the evacuee owner. Such documents may be filed with advance copy to petitioner's counsel within three weeks."
10.Learned counsel for the petitioner has taken the following grounds in Review Petition No, 98 of 1999:-- "(i) That important orders, specifically order dated 21.3.1974 passed by Deputy Settlement Commissioner, was not noticed by this Court at the time of disposal of the appeal.
(ii) That this Court categorically held that the order of the Settlement and Rehabilitation Commissioner, Rawalpindi dated 8.11.1973 passed in Civil Revision No, 26 of 197'2 was not challenged and proceedings remained pending till promulgation. of the Repealing Act, 1975.
(iii)That notwithstanding obiter observations, the said order was confined to Khasra No, 178 and in the backdrop of order of the Deputy Settlement Commissioner dated 21.3.1974, proceedings were not pending therefore, subsequent proceedings against the petitioner were without jurisdiction.
(iv)That the petitioner being in possession of S.P. House, comprising khasras numbers included in the P.T.D. had applied for its transfer, which had to be transferred as a composite unit and could not be divided into two portions on the mere ground that evacuee owners of the land, which formed part of the house, were different.
(v)That this Court failed to notice that in the land owned by Sardar Mohan Singh the stable of the S.P. House was situated, therefore, it could not be said that this land was added in the transfer documents dishonestly or by manipulation.
(vi)That it is absolutely incorrect to believe that the land belonging to Sardar Mohan Singh as part of S.P. House was situated in different estate. While holding that the petitioner was transferee of only 48 kanals and 6 marlas of land owned by Dhan Raja Shah and Tulsi Das Shah and the land owned by Sardar Mohan Singh measuring 95 kanalt3 4 marlas to be taken over, failed to decide about the remaining land owned by first two owners, which was originally transferred to the petitioner, which is a mistake apparent on the face of the record.
(vii) That the effect of repeal of Rules 6 & 7 of the Permanent Transfer Rules, 1961 was not noticed."
11. Conversely, in Review Petition No, 99 of 1998, Mr. Gulzarian Kiani, learned ASC representing Government of Punjab has raised the following grounds :-- "(i) That land Bearing Khasras 'Nos, 168, 171, 172 & 173, in all measuring 95 kanals 4 marlas, situated in revenue estate Civil Station, District Jhelum was owned by Sardar Mohan Singh, resident of Rawalpindi whereas land Bearing Khasras Nos, 174 to 191, in all measuring 61 kanals 3 marlas, also situated in the same revenue estate, belonged to Dhan Raj Shah and another. Land Bearing Khasras Nos, 379 to 381, in all measuring 26 kanals 15 marlas, situated in revenue estate Dhanpur, District Jhelum was owned by Dhan Raj Shah and Tulsi Das Shah while S.P. House was constructed upon 1 kanal 14 marlas only in Khasra No, 181.
(ii)That the High Court found that total area of the house was 27 kanals 11 marlas and three times its plinth area 7. kanals 12 marlas added to it, came to 35 kanals 3 marlas. Furthermore, land measuring 12 kanals 18 marlas, previously covered by a "barsati nallah" having been transferred to the petitioner was not available property. Nonetheless, neither the High Court nor this Court clearly determined the exact location on spot of the piece of land measuring 48 kanals 4 marlas with reference to khasras/fields numbers for its proper identity and separation from the bulk of khasra numbers, included in the transfer document.
(iii)That site of "barsati nallah" measuring 12 kanals 18 marlas with reference to these khasras/fields numbers was also not shown in the impugned judgment. Only. "barsati nallah", existing at site ran on a portion of bed of khasra number 171, which survey number in fact belonged to Sardar Mohan Singh and was found non-transferrable to the petitioner in the impugned judgment.
(iv)That actual area of S.P. House and its three time the plinth area transferrable to the petitioner was not determined in the impugned judgment.
(v)That after the grant of leave Civil Appeal No, 1029 of 1995 was heard alongwith Civil Appeal No, 141 of 1995 and dismissed on merits on 23.1.1996. Upon review, judgment in Civil Appeal No, 141 of 1995 was recalled and reheard. However, judgment in Civil Appeal No, 1029 of 1995 was not recalled.
