1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to Muhammad Sadiq who has since died to examine whether the High court had justifiably by its order dated 2-6-1976 refused relief to him on his failure to implead in the constitutional petition Mst. Janat Bibi the mother of respondent No.1.
2. The dispute between the parties relates to a Shop No. 142 in Kahuta classified as a major village for the purposes of Settlement Scheme No. VII. This shop was allotted to Muhammad Rafiq on 4-9- 1958. After getting the allotment, he sought its possession and the Tehsildar acting as Assistant Settlement Commissioner passed an order directing delivery of possession of the shop to him. An appeal was preferred to the Deputy Rehabilitation Commissioner (Land) by Muhammad Sadiq predecessor-in-interest of the appellants which was allowed and his ejectment from the shop was refused. A revision petition was then filed before the Additional Settlement Commissioner who dismissed it on 19th of December, 1962 by observing as follows-- "By now settlement scheme No. VII has been enforced and there--after the question of ejectment from any evacuee property in rural area does not arise. The case would, therefore, be dealt with under scheme No. VII as already held by the learned D.R.C. (Land). It may, however, be added that the shop under consideration is situated at Kahuta which has been declared as a Town Committee for the last few years. The case would, therefore, fall under para.5(1) of scheme No. VII and the Assistant Settlement Commissioner, Kahuta would, therefore, consider the merits of both the parties for the transfer of this shop in accordance with the law on the subject. With the above remarks the revision petition is rejected".
3. The respondent Muhammad Rafique once again approached the Tehsildar for getting the possession of the shop and his case was recommended by the Tehsildar and forwarded by the Revenue Officer on which the Deputy Settlement Commissioner (Land) passed an order on 31st of August, 1965 agreeing with the report of the Tehsildar and directing the handing over of possession of the shop to the respondent. An appeal was preferred against that order to the Additional Settlement Commissioner (Land), Rawalpindi, which was allowed on the sole ground that the occupant Sadiq had not been heard and the matter was remanded to the D.S.C. (Land) for a fresh decision after hearing the affected person.
4. On remand the matter was taken up by the D.S.C. (Land). He took note of the orders passed in 1962 and upheld the order of the D. R. C . Dated 14-9-1962 omitting to take note of the order passed in revision by the Additional Settlement Commissioner on 19-12-1962.
5. The appellant Muhammad Sadiq applied for the transfer of the shop in his possession under Settlement Scheme No. VII and it was transferred to him by an order of the Assistant Settlement Commissioner, Kahuta, on 11-3-1967. Against this order an appeal was filed by Muhammad Rafiq but it was dismissed on 26th October, 1967 and the observation was-- "The appellant was granted enough opportunity by the lower Court to prove his contention that he is in occupation of the shop in dispute before 1-1-1961 but he has failed to prove his contention".
6. The price of the shop which was in the neighbourhood of Rs.1,000 was deposited by the appellant on 10th of April, 1967 and a Permanent Transfer Order issued to him on 11th of April, 1967 reserving the following right of the Settlement Department in the property:-- "The Settlement and Rehabilitations Authority shall be entitled to resume the whole or any part of the said property if such authority is satisfied and records a decision into that writing effect, that the transfer of the said property or any other compensation in any form whatsoever under the scheme had been obtained by fraud, false representation or concealment of any material fact on the part of the transferee or of his predecessor in-interest".
7. Janat Bibi the Mother of respondent Muhammad Rafiq addressed an application on 7th of April, 1969 to the Martial Law Administrator, Tehsil Kahuta. In this application, it was contended that the shop was allotted to Muhammad Rafiq who had given it out at the rent of Rs. 15 per month to the appellant who had manipulated to get it transferred ignoring altogether rights of her son. The application was marked by the Martial Law Headquarters to the Tehsildar for investigation and a report on facts. An inquiry was held by the Tehsildar who submitted a detailed report, the relevant portion of which is re-produced hereunder:- "The Additional Rehabilitation Commissioner had referred the parties to get the case dealt under Scheme VII, when the ejectment of Muhammad Rafiq from the shop was under issue. It shows that since Muhammad Rafiq remained in occupation of the shop against the consent of the original allottee of the shop resentment on the part of allottee never abated, and he did not relax in seeking redress of the wrong, which he thought had been done to him. Another point which should have been worth consideration of the Rehabilitation authorities, Was that had the original allottee surrendered his rights to a local shopkeeper, how could he ask for the ejectment much before coming into force of Scheme VII? It seems that he thought him as a trespasser after the local man asserted his right of possession over the shop, regularly allotted to him".
