This Constitutional petition has been filed on the basis of the grievance that the Settlement Department was not honouring .The orders of its Notified Officers and consequently Transfer Orders in respect of portions of Faridkot House, Lahore,. Comprising a plot and a servant quarter were not being issued in favour of the petitioners.
2. The facts leading to the filing of the Constitutional petition briefly stated are as follows.
The petitioners' predecessor-in-interest Ghulam Nabi was a Chaukidar in the Resettlement and Employment Department. In that capacity he was allowed to live in a quarter of Faridkot House Lahore. Reliance is placed on Annexure `A' which is an office order dated 6-7-50 issued by the Administrator of the Directorate of Resettlement and Employment. The petitioners claim this to be an allotment order. A perusal of it shows that the office order entailed that Ghulam Nabi, should not be disturbed and asked to vacate the quarters unless the quarters attached to the building No. 3, Begum Road, where the Directorate had shifted, were got vacated by the Rehabilitation Department and their possession was given to that office for which the Rehabilitation Authority had already been approached. The petitioners further claimed that on a plot of about 2 kanals, their late father and they jointly raised construction and had been tethering their cattle therein. They claim to have filed CH form No. 1906 under Settlement Scheme No. 1 on 13-11-59 for the transfer of the quarter. They also claim that they filed a BS Form No. 735 on 30-1 I-59 under Settlement Scheme No. VI for the transfer of this area of 2 kanals on the basis of construction raised by them. It is further their case that BS Form in respect of the plot was dismissed by the D. S. C. (Plots) on 9-9- 70 whereas the CH Form for the transfer of the quarter submitted by them was rejected by the D. S. C. Centre-I, Lahore on 10-6-70. Both these orders were appealed against separately. However, the learned Additional Settlement Commissioner Khawaja Abdus Sattar, consolidated both these appeals and disposed them of vide his order dated 28-11-73. Both the cases were remanded.
3. In pursuance to the aforesaid remand the matter was taken up by Muhammad Yaqoob D. S. C.
(Plots) Faridkot House, Lahore who vide his order dated 11-5-74 rejected the BS Form filed by the petitioners after holding that the plot belonged to Faridkot House in the premises of which office of Settlement Department. Was located. He further held that this plot was the same which was auctioned on 28-7-71 and the confusion regarding the identity of the khasra number was `also removed by him on the basis that it was an error. The finding was that the correct Khasra Number of the plot was 3192 and not 3912. As regards the dis--posal of CH Form, he directed the parties to approach the D. S. C.-I., Lahore. This order of the D. S. C. Was assailed in revision before Syed Walayat Ali Bokhari Settlement Commissioner, Lahore Division, Lahore, who vide his order dated 17- 9-75 while purporting to accept the said revision petition, remanded the case to the D. S. C. For disposal in the light of the guidelines provided by him. Thereafter, Mr. Muhammad Fayyaz Qureshi, D. S. C. Appears to have taken up the proceedings regarding the disposal of the plot. He vide order dated 9-8-76 held that since the petitioners were in possession of a plot measuring 1 kanal 16 marlas 136 square feet out of Khasra No. 3192 and had raised permanent construction consisting of ten rooms and filed the BS Form within time, they were entitled to the transfer of the same under Settlement Scheme No. VI. He, however, deferred the question of demarcation of this plot as well as the adjacent plots with regard to which there was also a dispute to be decided after further inquiry and recording evidence.
4. The same Officer namely Mr. Fayyaz Qureshi D. S. C. (Plots) then took up the case for disposal of quarter on CH Form in pursuance to the order of Kb. Abdus Sattar D. S. C., dated 28-11-73. Mr. Muhammad Fayyaz Qureshi, vide his order dated 21-2-77, held the petitioners entitled to the transfer of the portion shown in their possession in the attached site plan measuring about one Kanal as house under Settlement Scheme No. I, being independent unit.
5. In this set of circumstances, the present writ petition was filed on the plea that Transfer Orders were not being issued by the Department in disregard of the orders by Mr. Muhammad Fayyaz Qureshi, Notified Officer dated 21-2-77 and 9-8-76 and the Department-was taking steps to dispossess them despite the fact that this Officer had held the petitioners entitled to the transfer of the quarter and the adjacent plot. It was further alleged that even reasons for this attitude and stance were not being disclosed.
