' UMAR ATA BANDIAL, J. --- By order dated 04.12.2012 leave to appeal was granted in these two appeals to consider the objections of jurisdiction, legality, propriety and justice raised by the appellants against the impugned orders dated 03.07.2008 and 24.06.2009 passed by a learned Single Bench and a learned Division Bench of the Lahore High Court, respectively. In essence, the matter in issue between the parries is about the powers and duties of the Notified Officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (the "Repealing Act, 1975"): Whether he is under an obligation to allot alternate land as compensation to the successful bidder in a confirmed auction sale of available (evacuee) property in a case where defects pertaining to the auctioned property prevent its transfer to the said bidder. A more general question is whether a learned High Court can cause statutory authorities to allocate public property without first establishing law or government policy enabling such action.
' The facts of the two appeals are identical and the case of the private respondents in each appeal is prosecuted by the same general attorney. For the sake of convenience and ease of reference, unless expressly stated otherwise, the events and record in Civil Appeal No, 633 of 2012 are referred in the discussion that follows. Respondent No, 1, Muhammad Tufail and his son Abdul Majeed (respondent in CA. 632-L/2012), were individually the successful bidders in the auction sale of, inter alia, two plots respectively bearing No, 5 and 4, Khasra No, 1026, Village Charrar, District Lahore measuring 2 Kanals each in a public auction held on 03.04.1982 by an officer of the appellant Provincial Government authorized to do so under the Repealing Act, 1975. The highest bid of Rs, 7,000/- for each plot given severally by each respondent was accepted by the competent authority. After deposit of the entire bid amount, transfer deeds in favour of both respondents were issued on 05.09.1982 by the authorized officer of the appellants. The transfer deed bearing No, 12942 dated 05.09.1982 issued in favour of the respondent No, 1, Muhammad Tufail, complied with the terms of para-29 of the Available Properties Scheme for Management & Disposal of Available Urban Properties dated 13.01.1977 (the "Available Properties Scheme, 1977") framed by the Provincial Government in exercise of its power under Section 3(1) (a) of the Repealing Act, 1975. Para-11 of the Available Properties Scheme, 1977 visualizes the disposal of available (evacuee) properties comprising a house, shop or a vacant building site by means of an "unrestricted public auction." On the application of respondent No, 1, the Mutation Verification Committee, Board of Revenue, Punjab issued him its verification report dated 07.11.1982 certifying the genuineness and correctness of his transfer deed No, 12942 dated 05.09.1982. In this report, the Mutation Verification Committee requested the Assistant Commissioner, Saddarffehsildar, Lahore to take., further necessary action for entering in the land revenue record a mutation implementing the transfer deed issued by the appellants in favour of respondent No, 1.
3. Notwithstanding that the respondent No, 1 had a duly verified valid transfer deed dated 05.09.1982 in respect of Plot No, 5, he did not, however, pursue the appellant authorities for possession of the auctioned plot, nor did he approach the concerned revenue authorities until 1989 for recording a mutation of his transfer deed. During this time, it appears that plot No, 5 auctioned and transferred to the respondent No, 1, became the subject-matter of Writ Petition No, 91-R of 1987 titled "Muhammad Ibrahim and others v. Deputy Commissioner/Additional Settlement Commissioner (Lands), Lahore and two others before the learned Lahore High Court. The respondent No, 1 herein was not impleaded as a party in that petition. The writ petitioner, i,e,, Muhammad Ibrahim claimed the implementation of an order by the Settlement Commissioner dated 27.02.1973 whereby, he had been allotted vacant land in Village Charrar, District Lahore. It so happened that the land claimed by him included the same plots that were auctioned on 03.04.1982 to the respondents in these appeals. The Provincial Government/authorities under the Repealing Act, 1975, respondent in the said writ petition, informed the learned High Court that a departmental inquiry regarding the said land was in progress before the Assistant Collector, Saddar, Lahore and if such land was found to be available, the allotment in favour of the writ petitioner would be implemented. The writ petition was, accordingly, disposed of on 01.07.1987 by incorporating the said statement by the Provincial Government authorities.
