' By this judgment I propose to dispose of Writ Petitions Nos. 752/R, 753/R and 754/R, all of 1972, as the points of fact and law involved in all the three petitions are similar.
2. These writ petitions under Article 201 of the Interim Constitution (1972) of the Islamic Republic of Pakistan call in question orders, dated 19th August, 1971, 12th February, 1972 and 16th August, 1972 respectively passed by respondents Nos. 2 to 4.
3. The facts of the cases as set up in these petitions, briefly stated, are that Plots Nos, 19, 20 and 25, situate in village Barki Badhal, Tehsil Gujar Khan, District Rawalpindi, were in occupation of the respective petitioners in Writ Petitions Nos. 752/R of 1972, 753/R of 1972 and 754/R of 1972 since before 1961. The village in which the plots in dispute are situate is admittedly a minor village that is one having a population of less than three thousand persons. The petitioners being in occupation of the plots above-mentioned claim that by virtue of the provisions of Settlement Scheme No, VII the said plots stood transferred to them and that their allotment and transfer to the contesting respondents in each of the writ petitions by the Assistant Settlement Commissioner (Land) Gujar Khan by order, dated 19th August, 1971, was illegal being violative of the provisions of the said Settlement Scheme and also because it was passed without notice to the petitioners and at their back.
4. The petitioners on coming to know .Of the order, dated 19th August, 1971, filed appeals before the Deputy Settlement Commissioner (Land) Gujar. Khan, which were dismissed by order, dated 12th February, 1972.
5. Feeling still dissatisfied by the order of the Deputy Settlement Commissioner, dated 12th February, 1972, the petitioners preferred revision petitions to the Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi, which also met the same fate and ware dismissed by order, dated 16th August, 1972. Hence these constitutional petitions.
6. The learned counsel for the petitioners contended :- ' firstly, that survey register was the only authentic document regarding occupation of a plot in any rural area. The petitioner having been declared. As per survey register, copy Annexure 'A', to be in possession of the plot since before 1961, the same automatically stood transferred to the petitioner by virtue of para 4 of Settlement Scheme No, VII as re-constituted. In support of the contention that the only persons entitled to transfer of plots are such as are in occupation thereof this being the intendment of Scheme No, VII the learned counsel relied upon Mst. Resham Jan v. Assistant Settlement Commissioner (Land) Abbottabad-Hazara and 6 others reported as PLD 1979 .Pesh.
75. ' secondly, that there was no provision in the Settlement Scheme No, VII for transfer of properties of the third category in which the plot in question fell to the Jammu & Kashmir refugees and as such transfer of the plot in dispute to the respondents was without lawful authority and in any case the contesting respondents who are refugees from Jammu & Kashmir State never applied for transfer of the plots in question. ' thirdly, that no notice having been served on the petitioner before the passing of the impugned order, dated 19th August, 1971 by the learned Assistant Settlement Commissioner (Lands), Gujar Khan, the impugned order was violative of the provisions of law and also oftended the principles of natural justice; ' fourthly, that the respondents being admittedly not in occupation of the plots in question no transfer could be made in their favour; ' fifthly, that the respondents being not allottees of agricultural land in the village were not entitled to transfer of the plots in question even on the analogy of the relevant provision of Settlement Scheme No, VII applicable to properties falling within second category, and lastly, that the order of the learned Assistant Settlement Commissioner (Lands), Gujar Khan, dated 19th August 1971, was passed mala fide in that there existed animosity between the petitioner's father and uncle on the one hand and the Assistant Settlement Commissioner (Lands), Gujar Khan on the other which stood established from documents, copies of which are Annexures 'D. 1 to D. 21'.
7. The learned counsel for the contesting respondents submitted that the question as to whether the petitioners were in possession of the plots in dispute or not is one of fact and that findings given in respect thereto by Tribunal of exclusive jurisdiction are not open to question in the constitutional jurisdiction of this Court even if it be assumed that the findings are erroneous. Reliance was placed by the learned counsel in support of his this contention on Muhammad Husain Munir and others v.
Sikandar and others (1).
