' This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order, dated 1-1-1996, passed by Member, Board of Revenue/Chief Settlement Commissioner, Punjab whereby the shop in dispute has been ordered to be transferred to respondent, Khadim Hussain, with a direction of issuance of P.T.D. In his favour.
2. The dispute between the parties relates to evacuee Shop No,9/195, situated in Main Bazar, Sialkot.
The case of the petitioners, the legal heirs of one Muhammad Khaliq, is that this shop was transferred in favour of one Muhammad Ali, vide P.T.O. No,219329 dated 18-2-1960 and P.T.D.
No,180/60/191 was issued in his favour on 2-12-1964, after his death, his legal heirs sold the shop to the present petitioners in three equal shares, for a consideration of Rs,60,000 vide three separate registered sale-deeds dated 15-11-1982. This property being in possession of respondent, Khadim Hussain, alleged to be a nephew of allottee, Muhammad Ali, and also alleged to be his tenant, ejectment petition was instituted against him by the heirs of Muhammad Ali, which was later on withdrawn, allegedly for the reason that they ceased to be the owners after the sale to the petitioners. Fresh ejectment proceedings were lodged by the petitioners against Khadim Hussain.
3. Meanwhile, in 1972, respondent Khadim Hussain/occupant moved "Mukhbari" application to the Settlement Authorities alleging that the allottee, Muhammad Ali, was a fictitious person and in fact his uncle Muhammad Hussain, who was local, posed himself as Jammu and Kashmir refugee with the name of Muhammad Ali and had got the shop transferred in his favour through fraud. The Settlement Authorities after enquiry, vide orders dated 1-8-1983 and 7-8-1983 directed the aforesaid allottee. Muhammad Ali, to surrender his P.T.D. For cancellation or else face criminal prosecution for impersonation and for depriving the department of its property through practising fraud. The allottee, Muhammad Ali, by that time, had died and the shop in dispute had been purchased from his successors by the present petitioners. They, therefore, challenged the orders dated 1-8-1983 and 7-8-1983 through Writ Petition No,412/R of 1983. The writ petition was accepted on 13-4-1993 and the case was remanded to the Chief Settlement Commissioner for fresh decision.
4. The case of respondent, Khadim Hussain, is that:-
(i) The allottee Muhammad Ali was a fictitious person and the name of Muhammad Ali was assumed by his real uncle Muhammad Hussain to defraud the department.
(ii) The said Muhammad Ali in reality being Muhammad Hussain was a local, resident of village Chaprar, District Sialkot and owned immovable property in the said village since before partition.
(iii) The said Muhammad Ali/Muhammad Hussain was never in possession of the shop in dispute, hence, was not eligible for allotment even as a local.
(iv) He (respondent Khadim Hussain) has been in exclusive possession of shop in dispute since 1958. Prior to this, his father Allah Rakha (brother of allottee) had been in possession of this shop since 1948 and as such on the basis of exclusive and continuous possession, he was eligible to the transfer of the shop.
5. On the basis of the information provided by the respondent Khadim Hussain, as mentioned above, the case was reopened in 1972 and vides order dated 1-8-1983 and 7-8-1983, the Settlement Authorities had directed the allottee, Muhammad Ali/Muhammad Hussain to surrender the P.T.D.
For cancellation or face criminal prosecution.
