' The dispute between the parties relates to the land bearing Khasra Nos. 395, 430, 437, 439, 454/443, measuring 104 kanals, 17 marlas situate in the revenue estate of village Keer Khurd, within the limits of Lahore Corporation. This land together with some other land was confirmed in the name of respondent No, 3, against his verified claim for agricultural land, by order dated 8-8-1972.
Passed by Mr. Zaka Ullah Naik respondent No, 2, the then Additional Commissioner (Revenue), Lahore. This order was given affect in the RL-II Register on 11-8-1972. By means of three separate registered sale deeds dated 18-8-1972, the allottee sold away this land to the petitioners, in whose favour, on the basis of the sale deeds, mutations were also sanctioned in the revenue record.
2. On 7-9-1972 Shamim Ahmad Baig respondent No, 1 moved an application before respondent No, 2, for recall of the order dated 8-8-1972, inter alia on the plea that he was the temporary allottee of the land in question, but was not served with any notice or heard and that he was a co-sharer in a claim for agricultural land, permitted to be filed by the Central Government, which was pending for verification. This application was allowed by respondent No, 2 and the order dated 8-8-1972 recalled by his order dated 16-9-1972. He maintained that Shamim Ahmad Baig was entitled to retain the land as temporary allottee till the issue as to the verification of his claim, was determined by the Central Record Office. However, under the same order he allotted land comprising Khasra Nos. 889/8, 364, 191, 413, 175/2, 442, and 227/2 measuring 178 kanals 16 marlas to respondent No, 3.
But on 18-9-1972, respondent No, 4 acting as an attorney for the latter, disposed of this land, by way of sale, in favour of respondents Nos. 5 to 7.
3. The validity of the order dated 16-9-1972 has been called in question by the petitioners through this writ petition on a number of grounds. I have heard the learned counsel for the parties at some length and examined the record with their assistance.
4. It is to be seen that the respondent's claim for agricultural land measuring 11 1/2 acres was verified on 14-10-1980 by an Additional Claims Commissioner, in compliance with the order dated 29-1-1980 passed by a learned Single Judge in W. P. No, 1121/R-79. The respondent rested his title on an oral gift made to him by one Mst. Riaz-un-Nisa, a displaced person from Hyderabad State, whose time-barred claim, was entertained under the orders of the Central Government and verified on 8-5-1975, for 100 acres of agricultural land, as 1/8th share of the land measuring 800 acres, left by her deceased's father in village Usman Pura District Aurangabad, Hyderabad Daccan.
In column No, 6 of Schedule No, V of her claim, she stated that an area measuring 15 acres was gifted by her to the respondent.
5. In this connection the petitioners' learned counsel very seriously questioned the competence of the Central Government to allow her to file a time-barred claim and further extensively attributed forgery and fraud to the respondent, his predecessor-in-interest and so also to his attorney, namely. Ch. Muhammad Altaf Advocate, who also acted as counsel for Mst. Riaz-un-Nisa. To support his submission, the learned counsel invited my attention to various interpolations in the claim's record. He also heavily relied on the order dated 18-11981, passed by Rana Mahmood Ahmad, Additional Claims Commissioner and asserted that the order dated 29-1-1980 was procured by the respondent by practising fraud and misrepresentation on the High Court. Likewise the validity of the verification order dated 1440.1980, was also assailed on a variety of grounds.
6. It was further argued that even if the respondent was treated as a claimant, his claim for agricultural land could not have been adjusted against the land in dispute which lies within an urban area. Much emphasis was laid by the learned counsel on the argument that in the face of Patwari's unequivocal assertion, embodied in the impugned order, that no claim by the respondent was pending with him, the learned Additional Commissioner, acted wholly illegally, in restoring the laud to the respondent. The learned counsel for the petitioners also referred to Khata No, 78 of RL-II register whereby the order dated 8-8-1972 was implemented on 11-8-1972 and it was urged that the latter order was never challenged by respondent No, 1 before any appropriate forum and thus it attained finality.
7. Pivotal argument advanced on behalf of the petitioners is that they are bona fide purchasers, for consideration, without notice but they were never impleaded as a party, and the allotment was recalled without hearing them.
8. Out of the various contentions, raised on behalf of the petitioners, the foremost issue requiting determination would be as to whether or not the petitioners had the right to he heard by the learned Additional Commissioner, before order dated 8-81972 was recalled. Being not unaware of the impact of the right of hearing, Mr. M. Asif Jan, who argued the case on behalf of respondent No, 1, on 8-2-1982, placed before me an affidavit dated 22-1-1972 of Mr. Zaka Ullah Naik wherein it is stated that at the time of hearing the case, the petitioners were present , before him as parties concerned,
9. It is not possible to dislodge the petitioners' argument on the strength of this affidavit. From the perusal of the original record, I find that the petitioners were not party to the proceedings and there is nothing on the file to suggest that they ever appeared before him. This record would outweigh the affidavit, sworn by the learned Addl. Commissioner without the intervention of the Court. I am, therefore, not inclined to accept the respondent's plea that the petitioners participated in the proceedings.
