MUHAMMAD JAFER NAIM, J.-These two petitions are identical since in both these cases the order challenged are the same and therefore they can conveniently be disposed of by a common judgment. In Petition No. 17/79 the case is that Sher Muhammad predecessor-in-interest of peti-- tioner had been in occupation of 1150 sq. Ft. Of land in a plot in Khasra No. 4399 bearing Municipal No. 4-2/8 situated at Abdul Sattar Road, Quetta since 1947 and the petitioners are in occupation of the said plot after the death of Sher Muhammad. In Petition No. 222/79, the petitioner claims to be in occupation of at plot in the same Khasra Number bearing Municipal No. 4-2/7 at Abdul Sattar Road, Quetta since the year 1948. Their case as stated in the petition is that plots of land were included in the property originally allotted to Abdul Wahid Khan on 3-4-1948 and question of transfer of the plot of land had been subject of litigation four some time. At one stage the plots in occupation of the petitioners in Khasra No. 4399 were transferred to Mir Ahmed Shah respondent No. 2 by the Settlement Department. Latter, Mir Ahmed Shah sold this plot to respondent No. 3 Muhammad Ishaq, on 31-10-1963, Mir Ahmed Shah and Muhammad Ishaq made payment of the transfer price through a compensation book which was declared bogus by the Settlement Department and the transfer made in favour of respondent No. 2 was set aside. The Constitution Petition was filed by Muhammad Ishaq which was accepted and the case was remanded for further inquiry to the Settlement Department. When the case was pending before Settlement Authorities, respondent No. 3 Muhammad Ishaq sold the property to respondents Nos. 4 and 5 through a registered sale-deed mutation of which was recorded in Quetta Tehsil on 19-3-1975. The Member, Board of Revenue, respondent No. 1, by his order dated 21-7-1975 again declared bogus the said compensation book and directed -Muhammad Ishaq to deposit the amount within 30 days. Muhammad Ishaq again filed a Constitution Petition No: 242 of 1975. During the pendency of this writ petition respondents Nos. 2 and 5 made application to the Member, Board of Revenue for making payment of the price in cash and the price was so paid under the order of the Member, Board of Revenue dated 23-12-1975.
2. Simultaneously there was another proceeding pending regarding transfer of the property before the Member, Board of Revenue in connection with the appeal filed by Abdul Wahid against the order of Deputy Settlement Commissioner, whereby P. Form of Abdul Wahid was rejected. The Member, Board of Revenue exercising powers of the Chief Settlement Commissioner dismissed the appeal of Abdul Wahid on 19-10-1978 and held that property was to be transferred to the occupants under Settlement Scheme No. 1 of 1975. After this order the petitioner received intimation on 20-10-1978 that the property could not be transferred to them as it had already been transferred and was not available. In these petitions two orders have been challenged, first is the order dated 23-12-1975 whereby the Member, Board of Revenue had allowed the respondents Nos.
4 and 5 to pay the price in cash and the second order is contained in the letter of the Secretary, Board of Revenue dated 29-10-1978.
The Member, Board of Revenue, respondent No. 1, has not filed any counter affidavit or rejoinder to the petitions. The respondent No. 5 has filed counter affidavit in both the petitions. It is maintained in the counter affidavit that the Property bearing Khasra No. 4399 measuring 5743 sq. Ft. Was put to auction and the transferee was respondent No. 2 to whom P. T. D. Was issued on 26-4-1963, and after the issuance of P. T. D. The Settlement Authorities had become functus officio and the property was not at their disposal. Objection has been taken also to the maintainability of the petition and locus standi of the petitioners to file these petitions and on the ground of ]aches.
Along with the counter affidavit, P. T. D. Issued on 26-4-1963 is filed.
The counsel of the petitioners have challenged and assailed the order of the Member, Board of Revenue on the grounds that the order dated 19-10-1979 in respect of property could not be reviewed by order dated 20-10-1978. Secondly that no adverse order could be made by the Member, Board of Revenue without notice to the petitioners. Thirdly, that pursuant to the order of the Member, Board of Revenue dated 23-12-1975, only Muhammad Ishaq could make payment and it could not be accepted from the respondents Nos. 4 and 5 and lastly that the Property for which the P. T. D. Had been issued to Mir Ahmad Shah on 26-4-1963 had become available for the purpose of disposal under Displaced Persons (Compensation and Rehabilitation) Act, 1958, on 28- 5-1970 and the P. T. O. And P. T. D. Issued earlier were without jurisdiction.