4. It appears that the respondent No, 1 before us did not become aware of the proceedings and order dated 01.07.1987 passed in Writ Petition No, 91-R of 1987. Therefore, he neither applied to become a party in the said Writ Petition before the learned Lahore High Court nor in the subsequent inquiry proceedings before the Assistant Collector, Saddar, Lahore in order to defend his title to the auctioned property. Upon conclusion of the inquiry, the Assistant Commissioner, Saddar, Lahore transferred Plot No, 5 to the writ petitioner Muhammad Ibrahim vide mutation No, 2472 dated 18.12.1988. When the respondent No, 1, auction purchaser of Plot No, 5 learnt about the said mutation, he sought confirmation by re-applying to the Board of Revenue for verifying his transfer deed. A verification certificate was again issued on 27.04.1989 by the Board of Revenue in his favour. This was addressed to the Additional Deputy Commissioner (General), Lahore City/Cantt. for mutation purposes. Based on the said certificate, the respondent applied to the revenue authorities for recording mutation of his transfer deed in the revenue record. On this application, the Patioari reported that the plot in question had already been mutated in favour of Muhammad Ibrahim, the afore-mentioned writ petitioner. At this stage, rather than assailing mutation No, 2472 dated 18.12.1988 and defending his own title to plot No, 5, the r spondent No, 1 applied to the Board of Revenue for rant of alternate evacuee land. This request was not considered by the Board of Revenue whereupon the respondent No, 1 filed Writ Petition No, 318 of 1994 to claim allotment of alternate land. The foregoing facts are drawn from the contents of the said writ petition.
5. The record in the connected -appeal contains similar facts in relation to respondent therein, Abdul Majeed, auction purchaser of plot No,
4. In spite of payment of full auction price, issuance of transfer deed and verification certificate, neither possession of the auctioned plot nor its sale mutation were completed in favour of the said respondent. After a fresh verification certificate was issued to him on 12.07.1989, the respondent Abdul Majeed complained to the Board of Revenue that the auctioned plot stood transferred to Muhammad Ibrahim vide mutation No, 2472 dated 08.12.1988. Consequently, vide application dated 03.03.1990 he also prayed for the allotment of alternate evacuee land situated in Khasra No, 1472 of the same Village Charrar, District Lahore. The said application does not refer to any power or authority vested in the Notified Officer to make an allotment of the alternate land prayed for. For lack of response, the respondent Abdul Majeed made another application on 29.05.1994 seeking the allotment of alternate land. Inaction by the appellant authorities led the respondents in the two connected appeals before us to file separate writ petitions bearing No, 318-R and 319-R of 1994 before the Lahore High Court, making out a case for allotment of alternate land. These writ petitions impleaded Muhammad Ibrahim, the transferee of the auctioned land and also his subsequent vendees. Surprisingly, the writ petitions did not defend the respective petitioner's entitlement to be transferred the auctioned plots nor do the petitions explain their failure until 1989 to approach any competent fora for transfer of title and possession of the auctioned plots. The authority vested in the Notified Officer under the Repealing Act, 1975 to grant them alternate land is also not adverted in the writ petitions. The two writ petitions remained pending for four years without para-wise comments being filed by the Provincial Government. Finally, based on the one-sided record available before it, the learned High Court by judgment dated 20.01.1998 remanded the matter to the appellant authorities, i,e, Member Board of Revenue, Government of Punjab with the following observations:--- "3.In 1993 with a view to get the transfer deed of the plot incorporated to the revenue record the petitioner approached the revenue authorities and it is at that stage that he was shocked to be informed that the plot auctioned in his favour had been mutated in favour of Ibrahim and Haji Yar Muhammad vide mutation No, 2472 in the light of judgment passed in Writ Petition No, 91-R187 decided on 1.7.1987. It was subsequently sold by them in favour of Ravian Cooperative Housing Society. The petitioner was thus left high and dry.
4. Faced with this situation the petitioner made representation before respondent asking a request for transfer of alternate property in lieu of his plot but to no effect. Hence this writ petition.
5. As far back an on 22.1.1995, report and para-wise comments were called from the respondent but he not cared to comply with the order.
' I have heard the learned counsel for the parties. The facts asserted in the writ petition have gone un-rebutted and as such stand proved, as these are supported by affidavit.
' The sole question that arisen for consideration is as to what relief the petitioner is entitled in the above situation. He purchased the plot in question in auction as his bid being the highest was accepted and it is after the payment of total dues that a transfer deed was issued in his name. It is after 11 years that he was informed that this plot has been transferred in favour of third party. He cannot be made to suffer for no default of his. In the circumstances, it is the duty of the respondent to properly compensate him by transfer of another plot in lieu of the disputed one. I am informed by the learned counsel for the petitioner that alternate plots are available with the department.
6. For what has been stated above this writ petition is accepted and a direction in the matter of mandamus is issued to the respondent to transfer available <u>any of equal</u> to the petitioner within a period of two months and issued transfer deed for the same in his name.No costs."