8. On the merits of the cases the learned counsel for the respondents submitted that the possession of the petitioners was not proved before the Assistant Settlement Commissioner (Land), Gujar Khan and they also failed in establishing the same before the Deputy Settlement Commissioner (Land), Gujar Khan and the Revisional Authority. He argued that the Deputy Settlement Commissioner has given a cogent reason about the petitioner in Writ Petition No, 752/R of 1972 that he could not be in possession independently as he was a minor at the time he claimed possession of the plot. This finding, he argued, was not assailed before the Revisional Authority and the document now filed viz. Annexure `E" to show that the petitioner was not a minor in 1961 has no sanctity as the entry pertaining to the birth of the petitioner stated to be on 24th November, 1942, was got entered on 7th February, 1972. He further argued that possession otherwise also as shown in the relevant column of the survey register was entered on the basis of the statement of the petitioner only. The survey register, it was submitted, has also no sanctity attached to it as these registers do not confer any title to property. Referring to Muhammad and others v. Sardul (2) the learned counsel submitted that even mutations have been held to be carrying no presumption of truth unless incorporated in the record-of-rights.
9. It was also urged by the learned counsel for the respondents that the petitioners are locals and cannot be given preference over displaced persons.
10. He lastly contended that the allegation of mala fide against the Assistant Settlement Commissioner (Land), Gujar Khan had been levelled for the first time in the writ jurisdiction which should not be permitted and that in any case these allegations need investigation which this Court is charry to undertake in the constitutional jurisdiction.
11. In reply, the learned counsel for the petitioners submitted that the objection as to the invocation of the constitutional jurisdiction in the present writ petitions is wholly untenable. He therefore contended that the writ petitions initially and fundamentally calls in question the assumption {{FOOT NOTE}}
(1) PLD 1974 SC 139 (2) PLD 1965 Lah. 472 {{FOOT NOTE}} of jurisdiction by the Assistant Settlement Commissioner (Land), Gujar Khan in passing the impugned order especially at the back of the petitioners and without notice to them and that the question of the possession of the petitioners on the plots in dispute is one of subsidiary nature flowing from the first question. Elaborating his connection he submitted that Scheme No, VII was enforced on 7th August, 1961 and since after the survey the plot was found in possession of the petitioners it stood transferred to them under para. 4 of the Scheme read with para. 7 (g) and paras. 8 and 10 of Appendix I and that the Assistant Settlement Commissioner had no jurisdiction to deal with the matter again more so without notice to the petitioners. He also submitted that the Assistant Settlement Commissioner had no revisional jurisdiction either to annul the transfer in favour of the petitioners and that the subsequent orders being based on an order wholly without jurisdiction can also not stand.
12. Taking into consideration the preliminary objection raised on behalf of the respondents as to the invocation of constitutional jurisdiction in the cases in hand, suffice it to say that the same is misconceived. It has been correctly submitted by the learned counsel for the petitioners that fundamentally the assumption of jurisdiction by the Assistant Settlemen Commissioner (Lands), Gujar Khan, has been called in question. The Assistant Settlement Commissioner on 19th August, 1971 could not pas an order transferring the plot to a displaced person from Jammu and Kashmir since it was not warranted by the Scheme under which he purporte'd to act when in the relevant column of the survey register an entry existed showing the petitioners in possession thereof since before 1961 A which register had been prepared in accordance with para. 6 (ii) of the instructions contained in Appendix I or Settlement Scheme No, VII and also when according to para. 4 of Settlement Scheme No, VI read with the revised scheme which included the building sites for the purposes of transfer the same were to be deemed as having been transferred to the occupants free of charge. The assumption of jurisdiction becomes all the more questionable when it was exercised without notice to the petitioners and at their back. If any authority is needed on the point that this Court in exercise of the constitutional jurisdiction can go into the questions of fact required to exist before a Tribunal can assume jurisdiction, reference may usefully be made to Mehr Dad v.
Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (1). There can be no two opinions about the principle well settled by judicial precedent that a Tribunal cannot by a wrong decision give itself the jurisdiction which it would not otherwise possess. The Assistant Settlement Commissioner without applying his mind to the question, whether the property stood transferred to the petitioners in view of the entry of possession of the plots in dispute in favour of the petitioners when the Settlement Scheme No, VII promulgated as far back as 7th August, 1961, provided that the plots shall be deemed to be transferred to the occupant could not assume the jurisdiction to pass an order in 1971 and that too without notice to the petitioners. This objection raised on behalf of the respondents must therefore fail.