4. For, .The purposes of reaching the orders which are sought to be considered through these petitions it will be necessary to give brief history of the case. Abdul Wahid Khan made an application to the Rehabilitation Commissioner, Quetta for allotment of a vacant plot of 13 burnt shops for construction and these shops were so allotted. A lease deed was executed by Abdul Wahid on 26-8-1948. He raised construction, built shops on the site allotted to him and leased the shops to tenants. Subsequently, another lease deed was executed between Abdul Wahid Khan and Deputy Custodian of Evacuee Property on 11th December, 1954. This lease deed of 11th December, 1954, was cancelled by Mr. Mansoor Alam the then Custodian of Evacuee Property by his order dated 1st November, 1955. He directed an inquiry since it appeared that Abdul Wahid had occupied area in excess of the allotment and meanwhile occupants of the shops were asked to deposit rent in the office of Custodian of Evacuee Property. Mr. Muhammad Bakhsh Memon who succeeded Mr. Mansoor Alam reviewed the order . Dated1-11-1955 passed by Mr. Mansoor Alam. The order of Mr. Muhammad Bakhsh Memon was challenged by one Muhammad Ali Ghori in Writ Petition No. 47/1958. The writ petition was dismissed but the order of Mr. Memon was held to be without jurisdiction. The inquiry which Mr. Mansoor Alam had directed could not be held till 1963 when Major T. H. Naqvi submitted a report under orders dated 25th April, 1960, by Mr. Masood Ahmad Custodian of Evacuee Property. Order of Mr. Masood Ahmad was again challenged by Abdul Wahid Khan in Writ Petition No. 72/1962. The writ petition was dismissed. Mr. A. R. Changez, J., who had succeeded Mr. Masood Ahmad, on receipt of report of Mr. Naqvi sent the report to Mr. Shamshad Hussain Zaidi Additional Custodian (Judl.) Evacuee Property for verification and comments which were submitted on 21st May, 1963. Mr. A. R. Changez passed another order on 20-12-1963 which is the last order of the Custodian of Evacuee Property in respect of the Property.
5. The inquiry as directed by Mansoor Alam by his order dated 1-11-1955 had not been conducted and finalized when auction of the plot of land measuring 5733 sq. Ft. In Khasra No. 4399 shown as independent Unit was held by Deputy Settlement Commissioner in the year 1960 and plot was transferred to Mir Ahmad Shah vide P. T. O. No. 97 dated 27-12-1960 Later P. T. D. Was issued in favour of Mir Ahmad Shah on 26-4-1963. Mir Ahmad Shah had entered into an agreement with Muhammad Ishaque respondent No. 3 for the sale of this plot on 31-10-1963 Muhammad Ishaque then transferred this plot through a Registered Sale Deed dated 24-4-1974 to respondents Nos. 4 and 5.
6. Abdul Wabid Khan submitted `P' Form for transfer of the building site which was rejected by the Deputy Settlement Commissioner by his order dated 14-7-1971. Abdul Wahid Khan filed an appeal against this order to the Chief Settlement Commissioner which was disposed of by him by order dated 19-10-1978. In the operative portion of the order the Member Board of Revenue exercising the function of the Chief Settlement Commissioner directed that the properties mentioned therein be transferred to the occupants. The petitioner Aminullah in Petition No. 222/79 received an intimation from Secretary, Board of Revenue that the plot of land for which he had made an application had already been transferred to Syed Mir Ahmad Shah and all dues had been cleared on 23-12-1975 and as such the plot was not available for transfer to him.
7. We have heard the arguments of the counsel of the parties at length. The first question requiring consideration is as to the status of the plot in Khasra No. 4399 at various times and various relevant dates. First in order is the date on which this plot was auctioned in favour of Mir Ahmad Shah respondent No. 2, next the date of issuance of Permanent Transfer Deed to Mir Ahmad Shah thirdly the date on which order dated 19-10-1978 had been passed and lastly on 29-10-1978 when intimation was given to Aminullah petitioner in Petition No. 222/79. In both the petitions the petitioners did not seek any relief in respect of the Permanent Transfer Deed 1963 issued in favour of respondent No. 2 Mir Ahmad Shah During the course of argument the learned counsel of the petitioner Mr. Basharatullah urged that the P. T. O. Issued in favour of respondent No. 2 on 27-12- 1960 and the P. T. D. Issued on 26-1-1963 were non-existent and were to be ignored. The contention of the counsel of the Settlement Department Mr. Iqbal Ahmad Advocate is also the same. It is the case of the petitioners that at the time when the Permanent Transfer Deed dated 24-4-1963 had been issued the property had not been acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. The stand taken by the counsel of the respondents 4 and 5 is that this property was covered under the Notification No. U-8-79/3119 dated 21-8-1959.