(underlining supplied)
6A.It is notable that to sustain its above quoted direction in the nature of mandamus, the learned High Court's judgment dated 20.01.1998 neither discusses the authority of the appellants to allot alternate land as compensation nor the entitlement of the respondents to receive compensation in such mode. Be that as it may, as proof of their continuing apathy in the matter, the appellants neither appealed nor implemented the judgment dated 20.01.1998 for as long as six years. Finally, in answer to reminders issued by the respondents, the Notified Officer, (Gujranwala & Rawalpindi), Member Board of Revenue ("Notified Officer"), passed an order dated 14.04.2006 allotting to each of the respondents a plot measuring 2 kanals situated in "51-Baxley Estate, Murree" as alternate land given in lieu of "price already paid by him in respect of plot purchased and auctioned in Village Charrar, Lahore". The said order by the Notified Officer does not record the stand taken by the Provincial Government nor does it deal with the legal framework that qualifies the respondent auction purchasers for the relief granted. The said order does, however, record that the alternate land allotted in Murree was traced out by the respondents themselves. The operative part of the order is in the following terms:--- "The petitioner in pursuance of the said direction of Honourable High Court applied for alternate allotment of the plot and he also pointed out that some land was available in Murree, District Rawalpindi. In order to ascertain factual position, the Patwari Halqa was summoned and his statement was recorded on 03.10.2003. The Deputy District Officer (Revenue) accordingly submitted his report to the District Officer (Revenue), Rawalpindi and District Officer (Revenue) vide his letter dated 14.01.2004 furnished the requisite report duly signed by him to the Executive District Officer (Revenue), Rawalpindi and a copy was also endorsed to the Secretary S & R/Settlement Commissioner, Farid Kot House, Lahore and subsequently the District Officer (Revenue), Rawalpindi submitted the requisite report to the Secretary S&R with a copy endorsed to the Executive District Officer (Revenue), Rawalpindi. According to the report of Deputy District Officer (Revenue) Murree received through the District Officer (Revenue) Rawalpindi an area of 4 Kanals of land situated in Buxley Estate purree was lying available for allotment. This land is lying under the control of Murree Corporation and no other department has any concern with it." (underlining supplied)
7. It appears that the appellant authorities got second thoughts about the correctness of the order dated 14.04.2006 passed by the Notified Officer. Therefore, they shelved the matter of its implementation. Criminal Original Petition No, 615-W of 2007 was consequently filed by the respondents before the learned High Court. In compliance with directions given by the learned High Court in its order dated 19.02.2008, the implementation of said order dated 14.04.2006 by the Notified Officer was taken up and decided by another Member, Board of Revenue describing himself as Chief Settlement Commissioner, Punjab ("MBR & CSC"). For reasons given in his order dated 31.05.2008, the MBR & CSC annulled the order of the Notified Officer dated 14.04.2006 and declined its implementation. The view taken by the MBR & CSC is, inter elle, based on respondents' failure to approach the Land Revenue authorities for 7 years after the issuance of their transfer deeds to obtain mutation of their auction sales; the lack of authority of the Notified Officer under the Available Properties Scheme, 1977 to dispose of available (evacuee) land by means of allotment as alternate land; the absence of jurisdiction of the Notified Officer (Gujranwala & Rawalpindi) to deal with the respondents' claim pertaining to Lahore Division. Finally, it is observed that the order dated 20.01.1998 passed by the learned High Court had been misread; it did not contain a direction to transfer alternate land to the respondents at any other urban location in the Province.
8. The aggrieved respondents approached the High Court against the said order of the MBR & CSC dated 31.05.2008 through Writ Petition No, 88-R of 2008 which was allowed by the learned Single Judge on 03.07.2008. Intra-Court Appeals filed there-against by the present appellants were dismissed by the learned Division Bench on 24.06.2009. Petitions against the said orders dated 03.07.2008 and 24.06.2009 have been filed before this Court in which leave was granted on 04.12.2012.
9. Learned counsel for the parties have argued their cases at length and have filed additional documents to elaborate and supplement their submissions. The record of the appeals and the additional material filed or referred by the learned counsel have been perused carefully. The submissions made by the learned counsel are summed up as follows. Learned counsel for the appellants has urged that:---
(i) The impugned order dated 03.07.2008 passed by the learned Single Judge of the High Court makes a serious legal error whilst reversing the order of the MBR & CSC dated 31.05.2008 and thereby enforcing the order dated 14.04.2006 of the Notified Officer. It is wrongly assumed by the learned Single Judge of the High Court that the, auction sale in favour of the respondents is a "pending proceeding" enforceable under Section 2(4) of the Repealing Act, 1975. For ignoring the objection of laches and estoppel against the respondents, it has also been wrongly noted by the learned High Court that the date of issuance of their transfer deeds is 05.09.1992 whereas the correct date is 05.09.1982.