13. The main point for determination in these cases apparently is as to whether the plots in question stood transferred to the petitioners under Settlement Scheme No, VII and whether the order passed by the Settlement authorities impliedly cancelling the transfer in favour of the {{FOOT NOTE}}
(1) PLD 1974 SC 193 {{FOOT NOTE}} petitioners had been passed lawfully and with jurisdiction. In this regard it will be essential to appreciate certain provisions of the relevant scheme which was promulgated for disposal of immovable evacuee properties (other than agricultural land) situate in rural, areas as amended from time to time and various instructions issued by the competent authorities for disposal of the above-mentioned properties. The relevant provisions will be para. 4 of the original Scheme No, VII, the definition of "rural property" as contained in sub-clause (h) of para. 1 of the revised scheme, para. 4 of the revised scheme, paras. 6 (ii), 8 and 10 of Appendix I of Settlement Scheme No, NH as originally constituted, para. 4 of Press Note. Dated 21st May, 1963 at page 194 of the Manual of Settlement Law and Procedure issued by the Chief Settlement Commissioner Pakistan, memorandum No, 6149-PL-61 dated 19th January. 1962 and the amendment in subp-ara. 2(a) of para 5 of Settlement Scheme No, V11 made by notification No, 872-EOL/67 published in the Gazette of Pakistan, Part I dated 28th July, 1967. The conjunctive reading of all the above provisions of Settlement Scheme No, VII and the various instructions referred to above clearly leads to the conclusion that so far as rural properties of the value of less than ten thousand rupees in minor villages were concerned C the criteria for transfer was the occupation before the promulgation of the scheme and that there was no formality required to be fulfilled such as the submission of any application or form seeking transfer, passing of any formal order or preparation of any documents of transfer. In the latest instructions on the subject as contained in the Press Note dated 21st May, 1963 referred to above, it was specifically provided that no formal order will be issued in individual cases nor will the possession or ownership of the persons concerned be disturbed by any Settlement authority. The intention obviously was that persons, whosoever they may be, in occupation of any rural property of the nature referred to above, shall be deemed to be the transferee and that too without payment of any price therefor.
14. Examining the cases in hand from the above point of view and in the light of the provisions governing the subject it may be observed that since the possession of the petitioners on the plots in dispute stood established since before 1961, as per Annexure "A", these plots which were admittedly situate in a minor village stood automatically transferred to the petitioners by operation of law. The passing of the order dated 19th August, 1971 by the Assistant Settlement Commissioner
(Land) Gujar Khan without notice to the petitioners, thus, suffered from a patent illegality. It may be observed that the order had been passed in the last column of Annexure "A" and a column preceding the last column clearly shows that the petitioners were in occupation of the plots in dispute since before 1961. Apart altogether from the fact that the assumption of jurisdiction by the Assistant Settlement Commissioner to deal with the cases was based on non-consideration of the relevant factors necessary to be examined before assuming jurisdiction, the impugned order was passed otherwise also in utter disregard of the record itself. The order passed in appeal also proceeds on an erroneous assumption that one of the petitioners (i . e the petitioner in W. P. No, 752/R-1972 and W. P. No, 754/R-1972) was of 13/14 years of age in 1959. It has been brought on record by production of Annexure "C", the birth entry of the petitioner, that at the relevant time viz. In 1961, the petitioner was about 19 years of age. The submission made by the learned counsel for the respondents to discredit the entry in Annexure "E" the birth certificate, as explained by the learned counsel for the petitioners who has produced another certified copy to show that the birth entry was reported on 7th December, 1942 and that the date given as 7th February, 1972 in Annexure "E" is only a slip of pen, also appears to incorrect as certified copy has been placed on record showing that entry in column No. 9 is dated 7th Dcember, 1942. The appellate order, therefore, cannot be sustained also on the ground that it was based on an erroneous assumption.
15. Again the contention of the learned counsel for the respondents that the plea as to the age of the petitioner having been wrongly assumed by the Appellate Authority was not raised in the grounds of revision is also contradicted by the copy of the grounds of revision placed on record today by the learned counsel for the petitioners which clearly shows that ground No. 3 pertained to this controversy.
16. Another ground taken for rejecting the appeal and which has been raised before me on behalf of the respondents is that the petitioners were locals whilst the respondents were refugees from Jammu & Kashmir State, and, thus, the latter had a superior claim. Now, the provisions of the Settlement Scheme No. VII in so far as properties of 'third category' are concerned, make no distinction between a 'local' and a 'displaced person'. The first and foremost requirement of the scheme is that the person should be in occupation of the property which as per record, the petitioners were. The order passed in revision by the Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi merely dittos the order of the Deputy Settlement Commissioner (Land), Gujar Khan, and, therefore, it can also not be sustained.
17. The orders of respondents Nos. 2 to 4 suffer from another legal infirmity as well. It is the admitted position that the Assistant Settlement Commissioner had no revisional jurisdiction. In view of the provisions of the Settlement Scheme No. VII read with the instructions and Press Note referred to above it is clear that the properties stood transferred to the occupants and there was no requirement of issue of any document or passing of an order in individual cases. That being so, the assumption of jurisdiction by the Assistant Settlement Commissioner to deal with the plots in dispute by itself was illegal and the order passed by him was, thus, without jurisdiction. The Orders of the Deputy Settlement Commissioner and of the Settlement and Rehabilitation Commissioner based on the abovesaid illegal and void order passed without jurisdiction can also not be sustained as those have to fall along with.