8. He concluded the report with the following observations-- "I do not think that if we proceed on the principle of justice and equity we can ignore the rights of claimant Muhammad Rafiq who remained in possession of the shop since the partition and was dislodged through ingenious and contrivance and legal hitches created under garb of Rehabilitation law".
9. On this report the Headquarters Martial Law Administrator Sub-Sector 2 communicated to the Deputy Settlement Commissioner and to the Additional Deputy Commissioner its conclusions in the following words:-- "The contents of the investigation carried out by Tehsildar, Kahuta has been gone through minutely and it is considered that allotment of the disputed shop to Muhammad Sadiq is unjustified. It is desired that the case be reviewed and decision given as soon as possible with an intimation to this office".
10. The Deputy Settlement Commissioner moved the Chief Settlement Commissioner on 4th of December, 1969 observing as follows:-- "Muhammad Rafique approached the Martial Law Authorities. The Martial Law authorities have ordered that the case be reviewed afresh. The relevant file is sent herewith".
11. The permission was sought for suo motu revision' of the order which was granted by the Chief Settlement Commissioner. It was in the following words:-- "Worthy Chief Settlement Commissioner, Pakistan, by his order, dated 31-12-1969 has been pleased to grant permission to undertake suo motu revision by the Settlement Commissioner, Rawalpindi.
12. The Chief Settlement Commissioner has further ordered that the case must be heard and decided on merits on priority with intimation of decision to Headquarter Martial Law Sub-Sector 2".
13. It was in this background of events that the suo motu revision was taken up by the Settlement Commissioner, Rawalpindi, and on 24th of February, 1970 the only fault that he found in the transfer was that there was no application form filed by the appellant for it. He expressed himself on the subject and ordered as follows:-- "In the instant case no application for transfer of the property is found from the record, to have been made by Muhammad Sadiq. Whereas application for transfer of the property is suggested to have been filed by Muhammad Rafiq during March, 1967. Irrespective of what may the merits of Muhammad Rafiq vis-a-vis an application as suggested to have been made transfer of the property to the respondent Muhammad Sadiq would be void, ab initio on the simple ground that no application for the transfer of the suit property was made by him. With this basic 'lacuna of law transfer in favour of Muhammad Sadiq would call for to be set aside and is so ordered, with the direction that the case shall go to the Assistant .Settlement Commissioner (L) for its reconsideration towards the disposal of the property in suit afresh. In case an application by Muhammad Rafiq has been filed before him, it shall be considered by him on merits".
14. A constitutional petition was thereafter filed by Muhammad Sadiq which was directed against Muhammad Rafiq and Settlement and Rehabilitation Commissioner alone. The contention of the appellant before the High Court was that after the permanent transfer document had been handed over to him in 1967, the Settlement Authorities had become functus officio and in any case they had proceeded on an erroneous assumption of fact without recording a finding to that effect that no form had been filed and on that account the transfer in favour of the appellant itself was defective.
15. The learned Judge in the High Court did not deal with or decide any of the legal points that were noted. The decision was given on the sole ground that the omission to implead Mst. Janat Bibi was fatal to the proceedings and that in the circumstances, it was not proper to allow the appellant to implead her as a party. The constitutional petition was dismissed with the following observations:- "If a little care had been taken as to who are to be cited as respondents to these proceedings it would have been obvious even from the title of the impugned order itself that Mst. Janat Bibi had to be impleaded as party to these proceedings. For clear negligence no indulgence can be shown, especially when rights have come to accrue to other persons. In this view of the matter, this petition is liable to be dismissed on the simple ground that the person on whose motion the impugned order was passed has not been cited as a respondent in the proceedings. The property) had been ordered to be disposed of afresh and if the respondent had filed the form, his form had been ordered to be considered. If the property is transferred to the respondent, a displaced person then that is the end of the matter so far as the petitioner is concerned who is a local. If that is not done, then the petitioner---s case for transfer may be considered".