C.M.A. No, 321 of 1997 for its revial remained undisposed of.
(iv) That in exercise of inherent jurisdiction under Order XXXIII Rule 5 of the Supreme Court Rules 1980 read with Article 187 of the Constitution, this Court may determine actual area of S.P. House and three times the plinth area transferrable to the petitioner, protecting valuable State property from its usurpation."
12. When these petitions came up for hearing before this Court, both the learned counsel desired to submit notes of written arguments and to supplement them by oral submissions. In the written submissions, main thrust of the argument of learned counsel for the petitioner, after narrating the background of the transfer of S.P. House, as a displaced person-claimant in favour of the petitioner and referring to the offer made by the Settlement department to express his willingness to purchase the excess land attached with the bungalow, followed by acceptance of offer and payment of transfer price, is that Settlement Commissioner (Policy) stationed at Settlement Headquarters, Lahore vide order dated 2.4.1962, on a reference made by Deputy Settlement Commissioner, Jhelum, had found the petitioner entitled to transfer of 35 kanals 8 marlas as area of the House and 12 kanals 18 marlas as "barsati nallah" free of cost whereas remaining 131 kanals 17 marlas on payment of market price already realized on 6.4.1960. Further submission of the learned counsel is that in view of the policy decision of Chief Settlement Commissioner dated 30th March, 1961, cases in which full payment had been made were closed one and thus, there was no hitch in the issuance of P.T.D., which was accordingly issued, where after Settlement laws were repealed, therefore, no jurisdiction was left with the Settlement and Rehabilitation authorities to interfere with the correctness or otherwise of the transfer documents. Learned counsel took serious exception to the notice dated 13.3.1978 issued by Deputy Settlement Commissioner, Jhelum for resumption of property when he had absolutely no jurisdiction, as not only P.T.D. had been issued in favour of the transferee but also the law had been repealed and no dispute was pending on the day of Repealing Act 1975. Grievance of the learned counsel appears to be that though this ground was taken and vehemently urged at the hearing of the appeal yet was not attended to while disposing of the appeal.
13. We are afraid, we cannot subscribe to the submissions of the learned ASC as these submissions were elaborately dealt with in the judgment under review as well as .the earlier judgment dated 23.1.1996. It was observed that no doubt Section 2 of the Repealing Act 1975 authorizes "Notified Office" to deal with such cases, which are pending adjustment before different forums of competent jurisdiction, where claim had not been finally adjusted but this proposition has to be assessed in juxtaposition, to the context whether finality could be attached to inherently defective order passed by authority having absolutely no jurisdiction, completely misconstruing the legal and factual aspects by violently contravening law or rules applicable at the relevant time. Dilating upon the issue firstly whether Settlement authorities had jurisdiction to grant land alongwith building exceeding three times the plinth area and secondly whether mere unauthorized deposit of Compensation Book against price of land, without tacit order in writing, regarding fixation of its value, could be sufficient for conferring proprietary right or affecting transfer of huge area of surplus land in favour of the claimant, which factually was not even demanded in C.H. Forth, it was held that finality could be legitimately attached to an order/action or proceedings clothed with jurisdiction, presupposing its.' conformity to law. Whereas in the instant case, even according to the stand of the petitioner, he came in occupation of official residence known as "S.P. House" towards 12.10.1959. Therefore, admittedly petitioner was not in physical possession of land or House on the crucial date i,e, December, 1958. Therefore, grant of building or transfer of adjoining land was contrary to essential requirement contained in the relevant Settlement Scheme. It was emphasized that without proper determination of price by competent authority, which was conspicuously missing, surplus area of land could not be claimed. Referring to the earlier judgment of 23.1.1996, it was reiterated that in view of non-availability of any valid order by a competent authority, failure to produce valid order regarding assessment of value for excess land clearly tended to draw an adverse interference against the petitioner. Pointing out to the fact that 95 kanals of land comprising Khasras Nos, 168, 171 to 173 belonged to Sardar Mohan Singh, it was observed that this land was neither claimed by the petitioner nor was ever consciously transferred by competent Settlement authority in favour of the petitioner. It was noted that seemingly all the Settlement forums had been erroneously labouring under the impression that said land belonged to Dhan Raj Shah and Tulsi Das Shah. Resultantly, it was held that transfer of land being on account of total misconception and by authority, otherwise having no jurisdiction, it was ab-initio void. Reference, inter alia, was made to the judgment in Yousaf Ali vs. Muhammad Aslam Zia (PLD 1958 S.C. (Pak)
104). Following extract from the precedent case was cited with approval:- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and obligations built upon them must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
Consequently, it was conducted without hesitation that property on the date of Repealing Act, 1975, within the purview of Section 3(1), was available for disposal and had not been validly transferred to claimant or anyone else. With reference to the order dated 24th June, 1996, recalling the earlier judgment, it was observed that such order was passed to examine the legal objections raised by learned counsel for the petitioner but there was nothing to contradict the said observations and additionally on revaluation of entire material on record and through reappraisal, this Court felt persuaded to reaffirm the earlier conclusion.