(ii)The appellate order dated 24.06.2009 by a learned Division Bench of the High Court is passed without adjudicating the appellants' objections to the learned Single Judge's order dated 03.07.2008. Therefore, the appellate order also suffers from the same incorrect assumptions of law and fact. The direction for allotment of alternate land to the respondents given by the two impugned orders is contrary to Section 3 of the Repealing Act, 1975 as elaborated by the Available Properties Scheme, 1977 notified by the Provincial Government.
(iii)The orders of the learned High Court dated 20.01.1998, 31.05.2008 and 24.06.2009 grant relief by disregarding the binding rule laid down by this Court in the case of Nadeem Ahsan v. Government of Pakistan (1997 SCM R 1365). As such the said orders are per incurium and lack legal effect.
(iv)Rather than pursuing the transfer of auctioned plots No, 4 & 5, Khasra No, 1026, Village Charrar, District Lahore, the respondents abandoned their rights as auction purchasers and opted to claim allotment of alternate land from the appellants, inter alia, vide applications dated 03.03.1990, 10.06.1993 and 29.05.1994 and in the writ petitions filed before the learned High Court. No legal basis for granting the relief prayed is available under the law; nor do the afore-mentioned orders by the learned High Court or by the Notified Officer disclose the same.
(v) The legal rights of the respondents as confirmed auction purchasers are contractual in nature.
The relief for the breach of such right is in the shape of damages for the pecuniary loss suffered by the respondents or specific performance of the contract of sale concluded between them and the appellants. The respondents failed to pursue a lawful remedy for redress of their grievance which stands abandoned as a result.
(vi)The orders dated 20.01.1998, 31.05.2008 and 24.06.2009, passed by the learned High Court overlook the waiver of cause of action by the respondents through their delay of 12 years in approaching a judicial forum for claiming any relief against the appellants and that too after abandoning the contractual remedy/relief lawfully available for their grievance.
(vii) The land allotted to the respondents is part of the former Baxley Estate, Murree. Since 1929 its remaining land and structures accommodate the Assistant Commissioner's House, Murree and the Medical Superintendent's Cottage, Murree. The plots carved out for the respondents are located on the hill-side between the road and the official residences. This land forms the green frontage of the said official residences on the road. Intervening private property would destroy the public character of the land.
(viii) The order dated 14.04.2006 passed by the Notified Officer fails to cite any law to sustain its finding. It is also without jurisdiction for entertaining a claim pertaining to Lahore Division.
(ix)The order dated 31.05.2008 by the MBR & CSC declining allotment of alternate land is in furtherance of the statutory mandate and the rule laid down by this Court in Nadeem Ahsan's case (ibid). The said order is liable to be maintained for safeguarding the disposal of public property in accordance with law and thereby promoting public interest and justice.
10.The foregoing submissions of the learned counsel for the appellants have been rebutted by the learned counsel for the respondents in the following terms:---
(i) The adverse order passed by the MBR & CSC on 31.05.2008 that annuls the order dated 14.04.2006 by the Notified Officer is coram non judice, null and void. The MBR & CSC is not vested with any jurisdiction to hear an appeal, revision or review petition against an order passed by the Notified Officer.
(ii)The failure to convey and deliver the auctioned plots to the respondents is entirely because of the appellants' default. The respondents therefore have a legal right to be compensated. Allotment of alternate land of equal value is a lawful means of compensation envisaged by this Court in Barkat Ali v. Qaim Din (2006 SCM R 562).
(iii)The respondents are the confirmed auction purchasers of the available (evacuee) property and have a vested right to be given the auctioned land or alternate land in lieu thereof.
(iv)writ Petitions No, 318-R of 1994 & 319-R of 1994 were not opposed by the appellants. These petitions remained pending for nearly four years. The order dated 20.01.1998 passed therein is consistent with the requirements of law and justice. It was never challenged by the appellants before any higher forum. The said order has attained finality. Any other treatment of the said order would tantamount to mocking judicial pronouncements.
(v) The order dated 14.04.2006 passed by the Notified Officer implements the directions given by the learned High Court on 20.01.1998. These directions and the validity of the order dated 14.04.2006 have been affirmed by the two impugned orders passed by the learned High Court on 31.05.2008 and 24.06.2009. The said orders promote the ends of justice and provide relief to the respondent after a lapse of more than 25 years.
