ZAFFAR HUSSAIN MIRZA, J.-This Letters Patent Appeal is directed against the judgment passed by a learned Single Judge of the erstwhile High Court of Sind & Baluchistan, Karachi dated 17-5-71 whereby the Constitutional Petition filed by the second respondent herein under Article 98 of the 1962 Constitution was allowed and the case was remanded for rehearing to the Deputy Custodian of Evacuee Property.
2. The facts forming the background of this case may b,^, briefly stated. The dispute in this case, relates to a shop in Shahdadpur Town which the second respondent, who was a claimant, claims to have been allotted to him and to have been in his possession since 1948. According to him it bears No. 11-A-281, City Survey No. 301, Ward-B, Shahdadpur. The said respondent's case is that he had been paying rent to the Custodian and on the promulgation of the Scheme No. I under the Displaced Persons (Comp. & Rehab.) Act, 1958 he filed an application for transfer of the said shop to him, in pursuance where of he was issued Appendix IX on 18-2-60 followed by a P. T. O. On 26-2- 60.
3. The appellant herein, on the other hand, claims to have purchased the shop in dispute by Registered Sale Deed on 4-11-43 since when he had continuously remained in its possession. Since the appellant had never migrated to India after the Partition of the Sub-continent had was a non-- evacuee, the property in 'dispute was also non-evacuee property. However, on 8-1-1954 the father of the appellant was served with a Show Cause Notice from the Office of the Deputy Custodian of Evacuee Property, Nawabshah as to why he had realized rent of the said evacuee property and consequently the appellant moved the Deputy Custodian under section 22 of Act XII of 1957 for a declaration that the property in dispute is not an evacuee property and the right, title and interest of the appellant in the said property was not affected by the provisions of Evacuee Laws. The learned Deputy Custodian by his order dated 13-6-1960 allowed the application of the appellant and granted him the declaration sought by him holding that the property in dispute is not an evacuee property. The order was duly confirmed by the Custodian of Evacuee Property on 19-8- 1960. The second respondent then moved the Custodian for review of his order under section 43 (6) of Act XII of 1957, but the Custodian dismissed his review application by his order dated 15-11-1960.
The second respondent thereafter did not. Directly challenge the order of the Custodian on his review application in the writ jurisdiction of the High Court or otherwise.
4. - Thereafter on the basis of the orders of the Custodian, the Assistant Settlement Commissioner by his order dated 27-1-1961 cancelled the transfer documents issued in favour of the second respondent. In an appeal filed by him the Deputy Settlement Commissioner set aside the order of the Assistant Settlement Commissioner on the ground, inter alia, that the second respondent had not been heard in proceedings before the Custodian, vide his order dated 11-11-1963. The appellant then filed a revision before the Settlement Commissioner against the order of the Deputy Settlement Commissioner which was allowed by order dated 2-12-1964.
5. However, it may be stated that before challenging the order of cancellation of his P. T. O. By the Assistant Settlement Commissioner before the Deputy Settlement Commissioner, the second respondent had sought to challenge the said order by filing Suit No. 49 of 1962 which was dismissed by the Civil Judge, Shahdadpur on 26-5-1962. The appeal filed by him was also dismissed by the Additional District Judge, Tharparkar on 5-1-1963. Thereafter the appellant filed ejectment case against the second respondent on 15-8-1963 in which the said respondent did not dispute the relationship of landlord and tenant between the parties. Finally on 15-8-1968 the second suit filed by the respondent being Suit No. 47 of 1967. In the Court of Civil Judge, Shahdadpur challenging the identity of the property was dismissed. The appeal filed by him against the. Judgment in the said suit was also dismissed on 25-1-1970.