After the enactment of Displaced Persons Compensation Act the Central Government had asked the Government of West Pakistan to acquire all the immovable Evacuee Properties situated within the Province of West Pakistan and in persuance of this direction of the Central Government, following Notification was issued:--- "Whereas, the Central Government, in pursuance, of the powers conferred by subsection (2) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 (hereinafter referred to as `the said Act') have asked the Government of West Pakistan to acquire, for the purposes of the said Act, all immovable evacuee property situated within the Province of West Pakistan, other than-
(i) agricultural Land;
(ii) property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this Notification;
(iii) property with regard to which any proceedings are pending on the date of this Notification under the Pakistan (Administration of Evacuee Property) Act, 1957, before a Custodian; and
(iv) property situated within the limits of the Murree Municipal Com--mittee and Murree Board.
Now therefore, in exercise of the powers conferred by subsection (2) of section 3 of the said Act, the Government of West Pakistan is, hereby, pleased to acquire, with immediate effect, all the said evacuee immov--able property."
The contention of the counsel of the petitioners is that the property which is subject-matter of these writ petitions would fall under clause (3) of the said Notification and it would be excluded from the effect of the above said notification as there were proceedings pending under the Pakistan Administra--tion of Evacuee Property Act, 1957 before the Custodian. Mr. Burney counsel of the respondents urged that there was no proceedings pending before Custodian under Act XII of 1957 on the "proceedings" in the notifica--tion relate to such proceedings which were pending under any of the provision of the Act XII of 1957.
8. The previous history of the- case has been given above in order to appreciate as to what was the status of the property on 21-8-1959, the date of acquisition of Evacuee Property for disposal under Displaced Persons (Compensation and Rehabilitation) Act, 1958. The dispute regarding the property came up before the then Custodian of Evacuee Property Mr. Mansoor Alam who by his order dated 1-I1-1955 directed an inquiry in to any possible excess made by Abdul Wahid Khan. This inquiry was conducted by Major T. H. Naqvi who submitted his report in January, 1963. This report was further verified by Mr. .Shamshad Hussain Zaidi Additional Custodian of Evacuee Property and thereafter Mr. A. R. Changez passed the final Order dated 20-12-1963. The order of Mr. A. R. Changez was to the effect that Abdul Wahid Khan was entitled to a balance of Rs. 29,800 and the Settlement Authorities would pay this amount to Abdul Wahid Khan and then utilize the property for the purpose of the Displaced Persons Compensation Act. If the status of the Property is examined in this context it is obvious that some proceedings in respect of the property had been pending be-- fore the Custodian of Evacuee Property which had been finalized on 20-12-1963 when Mr. A. R.