14. Points raised by the learned Sr. ASC for the petitioner were also elaborately dealt with by Saiduzzaman Siddiqui, J. (as his lordship then was) in his separate note, who, after narrating chequered history of the case, observed that it was quite clear that petitioner had applied for transfer of House No, A/26 known as S.P. House, Jhelum belonging to evacuee Dhan Raj Shah and Tulsi Das Shah, which was transferred to him against evaluation price of Rupees 45,120/- and he had paid its transfer price through adjustment of Compensation Book belonging to him and his mother. It was observed that, while applying for transfer, he made no mention of any open land attached to or forming part of the House. In these circumstances, the question of transfer of excess land bearing Khasras Nos, 168, 171, 172 & 173 measuring 95 kanals belonging to a different evacuee Sardar Mohan Singh did not arise at all as it was neither applied for transfer nor it could be transferred to the petitioner under Settlement Scheme No,
1. It was observed that there appeared to be no nexus between the two evacuee and their properties in that evacuee owners of S.P. House were Dhan Raj Shah and Tulsi Das Shah in equal shares who were residents of Jhelum while evacuee Sardar Mohan Singh was the sole owner of Khasras Nos, 168, 171, 172 & 173 measuring 95 kanals and was resident of Rawalpindi. It was, thus, concluded that neither evacuee land, belonging to Sardar Mohan Singh, was transferred to the petitioner as part of the House by any conscious application of mind nor it could possibly be transferred as part of the House of the petitioner against his C.H. Form under Settlement Scheme No,
1. Resultantly, the endorsement of Khasras Nos, 168, 171, 172 & 173 in P.T.O. and P.T.D. issued to the petitioner was wholly without jurisdiction and of no legal effect.
15.Answering the legal objections, reiterated now, relating to jurisdiction of the Settlement authorities or the Notified Officer under Repealing Act 1975, after the issuance of P.T.D., it was observed that to clothe an order with finality, it must be one which the authority is competent to pass under the law. Therefore, order passed by an authority in excess of jurisdiction or, which the authority had no jurisdiction to pass under the law, could not be defended as a final order, Proposition of law, that orders falling under these categories confer no title and do not require to be set aside and can be simply ignored when pressed into service, was reinforced and emphasized.