(vi)The alternate land allotted to the respondents by the order dated 14.04.2006 does not encroach the premises of the official residences in the Baxley Estate at Murree. The allotted alternate land has value equal to the auctioned plots as determined by the Civil Judge, Murree vide his report dated 06.02.2014 prepared pursuant to the order of the Court dated 23.12.2013 passed in these appeals. Neither private nor public interest is adversely affected by the allotment of the said land to the respondents.
11.We have given our anxious consideration to the respective submissions made by the learned counsel for the parties. Broadly speaking, there are three stages to the dispute between the parties.
The first stage extends from 1982 until 1988. The respondents were confirmed as auction purchasers "of the auctioned plots in 1982. Their entitlement to the said plots was un-disputed until mutation No, 2472 dated 18.12.1988 in respect of the same property was recorded in favour of one Muhammad Ibrahim without objection by any party. The adverse event occurred partly because of the respondents' default to pursue their entitlement as auction purchasers and also by the complicity or indifference of the appellant authorities who permitted a conflicting interest in the auctioned plots to be created without even issuing notice to the respondents. The controversy at this stage is about whose default became the operative cause for mutation No, 2472 to be recorded without notice or objection. The second stage in the case commences on 03.03.1990 when the respondents first applied to the appellants for allotment of alternate land after the auctioned plots stood transferred to the said Muhammad Ibrahim. This request by the respondents was repeated in vain before the MBR & CSC on 29.05.1994. Consequently, the same relief was prayed in writ petitions bearing No, 318R and 319-R of 2014. These were disposed of with the direction dated 20.01.1998 that alternate land of equal value be allotted to the respondents. In the second stage of the case, the parties dispute the legal effect of the direction dared 20.01.1998 issued by the learned High Court to the appellants. The third stage commences on 15.05.2002 when the respondents applied to the MBR & CSC for implementation of the judgment of the learned High Court dated 20.01.1998 leading to the order dated 14.04.2006 passed by the Notified Officer allotting alternate land to the respondents. This followed by the order dated 31.05.2008 passed by the MBR & CSC reversing the Notified Officer's order dated 14.04.2006 and declining alternate allotment of land directed by the learned High Court on 20.01.1998. The point in issue between the parties at this stage of the case is whether an executive functionary can cite applicable law to avoid compliance with a direction given by the learned High Court. Correctness of the subsequent orders dated 31.05.2008 and 24.06.2009 passed by the learned High Court depends on the vires of the order dated 14.04.2006 passed by the MBR & CSC.
12.The rights conferred on an auction purchaser after the confirmation of the auction sale are of a contractual nature. In the present case the highest bids offered in the public auction dated 03.04.1982 by the respondents were accepted by the appellants. After payment of full auction price by the respondents, transfer deeds dated 05.09.1982 were issued in their favour. These transfer dfeeds were thereafter duly verified by the appellants on 13.10.1982 as being genuine. This verification was the final pre-requisite for the sale mutation of the auctioned plots to be entered in the revenue record in favour of the respondents. Consequently, with effect from 13.10.1982 each of the respondents had a vested legal right to the transfer of title and possession of the respective plots auctioned to them. These rights of an auction purchaser in an auction conducted by a public authority has been acknowledged by this Court in Muhammad Attique v. Jami Limited (PLD 2010 SC 993) and Government of Punjab v. Abdul Ghafoor (2009 SCM R 1055). Since the legal right of the respondents/auction purchasers emanates from a contract, therefore, their remedy for the breach of obligation of the appellants to transfer title and possession of the auctioned plots also lies under the Contract Act, 1872 and the Specific Relief Act, 1877. The contract law remedies available at the choice of the respondent/auction purchasers were either specific performance of the auction sale or award of compensation for the pecuniary loss suffered by the respondents for failure by the appellants to perform their obligation.
13. It is established on the record that the appellants defaulted in their obligation to transfer title and possession of the auctioned plots to the respondents from 13.10.1982 until 03.03.1990 when the respondents opted for allotment of alternate land. The failure by the respondents to sue before statutory or judicial fora enforcement of the auction sale cannot exonerate the appellants for their breach of obligation. The transfer of the auctioned plots by the appellants to a third party without notice to the respondents or cancellation of their auction sales gives the latter a valid cause of action for redress. At all material times after issuance of their transfer deeds until their election for allotment of alternate land, the respondents had a legal right to pursue the completion of the auction sale in their favour. However, they did not do so, nor did they seek the alternate remedy of monetary compensation for loss suffered which was available under the law. Instead the respondents elected to claim compensation from the appellants through allotment of alternate land for being deprived of the auctioned plots. In doing so, the respondents may be said to have surrendered their contract law remedy of specific performance of the auction sale in their favour.