Changez made this order. As the wording of the notifica--tion dated 21-8-1959 will show, where any proceedings were pending in respect of property that property would be excluded from the said notification and would not be deemed to have been acquired under section 3' of the Act. It cannot be denied that the proceedings were pending before the Custodian of Evacuee Property till 20-12- 1963. Mr. Burney has referred to the powers of the Custodian of Evacuee Property under Administration of Evacuee Property Act XII of 1957. This Act was successor to the Evacuee Property Act of 1948. The powers of the Custodian in respect of Evacuee Property are nearly the same in two enactments. This inquiry which had been directed by Mr. Mansoor Alam on 1-I 1-1955 was finalized on 20-12-1963 and culminated into the order of Custodian of the same date. Any action taken by the Custodian of Evacuee Property for the purposes of administration of such property either with respect to its Management or recovery of property taken by somebody in excess of allotment order or settlement of accounts in respect of such property shall all be the responsibility of the Custodian and would come within the powers of the Custodian. As section 7 of the Act shows all Evacuee Property vested in the Custodian from first day of March, 1947 and every person would hold property on behalf of the Cus--todian. The word "proceedings" used in clause (3) of the Notification has not a restricted meaning as suggested by Mr. Burney that the proceeding should be such which has reference to the status of the property as to whether it is or is not evacuee property. His argument was that if the question was as to whether the property was evacuee or not, the property would be ex6luded under clause (3) of the Notification from acquisition and since the Property which is subject-matter of this petition was not a property in respect of which there was any doubt as to its status, it would be deemed to have been acquired and would be covered by the Notification. The term "any proceedings" is of a very wide scope. As long as any matter in respect of the property was within the hands of Custodian, the Property would not be one which was acquired under section 3 of the Displaced Persons Act. The Custodian of Evacuee Property finally disposed of the matter of entitlement of Abdul Wahid Khan vis-a-vis the allotment order and lease deed find this is why be observed that Abdul Wahid was only entitled to the amount of Rs. 29,800 and on payment of that amount the property could be used by the Settlement Authorities. The question for determination of the status of the Property was within the exclusive jurisdiction of the Custodian of Evacuee Property. Section 41(2) of Act of 1957 provides that whenever any question arises as to whether a person or property was or was not evacuee such question was to be referred to the Custodian of Evacuee Property and his decision would be conclusive. If in case a Property had p been acquired under section 3 of the Displaced Persons Compensation Act and a question of this nature arose after its acquisition before any Settlement Authority the same would have to be referred to the Custodian of Evacuee Property. Under section 41 of the Act in such circumstances the jurisdiction of the Custodian would be extended for the determination of the question even after notification of acquisition. It also strengthens the argument that the question of determination of the status of the Property is not the only subject which is-covered by the term "any proceedings" used in clause (3) of the Notification under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This term is of wider implication and would embrace any proceedings, pending before the Custodian of Evacuee Property of whatsoever nature. Since such proceedings had been pending before Custodian of Evacuee Property the property could not be deemed to have E been acquired by the Government of West Pakistan under Notification dated 21-8-1959.
9. The Government of West Pakistan issued another notification on 28-5-1970 published in Gazette of West Pakistan on 19-6-1970 and by virtue of this notification all the property which bad been subject-matter of dispute between Abdul Wahid Khan and Custodian of Evacuee Property was acquired for the purposes of Displaced Persons (Compensation and Rehabilitation Act. Any disposal of the property prior to 28-5-1970 by the Settlement Authorities would be unlawful and without jurisdiction. The transfer of such Property in favour of Mir Ahmad Shah on 26-4-1963 would also be accordingly without jurisdiction. The question had also come up for discussion in the Writ Petition No. 2/1960 and Writ Petition No. 29/64 reported in PLD 1962 Quetta 72 and PLD 1966 Quetta
25. In the judgment of Writ Petition No. 2/1960 the observations of Waheeduddin ,J. On page 81 in tie following words is pertinent :- "So long as this inquiry is not concluded the property in dispute will remain an evacuee property and the petitioner also will not be entitled to claim the property in settlement under the provisions of the Reha--bilitation Act, 1958. "
In the Writ Petition No. 29/64 the observations of Muhammad Afzal Cheema, J. Are as under :- "27. His claim to the transfer under paragraph 13 `Building Sites' of Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is equally untenable. Admittedly the properties in question were not acquired by the Central Government as they were exempted owing to the pendency of litigation about them vide Category No. (III) mentioned in Notification No. U-8- 79/1313, dated the 21st of August, 1961 and as such were not included in the compensation pool.
Consequently the Custodian Authorities were fully competent to deal with this property and pass the impugned order. The learned counsel for the petitioner while claiming transfer of the premises in question has relied on sections 10 and 16(1) (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It would be advantageous to reproduce these provisions."
Again on page 40 it was observed ;---- "As regards transfers in favour of respondents, placing reliance on Rahim Bux v. Ahmad Bux PLD 1964 SC 189 it was conceded that they were not valid."
We are unable to agree to the arguments of Mr. Burney counsel for the respondents 4 and 5 in this behalf.
10. In view of the conclusion above the question raised by Mr. Basharatullah and Mr. Azizullah Memon counsel for the petitioners that the Property could not be auctioned as a plot because on that it was not a building site and shops had been built thereon becomes, unimportant since the Settlement Authorities could not dispose of any portion of the property either by auction or otherwise unless it was acquired on 28-5-1970.