16.Mr. Pirzada has heavily relied upon the factum of payment of transfer price of land in excess of three times the plinth area by petitioner on 6.4.1960, even before the issuance of memo dated 11.3.1961, agitating that transfer of excess land in favour of the petitioner was a past and closed transaction, which could not be reopened. We are constrained to observe that this contention is devoid of any substance for a variety of reasons. In the first instance, question of payment of any transfer price for the excess land on 6.4.1960 did not arise as on the said day neither extent of excess area nor its market price was determined as required by Chief Settlement Commissioner's memo dated 9.1.1960. Secondly, through a declaration dated 1.6.1960, written on stamp paper, petitioner had desired the adjustment of payment due against him in respect of House from three Compensation Books in all amounting to Rs, 72,370/-. Subsequently, on his representation, transfer price of S.P. House was reduced to Rs, 22,560/-. Consequently, an entry crediting an amount of Rs, 22,560/- was made in his Compensation Book thus, the question of assessment of transfer price of land in excess of three times the oplinth area of the House on 6.4.1960 would be out of context. This stance of the petitioner is also falsified by Letter No, 728/AQN/LHR/104/259/EACR dated- 23.8.1960 by Secretary (Urban) to Chief Settlement Commissioner, Pakistan addressed to the Deputy Settlement Commissioner, Jhelum, which clearly reflects the position requiring the latter, to intimate whether the transferee of Property No, BXII-12-S-26 was willing to retain the surplus area based on the payment of market value to be determined on the auction price of the locality.
Learned counsel has attempted to persuade us to accept the observations by subordinate Settlement authorities that indeed payment on account of surplus land in excess of three times the, plinth area of the House had been actually recovered but, in the face of categorical findings of fact recorded by Full Bench of this Court, based on careful and conscious appreciation of documents, it is not open to us to reopen the issue with a view to reappraise the evidence and take a contrary view, which otherwise does not suffer from misconstruction of material documents on record. Suffice it to observe that written as well as oral submissions of the learned counsel, after analysing in detail, would call for rehearing of the appeal and re-evaluation of the issues already decided and finally concluded on facts as well as on law. We are inclined to hold that in view of the gross misrepresentation, concealment of true facts of the petitioner and collusive conduct of subordinate authorities of the Settlement department, no finality could be attached to the transfer documents issued in his favour. Evidently, the petitioner had been wielding his undue influence on the subordinate Settlement authorities when he held a position of authority and was able to manipulate the endorsement of a large chunk of valuable property in this transfer documents, without any valid and lawful order determining his entitlement. Since the very act of transfer of excess land has been found to be absolutely illegal, unauthorized, unwarranted, whole structure built on such void and defective orders, would collapse as held by this Court over and again. Bar of jurisdiction, as strenuously canvassed by learned Sr. ASC would arise only in the event of lawful transfer of property and not with regard to illegal and unauthorized usurpation of public property in collusion with unscrupulous authorities.
17. Admittedly, we are not sitting in appeal over the judgment rendered by a Full Bench of this Court and the scope of review is very restricted within the parameters laid down by this Court in Abdullah Khan u. Nisar Muhammad Khan (PLD 1965 SC 690), Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 S.C.
905) and Abdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363). We are of the considered view that even if the view taken by this Court in the decision of the appeal be erroneous, it does not warrant revisiting by this Bench in the exercise of review jurisdiction, which can only be exercised when an error or mistake is manifestly shown to float on the face of record, which is patent and if allowed to remain intact would perpetuate illegality and gross injustice. Basic-object behind the conferment of power of judicial view on superior Courts essentially is to foster justice and eliminate chances of perpetuating illegality. Principal aim and spirit underlying judicial review of orders passed or actions taken by executive or quasi-judicial forums is to respect law and to enforce primary of the Constitution and the law. There can be no cavil with the proposition that writ jurisdiction is completely discretionary in nature and invokable in order to meet blatant illegalities, total lack of jurisdiction, unwarranted exercise of authority otherwise not conferred by law or preventing retention of ill-gotten gains. Discretion exercised within the contemplation of Articles 185 & 187 of the Constitution by this Court is too we in nature and stands at a higher pedestal. It is obligatory for this Court to ensure that apart from legal requirements broads equitable principles of law are not infringed so that complete justice can be dispensed with' equitable situation demands and legal formulations not take the controversy to its logical end. This Court would be grossly failing in duty if it over looks equitable consideratioris and alters the final verdict in the exercise of its extraordinary jurisdiction.
