' Petitioners herein question the orders dated 31-12-1983 passed by the Notified Officer under section 2(2) of the Evacuee Property and Displaced Persons' Laws (Repeal) Act, XIV of 1975 in suo motu revision application No, Sett. 15 of 1974 whereby that officer restricted the P.T.D issued in favour of the petitioners' predecessor in title to Survey Nos. B-2761 and B-2762, situated at Sarafa Bazar, StAkur, in the result excluding from such transfer Survey No,B-2763/3, situated in the same locality.
2. On facts, petitioners plead that City Survey Nos. B-2761, 2762 and 2763/3 adjoin one another, belonged to one set of evacuee owners and a single structure stood thereon. It is stated that, at the relevInt time, one Nawab Bux filed C.S. Form for transfer of Survey Nos. B-2761, 2762 and 2763, Sarafa Bazar, Sukkur, the last of which Survey numbers, in fact, allegedly, denoted Survey No,B-2763/3, as there neither exists nor, at any material time, has ever existed any such Survey number as B-2763.
A number of documents have been brought on record. Such documents include an application on C.S. Form by the above-referred Nawab Bux. Wherein, as aforesaid, he sought transfer for the purported property situated on Survey Nos. B-2761, 2762 and 2763 and, as to occupation, showed himself alone as in such occupation. It appears that P.T.O., dated 6-3-1960, was issued in his name in respect of the same City Survey numbers for which he applied. An inspection was made by the Settlement Department in respect of the same units for which inspection report dated 8-4-1960 was submitted wherein the same survey numbers, as applied for, are mentioned. On 24-8-1960, a letter was issued by the Department to Nawab Bux in which, as well, the same numbers were cited.
Subsequently, through an Agreement of Association, dated 21-1-1965, Nawab Bux surrendered his rights in favour of one Rasool Ahmed, who happens to be the predecessor of the present petitioners. P.T.D. Was later applied for and issued in the name of such Rasool Ahmad on 17/20 November, 1966. In the impugned order it is observed that even in the said Agreement of Association, the Survey numbers are similarly mentioned as above. However, it transpired that, at the time when P.T.D. Was issued, even though application for its issuance, again, as observed in the impugned order, was made for the same Survey ;Ambers, such P.T.D. Was issued for Survey numbers B-2761, 2762 and 2763/3.
3. The position taken by the- petitioners is that shortly after making the initial application it was realised by the original transferee Nawab Bux and later by his successor Rasool Ahmed that Survey No, B-2763 was wrongly invoked and applied for, when what was really meant was Survey No,B- 2763/3 and in the proceedings which followed the correct survey number was clearly mentioned.
Reference was made to and my attention was sought in respect of order dated 25-3-1966, of the Deputy Settlement Commissioner, order dated 28-3-1966 passed by the same officer, order dated 31-10-1966 by the Additional Settlement Commissioner and, finally, order dated 1-10-1970 of the Settlement Commissioner in all of which orders the transferred property is indicated to be situated on Survey numbers 2761, 2762 and 2763/3. It was thus urged that the case involved a mere misdescription of numbers, at the initial stages and that such misdescription was rectified, in the ultimate analysis, on the basis of the foregoing orders, which were consciously and lawfully passed.
4. On the other hand, the case of the contesting respondents is that one Saleemullah, who was the husband of respondent No,4, Mst. Kishwar Jehan, and brother of respondent No,5, Haleemulah, having been in possession of City Survey Na. 2763/3, which consisted of ground and first floors, duly applied for the same but, having died issueless before transfer maturing in his favour, such respondents are his legal heirs, and entitled to succeed him in his rights, such as they were. The case of these respondents is that Saleemullah, who alone was rightfully entitled, was made to run from pillar to post, without success, since the petitioners' two predecessors, one in title and the other also lineal, had, fraudulently and unlawfully, got Survey No, B-2763/3 included in their final transfer document (P.T.D.) thereby depriving the former of his due rights and entitlements. The story does not end here and the petitioners allege that, during the intervening period, they applied for and even secured the eviction of the said Saleemullah from the disputed property, which property, according to them, subsequently, collapsed and nothing, therefor, as of now, remains at the site except a bare piece of land.