14.A central point of enquiry in relation to the relief prayed by the respondents is whether they had any legal right to be compensated by allotment of alternate land by the appellants. Neither the contents of the applications for the relief of allotment of alternate land filed by the respondents before the appellants nor their Writ Petitions No, 318-R and 319-R filed before the learned High Court, cite any law where-under the relief prayed is assured to disappointed auction purchasers of land auctioned by the Provincial Government authorities under the provisions of the Repealing Act, 1975. It may be noted that under Section 2(1) of the Repealing Act, 1975, all laws for management of evacuee properties and for compensation and rehabilitation of evacuee owners were repealed. By Section 3(1) of the said Act, all available rural and urban evacuee properties stood transferred to the Provincial Government for disposal in accordance with the terms of schemes duly notified by the Provincial Government. Section 2(2) of the Repealing Act, 1975, however, provides that all "pending proceedings" before authorities constituted under the repealed laws and cases remanded by the Supreme Court and a High Court shall be decided under the relevant repealed laws. Such adjudication is to be rendered by the Notified Officer appointed by the Provincial Government under the provisions of the Repealing Act, 1975.
' It may be mentioned that allotment of alternate land to a verified claimant was a relief that could be granted by settlement authorities in terms of schemes framed under the repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958 ("Displaced Persons Act, 1958"). This law laid down the parameters for the nature, extent and mode of compensation for settlement and discharge of the claims made by evacuee owners. Therefore, to secure in the present case, the benefit of the schemes framed under the Displaced Persons Act, 1958, it was necessary that the auction sales in favour of the respondents should qualify as a "pending proceedings" within the meaning given to that expression by Section 3(2) of the Repealing Act, 1975. However, under the Repealing Act, 1975, such a classification cannot be given to the subject auction sales. The expression "pending proceedings" has been interpreted by this Court in number of cases. In Government of Punjab v. Mohammad Yaqoob (PLD 2002 SC 5), it is observed that:- "The term "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for <u>allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same,</u> therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases. Mere possession of any evacuee land as claimed by the respondent in Chak No, 223/RB in the writ petition would not make his case, a case of pending proceedings within the contemplation of provisions of sections 2 and 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, the direction issued by the learned Judge of the High Court for allotment of the said land under the settlement laws to the respondent was violative of law which could not have been given, for under Article 199 of the Constitution, the High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law requires him to do whereas the direction issued in this case was to the contrary i,e,, what law did not require him to do, he was ordered to do." (underlining supplied)
15.The Repealing Act, 1975 does not vest the Notified Officer with any authority to make a fresh allotment of available (evacuee) land. This disability includes the power to allot alternate land. The said limitations on the powers of the Notified Officer are discussed in Saifullah v. Board of Revenue (1991 SCM R 1255). In Muhammad Ramzan v. Member (Rev.)/CS (1997 SCM R 1635), as follows:--- "8.With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units nor this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact."
16. The respondents derive their right to the auctioned plots from a public auction held on 03.04.1982. It is not the respondents' case that in terms of the rule laid down in Government of Punjab v. Muhammad Yaqoob (supra) their right as auction purchasers qualifies as a verified claim under the Displaced Persons Act, 1958. In fact, the auction dated 03.04.1982 was held under the terms of the Available Properties Scheme, 1977. Since the respondents' rights and claims as auction purchasers do not arise from "pending proceedings" and do not qualify to be dealt with under the Displaced Persons Act, 1958, therefore, the relief of allotment of alternate land available under Schemes made pursuant to the said repealed Act cannot be extended to them. Neither the Repealing Act, 1975 nor the Available Properties Scheme, 1977 applicable to the present case visualize the allotment of alternate land to any party whatsoever. Consequently, the direction given in the judgment dated 20.01.1998 by the learned High Court for the appellants to allot alternate land to the respondents does not enjoy the backing of any law. 17.The reasons for the erroneous direction dated 20.01.1998 by the learned High Court is that the appellants failed to assist the learned Court on the factual and legal points in the case. Their parawise comments were not filed and the learned Court was kept in the dark about the appellants' stand in the case during its pendency for over four years. Accordingly, the direction dated 20.01.1998 by the learned High Court was issued on a mistaken view of the law. Such a direction is treated as given per incurium. The deficiency causing a per incurium judgment and the legal effect thereof has been explained by this Court in Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 SC 879) as under:--- "38. What is mean[t] by giving a decision per incurium is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such-like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565 para 21}, Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113, 1131), Watson's case (AELR 1947 (2) 193 at 196}, Morelle Ltd.'s case (LR 1955 QB 379 at 380), Elmer Ltd.'s case {Weekly Law Reports 1988 (3) 867 at 875 and 878}, Bristol Aeroplane Co.'s case {AELR 1944 (2) 293 at page 294) and Morelie Ltd.'s case {AELR 1955 (1) 708).