18.Adverting to the principles for the exercise of review of the judgment of this Court, it is well- settled that every judgment pronounced by this Court is presumed to be final, solemn and well- considered covering all points arising out of the case. If the' Court has taken a conscious an deliberate decision on a point of fact or law, a review petition will not be competent. The circumstance that the view canvassed in the review petition is more reasonable than the view already accepted by the Court in the impugned order, of which review is sought, would not be sufficient to maintain a review petition. Likewise, factum that a material irregularity was committed by the Court would not be adequate enough to warrant a review of the judgment unless the material irregularity be of a nature so as to convert the process of acting in aid of justice to a process of gross injustice. In such eventuality, a review petition would be competent. Similarly, fact that the conclusion drawn in a judgment is wrong would not warrant review of the same but if the conclusion is wrong because something manifest has been ignored by the Court or the Court has not considered an important aspect of the matter, a review petition would lie. Furthermore, principle of law is well recognized that this Court would not exercise the power of review as a routine matter to rehear a case already decided but the same can be pressed into service where a glaring omission on the face of record or patent error has crept in the judgment by judicial fallibility.
19.Virtually, this Court had considered the impact of the order passed by the Deputy Settlement Commissioner, Jhelum dated 21.3.1974 finding that no doubt Khasra No, 178 clamed by Muhammad Ramzan was transferral in favour of the petitioner alongwith other khasra numbers, petitioner made the Deputy Settlement Commissioner to believe that he had voluntarily surrendered it to the Chairman, Evacuee Trust Property Board as recorded in the order. This was a glaring and fraudulent stance of misrepresentation as in the High Court, while opposing impleadment of Muhammad Ramzan in Writ Petition No, 181-R of 1990, he took the stance that he had surrendered one marla out .of above khasra number being claimed by former as `mutawali' of Khanqa of Pir Hara. Be that as it may, on careful assessment of available record, it was concluded, as a finding of fact by Settlement and Rehabilitation Commissioner Rawalpindi Division, that there was no order of transfer of huge area of land owned by Sardar. Mohan Singh, allegedly forming part of the S.P.
House for transfer in favour of the petitioner. These findings of fact, fully endorsed by the Lahore High COurt as well as this Court, have the backing and support of the precedents reported as Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), Khuda . Bakhsh v. Khushi Muhammad (PLD 1976 SC 208) and Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236) and Muhammad Matin Mirza v. Jahangir R. Rustomji (PLD 1980 SC 64).
20. Learned counsel vehemently attempted to persuade us to take a contrary view of the matter on the basis of the judgments reported as Anwar Hussain v. Sarfraz Ahmad (PLD 1971 SC 669), Ali Mcazzam v. M.A. Effandi (PLD 1965 (W.P.) Lahore 193), Lahore Central Co-operative Bank Ltd. v.
Saifullah Shah (PLD 1958 S.C. (Pak.( 210), Sanyal Shah v. Asghar Ali (PLD 1982 Karachi 276), Noor Muhammad v. Additional Commissioner (1983 CLC 2531), Abdul Haque Mustajab Bano (1982 SCMR 1103), Iqbal Siddiqui v. Assistant Settlement Commissioner (Urban) (PLD 1984 Lahore 291), Abdul Ghani v. Nazir Ahmad (1976 SCMR 493), Jan Muhammad v. Additional Deputy Commissioner (2002 SCMR 793). and Mir Allauddin v. Settlement Commissioner (2002 SCMR 1923). It may be observed that, generally speaking, Settlement authorities become bereft of jurisdiction to deal with the property after the issuance of a valid P.T.D. but this principle is subject to a rider clause that the transfer of the property must have been made within jurisdiction, by conscious application of mind and without any element of fraud or misrepresentation in obtaining the transfer of evacuee property. In case the transfer was obtained by a person by practicing fraud, manoeuvring and manipulating the facts or in connivance with' the officials of the Settlement organization, the order of transfer, being void, would remain open to scrutiny by the forums concerned, and, on their failure, such orders and actions would always be subject to judicial review by Courts of law.