6. When this Constitutional petition came up before me for hearing, I called for report and parawise comments from respondent No. 2 which were received. The Department in addition to the desired report and parawise comments, also filed their written statement. I also directed the respondent to produce the records which was made available and perused. The case was accordingly admitted to regular hearing and notice was issued. It was agreed to by the learned counsel for the both sides to argue the matter on the same day. In fact during the earlier stages both sides had been urging their points and referring to the record.
7. The learned counsel, Ch. Muhammad Nazir Ahmad, appearing on behalf of the Settlement Department strenuously opposed the writ petition on the ground that after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, by virtue of the mandate of Act XIV of 1975, no Notified Officer enjoyed any power, authority or jurisdiction to remand a case which stood transferred to him as a pending proceeding. He placed strong reliance on the provision of section 2 of Ordinance XIV of 1975, which required a Notified Officer to whom a pending proceedings was trans--ferred, to himself dispose of that matter finally. It was urged that Syed Walayat Ali Bokhari, Settlement Commissioner, Lahore on 17-9-75 while remanding the case to a D. S. C. Acted wholly without jurisdiction and thus his order was coram non judice and a complete nullity in law which was liable to be ignored. Reliance has been placed on a decision of this Court in Ahmad Din v.
Bashir Ahmad and others (1). The order of Mr. Muhammad Fayyaz Qureshi, dated 9-8-76, it was submitted, was wholly without jurisdic--tion because the Officer notified as Settlement Commissioner was wholly in--competent to confer jurisdiction on Mr. Muhammad Fayyaz Qureshi against the plain provision of the statute. The stand taken, therefore, by the Depart--ment has force that it was not bound to honour such a nullity which was liable to be ignored.
8. As regards the second order of Mr. Muhammad Fayyaz Qureshi, dated 21-2-77 with regard to the quarter, it was contended on behalf of the Department that it was without jurisdiction because be was disposing of the CH Form despite being notified as D. S. C. (Plots) who lacked jurisdiction over the subject-matter.
9. The learned counsel for the Settlement Department, however, strenuously contended that the case put up by the petitioners on their own showing was with respect to the quarter and the contiguous land claimed to be 1 kanal 16 marlas and 135 square feet. The area of the quarter, it was submitted, was not more than one marla and in fact it formed part of the offices of the Settlement Department which had fallen into disuse because of deterioration in the structure. It was further submitted that there were tamperings and interpolations with the Settlement record. The duplicate CH Form placed on file by another Notified Officer on 7-10-76 was also alleged to be an act of forgery so as to show the area of the quarter to be 18 marlas as against one marls. There was interpolations alleged in the plan which was relied upon by Mr. Muhammad Fayyaz Qureshi in his order dated 9-8-76. The Department's case in short was that the petitioners had no entitlement and they could not lawfully take away valuable portions of Faridkot House, Lahore, through collusion with Settlement staff, un--authorised entries in record and tampering of documents. On the legal plane, it was urged on behalf of the Settlement Department that the two orders of Mr. Muhammad Fayyaz Qureshi, apart from being based on collusion and fraud, were against the plain provisions of the statute and were complete nullity in law. Reliance in this respect was placed on the decision of the Supreme Court in Ch. Altaf Hussain and others v. Chief Settlement Commissioner (2), and Muhammad Jamil Asghar v. The Improve-- Trust (3), for the proposition that if an order is clearly without jurisdiction which could not have been passed under the statute by a functionary, then where Settlement authorities came to the conclusion that the order was such a nullity,-the same could be ignored and it did not require to be set aside formally. The precedents cited indeed support the submission.
(1) P 1. D 1979 Lah. 330 (2) PLD 1965 SC 68
(3) PLD 1965 SC 698
10. In respect of both the orders it was urged on behalf of the respon--dents that there prevailed a confusion and uncertainty as regards material aspects of the case and the Notified Officer Mr. Muhammad Fayyaz Qureshi, had failed to objectively ascertain the facts and honestly decide the matter. The Department, ii was stated, was conducting an inquiry into these matters for appropriate action. The High Court, it was thus urged, ought not to exercise its discretionary Constitutional jurisdiction to give effect to orders of questionable validity of a Notified Officer which was the result of collusion, fraud and forgeries. These allegations of the respondents were vehemently denied by Ch. Khurshid Ahmad, learned counsel for the petitioners. Reference to the summoned record including registers was made by both sides in support of their respective contentions.