39.The ratio of the aforesaid judgments is that once the Court has come to the conclusion that judgment was delivered per-in-curium then Court is not bound to follow such decision on the well- known principle that the judgment itself is without jurisdiction and per-In-curium, therefore, It deserves to be overruled at the earliest opportunity..."
' The foregoing principle Is well-established and has recently been reiterated by this Court In the case of Re: Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829).
18.In view of the above-said principle of law, the direction dated 20.01.1998 given by the learned High Court lacks legal validity and effect; it does not require compliance. It is observed that the Notified Officer through his order dated 14.04.2006 also disregarded Section 3 of the Repealing Act, 1975 read with applicable provisions of the Available Properties Scheme, 1977 to make allotment of alternate land to the respondents. As such his order granting compensation through alternate allotment violates statutory limitations on the exercise of his jurisdiction vested by law. Such orders passed on the alleged basis of a judicial direction given by the High Court have been rejected by this Court in a number of cases. An apposite precedent is contained in Muhammad Ramzan v.
Member (Rev.)/CSC (1997 SCM R 1635). On the authority of several earlier precedents it is observed therein:-- "Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975, Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units.
"Learned counsel for the respondents have greatly stressed upon directions which were issued by superior Court for ensuring expeditious disposal of the grievances made by the claimants regarding non-adjustment of their produce Index units or failure to grant them alternate land. It was also emphatically canvassed that in one of the cases department had made concession, Therefore, directions of the High Court existed for providing_ alternate land. They accordingly asserted that Notified Officer stood protected and his orders were not assailable. It is indeed well-settled that consent can neither vest nor taken away iurisdiction which otherwise did not vest in any authority or forum." (underlining supplied).
' Accordingly, for allotting alternate land to the respondents, the order dated 14.04.2006 passed by the Notified Officer is a nullity in the eye of law.
19.The learned counsel for the respondent has no ground to defend the said order by the Notified Officer dated 14.04.2006 on the strength of Barkat Ali v. Qaim Din (2006 SCM R 562). Perusal of the facts of that case quite plainly shows that the allotment of alternate land ordered by the Court pertains to rights allegedly arising under a public auction of evacuee property held in the year 1963. Litigation between an allottee of the auctioned land and its auction purchaser followed thereafter. This resulted in findings regarding entitlement to the land being given by the Settlement authorities prior to 01.07.1974 when the Repealing Act, 1975 came into force. The said proceedings in the case qualified as pending proceedings within the meaning of Section 2(2) of the Repealing, 1975 in order to be adjudicated finally in terms of the provisions of the Displaced Persons Act, 1958.
That is not the case in the present matter under consideration of this Court. The public auction in the present case was held on 03.04.1982, not under any scheme floated pursuant to the Displaced Persons Act, 1958 but the Available Properties Scheme, 1977 framed under the Repealing Act, 1975.
The allotment of alternate land to the respondents is not an available relief under the said scheme.
20.Having dealt with the legal effect of both the judgment of the learned High Court dated 20.01.1998 and the consequential order by the Notified Officer dated 14.04.2006, which are nullifies in the eye of law, it is now appropriate to consider the legal effect of the order passed by the MBR & CSC dated 31.05.2008. For the different reasons given therein the upshot of that order is to reverse the order dated 14.04.2006 passed by the Notified Officer and to decline allotment of alternate land to the respondents in the terms directed by the learned High Court on 20.01.1998. Although this order rectified the error of jurisdiction and law committed by the Notified Officer on 14.04.2006, however, as rightly pointed out by the learned counsel for the respondents, the MBR & CSC had no jurisdiction vested in him by any law to review or re-visit the earlier order dated 14.04.2006 passed by the Notified Officer. The MBR & CSC has pretended to possess a power to review an order passed by a competent authority, namely, the Notified Officer without such authority being vested in him by law. As such the MBR & CSC has also exceeded his jurisdiction. Notwithstanding that the said order purports to rectify a patent error committed by the order dated 14.04.2006 of the Notified Officer, yet it is infected with a jurisdictional defect causing invalidity.