Likewise, blanket protection would not extend to the transfers made in violation of law, in excess of power or without jurisdiction. Once it is held that the Settlement authorities had transferred a property otherwise than in due course of law, on extraneous considerations or in gross violation of the provisions of Rehabilitation and Settlement laws, their actions can be set at naught by competent forums. The precedent cases cited at the Bar do not advance the cause of the petitioner, as the same do not have the effect of overriding the aforesaid legal position. In Anwar Hussain's case (supra), inter alia, it was held that the Settlement authorities may vary; modify or cancel the Permanent Transfer Deed issued to such a transferee, who has obtained it by means of misrepresentation or fraud. In Ali Moazzam's case, (supra) Lahore High Court was dealing with the bar of jurisdiction in terms of Sections 22 & 25 of Displaced Persons (C&R) Act 1958. In Lahore Central Co-operative Bank's case (supra) it was ruled that writ of mandamus will not be granted unless it is applied for within a reasonable time after the right of prayer has accrued. Indeed, this was a case relating to reinstatement of a Commercial Manager of a Co-operative Bank. Case reported as PLD 1982 Karachi 276 arose out of alteration and substitution of properties in transfer documents and does not appear to be relevant to the issue. In Noor Muhammad's case (supra), Lahore High Court was confronted with the question whether property consisted of a single unit or otherwise. It was held that this being a question of fact could not be gone into by High Court in writ jurisdiction. In Abdul Hague's case (supra) the principle of law was approved because the transfer of property was quite in order and without any element of manipulation or fraud. Similar view was taken in Abdul Ghani's case (supra) while refusing leave to appeal. In Iqbal Siddiqui's case (supra), Lahore High Court was dealing with a dispute regarding transfer of property in the perspective of ejectment proceedings in writ jurisdiction. In this case, tenant, after having compromised before the Rent Controller, had moved Settlement department for cancellation of transfer of property in favour of landlord. Cases reported as Jan Muhammad v. Additional Deputy Commissioner and Mir Allauddin v. Settlement Commissioner equally arose out of distinct and distinguishable facts having no material bearing on the question raised.
21. The submission made by Mr. Gulzarin Kiani, learned ASC for the respondents to the effect that in terms of the Settlement laws and the policy framed by the Chief Settlement Commissioner that land equivalent to three times the plinth area of a house could only be transferred in favour of a claimant and that the excess land was rightly excluded from the subsequently allotment made in the transfer documents, has also been exhaustively dealt with in the impugned judgment as well as in the preceding paragraphs of this judgment. Learned counsel referred to the case law already relied upon in the impugned judgment, which need not be restated for the sake of brevity and in order to eliminate repetition of reasoning. On the same score, stance of Mr. Pirzada, Learned Sr. ASC that the petitioner having paid the price for the excess land offered to him by the Settlement authorities, the same could not have been cancelled cannot be sustained because, as already held, there was no basis and legal foundation for the transfer of excess land in favour of the petitioner since market price of land had neither been determined nor demanded after actual inclusion of the property in the transfer documents. The issue has been discussed and dealt with comprehensively tending to reflect the surreptitious manner, in which the amount was adjusted from the Compensation Book of the petitioner as back as on 6.4.1960, when even the Provincial Transfer Order did not contain the particulars of the land or any authority for the transfer of excess land. Suffice it to observe, the impugned judgment does not suffer from any misconception of law or error floating on the surface of the record leading to miscarriage of justice or laying down entirely incorrect position of law. Before parting with this judgment, we would like to observe and endorse the submission of Mr. Kiani that after the recall of the judgment dated 23.1.1996, Civil Appeal No, 1029 of 1995, preferred by respondent-Government, shall stand revived as both the appeals were disposed of through a consolidated judgment.
22. Lastly, reverting to the submission of Mr. Kiani, learned ASC "for the respondents that actual area of land measuring 48 kanals 6 marlas having been transferred in favour of the petitioner ought to have been demarcated by this Court, it may be pertinent to observe that since this issue had not been pressed into service before the High Court as well as at the hearing of the appeal, it cannot be lawfully raised before this Court in review jurisdiction. Suffice it to observe, the law shall take its own cause and any exercise in this behalf that may be undertaken by this Court in exercise of review jurisdiction might lead to serious complications, which ought to be avoided, unless absolutely inevitable.
23.For the foregoing facts, circumstances and reasons both the petitions must fail and are hereby dismissed with no order as to costs.