5. This case has a chequered history and has come to this Court twice before, firstly in Constitution Petition No, 315 of 1970, where Rasool Ahmed questioned the order dated 16-4-1970 of the Chief Settlement Commissioner, directing the Settlement Commissioner, Karachi, to take up the case of the disputed transfer in Suo Motu Revision and, on hearing the parties, which included Saleemullah, "dispose of the property bearing No,2763/3 separately, being an independent unit." Such petition was dismissed, leaving Rasool Ahmed, aforesaid, to advance such pleas in his defence, as be relevant, as and when the Suo Moto Revision was taken up. Order to this effect was passed on 26-3-1974. Per order, dated 4- 9-1975 the Suo Motu Revision was disposed of, holding that inclusion of Survey No,2763/3 in the PTD of Rasool Ahmed was nothing but fraud and directing transfer of the same to Saleemullah. This occasioned the filing of Constitution Petition No,72 of 1976, following upon which the case was remanded for passing ,a more comprehensive order. It would be convenient to reproduce hereunder a relevant excerpt from the order of remand of my learned brother Nasir Aslam Zahid, "No order could be shown by the learned counsel for the petitioners by any Settlement Authority whereby the transfer of property bearing No,B-2763/3 had been ordered in favour of Nawab Bux or Rasool Ahmed. Learned counsel for the respondent No,6 had shown me a certified copy of the surrender deed, which refers to properties No,2761, 2762 and 2763. The PTO also gives the survey numbers transferred to Nawab Bux as Shop No,B-2761 to 63. It is for the first time That in the PTD the Property No,B-2763/3 appears. The Additional Settlement Commissioner has not given any reasons, on the basis of which he came to the conclusion that the insertion of Property No, 2763/3 was a fraud committed by Rasool Ahmed or Nawab Bux."
6. It is manifest, therefore, that clear finding at that time, was given that Survey No, B-2763/3 for the first time, appeared at the stage of P.T.D., even though the initial transfer orders pertained to Survey No, B-2763 and not to B2763/3. Nothing has been shown to me, even now, suggesting that such observation was incorrect. In point of fact, in addition to what has been recited in para. 2 above, the original applicant, Nawab Bux, also made, an application on 8-12-1960 wherein he continued to refer to the disputed numbers, as B-2761, 2762 and 2763. Not only that, the proceedings, which are referred to above, in the way of orders dated 25-3-1966, 28-3-1966, 31-10-1966 and 1-1-1970, wherein Survey No,B-2763/3 is mentioned, are such that three of them namely, those dated 25-3- 1966, 28-3-1966 and 31-10-1966 happen to be shortly prior to the issuance of P.T.D. On 20-11-1966 and one of them namely, 1-1-1970 is subsequent to the same. However, as observed, PTO was issued on 6-3-1960 and there is a gap of no less than 6 years before, for the first time, the purported correction started to surface, while the Agreement of Association contracted as late as on 21-9-1965 still carried the same mistake, if that was a mistake at all. Likewise, the application for issuance of P.T.D. Was no different. In any case, the referred orders on which the petitioners rely heavily are, really, of no consequence in so far as the numbers of the properties are concerned because such orders seem to have been initiated on the basis of an application by the transferee seeking re- valuation of his property and any mention of numbers therein cannot be otherwise than a mechanical reproduction of those very numbers, which must have been mentioned by the transferee himself. Even if that were not so, mere mention of numbers, without due application of mind and without hearing those affected means and signifies nothing. No reason has been advanced before me and nothing has been shown to have lawfully motivated the authorities to issue P.T.D., inducting Survey No, B-2763/3, as well, when PTO was sought the way it was, Appendix X was similarly issued, Agreement of Association was likewise submitted and even P.T.D. Was no differently applied for No exception, thus, can any longer be taken to the finding, in the impugend order, that such result came about only on account of exercise of fraud.
7. It is settled law that, much like a person who can transfer only that which he owns or to which he is entitled, an applicant, seeking transfer under the Displaced Persons' Laws, can only get what he had applied for and to which he was found to be lawfully entitled. Not only that, under the Displaced Persons (Compensation & Rehabilitation) Act, an applicant can only get one house or one shop, as the case may be, but he must, also, show himself to be in possession if the application is on C.H. Or C.S. Form. In the instant case, the relevant applicant showed himself to be exclusively in possession of the entire property he applied for and, categorically, stated that no one else was in possession of any portion thereof. Subsequently, when the matter came up for re-valuation such property was shown to be a small shop of which the upper storey had already collapsed. This is what is reflected in the order of the Deputy Settlement Commissioner on a report dated 23-12-1960.
Still, somehow, the said transferee issued a notice to the predecessor of the respondents Nos. 4 and 5, maintaining him to be the occupant of the upper floor of the property transferred to him and, as claimed by the petitioners, such measures, ultimately, resulted in an effective order of eviction. Matters did not rest there but the whole property was demolished, attemptedly, leaving no trace to locate as to what was what and where the disputed entities were situated. Fortunately, there is, on record, a certified copy of relevant sketch from the City Surveyor, Sukkur, wherefrom the location and dimensions of the disputed property can be verified and transfer orders. Can appropriately, be given effect to. Nonethless, the case clearly smacks of fraud.