6. On 8-3-1965 the second respondent filed Writ Petition No. 260/1965 impleading the Settlement & Rehabilitation Commissioner, Sanghar and the present appellant under Article 98 of the 1962 Constitution which was allowed as aforesaid by the learned single Judge. In order to appreciate the questions raised in this appeal it is pertinent to mention that the Deputy Custodian or Custodian of Evacuee Property was not impleaded as a party to the writ petition and the only order assailed therein was the order of the Settlement and Rehabilitation Commissioner, Nawabshah who was joined as respondent No. 1. In para 30 of the petition pertaining to the accrual of cause of action also reference was made to the order of the first respondent, the Settlement and Rehabilitation Commissioner dated 2-12-1964 as the impugned order. The relief prayed for .Was, however, framed in the following manner :- "It is, therefore, prayed that this Hon'ble Court be pleased to admit the above petition, call for the relevent records from the respondent No. 1, his subordinates as well as from the Custodian of Evacuee Properties, Karachi and after hearing the advocates for the petitioner and the respondents declare and/or order in the nature of directions that the impugned orders are without lawful authority and/or grant such other and/or better relief to which the petitioner under the circum--stances of this case be entitled to either by law and/or equity."
7. The impugned order of the Settlement Commissioner in the writ petition no doubt primarily proceeded on the basis that the property in dispute was proved by the order of the Custodian to be non-evacuee property and consequently was removed from the Compensation Pool to be restored to the appellant. The learned Settlement Commissioner was of the view that such property which ceased to h a evacuee property could not be made available for transfer by the Settlement Authorities to the claimants. On these premises the learned Settlement Commissioner came to the conclusion that the Settlement Authorities had no jurisdiction to deal with the property and orders of transfer passed by them were, therefore, ineffective and the property was rightly restored to the appellant.
8. Before the learned Single Judge it was urged on behalf of the second respondent- on the authority of a D. B. Case Zahid A.I v. Chief Settlement Commissioner Lahore PLD 1969 Lab. 850,that the orders of the Deputy Custodian and of the Custodian declaring the appellant's property to be non-evacuee without hearing .The second respondent in whose favour orders of transfer were passed, were illegal and void. Secondly the contention raised before the learned Single Judge was that the shop property claimed by the appellant was not the same as that which was in the possession of the second respondent and transferred to him. In this connection reference was made to the description of the property in the application of the. Appellant under section 22 of Act XII of 1957 where it was shown to be situated in Ward-A whereas in the Deputy Custodian's order in favour of the: appellant dated 13-6-1960 it was shown as a shop in Ward-B. The learned Single Judge disposed of these contentions in the following manner in his judgment; "In this. Connection, Mr. Munshi also referred me to the evidence given by the Deputy Custodian in the suit between the petitioner and the second respondent. He, therefore, invited to give a finding that the two shops were different. But, as the second respondent is absent, it seems to me that the proper course would be to remand the case. As, however, the Settlement Department has acted only in pursuance of the orders of the Deputy, Custodian and the Custodian on the second respondent's application under section 22 it will not serve any purpose merely to remand the case to the Settlement Department and the second respondent's application should also be remanded to the Deputy Custodian. I have some hesitation in remanding the case to the Custodian because the Custodian has neither been impleaded nor has the petitioner been specific in his prayer clause.
However, as I have observed that the order of the Deputy Custodian and Custodian are hit by the judgment of West Pakistan High Court reported in Zahid A.I's case, unless I remand the case to the Deputy Custodian it will be in the interests of the absent respondent that will be prejudiced. Bearing in mind the wide powers of this Court under Article 98 of the Constitution, and in the interest of justice. I dirset that the second respondent's application under Pakistan Administration of Evacuee Property Act, 1957 shall be reheard by the Deputy Custodian after notice to the petitioner. The Deputy Custodian should first examine the question whether the shop claimed by the second respondent is the same as the shop that had been transferred by the Settlement Department to the petitioner, and it is found the shop claimed by the second respondent is different from that transferred to the petitioner, it is obvious that the petitioner will have no further concern with the proceedings before the Custodian. But if it is found that the shops are the same, all further proceedings both by the Custodian and the Settlement Department, shall be after notice to the petitioner.