10. The learned counsel for the respondent, however, came forth with another plea, that he was the temporary allottee of the land ; the order dated 8-8-1972 having been passed without notice to him, was wholly void and did not confer any right on the petitioners or for that matter their predecessor-in-interest to claim a right of hearing. On the authority of Mst. Shahzadi Asfia Sultana Begum v. The Chief Settlement and Rehabilitation Commissioner (1) it was vehemently urged that before passing the order dated 16-9-1972, affording of an opportunity of being heard, to the petitioners was not necessary.
11. It is not disputed that the petitioners purchased the land from respondent No, 3 by means of registered sale deeds. Whatever the rights were held by the vendor in the land, these stood transferred to the purchasers. A situation not dissimilar to the one in hand also arose in Zulfiqar All Shah v. Muhammad Hassan (2) a Division Bench of this Court took the view ' The petitioners have paid for the entire land confirmed in the name of the vendors. They, therefore, legitimately claim that they have become persons aggrieved the moment they are sought to be deprived of any part of the land purchased by them even if the basis be that the vendors had obtained it by misrepresentation. They, further, rightly, claim that before being deprived of that property they should be given a chance of being heard by the Deputy Settlement Commissioner before whom they might have been able to prove that such misrepresentation did not take place.
The vendors having been divested of the land by sale had no interest Ieft in it and consequently had no interest either in defending the case before the Deputy Settlement Commissioner with the ability and vigilance which they would have done if they had not sold it."
' The proposition that the purchaser from an allottee has a right to be heard also finds support from Mukhtaran v. Mst. Nur Begum and another (3).
12. In the Peshawar ruling referred to on behalf of the respondent the Chief Settlement Commissioner, transferred on negotiation basis a property, as a big mansion, though its monthly rental value being below Rs, 500 it could not be transferred as such. Furthermore, at the relevant time the only power vested in him was to dispose of the big mansions, by unrestricted auction.
Upon these facts and the law governing the disposal of big mansions Mr. Muhammad Daud Khan J.
Maintained that the Chief Settlement Commissioner's order did not clothe the transferee with any right enforcable in law. I feel that instant case is directly covered by the rule laid down in the two D.
B. Lahore authorities. It is quite clear that whatever the evaluation of the order dated 8-8-1972, in law, qua Kanwar Aftab Ali Khan, may be, the fact remains, if the petitioners succeed in bringing their case within the ambit of the doctrine of bona fide purchasers for value, without notice, they cannot be striped off their right of hearing, and the land taken away from them without affording them an opportunity to place their case before the Tribunal concerned.
(1) PLD 1964 Pesh. 114 (2) PLD 1971 Lah. 108
(3) P L 1) 1972 Lab. 282
13. Rana Muhammad Sarwar, the learned counsel for respondent No, 1 then very seriously questioned the petitioners' claim of being bona fide purchasers for valuable consideration. In his submission, they are lawyers and should have known, that the order dated 16-9.1972 could not be sustained, as respondent No,1 who was the temporary allottee, was deprived of the land in an illegal manner they did not make any enquiry as to the vendor's title and rather purchased the land in an undue haste. It was thus submitted that the petitioners cannot be-considered to have acted in good faith and with reasonable care to earn the protection under section 41 of the Transfer of Property Act. In support of his these submissions, the learned counsel referred to Australasia Bank Lid. v. Bashir Barton Stores, etc. (1) and Ilahi Bakhsh v. Hassan Khan (2).
14. Before going ahead, these two rulings may be examined. In Australasia Bank's case, the purchaser entrusted the enquiry into vendors' title to a broker and thus was not considered to have acted with reasonable care an d in good faith. To my mind this ruling has no bearing on the facts of the instant case. In Ilahi Baksh v. Hassan Khan, vendees sought protection under section 41 of the Transfer of Property, Act, but their claim was negatived by the High Court as the true owners were found all along in possession of the land and mere appearance of the names of the vendors in the jamabandi was not considered as an implied or express consent of the former for the purposes of section 41. Anwarul Hach J. (as he then was), on review of the case law on the subject, came to the conclusion that the question of implied consent of the true owner is a matter to be decided on the facts of each case and observed :- "It will be seen that with regard to the question of inquiry to be made by the vendee, the principle which emerges from these authorities is that if there are no circumstances disclosing any reasons for going behind the revenue entries, then the vendee is protected if he has bona fide acted on the entries appearing in the revenue records
15. The petitioners claim to have relied upon RL-1I register and assert that there was no reason for them to have gone behind the entries in the revenue record An adjudication of their this contention and answer to the question, as to whether or not they are bona fide purchasers for consideration, without notice, requires a deeper probe into the facts of the case, which exercise I would prefer to avoid in these proceedings. It would, however, suffice to say that they are entitled to have their this claim considered but it was not at all considered by the Tribunal below.