11. The next contention raised by the counsel of the petitioners was that acceptance of the price from respondents 4 and 5 was not proper since they were not transferees. The respondents 4 and 5 had been allowed to make payment on 23-12-1975. Mr. Basharatullah contended that payment could be accepted from Muhammad Ishaque and not respondents 4 and 5. Recapitulating the facts again, the plot was originally transferred to Mir Ahmad Shah respondent No. 2 who sold it to Mohammad Ishaque respondent No. 3. Muhammad Ishaque made payment of the price by adjustment from a compensation book which was declared bogus. The High Court directed the Settlement Department to afford opportunity to Muhammad Ishaque to show the genuineness of the compensation book. The said compensation book was again declared bogus on 21-7-1973 and Muhammad Ishaque again filed a writ petition and during the pendency of said petition respondent Nos. 4 and 5 made application on which the impugned order dated 23-12-1975 was made in pursuance of which the respondents Nos. 4 and 5 made payment of the price. This argument of Mr. Basharatullah has no force since he conceded that Muhammad Ishaque could make payment. Muhammad Ishaque's rights in this behalf were not much superior to those of respondents 4 and 5. Muhammad Ishaque himself was a purchaser from original transferee Mir Ahmad Shah Respondent No. 2. Respondents 4 and 5 were purchasers from Muhammad Ishaque.
As far as the right in the Property were concerned Muhammad Ishaque and respondents 4 and 5 come under the same category. If Ishaque is granted a right to make payment of the price the same rights available to respondents 4 and 5. Payment from respondents Nos. 4 and 5 was as good as payment from Muhammad Ishaque. The contention of the counsel of the department Mr. Iqbal Ahmad is strange. He does not support the orders of the Member, Board of Revenue for which purpose he had been deputed by the Member, Board of Revenue. The arguments of the petitioners' counsel that respondents 4 and 5 had no locus standi to make payment has no force.
12. The next contention of the counsel of the petitioners was that Member, Board of Revenue had come to a decision on 19-10-1978 that the properties were to be transferred to the occupants while disposing of the appeal of Abdul Wahid and that petitioners were the occupants. He submitted further that by order dated 29-10-1978 the Member, Board of Revenue had reviewed his own order which suffers from two patent defects. Firstly the order was made without notice to the petitioner and secondly there was no power of review available to the Member, Board of Revenue. As regards petitioners in Petition No. 17/79 the contention of Mr. Basharatullah is not acceptable since they are not shown even in the title of appeal in the order of the Member, Board of Revenue dated 19-10- 1978. The predecessor of the petitioner is said to be Sher Muhammad and Sher Muhammad's name is missing in the said order. Name of Amin Ullah Petitioner's in Petition No. 222/1979 finds place in that order. The M. B. R. In his order of 10-10-1978 held that the shops and houses on the site were to be transferred to the occupants/tenants. This order does not mention about transfer of plots or those building sites on which permanent constructions had been raised. The petitioners maintain that they had plots in their occupation which were portions of land in Khasra No. 4399 as shown in paragraphs 2 to 4 in Writ Petition No. 17/79 and paragraph 2 in Writ Petition No. 222/1979. Since the entitlement of the petitioners was not determined in the order dated 19-10-1978, the intimation given on 29-10-1978 does not amount to a review of the order dated 19-10-1978 and for this reason as well the petitioners were not entitled to a notice. If the Member, Board of Revenue had been conscious of the fact at the time of passing order dated 19-10-1978 as to how building sites were to be transferred under Scheme No. 1 of 1975, then this order would amount to determination of entitlement of Aminullah Petitioner. He was under the impression that there were houses and shops. He did not know that there were no houses, at least, none as far is the documents on the record show and he did not know that there were building sites and petitioner Aminullah claimed transfer of a plot and a shop built by Abdul Wahid and as such letter dated 29-10-1978 was not an order in review but intimation that property was not available for transfer.