6. The case of the petitioners before this Court in Writ Petition No,412/R of 1983 as well as before the Chief Settlement Commissioner in the post-remand proceedings, was that the Settlement Authorities did not have any jurisdiction after the repeal of Evacuee Laws and after the issuance of P.T.D. It stands mentioned in the orders dated 1-8-1983 and 7-8-1983 that the application of respondent, Khadim Hussain, had been pending since 1972 but the Chief Settlement Commissioner undertook an indepth examination of this aspect, in terms of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). He found that in 1972 and from then onward, Khadim Hussain submitted several applications to Settlement Authorities providing information of fraud and for the allotment of shop in dispute. His first application dated 13-3-1972 was addressed to the Advisor Rehabilitation, whereupon the matter was taken up by the Headquarter Office of the Settlement Department, Lahore, and a direction was issued to the Deputy Settlement Commissioner, Sialkot, for immediate enquiry and report. The respondent, Khadim Hussain produced oral as well as documentary evidence in support of his allegations before the Deputy Settlement Commissioner, Sialkot, who submitted his report to the Settlement Commissioner (Urban), Headquarter Office, Lahore, on 15-6-1972 with the findings that "prima facie the shop in dispute was got transferred by Muhammad Ali through fraudulent means". The Settlement Commissioner (Urban), vide his letter dated 5-8-1972 referred back the matter with the direction that Muhammad Hussain (Muhammad Ali) may also be heard. The Deputy Settlement Commissioner thereafter heard the said allottee and recorded the statement of witnesses produced by the allottee. The Deputy Settlement Commissioner, Sialkot, who was a different officer this time, vide his fresh report dated 29-12-1972 stated that the status of Muhammad Ali as Jammu and Kashmir refugee was doubtful and that he never remained in possession of the shop. The Headquarter Office, vide their letter dated 30-1-1973, referred the case to Additional Settlement Commissioner, Lahore Division, for examining whether it was a fit case to be taken up in a suo motu revision under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
The matter remained undecided and ultimately, vide letter, dated 11-5-1978, the Board of Revenue (S&R Wing) declined to help the applicant/respondent, Khadim Hussain, on the ground that Settlement Laws, including the law of suo motu revision had since been repealed and the property had gone out of the Compensation Pool after the issuance of P.T.D. However, this letter was never sent to the applicant/respondent and was sent to the allottee, Muhammad Ali/Muhammad Hussain. It has further been found that respondent, Khadim Hussain, being unaware of letter dated 11-5-1978, moved fresh application to the Board of Revenue (S&R Wing) asking for the information in regard to the action taken on his application. At this stage, the matter was re-examined in the Board of Revenue with particular reference to the question of maintainability of the proceedings.
The Legal Advisor of the Department gave an opinion that application of respondent was pending since 1972 and that the evidence on record showed that the transferee Muhammad Ali/Muhammad Hussain was not Jammu and Kashmir refugee and had obtained the transfer of the shop by impersonation and the mere fact that the P.T.D. Had been issued does not bar the Settlement Authorities from proceeding further. He also referred to The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, wherein it has been laid down that even a Tribunal of limited or special jurisdiction has the power to suo mom recall or review an order obtained by fraud. He also referred to Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106. This advice was conveyed to the Deputy Settlement Commissioner, Sialkot, on 1-8-1983 asking him to proceed further as advised by the Legal Advisor.
The Deputy Settlement Commissioner, Sialkot, issued a Robkar to allottee, Muhammad Ali, on 7-8- 1983 directing him to surrender the P.T.D., issued to him or else face criminal prosecution. The Robkar was received back with the report that the addressee, Muhammad Ali, had died. The matter was accordingly reported to the Headquarter Office. Thereafter the petitioners/purchasers instituted the aforesaid Writ Petition No,412/R of 1983 and the matter was remanded to respondent No,1/the Chief Settlement Commissioner for fresh decision.
7. On the basis of the facts recorded above, the learned Chief Settlement Commissioner found that the applications of the respondent, Khadim Hussain, challenging the legality of the allotment in the name of Muhammad Ali, on account of fraud, had been submitted in 1972 and the proceedings on these applications were pending at the time when settlement laws were repealed by Act XIV of 1975. The learned counsel for the petitioners has not been able to convincingly argue against this finding of fact recorded by the Chief Settlement Commissioner as also previously by the other officers at different stages, mentioned above. It is, therefore, held that the respondent's applications were pending since 1972 and he has been agitating the matter throughout and the proceedings before the Settlement Authorities shall be deemed to be pending proceedings saved by subsection (2) of section 2 of Repeal Act XIV of A 1975. It is further held that the Board of Revenue (S&R Wing), vide its letter dated 11-5-1978, wrongly addressed to allottee-Muhammad Ali, illegally expressed its inability to proceed further in the matter due to the repeal of Settlement Laws whereas the pending proceedings stood saved and the Chief Settlement Commissioner was competent to pass the impugned order and the present proceedings were not affected due to the repeal of Settlement Laws.