8. Correspondingly, respondents maintain that Saleemullah applied on C.H. Form and expressly so applied for house bearing No, B-2763/3, described such property as consisting of ground and first floors but, till very late in the day and that too on the basis of suo motu orders in revision, subsequently, on technical grounds, set aside by my learned brother Nasir Aslam Zahid, J., got nothing and even got evicted in the process. However, the referred City Survey Sketch clearly shows Survey Nos. 2761, 2762 and 2763/3 to be independent, with specific boundaries and dividing walls, as well as, inlets and outlets. It would have been unfair in the extreme not to have treated them to be such, particularly when more than one person could be rehabilitated in the process.
9. It may, here, bear mention that whereas the Municipal Assessment for Survey numbers B-2761, 2762 and 2763 is shown to be Rs, 50, Survey No, 2763/3 is separately assessed and, at that, assessed twice at Rs,
30. What is more, if Survey No, 2763 were taken to be the same, such Survey number is, in the Municipal Record, assessed thrice. Obviously, it would be erroneous to go by any such assessm ent. Since Survey No, 2763 does not exist at all in City Survey Record, municipal assessm ent for Survey No, 2763 is meaningless and inconsequential. Mr. Farkhand Ali, for the petitioners, tried to lay strees that, in the Survey Record, Survey No, B-2763/3, though separately mentioned, is in the common ownership of the same Evacuee owner. Common ownership of Survey numbers is hardly relevant as a displaced person can only get one unit of property.
However; even on this basis, one thing is clear. The petitioners have still secured more than what they actually deserved or were entitled to, since they, per the impugned order itself, have been allowed to retain two independent Survey numbers namely Survey Nos. 2761 and 2762. There were infirmities even in such transfer, for the Agreement-of Association, submitted by their predecessor, does not seem to have beenjn order, because, an Agreement of Association was acceptable only if the transferee was unable to pay the balance price in cash but as only Rs, 14 remained outstanding such condition was, patently, not satisfied. In the same context the Deputy Settlement Commissioner only passed an order to the effect that the Agreement of Association may be "admitted", if found to, be in order. The matter is not shown to have been put up before him again but the Association was given effect to. This clearly was not an exercise of proper power, because, if what was meant was a delegation of authority to the subordinate Settlement staff the statute did not permit it. Even so, the impugned order seems to be fair as, in spite of an observation, more or less to the foregoing effect, transfer of Survey Nos. 2761-62, in favour of the petitioners, has not been .Set aside.
10. It was contended by Mr. Farkhand Ali that there was no notice to all the petitioners, following upon the order of remand and only two of the petitioners were served by a notice which was, generally, addressed to all the legal heirs of late Rasool Ahmed. It was, thereupon, urged that the impugned order, being in negation of the principles of natural justice was bad and could not be maintained. On facts, this position is not clearly established. The impugned order is totally silent on the question, implying that no such objection was raised before the Notified Officer. Now, what is maintained here is that, on 26-12-1983, an application for adjournment was moved by petitioner Fazal Ahmed before the Notified Officer stating that his Advocate, Mr. Nasrullah Awan, had gone to.
Rawalpindi to spend his winter vacations in that region. The case, it is said, was not adjourned for a reasonable period of time in that it was adjourned only for 28-12-1983, when Mr. Abdul Majeed Khan, Advocate, was engaged and sought adjournment, resulting in postponement to 31-12-1983, on which date it was heard and the impugned order was pronounced. Even Mr. Abdul Majeed Khan, allegedly, represented only petitioners Nos. 5, 9 & 10. Such allegations have been denied in the counter-affidavit but are reiterated in the Affidavit in Rejoinder. There is, therefore, only word against word. On such question, no copy of Vakalatnama, either in favour of Mr. Nasrullah Awan or in favour of Mr. Abdul Majeed Khan has been filed to substantiate the allegations whereas the impugend order speaks of Mr. Abdul Majeed Khan having appeared for the petitioners herein. It is pointed out by Mr. A.M. Mubin Khan, for the respondents, that while Mr. Abdul Majeed Khan was appearing for the petitioners' predecessor in the first petition filed in this Court, Mr. Nasrullah Awan appeard in the second .Such petition. Nor is it shown that any prejudice has been caused to anybody. All the petitioners are inter-related, being successors of Rasool Ahmad and got, obviously, in touch with one another, as, inter alia, reflected in the filing of this petition, and, further, they claim on the basis of the same title. The interest of all the petitioners was thus duly accounted for, and if there was anything amiss they have, in addition, fully been heard in this Court. I am, therefore, unable to find that the impugned order suffers from any illegality on this score. In more or less similar circumstances, in the case of Tradax Ocean Transportation S.A. v. The Muslim Commercial Bank 1984 SCMR 360 the Supreme Court of Pakistan has observed that where at an interlocutory stage, joinder of a party was not ordered in the proceedings, but its counsel was heard, interest of the party stood fully safeguarded.