The contention of the counsel to the respondents Nos. 4 and 5 was that the petitioners have no locus standi to file the petition and both petitions suffers from lathes and even otherwise the petitions are not maintainable since the petitioners are not entitled to the relief claimed. As regards the plea of want of locus standi in Petition No. 17/1979, the petitioner claims to be successor of one Sher Muhammad. Sher Muhammad is not included in names given in the title of the decision of the appeal by the Member, Board of Revenue in his order dated 19-10-1978. Petitioners claim to have been in possession of the plot measuring 1150 sq. Ft. To which No. 4-2/8 I has been given. In the order of Member, Board of Revenue dated 19-10-1978; name of Asmat Ullah has been shown to be the occupant of the premises. In paragraph (4) of the petition it is stated that the portion of the plot in occupation of predecessor-in-interest of petitioners remained in their possession while Abdul Wahid raised construction in the portion of land facing Shahra-e-Liaquat. This statement could cut both ways because if Abdul Wahid had not used it for construction it would be deemed to have been acquired by notification dated 21st August, 1959 and to that extent on the admitted position, the transfer in favour of Mir Ahmad Shah would also be valid. Again in paragraph 3 of the petition it has been stated that the petitioner's Predecessor has been in occupation of the shop since 1947 yet the application made by the petitioners on 10-6-1275 to the Member, Board of Revenue copy of which has been filed by the respondents shows in paragraph 2 that Sher Muhammad had been in occupation of the plot since 1964 and 1965. Such contradictory statement creates a serious doubt in the fact of their occupation of the plot. The petitioners have not shown their entitlement to the transfer of the building site. It is surprising that both the counsel Mr. Basharatullah and Mr. Azizullah Memon had been urging that the shop could not be transferred as a plot to Mir Ahmad Shah loosing site of the case as stated in the petitions. The petitioners have claimed to be in possession of the Plots. In paragraphs 4 and 5 of Writ Petition No. 17/1979 and in paragraphs 2 and 3 of Writ Petition No. 222/1979, it were plots which were in their possession and proceedings regarding transfer of plots were pending. According to their own showing the property for which they claimed transfer under Scheme No. 1 of 1975 were plots and so is stated in the petitions. For ready reference relevant para. 2(iii) of Scheme I of 1975 is reproduced below :- "(iii) Subject to the condition laid in sub-para. (vii) of Para. 2 of this Scheme, the occupants of houses, shops and building sites on which permanent constructions have been made will be given option to retain such houses, shops and building sites within the time prescribed in this behalf by competent authority on payment of the present market value, which would be fixed in accordance with the conditions of the property and its location by the competent authority."
The petitioners have not stated anywhere that they had raised construction on the plot much less permanent constructions. The Member, Board of Revenue could transfer building sites to these persons who had raised permanent constructions on these sites. This essential fact to make them entitled to transfer has not been shown in the petitions and we do not know if such fact was brought to the notice of the Member, Board of Revenue. Since the petitioners have not shown their entitlement to transfer, none of their lawful rights seems to have been infringed nor likely to be effected. Mr. Burney has relied upon the case of Nisar Ahmad v. Additional Secretary, Food and Agriculture (1979 SCMR 389in which it was held :- "It is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 of the Constitution of Pakistan (1973) that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject- matter of the proceedings. The stand of the petitioners throughout has been that they were tenants paying rent to the Evacuee Trust Board and never claimed the transfer of the property and indeed in law they were not so entitled. Their writ petition was, held, to have been rightly dismissed by the High Court leaving no ground for interference."
He also referred to case of Ali Muhammad v. Sirajul Haq (1975 SCMR 33), where it was held: "In any event, the present petitioner has no locus standi to challenge the validity of the transfer, because, he is not a person who had acquired any vested right to the transfer of the property."
13. As observed above the transfer in favour of Mir Ahmad Shah respondent No. 2 on 26-4-1963 was not lawful. The counsel for the peti--tioners have not claimed any relief in their petition in respect of the transfer deed issued on 26-4-1963. The contention of the counsel is that since the order was without jurisdiction it was a nullity in law. In this behalf they have relied upon PLD 1975 Kar. 495 and PLD 1971 SC 124. It was held in the Karachi case;-- "The Chairman had no power of jurisdiction to waive or remit a tax or to order a refund of tax validly and legally levied. The order being without jurisdiction, it is a nullity and did not require to be set aside in appeal to the Controlling Authority by the K. M. C."
It was held in the case of Mansab Ali v. Amir (PLD 1971 SC 124). It was held :- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings-in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate- General fully supported this view and asked for dismissal of the appeal."