18. Yet another aspect of the matter is that the basic order viz, order dated 19th August 1971 passed by the Assistant Settlement Commissioner having been passed without notice to the petitioners it not only offended the principles of natural justice but also the requirements of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 that transfer in favour of a person should not be cancelled without notice to him. Though the petitioners had been heard in the appeal and the revision yet the defect did not stand cured in that the Appellate and Revisional authorities just affirmed the orders of the Assistant Settlement Commissioner without by themselves giving any finding as to the claim of the petitioners about occupation of the plots in dispute since before 1961 which was apparent on the face of the record by way of the entry in the survey register prepared under the scheme itself. They also failed to notice the contention of the petitioners that the Assistant Settlement Commissioner had not visited the spot as it was proved from his tour programme that he did not visit the village and also because there was no averment in his order as to his personal visit.
19. It also appears to be correct, as pointed out by the learned counsel for the petitioners, that the impugned orders of transfer in favour of the respondents dated 19th August, 1971 were passed in the secrecy of the office and were the result of animus which the then Assistant Settlement Commissioner (Land) Gujar Khan had against the petitioners' father and uncle. Annexure "D-1" is the tour programme of the Assistant Settlement Commissioner (Land), Gujar Khan for the relevant date viz. 19th August, 1971 which shows that the said Assistant Settlement Commissioner was on tour in another village in the forenoon of the date and could not possibly be in the village where the plot in dispute is situate. Again, Annexures "D-9" and "D-10" also show that on 19th August, 1971 as per report of the Patwari there was no visit of the A. S. C. In the Halqa Patwar Gujar Khan in which Halqa the plot in dispute is situate. Similarly Annexure "D-21" is a certified copy of an application submitted by the father of the petitioner before the then Assistant Settlement Commissioner (Land)/Tehsildar, Gujar Khan, on 24th February 1971, to the effect that the officer concerned bore animus against him and Adalat Khan (petitioner in Writ Petition No. 753/R-1972). The learned counsel also referred to Annexure "D-19" to show that the Settlement authorities of Gujar Khan were acting in a most casual manner in allotting and transferring the sites in various villages, in fact, with mala fide intention of making allotments in favour of fictitious persons and then having them sold to their own nominees. He pointed out that as per Annexure "D-19" there was a site, measuring 3 Marlas 3 Sarsahis, in occupation of one Mumtaz Ali, out of which site subsequently 8 Marlas were shown transferred to one person whilst 7 to another which on the face of it was ridiculous. He submitted that this fact alone established that all these transfer orders were passed without site inspection. These factors, it may be observed, do tend to show the illegal manner in which the rural sites were being disposed of by the Settlement authorities and to which the petitioner also fell a prey.
20. The objection of the learned counsel for the respondents that mala fides alleged being point of fact should not be gone into in writ jurisdiction as these require enquiry into facts is not tenable in so' far as the case in hand is concerned. The mala fides have been succinctly brought about by production of documents and nothing has been placed on record to contradict the same. As against the detailed facts supported by docutrients as contained in sub-para. (d) of para. 6 of the writ petition whereby the mala fides of the then Assistant Settlement Commissioner and the illegal manner in which he acted have been given the same have neither been controverted in the parawise comments submitted by the Department nor effectively denied by the respondent in his written statement.
21. The discriminatory treatment meted out to the petitioners was also shown by the learned counsel for the petitioners by referring to Annexurc "D-14" in which case on the similar language used as to the possession of the occupant of the plot therein the order was passed in his favour.
22. The submission made on behalf of the petitioner about the lack of entitlement of the contesting respondents to have the transfer of the plot in question they being not in occupation thereof and also being not allottees of agricultural land in the village have also force. The illegal cancellation of the transfer of the plot in dispute which stood conferred upon the petitioners by virtue of Settlement Scheme No, VII, impliedly by passing the impugned orders in favour of the contesting respondents apart, the orders of transfer in favour of the respondents themselves were also illegally passed in disregard on the provisions governing the controversy.
23. In view of the foregoing discussion, these writ petitions are accepted and the orders dated 19th August, 1971, 12th February, 1972 and 16th August, 1972 respectively passed by respondents Nos. 2 to 4 are declared to be illegal, having been passed without lawful authority and thus of no legal effect. There, will, however, be no order as to costs.