16. The learned counsel then drew my attention to the status quo order dated 29-9-1972, to point out that in violation of this order, the petitioners sold away the land to the Lahore Cantonment Co- operative Housing Society cited as respondent No, 9 and they further took up a false stand before the Court that the land was compulsorily acquired by the said Society.. He also referred to the order dated 4-7-1977 passed in C. M. No, 2517/77, whereby the petitioners were directed to furnish
(I) PLD 1971 Lah. 133 (2) PLD 1966 Lah. 654 ' a bank guarantee in the sum of Rs, 4,90,912 to the safeguard the interest of the Housing Society. It was forcefully asserted that this direction was also complied with by the petitioners. The learned counsel highlighted these lapses of the petitioners to canvass that by their conduct they were disentitled to any discretionary relief under the writ jurisdiction of this Court and drew upon Saleh Shah v. Custodian of Evacuee Property (1), Qamar Din v. Maula Bakhsh (2) and Abdul Khaliq v.
Sultan Butt (3).
17. I have gone through this case-law as well. The proposition laid down by the Supreme Court in Saleh Muhammad v. Custodian of Evacuee Property (4) is that a litigant who does not come to the Court or a tribunal, with clean hands is not entitled to any assistance. In Abdul Ghani v. Abdul Ghafoor (5) the High Court refused to allow any relief to a petitioner as he was found to have committed an interpolation in the date of delivery of the certified copy of an order to save limitation for filing a revision. The Supreme Court declined to intervene with this refusal and maintained that the jurisdiction exercised by the High Court was discretionary. In the ruling of Abdul Khaliq's case relief was refused to the petitioner on account of laches as he failed to give any reasonable explanation of the delay in filing the writ petition.
18. I find from the record that the learned Judge who passed the order dated 4-7-1977 which is said to have been violated, did not choose to proceed against the petitioners and rather made another order requiring them to furnish bank guarantee, to secure the interest of the respondent-Society in respect of the sale price paid by it to the petitioners. There is a photostat copy of the bank guarantee on the file and to that extent the petitioners cannot be said to be defaulters.
19. The proposition that impropriety of a person's conduct disentitles him to the grant of discretionary relief, under the writ jurisdiction of the High Court, is not an absolute principle of law but is a rule of equity governing the course of administration of justice, to be applied in appropriate cases, by the Court at its discretion. In the case of patent illegality and want of jurisdiction apparent on the proceedings, in order to keep the inferior tribunals within their limits the Courts have been intervening unhesitatingly. In the instant case the parties who are gentlemen of the Bar, have made accusations and counter accusations against one another. The hearing of the case lamentably remained replete with dimensional allegations of fraud and tampering with the official records. Lack of jurisdiction and certain patent illegalities of the tribunal below were also pleaded.
After giving careful consideration to the facts and attending circumstances of the case, I am not inclined to refrain from exercising constitutional jurisdiction for the reason that the petitioners conducted themselves objectionably after institution of the writ petition.
20. The petitioners are an aggrieved party. They acquired valuable rights in the land in dispute but the allotment was cancelled without hearing them. The order dated 16-9-1972 being violative of the principles of natural justice, cannot be upheld. It may be observed that respondent No, 1 has stoutly refuted the allegations of fraud and
(1) 1971 SCMR 543 (2) 1968 SCMR 137
(3) PLD 1973 Lab. 313 (4) 1971 SCMR 543
(5) 1968 SCMR 1378 ' forgery but since the case is being remanded to the authorities below, these contentions as well as other pleas of the parties, need not be decided in these proceedings.
21. For the foregoing reasons, this writ petition is accepted impugned order declared to have been passed without lawful authority and the case is remanded to the Member, Board of Revenue (Settlement F & Rehabilitation Wing) for its entrustment to an Officer notified under section 2 (2) of Act XIV of 1975. The application of respondent No, 1 for recall of the order dated 8-8-1972, shall be treated as pending and disposed of afresh, in accordance with law. Both the parties shall be at liberty to raise any contention against one another. There shall be no order as to costs.