8. The Chief Settlement Commissioner thereafter examined, in detail, the issue in regard to the identity of the allottee, Muhammad Ali, and on the basis of the evidence and available record, found in the impugned order (paras.15, 16, 17 and 18) that admittedly allottee, Muhammad Ali and Muhammad Hussain, the real uncle of respondent, Khadim Hussain, were one and the same person and that he was a local and not a Jammu and Kashmir refugee, his real name was Muhammad Hussain and not Muhammad Ali and his claim on the basis of being a Jammu and Kashmir refugee was false. The learned counsel for the petitioners has not been able to say anything against this finding of fact recorded by the Chief Settlement Commissioner, which is accordingly confirmed and it is held that the allottee, Muhammad Ali, was a local his real name of Muhammad Hussain, he was not a refugee from Jammu and Kashmir and his claim on the said basis was false.
9. The Chief Settlement Commissioner has also recorded a finding of fact (paras. 19, 20, 21, 22, 23 and 24 of the impugned order) that the allottee/Muhammad Ali/Muhammad Hussain was never in possession of the shop in dispute and initially it was in possession of respondent's father Allah Rakha who was brother of the allottee and since 1958 it was in possession of respondent, Khadim Hussain and respondent's father Allah Rakha, was accomplice in the fraud and impersonation practised by the allottee Muhammad Hussain/Muhammad Ali and that the allottee had obtained the transfer of the shop in dispute through practising fraud without any entitlement. The learned counsel for the petitioners has not been able to say anything to upset this finding of fact, which is accordingly confirmed.
10. The learned Chief Settlement Commissioner after recording the finding of fact, mentioned above, that the respondent Khadim Hussain was in exclusive possession of shop in dispute and is continuously in its possession before its transfer to the allottee, Muhammad Ali, in the year 1964, correctly held that the allottee, Muhammad Ali, was, therefore, not in possession of in, shop in dispute at the time of filing of KNCH Form and had incorrectly stated therein that he was holding the possession since 28-11-1952. These findings of fact are based on cogent reasons and the evidence available on record and is further supported from, he facts that the legal heirs of the allottee had filed an ejectment petition against respondent, Khadim Hussain and the petitioners had also admitted his possession in their Writ Petition No,412/R of 1983 by stating that "before the transfer of the property in dispute in favour of Muhammad Ali, it was in possession of Khadim Hussain as tenant of Muhammad Ali"
11. The above mentioned shows that the allottee, Muhammad Ali, even as a local, was not entitled to the transfer of the shop in dispute. He was never in its possession. He never filed the requisite L.H.
Form for the transfer as local. The learned Chief Settlement Commissioner has correctly held that shop in dispute was obtained by the allottee, Muhammad Ali/Muhammad Hussain through misrepresentation, fraud and impersonation and correctly declared the allotment/transfer of the aforesaid shop in dispute in favour of Muhammad Ali as null and void and withdrew and cancelled the P.T.O. Dated 18-2-1960 and P.T.D. Dated 2-12-1964.
12. The argument of the learned counsel for the petitioners that after the issuance of P.T.D. The Settlement Department became functus officio and could not withdraw and cancel the P.T.D. On the basis of fraud, under the circumstances, has no merit. The Constitutional jurisdiction of this Court cannot be invoked in aid of injustice and to retain ill-gotten gain. The learned counsel for the respondent, Khadim Hussain in this regard has correctly placed reliance on Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413, Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, Qutabuddin and others v. Sardar Hidayatullah Khan Mokal and another 1976 SCM R 524 and Muhammad Hanif v. Sabir and another 1980 SCM R 568.
13. In Wali Muhammad and others v. Sakhi Muhammad and others (supra) it was held that grant of relief in writ jurisdiction is entirely discretionary with the High Court and the said jurisdiction cannot be invoked to help retention of ill-gotten gains by a party even if because of any technical reason an order passed by a Tribunal below is not found strictly justifiable.
' In Begum Shams-un-Nisa v. Said Akbar Abbasi and another (supra) it was held that effect of setting aside order of Chief Settlement Commissioner would be to restore unjust order of Settlement Commissioner and, therefore, 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.
