' MUHAMMAD AKHTAR SHABBIR, J.---This judgment will dispose of Writ Petitions Nos.129 and 130-R- 1998, as identical common question of fact and law is involved therein.
2. Facts giving rise to the present writ petitions are to the effect that one Waryam son of Noor Muhammad and Muhammad Ismail etc. Have submitted an application to MBR with power of Chief Settlement Commissioner Punjab, Lahore that in 1968 Ansar Raza, who was then posted as Settlement Inspector in Jhang had prepared a fictitious and forged bid sheet regarding Plot Nos.80-B and 161-A, situated in Block No,9 Jhang Sadar in favor of his mother namely Mst. Razia Begum who, died in 1970 and Akbar Raza his brother an employee of D.C. Office Jhang, respectively.
3. The auction money in respect of the case of Mst. Razia Begum had been deposited in the year, 1989 and Transfer Order was issued in the year, 1990 in her favor who died about 2 years back. In fact, no auction had been conducted nor any notice was issued to Waryam and Ismail who were the occupants of said plot. The applicants have alleged that auction price had been deposited after 24 years without any order of competent authority in connivance with the staff and in the end the applicants have prayed that inquiry may be conducted regarding fraud and forgery. Same is the case in other matter; the amount had been deposited in 1991. The Transfer Order was issued on 27-12-1992.
4. A preliminary report was submitted by the Predecessor of MBR and the respondent after hearing the parties and examining the relevant record passed separate impugned order, dated 23-7-1997 with the observation that all the proceedings i,e, preparation of bid sheets by Ansar Raza/Settlement Inspector in favor of his mother Mst. Razia Begum and his brother Akbar Raza and issuance of Transfer Order in respect of Plot Nos.80/B and 161/A, situated in Block No,IX Jhang Sadar, were the result of fraud and fabrication.
5. Waryam and one Ismail as well as Mst. Rani LRs of Allah Ditta deceased have filed a separate application (C.M. No,3 of 1998) in both the writ petitions for their impleadment as respondents. The proceedings were initiated and inquiry was conducted on their applications by the Settlement authorities/Board of Revenue, therefore, they being necessary parties are impleaded as respondents.
6. Learned counsel for the petitioners contended that Mst. Razia Begum and Akbar Raza were the highest bidders and auction was confirmed in their favor. He further argued that Mst. Razia Begum had made a deed of partnership and produced their compensation book for adjustment of the price from that book. Further added that the book was mis-placed by the settlement staff of District Jhang; that allottees had deposited remaining auction price through Bank challan and with the permission of competent authority; that the relevant record supporting the version of the petitioners had been destroyed or mis-placed with theconnivance of the occupants of the plot; that Respondent No,1 was not competent to declare the auction of the plot on the basis of fraud and fabrication and after repeal of evacuee laws.
7. On the other hand, learned counsel for the settlement department as well as for occupants have vehemently opposed the arguments addressed by the learned counsel for the petitioners contending that no such auction had ever been conducted by the settlement authorities; that the whole proceedings of alleged auction were fake and the documents for the same have been filed in the office with the connivance of settlement staff; that the MBR was fully competent to declare the allotment of the property as fraudulent. Lastly argued that factual controversy is involved in the matter and this Court is always reluctant to interfere with such findings of fact passed by a Special Tribunal.
8. I have heard the learned counsel for the parties and perused the record.
9. As asserted by the learned counsel for the petitioners that Mst. Razia Begum had joined Mst.
Fatima Begum etc. Who had the compensation Book which was deposited in the office for adjustment of the sale price. This book was not found available in the office. As per terms and conditions of the alleged auction, the highest bidder has to deposit 1/4th of the sale price at the spot or immediately after the approval of the auction and remaining price was to be paid within 35 days and in case it is not paid within due time the auction was liable to be rejected. The sale price was deposited by the alleged allotees/ petitioners after the expiry of period of 23/24 years. No application had been filed before the competent authority for permission to deposit the sale price nor it is established that which authority had allotted the auction purchaser to deposit the sale price. There is no record in the office to substantiate or prove the case of the petitioners that any auction with regard to said plots was ever conducted. Further, no publication/ schedule for auction of the property had been produced nor it was available in the office. It is unbelievable that only the mother and brother of Ansar Raza have participated in the auction and nobody from the area was interested in purchasing the said plots. As per bid sheet only Mst. Razia had participated for her plot and for the auction of plot 161-A two persons namely, Akbar Raza and Muhammad Hassan offered the bids, Mst. Razia Begum and Akbar Raza were real mother and brother of Ansar Raza Settlement Inspector of the Department. It has been observed by the respondents that all the entries were made by the said persons and these were not genuine entries and based on fraud and forgery.
10. Learned counsel for the petitioners has vehemently stressed that question of fraud and forgery cannot be gone into by the respondentsafter the repeal of evacuee laws. This question had already been dealt with exhaustively by the Hon'ble Supreme Court of Pakistan in Muhammad Baran's case reported as (PLD 1991 SC 691). The facts of this case were 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, Tehsil 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 village's, were declared as invalid and void ab initio on the ground that they had obtained the same fraudulently. The petitioners who purchased land from Fayyazuddin, filed separate writ petitions before the High Court which were decided by a Division Bench of the High Court, and vide its judgment, dated 18-12-1982 set aside the order of the Settlement Commissioner, dated 3-7-1977, declaring it to be without lawful authority and of no legal effect and remanded all the matters to MBR for entrustment to the notified officer to ascertain the correct position. The petitioners sought leave to appeal against the judgment of this Court contending therein that after the repeal of evacuee laws w,e,f, 1-7-1974 no Settlement officer or "Notified Officer" could assume jurisdiction, in settlement matters which were not pending in 1974. "It was held that High Court in exercise of 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 and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236) in somewhat more strong phraseology, this Court had held that an order in the nature of certiorari or mandamus is a discretionary order. 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. Hon'ble Judges of the apex Court have observed as under:-- "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 wasclearly 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".
11. The other aspect of the case is that a Special Tribunal having the record under control had passed the impugned order after scrutiny and examination of record and the High Court in exercise of its constitutional jurisdiction could not sit as Court of appeal against the decisions rendered by the Special Tribunals as laid down in cases of Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139) and Sub. Muhammad Asghar v. Mst. Safia Begum (PLD 1976 SC 435).
12. Furthermore, the factual controversy is also involved in the matter and this Court in exercise of its constitutional jurisdiction is not competent to interfere in such like findings on question of fact.
The High Court cannot examine or re-evaluate the evidence or record in exercise of its constitutional jurisdiction as laid down in the cases of Muhammad Yunus Khan v. Government of NWFP through Secretary and others (1993 SCM R 618). Benedict F.D Souza v. Karachi Building Control Authority (1989 SCM R 918) and Federation of Pakistan v. Major (Rtd.) Muhammad Sabir Khan) PLD 1991 SC 476).