The facts which have led up to this Misc. Appeal and which are, except on minor points not in any dispute are that the respondent No. 2 namely the Deputy Settlement Commis--sioner, Mirpur Khas put to public auction premises bearing No. B-153 at Sanghar and that the appellant's bid of Rs.
14,400 which was the highest was accepted. The purchase money was then paid by the appellant by utilizing the Compen--sation Book of respondent No. 4 with whom he entered into an agreement of Association for the purpose. According to the appellant this book was originally valued at Rs. 80,000 but of this there is no evidence but even according to the respondents it was valued at some figures which was subsequently reduced to Rs, 18,000. This is the only point of difference of fact between the parties and is immaterial to the present question. On the 31st August 1963 the Settlement Commissioner confirmed the transfer and admittedly the appellant has been in possession of the premises since then. On 13-2-1969, however, respondent No. 2 addressed a letter to the appellant stating that the Compensation Book of respondent No. 4 had been reduced to Rs. 18,000 and that, therefore, he should within ten days pay the sum of Rs. 14,400 in cash as the price of the premises in question failing which the property would be resumed. The appellant then filed a suit in the District Court of Sanghar impleading as the defendants the Republic of Pakistan.
The Deputy Settlement Commissioner, Mirpurkhas, the Deputy Settlement Commis--sioner Bahawalnagar and respondent No. 4 namely Abdul Ghafoor the person to whom the Compensation Book belonged. Respondent No. 4 is since dead but his legal representatives were ordered to be brought on record and have been served by publica--petition but have remained ex parte.
2. The suit was for declaration that the orders of respon--dents 2 and 3 were without jurisdiction and a nullity in law and that the transfer of the shop to the appellant was valid and could not be interfered with and also asked for a permanent injunction restraining-respondents 1, 2 and 3 from giving any effect to the order which I have mentioned namely that the appellant pay the sum of Rs.
14,400 falling which the property would be resumed. In the course of this suit the appellant asked for an injunction pending the disposal of the suit to restrain the defendant-respondents from interfering with his possession of the shop. The learned Additional District Judge who heard the application granted an ad Interim stay but after hearing the defendants decided to vacate it on the ground that the plaintiff had made out no prima facie case. The main ground upon which the learned Judge came to this conclusion was that the Compensation Book of the respondent No. 4 dad been reduced and that therefore, the authorities were right in demanding the price from the appellant in as much as the value of the Compensation Book as reduced had already been utilized. Holding that the transfer to the appellant was not in question he thought that the appellant should pay the money and that if he hail any claim to rake It would be against respondent No. 4 only for return of the money or whatever other relief might be possible. The Compensation Book he held had created a relationship between respondent No. 4 and the Settlement Authorities and that there was no privity therefore between the appellant and the Settlement Authorities.
3. Now the answer that the title of the appellant to the property was not being questioned and that he was merely bein8 asked to pay the price was really no answer to the appellant at all; the whole point of the matter was whether or not he had already paid the cost of it by utilizing the Compensation Book in question or whether he was required to pay 14,400 being the price, which latter could only be upon the assumption that the Compensation Book was not available for the purpose. The question therefore really was whether Settlement Authorities could insist upon resuming the property unless the money was paid in cash. However, holding as he did, the learned Judge as came to the conclusion that the plaintiff appellant had no prima facie case and therefore dismissed the application for injunction. It is against this order that the present appeal is brought.
4. Pending disposal of this appeal which was admitted to regular hearing the appellant asked for a stay restraining respondents 1, 2 and 3 from giving effect to their earlier orders and preventing them from interfering with the possession and title of the appellant over the premises in question; this stay was granted by an order dated the 19th of October 1970 upon condition that a Bank Guarantee for the sum in question would be furnished, Instead of a Bank Guarantee, however, the entire sum of money that is Rs. 14,400 was deposited by the appellant in this Court on the 2nd November, 1970. It is on account of this order that he continues to remain in possession.
5. Now the main contention of Mr. Ikram Ansari, appearing for the appellant before me, was that before the respondents could pass the order in question namely the one dated 13-2-69 he was entitled to be given a notice to show cause why such an order should not be made and for that purpose he relied not only upon the general principle that no order should be passed to the prejudice of any party without giving him an opportunity of showing cause, but also upon statutory provisions and judicial decisions. In part the answer of Mr. Burney appearing for the respondents was that the order in question was itself a notice and it is obvious therefore, that the language of this order is of the greatest importance in this case for deciding the major question involved. Yet, surprisingly enough neither party has placed a copy of this order on the record nor has either applied for calling for the record and proceedings of the Court below. Fortunately, however, Mr. Burney had in his possession the Departmental file and the order in question is a part of that file and I therefore saw the order in question for myself and Mr. Ikram Ansari agreeing that it was an accurate copy since he himself had an uncertified copy, I have had a copy typed out and signed by both counsel in token of its being correct. Since so much turns upon the language of this document, I reproduce it in full:--- Office of the Deputy Settlement Commissioner, Tharparkar No. DSC/MPS/496 of 1969Mirpurkhas dated 13-2-1969.