' In Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (supra) it was held that the Courts would refuse to perpetuate something which would be patently unjust or unlawful. In this ease the order impugned before High Court was held to be without jurisdiction but the one which cured a manifest illegality and, therefore, writ jurisdiction was not allowed to be invoked.
'Similarly in Qutabuddin and others v. Sardar Hadayatullah Khan Mokal and another (supra) the writ jurisdiction was not allowed to be invoked to provide a shield to orders of verification of claims obtained by fraud.
' In Muhammad Hanif v. Sabir and another (supra), it was held that High Court correctly did not extend equitable relief to the petitioner as that would have perpetuated injustice.
' One may also refer to Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504, wherein it was held that the Constitutional jurisdiction of High Court is designed and intended to foster the cause of justice and not to perpetuate an injustice. It is not every illegal order which is liable to be set aside in exercise of Constitutional jurisdiction and the paramount consideration should be, whether the setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice.
14. It may further be mentioned here that the Settlement Authorities can cancel a P.T.D. If the same has been obtained by fraud. Reference in this regard can be made to The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and S. Anwar Hussain Sani v. Sarfraz Ahmed and 2 others PLD 1971 SC 669.
' In the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (supra), it was held that even a Tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud.
' In S. Anwar Hussain Sani v. Sarfraz Ahmed and 2 others (supra), it was held that the Settlement Authorities after the issuance of P.T.Ds. Do not become functus officio to deal with such properties if it is a case of misrepresentation fraud.
15. The petitioners are vendees from an allottee who obtained the allotment through fraud, misrepresentation and impersonation. They may be bona fide purchasers but cannot claim a better title than their predecessors, as against respondent, Khadim Hussain, who is asserting his rights for the transfer of the shop in dispute since 28-6-1972 on the basis of his continuous possession. In Muhammad Yasin and others v. Settlement Commissioner and others 1976 SCM R 489, it was held that vendor having no right, title or interest in the property, the purchasers were not entitled to any protection. In Bashir Ahmed and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others 1983 SCM R 1199, it was held that the purchaser from an allottee is saddled with knowledge that transaction of purchase is subject to incidence of sections 10 and 11 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) and such a purchaser cannot raise plea of protection on principle of section 41 of Transfer of Property Act (IV of 1882).
' Similarly in Manzoor Hussain v. Fazal Hussain and others 1984 SCM R 1027, it was held that purchasers of excess allotment of land obtained through fraud, were not protected under section 41 of the Transfer of Property Act, in the presence of proceedings pending under sections 10 and 11 of the Displaced Persons (Land Settlement) Act (XLVII of 1958), at the time of enforcement of Act XIV of 1975.
' In Gul Muhammad and others v. Additional Settlement Commissioner and others 1985 SCM R 491, it was held that after the cancellation of original allotment on ground of double allotment, purchaser of such allotted property could not claim protection.
' In Ejaz Ahmed Khan v. Chahat and others 1987 SCM R 192, the land in dispute was found to have been obtained fraudulently and was cancelled. The petitioner claimed to be a bona fide purchaser of part of such land, and challenged the order of Additional Settlement Commissioner on grounds that he was not given an adequate opportunity of hearing before the passing of the impugned order and that he was entitled to purchase the said land under section 3 of Act XIV of 1975. It was held that the order of Additional Settlement Commissioner canceling allotment could not be declared to be illegal as having been passed without notice to the petitioner despite the fact that he was a bona fide purchaser of such land.
16. The respondent, Khadim Hussain, was found to be in possession of the shop in dispute since before 1960 and was, therefore, entitled to its transfer, on its availability, in terms of para.6(1) of the Scheme for the Management and Disposal of Available Urban Properties, 1977, issued by the Government of Punjab, on 31-1-1977, under section 3(1)(a) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), and, therefore, the Chief Settlement Commissioner, on the availability of the shop, after the cancellation of P.T.D. From the name of the allottee, correctly ordered the transfer of the same in favour of respondent, Khadim Hussain, on the basis of being an informer and also on the basis of being an occupant, under the above Scheme.
17. In view of the above mentioned, I see no merit in this petition, which is accordingly dismissed, leaving the parties to bear their own costs.