9. Mr. K. A. Ghani, learned counsel appearing for the appellant contended that under Article 98 of the Constitution of Pakistan, 1962 the High Court is not competent to exercise jurisdiction in respect of any act done or proceeding taken by a person performing functions in connection with the affairs of the Centre or the Province suo motu and without implea--ding such person as a party in the proceedings. He, therefore, urged that since the order of the Custodian was not directly impugned nor was he made a party to the writ petition, the learned Single Judge could not set aside his order and remand the case to the Deputy Custodian. On the other hand, Mr. Ismail Munshi, learned counsel appearing for the second respondent submitted that the only party affected by the Judgment of the learned Single Judge was the appellant who was impleaded in the proceedings and the Custodian was not in any way affected and as such his non joinder was of no consequence.
10. In Tariq Transport Co., Lahore v. Sargodha-Bhera Bus Service PLD -1958 SC (Pak.) 437 as to the scope of Article 170 of the Constitution of Pakistan, 1956, it was observed at page 497 as under; "I deem it necessary also to make some observations regarding this special jurisdiction which is vested in the High Court. The power to issue a writ is indeed a very special power. It is a peremptory power, intended to be exercised in a short-handed manner, to correct errors of the relevant kind which are patent and demand that they should be righted. They must, of course be errors of type with which the courts are specially competent to deal. It is not necessary to detail or categorize the errors which may be dealt in this way. Enough has been said in this judgment which will indicate what the errors are that may be corrected by the writs of certiorari and prohibition. To gain the speedy, not to say immediate, relief available under these writs, it is necessary that the person complaining of the error should make his allegations in as specific manner as possible, for, in dealing with such petitions the Court will not ordinarily enter into examination of complicated questions of fact or law, such as are more suitable for resolution in a suit or other proceedings of more normal kind in which an opportunity for full investigation and presentation of all relevant matters is available to both sides. Particularly with reference to writs of certiorari and prohibition, the error should generally appear on the very face of the proceedings, And the relief granted should be addressed specifically to the correction of such error. If, then, no error of the relevant kind is made to appear in the petition itself, it is clearly the duty of the Court to reject the petition. To allow the petitioner to make out fresh grounds is not permissible, otherwise than in most exceptional circumstances."
It was further observed on page 498 as under; "Moved by the allegations of the Provincial Transport Authority the High Court was drawn further into making what seems to me barely distinguishable from an. Inquisition into the conduct of the affairs of the R. T. A. In respect of the particular meeting in question. However, widely the words of Article I i0 of the Constitutional may be inter--preted. 1 cannot conceive that that Article can ever be thought to include a general power in the High Court to conduct searching enqairies into the internal working of such an institution as the R. T. A.
11. Mr. Ghani invited my attention to two judgments from the Indian Jurisdiction on the question whether writ can b; issued against non-party. In Alahichandra v. Secretary Local Self-Government
(l) the Court held that a writ in nature of `quo warranto' cannot be issued to a person unless he is made a party to the proceedings and given opportunity of hearing. The learned judge further observed that whatever may be the nature of the writ that may have to be issued, no order can be passed against a party in his absance and without, any notice to him as such a course would be opposed to the principle of natural justice. Similar view .Was held in Radha Films Ltd. v. W. B. Board of Censors (2). Material part of Article 98 , of the Constitution of the Islamic Republic of Pakistan, 1962 may be reproduced which reads as' under: 98.-(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law.
(2) Subject to this Constitution, :a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or .
(1) AIR 1932 Assam 119(2) AIR 1952 Cal. 653
(ii) declaring that any act done or proceeding taken, in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority and is of no legal effect ; or
(b) on the application of any person, make an order.
(i) directing that a person in custody in the Province be brought before the High Court so that the court may satisfy itself that he is not being held in custody without lawful authority, or in an unlawful manner ; or
(ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office ; or
(e) on the application of any aggrieved person, make any order giving such directions to any person or authority, including any Government, exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that court as may be appropriate for the enforcement, of any of the fundamental rights conferred by Chapter I of Part II of this Constitution."