To.
Mr. Ghazi Khan son of Sono Khan Nizamani, Shop No. B-153, Sanghar.
Subject :-Shop No. B-153 Sanghar.
You had purchased the above shop for Rs. 14,400 in auction held on 21-8-60. You had paid the entire auction price in association from Compensation Book No. 32275 issued against 'A' Form No. BWN/269-270 in the name of Abdul Ghafoor son of Madar Bux. On verification of genuineness of the Compensation Book, the Deputy Settlement Commissioner Bahawalnagar under his No. SSC/BWN/69/69/294 dated 8-2-1969 informed that the Compensation Book stands reduced to the extent of Rs. 18,000. Adjustment of Rs. 14,400 Prom this Compensation Book towards the price of the above shop stand cancelled. You are now required to pay Rs. 14,400 in cash within 10 days failing which property should be resumed and made available for disposal according to law.
(Sd.)
Deputy Settlement Commissioner, Mirpurkhas.
6. Reliance was placed by learned counsel for the appellant upon a Memorandum dated the 16th August, 1960, that is to say five days before the auction in this case took place and which is reproduced at page 476 of the Manual of Settlement Law and Procedure issued by the Chief Settlement Commissioner, Pakistan which reads thus:- "Reports have been received that there are a number of bogus Compensation/Rehabilitation Books in the market. The Chief Settlement Commissioner has therefore, decided that each and every Compensation/Rehabilitation Book presented before the Settlement Authority concerned should be carefully scrutinized before it is accepted for payment of the transfer price of a property or for any other purpose. All the Compen--sation/Rehabilitation Books will ultimately be checked up by the Settlement Account and Records Office, Lahore with the original file of the Claims Organization after the record of the Claims organization has been taken over by the Settlement Organization. In the meanwhile the following scrutiny may please be carried out by the Deputy Settlement Commis--sioners and other Settlement Authorities concerned.
(i) If the Compensation Book has been issued by the Settlement Authority before whom it is presented, the book should be compared with the duplicate copy maintained by such authority.
(ii) If a Compensation/Rehabilitation Book has been issued by some other authority, a confidential letter as in the "Annexure" may be sent to toe issuing authority (by name if possible) for verification of the book etc.
2. An agreement of association or any other transaction in which the Compensation Book is proposed to be utilized should not be utilized unless the Compensation has been scrutinized as above.
3. If after scrutiny it is found out in any case that a fraud has been committed or is intended, the case may be handed over to the Enforcement Staff immediately for further necessary action.
4. The above instructions will apply to the Compensation/Rehabilitation Book presented to a Settlement Authority in future. Agreements of Association or other transaction which have already been finalized may also similarly be dealt with. Since particulars of Compensation Books which were presented by the parties concerned as available in the Agreement of Association and other relevant documents, there should be no difficulty in furnishing the necessary particulars to the issuing authority for scrutiny. If In any case it is suspected that a fraud has been committed, the person concerned should be given a notice to produce relevant Compensation/Rehabilitation Book afresh and the case may then be handed over to the Enforcement Staff."
Now it is clear that this Memorandum makes provision for the scrutiny of Compensation Books in order to avoid just such a fraud as has taken place in the present case. In this present case It is the case of the respondents that the original Compensation Book was only for a sum of Rs. 23,820, not Rs. 80,000 as claimed by the appellant and that he had sold it to various parties who had utilized it to the extent of Its. 41,820. Consequently so far from there being any balance on the Book he was bound to repay a sum of Rs. 18,000. Now it is obvious that the question whether the original figure of the Compensation Book was 80,000 or 23,000 does not really make any difference. The point is that according to the respondents a fraud had been committed and that therefore according to the last sentence in the Memorandum which I have just quoted, the person concer--ted should be given a notice; it is true, that the person concerned here, could mean the owner of the Compensation Book though this has not been argued by, the respondents before me. The actual word used, however, is "the person concerned: and regard being had to paragraph 2 of the Memorandum in which an agreement of Association is contemplated, such as has admittedly taken place between the appellant and respondent No. 4, the words are I think wide enough to include the person who has utilized the Compensation Book. My attention was invited by learned counsel for the appellant to the case of Mohammad Siddique v. Chief Settlement and Rehabilitation Commissioner (PLD 1965 5 C 123), in which case the Supreme Court observed at page 133 :- "It is plain that before the Impugned order was passed by the Settlement and Rehabilitation Commissioner the second and third appellants who had been associated with the first appellant with the requisite permission of the Settlement authorities themselves, had acquired a vested right in the property in question and had been issued a P. T. O. In their favour, jointly with the first appellant. Without giving them any notice or an opportunity to be heard, the Settlement and Rehabilitation Commissioner could not have interfered with their property rights. In so far as he did so, he contravened the principles of natural justice and this circumstance, alone would invalidate the impugned order. To this part of the appellant's case neither Dr. Nasim Hasan Shah nor the learned Attorney -General was able to give an answer."