21. Without considering the said mixed legal features of the order dated 31.05.2008 passed by the MBR & CSC, the learned Single Judge of the High Court by judgment dated 03.07.2008 struck down the order of the MBR & CSC. The learned Division Bench of the High Court through the judgment dated 24.06.2009 endorsed the said view without discussion primarily on account of the prolonged delay occasioned in the completion of the auction sales. As a result, the earlier order of the Notified Officer dated 14.04.2006 stood resurrected. The said result is induced by two mistaken presumptions made by the learned Single Judge. Firstly, that the right of the respondents emanated from "pending proceedings" under Section 2(2) of the Repealing Act, 1975 which were liable to enforcement in terms of Section 2(4) of the said Act. Actually, as has already been observed above, no such right and consequently entitlement to relief granted was available to the respondents. Secondly, that the date of issuance of transfer deeds in favour of the respondents was 05.09.1992 rather than the actual date, namely, 05.09.1982. Thus, he perceived the entire fault for delay in completion of auction sale to lie upon the shoulders of the appellants whereas part of the blame is clearly attributable to the respondents' disinterest to agitate their right followed by their election to pursue a different relief. Be that as it may, the orders 03.07.2008 & 24.06.2009 by the learned High Court cannot resurrect the order of the Notified Officer dated 14.04.2006, which has been declared above to be a nullity in the eyes of law. 22.The legal appreciation of the matter by the learned Single Judge is mechanical. He did not in exercise of Constitutional examine the substantive propriety of the two conflicting executive orders dated 14.04.2006 and 31.05.2008. It is a settled principle of law that the Constitutional jurisdiction of the Courts is exercised to foster justice. This means that the Constitutional Courts do not interfere with void orders that achieve a fair and just result substantively. This rule enjoys longstanding acceptance in the terms explained in Rounaq Ali v. Chief Settlement Commissioner .(PLD 1973 SC 236). The operative reasoning given therein is reproduced below:--- "An order in the nature of a writ 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 cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
"Acting on this principle, a writ of certiorari has been refused by the Courts in the following cases because to grant it would have had the effect of allowing the technicality of the law to cause unjust enrichment which it was the policy of the law to avoid or would have resulted in the confirmation of a certificate obtained wrongly by suppressing material facts or would have sustained an order of allotment which the petitioner had obtained by suppression of material facts within his knowledge or would have resulted in perpetuating an injustice which had been done to the respondents by an incorrect order passed against them or would result in perpetuating a manifestly illegal order or would debar the taxing authorities from initiating proceedings because the requisite time for such initiation had expired."
23.The aforesaid rule guiding the grant of discretionary relief in the exercise of the Constitutional jurisdiction by the High Court has consistently been reiterated by this Court in, inter alia, Khiali Khan v. Nazir (PLD 1997 SC 304), Province of the Punjab v. S., Muhammad Zafar Bukhari (PLD 1997 SC 351) and Secretary to the Government of the Punjab v. Ghu/am Nabi (PLD 2001 SC 415).
24.The relevance of the said rule of fostering justice in the context of the present case is that quite apart from the legal validity of an action taken by an executive authority, its fairness and substantive propriety, deserve greater attention in the exercise of judicial review by the High Court.
It goes without saying that the available evacuee property with the Notified Officer is a public property entrusted to the Government for distribution to rightful claimants under the law.
Notwithstanding the failure of the appellant authorities to complete the auction sales in favour of the respondents, it is the higher public law consideration that a public asset, namely, available evacuee property is disposed of or allocated through unrestricted public auction under paragraph 11 of the Available Properties Scheme, 1977 in order that unfairness or discrimination is excluded from decisions taken by the Notified Officer in relation to such property. In the facts of the present case, the respondents do not possess entitlement for the allotment of available evacuee land and its allocation/allotment to them without cover of law constitutes an undue favour amounting to unfairness and discrimination. Therefore, although the order dated 31.05.2008 passed by the MBR & CSC suffers from a defect, yet more importantly, it achieves a just and fair result in relation to the disposal of a public asset, namely, available evacuee property. Consequently, to our minds, notwithstanding its legal defect, the said order passed by the MBR & CSC merits protection and validation on the principle enunciated by this Court in Rounaq Ali's case (ibid). For failing to consider the different aspects of the case noticed above, the orders dated 03.07.2008 and 24.06.2009 passed by the learned Lahore High Court have erred both on facts and the law. These orders are accordingly set aside.
25.The above discussion resolves the main issue involved in the underlying litigation between the parties. That issue concerns the respondents' claim for allotment of alternate land as compensation for the appellant's failure to complete the auction sales made in the respondents favour. Insofar as any claim by the respondents for contractual damages or refund for money is concerned, the same may, if the respondents are so inclined, be agitated before a -competent Court or forum for determination in accordance with law.
' These appeals are allowed in the above terms. No order as to costs.