16. The learned counsel for the appellant has contended that on no principle of law could it be held that Mst. Janat Bibi was a necessary party to the proceedings in the High Court and her absence from the proceedings must necessarily lead to its dismissal. The shop had been allotted to Muhammad Rafiq who was impleaded as a respondent. It was his cause that Mst. Janat Bibi had taken up. She had not herself claimed any right either through her husband or through her son. She was not an aggrieved party nor had she filed a revision petition before the Chief Settlement Commissioner. As a matter of fact she had approached the Martial Law Authorities in order to get the Permanent Transfer Order in favour of the appellant cancelled. The Chief Settlement Commissioner had also in re-opening the proceedings exercised suo motu powers. In such a situation where no relief could be claimed against Mst. Janat Bibi nor in fact was claimed against her the proceed--ings could not be defeated or stultified by holding that she was a necessary party and her absence was fatal to the proceedings.
17. As regards the ground on which the suo motu revision was allowed the learned counsel urged that it has been recorded in defiance of the material on record. He has in support of his contention filed to attested copies of the application filed by the appellant on different dates earlier to the transfer order seeking transfer of this shop and that transfer had concluded with the dismissal of the appeal filed by the respondent. Besides, all the authorities even the Martial Law Authorities held that at the relevant date the appellant and not the respondent was in occupation of the property.
18. None of these authorities had held that Muhammad Sadiq was occupying the property at any stage as a tenant of the allottee. It was not the case of the allottee himself before the Settlement Authorities from whom he was seeking his eviction. It is contended, therefore, that the orders passed in suo motu revision are unsustainable on any ground whatsoever.
19. Proceedings before the High Court on constitutional petitions are as held by this Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 governed by the Code of Civil Procedure. Necessary parties under the civil procedure are persons who ought to have been joined as parties and in whose absence no effective decree or order can be passed. In the present case from whatever angle we look at the locus standi of Mst. Janat Bibi we find that she cannot be termed as a necessary party merely because she had moved a miscellaneous application before the Martial Law Authorities which had in turn led to the exercise of suo motu revisional powers by the Chief Settlement Commissioner. The parties at whose instance suo motu revisional powers are exercised cannot be in every case the necessary parties particularly so when no relief is sought against them in the proceedings and none on the facts of this case could be sought against Mst.
20. Janat Bibi. She was not directly the beneficiary of the order nor the success of the constitutional petition would have led to, the deprivation of any of her established rights. In the case of East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 it was held that where no relief is sought in the proceedings and the party is not directly affected by the relief sought in the proceedings that party is not a necessary party to the proceedings. At best it would be only a proper party. No proceedings can fail on account of the absence of a proper party. In the circumstances, we consider that the petition in the High Court could not fail on the ground that Mst.
21. Janat Bibi was not impleaded as a party.
22. The ground on which the suo motu revision was allowed is palpably untenable. Not even a finding was recorded that no form had been filed or no application had been made by the appellant for the transfer of the property. What was said was that the form was not traceable on the file. It appears that more than one applications for the transfer of the property were filed and they were on the appropriate file as it appears from the attested copies filed. Besides, in this case the Permanent Transfer Order had issued in favour of the appellant and the Settlement Authorities were for all purposes functus officio except to reopen the proceedings on the ground of misrepresentation or fraud as held by this Court in the case of the Chief Settlement Commissioner,) Lahore v. Raja Muhammad Fazil Khan PLD 1975 SC 331.
23. None of the authorities not even the Tehsildar who held the inquiry at the behest of the Martial Law Authorities has held that the appellant was not in possession on the crucial date or that his possession over the property was that of a tenant. It will be clear from the proceedings of which a gist has been provided above that the proceedings had concluded after repeated efforts made by the respondent to get possession of the property and his failure every the, and finally by the determination of his entitlement and dismissal of the appeal filed by the respondent.
24. What appears established ex facie from the record is that the determination of the entitlement of the appellant had taken place at the hands of a non-statutory functionary (Martial Law Authority) that the exercise of suo motu revisional power was at their behest and that interference with the Permanent Transfer Order was on palpably incorrect assumptions. Hence we allow this appeal, set aside the impugned order of the High Court, and further hold that the order of the Settlement Commissioner interfering with the permanent transfer in favour of the appellant as one without lawful authority and of no legal effect. The transfer in favour of the appellant shall remain intact. No order as to costs.