Although the power conferred on the High Courts to exercise judicial review of administrative action under the aforesaid Article is couched in very wide terms, it is well recognized that the power given by the said Article I limited to issuing of writs of the kind known in England as high prerogative writs without using their technical names although the limits within which this jurisdiction was to be exercised were in some respects narrower and in others wider than before. Therefore, during the relevant period when the jurisdiction for issuing of the write was associated with the English forms of writs was governed by the compus juris which had accumulated in England in the form of judicial precedents. Munir in his Commentaries on the Constitution of Pakistan, 1962 observed that though the word "certiorari" has not been used, it seems that, subject to important qualifi--cations, this clause of Article 98 (clause (2) (a) (ii) of Articie 98) was inteneded to confer .On the High Courts a jurisdiction similar to that which the King's Bench Division of the High Court in England exercises in certiorari. Guidance can, therefore be sought from the England law on the subject.
Ferris in his celebrated work on the Law of Extraordinary Legal Remedies (1926) at page 201 makes the following observations in regard to parties to the proceedings; "Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of such action remains, are not only proper, but necessary parties. It is to such parties, that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought. But in order that the Court may do ample and complete justice and render a judgment will be binding on all persons concerned, all persons who are the parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made party respondent."
12. In Hussain Bakhsh v. Settlement Commissioner PLD1970SC1 it was laid down that the provisions of the Code of Civil Procedure applied to proceedings under Article 98 and it was held in Abdul Ghani v. Settlement. Commissioner 1971SCMR98 that besides the officer or the authority which has made the impugned order, the persons adversely affected by the quashing of an order in a proceeding under Article 98, are necessary parties and no effective order for quashment can be made, for, that would not bind the persons who have been benefited by the impugned order, as it is well-settled principle that in such circumstances a Court will not make an ineffective order or an order which can be flouted in a proceeding under Article 98 of the Constitution. On a parity of reasoning, in view of the fact that the provisions of the Code of Civil Procedure are applicable to proceedings under Article 98, it is reasonable to hold that the authority whose order is impugned would be a necessary B party as much as those derive any benefit under the orders. There in another aspect of this case which cannot be lost sight of. The High Court has framed rules in relation to the exercise of its Extraordinary jurisdiction which have b-.En incorporated as Part-H to Chapter 4 of Volume V of the Rules and Orders of the High Court of judicature at Lahore. Rule 2 requires that an application for issue of writ, inter alia, shall set out the grounds upon which the Court is asked to issue a writ and shall state exactly the nature of the relief sought. Rule 4 provides that subject to the directions of the Court, notice of every application shall be served on all parties directly affected. Rule 8 enjoins that the writ shall be served personally, if possible, upon the parties to whom it has been directed. Clearly, therefore, the authority whose action is impugned would be required to be served with c notice and the writ can issue only against such party. I am accordingly of, the opinion that the Custodian of Evacuee Property was a necessary party and in his absence or without notice to him no writ or direction could issue to him.
13. In Shehnaz Begum v. The Honourable Judges of the High Court of Sind & Baluchistan PLD 1971 SC 677their Lordships while elucidating the scope of the writ jurisdiction under the Constitution of 1962 observed as under :- "So far as the Constitution of 1956 is concerned, the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because, Article 130 of the same Constitution provided that "no court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law." Under this Constitution, a High Court has been given the power of judicial review of executive action by Article 98 in certain specified circumstances but even in such a case the High Court cannot move suo motu, for, it is specifically provided in each of the sub-clauses (a), (b) and (c) of clause (2) of Article 98 that only "on the application of an aggrieved party or of any person," the High Court may make the orders or issue the directions therein specified. It is clear, therefore, that under Article 98, there is no scope for any suo motu action by the High Court."
14. Having regard to the aforesaid it seems to us that in absence of a specific relief in that behalf or a specific challenge directed against the p orders of the Custodian, the High Court was not competent to quash the order in its extraordinary jurisdiction, as that would amount to exercising the jurisdiction suo motu.