11. As regards the question of fraud, Mr. Farkhand Ali relies upon Fatehyab Khan v. Amtul Hafeez PLD 1963 Kar. 953, Muhammad Hussain v. Chief Settlement Commissioner PLD 1966 Lah. 204, Mst.
Mumtaz Jehan Begum v. Settlement Commissioner 1981 CLC 774 and Muhammad Latif v.
Islamuddin 1987 SCMR 113 in which cases it has, inter alia, been held that a form for transfer, once withdrawn, cannot be re-filed, that differences as to Survey numbers may be immaterial if the parties have litigated consciously in respect of specific numbers, and that disputes as to boundaries and even fraud with regard to such properties can be disposed of in a suit, after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, as well as, of Rules 6 and 7 of the P.T.D. Rules. Correspondingly, Mr. A.M. Mubin Khan has relied on Shaikh Muhammad Amin v.
Chief Settlement Commissioner, ,Pakistan Lahore and another 1987 SCMR 56, Muhammad Rashid Khan v. Ch. Saeed Akhtar and others 1987 SCMR 441, Faizuddin Ahmed v. Muhammad Yousaf and another 1988 SCMR 1289, Waheeduddin Kitchlew v. Chief Settlement Commissioner and 2 others 1988 SCMR 1424, Khadjia Begum v. Muhammad Khalil 1989 SCMR 665 and Muhammad Shafi v.
Sardar Noor Muhammed and others 1989 SCMR 728.
12. The dicta laid down in the above authorities, shortly, is that, in respect of pending proceedings, settlement authorities are fully competent to determine a question of fraud and, if such be the determination, P.T.D. Can be cancelled and re-called. There is no period prescribed within which a fraudulent act may be recalled. Forgeries fall within the same category. Settlement authorities do not become functus officio if transfer has been finalised in favour of an individual without disposing of the claim or entitlement of a rival.
13. In any view of the matter, PTD in this case covered a property which was neither applied for nor transferred. Even the application seeking issuance of PTD, for what it may be worth, did not cover such property. In so far as the PTD included such disputed property, it has rightly been found to be based on fraud. Besides, it is obvious that the matter of the C.H. Form of late Saleemullah was pending and required to be, disposed of in respect of the specific property which it had sought the transfer of. Such disposal was made in Suo Motu Revision and competently.
14. Mr. Farkhand Ali had laid stress on the fact that, at one stage, Saleemullah, aforesaid, had maintained that he had refused to take transfer because of some confusion in the survey numbers etc. It would appear that such an assertion was made, if at all, in the context of pot initially applying for transfer, which situation stood duly rectified by a proper' submission of form that, in due course, was considered. Such an averment cannot be equated with withdrawal of a transfer form after it was submitted.
15. Neither can the petitioners' contention regarding identification and demarcation of the property be considered favourably. In the first place, so long as the Settlement Authorities are seized of the lis they are competent to determine all such and other relevant 'questions. Even after disposal of conflicting interests their jurisdiction does not stand totally ousted and may, in appropriate cases, be still lawfully invoked. Thus, in Maqbool Ahmad v. Settlement Commissioner NLR 1983 Civil 450 the Supreme Court has held that clarification as to exact portions of property transferred to parties under PTD falls within the jurisdiction of the Settlement Authorities. Likewise, in Mst. Memoona Begum v. Syed Mahmood Ali 1983 SC MR 404 the same Hon'ble Court took the view that a finding regarding the dimensions of portions in a property, being one of fact, will be not interfered with unless it suffered from manifest infirmity, perversity or illegality. Similar view found favour with the Court in Abdul Karim v. Muhammad Abdullah 1988 SCMR 313.
16. In the ultimate analysis and principally, constitutional jurisdiction involves reliefs of a discretionary nature and can neither be used in aid of injustice nor to perpetuate an illegality and, least of all, in favour of those who approach the Court with unclean hands.
17. It is also to be pointed out that through this petition, the petitioners seek to question the determination of disputed facts, made at the level of the Notified Officer. Normally, disputed facts cannot be entered into in Constitutional jurisdiction and where such facts may be examined, the scope is narrow and very limited involving, amongst others, situations fraught with perverse exercise of powers of manifesting abuse of jurisdiction or passing of mala fide or colourable orders.
Not only that none of these appears to be the case here, the situation may even be diametrically opposite. As such, I see no merit in this petition and dismiss it with costs.