In the circumstances of the present case one P. T. D. Was issued in 1963 and which is referred in the letter of Secretary, Board of Revenue to the Petitioner Aminullah, dated 29-10-1978. This transfer in favour of M. Ahmad Shah was not set aside by the M. B. R. Mir Ahmad Shah had further transferred the property to Muhammad Ishaque who in turn sold it to the respondents 4 and S. In our opinion such an order cannot be ignored. A long as that existed the Member, Board of Revenue could not transfer the property to any other person. Any subsequent transferee would have to get that order set aside, so as to avoid further litigation especially when Muhammad Ishaque had transferred his right to respondents 4 and 5 under a registered deed. The P. T. D. Of 1963 is not simply a case of an ;e unlawful order which could be ignored. Certain consequences have amanated after the issuance of P. T. D. Of 1963 and rights of third party were involved. Property had been conveyed to respondents 4 and 5 and mutation has been recorded in revenue records. The petitioners had never challenged the transfer in favour of Mir Ahmad Shah, before the Settlement Authorities eversince it was sold by public auction in the year 1960. The Settlement authorities have also acted upon it and they had been demanding the auction price from Mir Ahmad Shah, accepted it and recognised the transfer. Even if it is granted that the transfer in favour of Mir Ahmad Shah was defective it could no be reopened at the instance of a person who had not acquired any vested right for its transfer and who even now does not pray for any declaration in this behalf.
14. The petitioners want to get a declaration regarding instruction/ order dated 29-10-1978 and prayed that it may be get aside yet they do not pray to set aside the transfer of property made on 26-4-1963. If order contained in the letter dated 29-10-1978 came in their way for the transfer of the premises to them the P.'T. D. Dated 26-4-1963 came all the more in their way. If such transfer was not a hurdle the letter intimating it would also be not of any consequence and it could be ignored.
When they specifically prayed for setting aside order dated 29-10-1978 it was incumbent to pray for setting aside the transfer order made prior to 28-5-1970 in favour of Mir Ahmad Shah. It may be noticed here that the Petition No. 27/1979 as filed initially respondents 4 and 5 were not jointed.
Respondents 4 and 5 were joined on their on application. The petitioners in fact wanted to undo the transfer dated 26-4-1973 indirectly and are repetitiously attacking the order dated 29-10-1978. It appears the object was to get an order of setting aside the transfer dated 23-4-1963 without alerting respondents 4 and 5. This attitude is not appreciable or desirable on the part of a person coming for equitable relief.
15. If the earlier P. T. D. Was not set aside at the instance of the petitioners it was likely to create complication and gave rise to further litigation. It was imperative for the petitioner to pray for the setting aside of the transfer document issued to Mir Ahmad Shah on 26-4-1963.
16. The counsel of the petitioners have filed a copy of the transfer order issued in favour of Mir Abmad Shah on 30-10-1978. It was -at least expected from the petitioners that on receipt of letter dated 29th October, 1978 they could have gone to the Settlement Department to make inquiry about the transfer in favour of Mir Ahmad Shah. They did not challenge the transfer in favour of Mir Ahmad Shah dated 30-10-1978 for which transfer Deed has also been issued. In the present petition this transfer order also comes in their way. As long as this is not set aside the Member, Board of Revenue will not be able to issue another transfer document in favour of any other person. The last order they have prayed for is the order dated 29-10-1978. Even if the order dated 29-10-1978 is set aside along with the order dated 23-12-1975 they will not be able to get their relief. The transfer order in favour of Mir Ahmad Shah made on 20-10-1978 has been made after the property had been acquired by the Settlement Department by a Notification of 28-5-1970. This order is neither without jurisdiction nor in excess of jurisdiction. This order has been made and replaces the order dated 26-4-1963. Even if we pass an order as prayed for declaring that the orders dated 23-12-1975 and 29-10-1978 were unlawful transfer order dated 30-10-1978 could still be in the field. In the matters of equitable relief we are not to pass infructuous orders which are not capable of being implemented. The petitions are misconceived. The petitioners have not come with clean hands.
They have suppressed true facts and petitions suffer from laches having been filed after 16 or 17 years of transfer of the plot by auction and about four years after respondents 4 and 5 made the payment. No explanation is forthcoming from them ash to why they had been sleeping over the matter. It may be also remarked that the case of transfer of the properties would, have been a closed chapter] if the compensation book through which Muhammad Ishaq made payment had not been declared bogus. The petitions are dismissed.
ZAKAULLAH LODHII, ACTG. C. J.-I agree with the conclusion arrived at by my learned brother.