15. The learned Single Judge himself expressed hesitation in upsetting the order of the Deputy Custodian, as will appear from the passage from his Judgment quoted above, in view of the fact that he was neither impleaded nor the petitioner sought specific prayer in that behalf. In taking this view we are conscious of the fact that the court could allow the petitioner to amend the petition even on an oral request but in that case it would have been necessary to afford an opportunity of bearing to the opposite-parties. E On the date when the case was heard, however, the appellant who was the contesting respondent before the learned Single Judge was not present and his telegraphic request for adjournment of the hearing on the ground of indisposition was refused in view of several adjournment taken by him in the past.
16. It was next urged on behalf of the appellant that in any case the second respondent was guilty of laches in not challenging the order of Custodian passed as early as 19-11-1960 when the review application of the second respondent was rejected. We find considerable force in this submission, for, in not agitating the matter without reasonable grounds, the second respondent had allowed the order to attain finality and cannot be permitted to challenge the order after the lapse of more than 10 years during the arguments of his petition. (See 1968 SCMR 1007).
17. Mr. Ismail Munshi strenuously contended that the order of the Custodian declaring the property to be non-evacuee property besides being passed without notice to the second respondent was palpably without jurisdic--petition as upon the acquisition of the property under section 3 of the Displaced Persons (Comp. & Rehab.) Act, 1958, the Custodian ceased to have jurisdic--petition in respect thereto and the order was, therefore, coram non judice. Apart from the fact that we entertain doubts about the validity of the proposition advances, we are unable to entertain this argument as no such ground was urged before the learned Single Judge or in the petition. In fact in remanding the case to the Custodian the learend Single Judge seems to have been of the view that the Custodian had jurisdiction in the matter.
18. It remains to consider the question whether there was any justifi--cation for setting aside the order of the Settlement Commissioner impugned in the proceedings before the learned Single Judge, This order was challenged firstly on the ground that it was based on the assumption that the disputed property was non-evacuee property as declared by the Custodian. We have already held that the order of the Custodian could not be interfered with in these proceedings ; secondly on the ground that there was confusion on the record as to whether the shop transferred to the second respondent was the same which was claimed by the appellant and declared as non- evacuee property. We agree with the submission of Mr. Ghani that the second respondent having invoked the jurisdiction of the civil Court for adjudication of this matter and having failed, cannot be allowed to re-agitate the matter indirectly in these proceedings arising out of the order passed by the Settlement Authorities. It seems to us that the question regarding the identity of the property was properly investigated by the civil Court and a finding given that the property claimed by the second respondent is the same as was declared by the Custodian as non-evacuee property of the appellant. This, therefore, furnishes no ground for interference with the order of the Settlement Authorities. The learned Settlement Commissioner had ordered the cancellation of the transfer in favour of the second respondent on the proposition that the property having been declared as non-evacuee property, was not subject to the jurisdiction of the Settlement Authorities for transfer under the Settlement Scheme. The whole basis of the order of transfer was, therefore, knocked out which could not stand as valid order of transfer under the Settlement Law. The only contention advanced by Mr. Munshi, learned counsel for the second respondent was that the Assistant Settlement Commissioner had no power of review in respect of orders passed . By the Deputy Settlement Commissioner. The argument is not available as against the impugned order passed by the Settlement Commissioner who enjoyed all powers for setting aside an illegal order passed by a Subordinate officer in exercise of his revisional jurisdiction under Section 20 of the Displaced Persons (Comp. & Rehab.) Act, 1958. In any case, the transfer being untenable in law in view of the fact that it related to non-evacuee property lost all efficacy and could, therefore, be ignored as a nullity. It was held in Mohammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698that if the property was in fact not evacuee property and was not vesting in the Central Government the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. -.
19. For the foregoing reasons, we allow this appeal and set aside the judgment and order passed by the learned Single Judge, but in the circumstances we leave the parties to bear their own costs.