11. During the course of the hearing of the arguments, the learned counsel for the petitioners Ch. Khurshid Ahmad and the learned counsel for the respondents Ch. Muhammad Nazir Ahmad reached an understanding and decided to follow a compromise course. The learned counsel for the petitioners asked for opportunity to consult his clients who were also present with him and this compromise was also assented to by the petitioners. Thus both the learned counsel joined in the prayer that the cases in respect of the quarter as well as the plot may be remanded for fresh disposal by a Notified Officer of the status of Settlement Commissioner to be nominated by the Member Board of Revenue (Settlement and Rehabilitation) for final disposal. It was further prayed that it should be left open for the parties to raise all the available pleas of facts and law which may be available to them. There was an apprehension expressed by the petitioners as well as their learned counsel that the Department will evict them even before the decision was given by the Notified Officer after remand by this Court. Ch. Muhammad Nazir Ahmad,' the learned Legal Advisor for the Settlement Department assured that no step of this nature would be taken till the case is decided in remand by the Notified Officer. The petitioners thus stood satisfied.
12. In view of the fact that both the parties have arrived at a compromise and pray for the disposal of the writ petition in terms thereof, I am not required to give an elaborate judgment dealing with the manifold A contentions of both sides on the factual as well as the legal plane. This is also the spirit of the submissions made by both sides before me lest any side's case is prejudiced by the observations made.
13. In view of the compromise arrived at between the parties, and their consent, which amounts to admission in the face of the Court, there is ample authority for the view that a Constitutional petition can be disposed of in terms of the compromise between the parties. I am satisfied that there prevails a fair degree of uncertainty and confusion as to the true state of facts including the identity or the existence of the two properties and the manner of disposal of cases by Mr. Muhammad Fayyaz Qureshi. The order of Syed Walayat Ali Bokbari, Settlement Commissioner, was also an order which was wholly without jurisdiction as he had no jurisdiction to remand a case to another Notified Officer as both of them were acting as persona designate. I am also satisfied that the orders of Mr. Muhammad Fayyaz Qureshi, dated 21-2-77 and 9-8-76 suffer from serious legal infirmities as he had not applied. His conscious mind in a judicious manner to all the matters and material which was necessary to come to a just and correct decision. Even otherwise the petitioners would not stand to gain unless the case is remanded to the Settlement Authorities for fresh decision in view of the nebulous state of affairs and confusion prevailing regarding material aspects and the stance of the Department regarding the validity, scope and import of the various orders whose implementation is being sought through this Constitutional petition. The learned counsel for the petitioners seemed to appreciate these aspects in adopting the course which he did.
14. As regards the relief to be granted in a Constitutional petition, there is ample authority in the words of late Chief Justice Hamoodur Rehman In re: Maulana Syed Abul A'la Maudoodi v. The Government of West Pakistan PLD 1964 SC 673at p. 791 to the effect, "in any event the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as it had been asked for". The relief that I propose to grant in this case would be permissible in the light of the dictum though being orally made at the hearing.
15. In view of the above facts and circumstances I would set aside the orders of Mr. Muhammad Fayyaz Qureshi notified as D. S. C. (Plots), dated 9-8-76 and 21-2-77 and of Syed Walayat Ali Shah Bokhari notified as Settlement Commissioner, Lahore Division, Faridkot House, Lahore dated 17-9-75 purporting to remand the case to a D. S. C. Which was a pending proceedings and could not have been so remanded by him. I would further remand the cases with respect to the quarter as well as the building site/plot to a Notified Officer of responsible level to whom the cases are entrusted by the Member Board of Revenue (Settlement and Rehabilitation). It shall be open for the parties to raise all available pleas both on facts as well as on law. The Notified Officer shall apply his conscious mind to all the material contentions raised by the parties including the question of the entitlement of the petitioners as well as the allegations of forgery, fraud and collusion: He shall inspect the spot personally, receive evidence, hear the parties and then give the final decision.