Clearly their Lordships were contemplating a case which was in material particulars very similar to the one now before me; in that case too, the persons who are referred as the second and third appellants had been associated with the first appellant and their Lordships are holding that they had acquired a vested right in the property in question and had been issued a P. T. O. If not by reason of the Memorandum then at least on the principles of natural justice this judgment is clear authority for the proposition that a lack of notice would vitiate the order in Question.
7. Mr. Ansari then went on to argue that since it was the respondents' own case that respondent No. 4 had associated sixteen other persons in his book if the loss has to fall upon these persons it should fall upon them pro rata and not that he alone should be made to pay the entire sum of Rs.
14,400. Now this is really difficult to decide because I have no data as to how much was utilized by whom and in any case those other persons are not parties before me. In any event I am exercising a very limited jurisdiction just now ; I am by no means attempt--ing to decide the suit all that is before me is an appeal from the refusal to grant an injunction. In view, in any case of the conclusion that I am reaching upon the main point it is unneces--sary to consider this question any further.
8. Reliance was next placed upon the provisions of section 7(3) of the Registration of Claims (Displaced Persons) Act, 1956 (Act III of 1956) which reads as follows:- "An order of the Deputy Claims Commissioner revivifying a claim under subsection (2) shall, for purposes of appeal, revision and review, be deemed to be an order under sec--petition 6."
The argument is re-enforced by reference to the decision of the Supreme Court in Atta Mohammad v. The Settlement Commissioner (PLD 1971 SC 61), the relevant passage being as follows: "Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising authority not to make any adverse order, against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this pre-requisite, it would certainly lack jurisdiction:'
9. Now Mr. Burney did not deny that notice was necessary but claimed that the order of 13-2-69 itself was a notice. I have already quoted this order in full and I regret, I am unable to find anything in that letter which can be regarded as a notice. It is a final order requiring the appellant to pay the sum in question failing which the property would be resumed. There is nothing in the letter whatever saying that he should within a stated period of time show cause why the property should not be resumed. By no stretch of language can this order be regarded as a notice such as the law contemplates either by reason of the statutes which I have mentioned or on the principles of natural justice.
10. Mr. Burney however maintained that whatever the merits of the matter might be the suit was in any case barred by section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Act XXVIII of 1958 which reads thus :- "Save as otherwise provided in this Act no civil Court shall have jurisdiction In respect of any matter which the Central Government or an officer appointed under this Act is empo--wered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." The bar of jurisdiction however under section 25 is that no injunction, process or order shall be granted by any Court in respect of any action taken or to be taken in exercise of any power conferred by or under the Act. It is to be noted that there is no such expression as "purported to be taken"; if the order itself is without jurisdiction then it is not an order under the Act at all, and I need hardy refer to authority for the proposition that merely because an order is made purporting to be under particular Act then it must be so regarded even though the Act does not give such jurisdiction. Reference however, might be made with advantage to the following passage from Mohammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 2011): "According to this section the jurisdiction of the civil Court is expressly barred in the case of an order passed by a Rehabilitation Authority under the Ordinance i.e., in strict conformity with the provisions thereof. Where this is not so, the civil Court cannot be deprived of its powers of inter-- ference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection."
11. Mr. Burney finally argued that the appellant had a right of appeal under section 19 of the Displaced Persons Act but I really do not see, how that can make any difference. This is a suit and not a petition under Article 98 of the 1962 Constitution or 201 of the Interim Constitution where the existence of an alternate remedy is a bar to the exercise of jurisdiction. The mere fact that an alternate remedy exists is no bar to the maintenance of a suit.
12. I have therefore come to the conclusion that the plaintiff clearly had made out a prima facie case and the balance of convenience clearly also is in his favour. I therefore allow this appeal, set aside the order of the Court below and grant an injunction pending the disposal of the suit restraining the respondents 1, 2 and 3 from interfering with the possession of the plaintiff-appellant over shop No. B-153 situated in Sanghar. Subject however to the condition that a sum of Rs. 14,400 deposited by them in this Court shall continue to remain deposited pending the disposal of the suit. The appellant shall have the costs of this appeal.