This is a Constitution petition by S.K. Masud, Mirza Ashiq Hussain, Mian Abdur Rauf and Muhammad Mohsih under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the finding of the Deputy Settlement Commissioner dated 10-7-1975 holding the transfer documents in respect of property in dispute in favour of S.K. Masud, Ashiq Hussain, Abdur Rauf and Muhammad Mohsin to have been based upon forged and fabricated auction proceedings and therefore, of no value.
2. The brief facts alleged in the petition are; that the plot in dispute was put to auction being conducted by auction committee comprising of J.D. Malik Chairman Deputy Settlement Commissioner a representative of the Deputy Commissioner. Muhammad Mohsin herein petitioner No.4 gave the highest bid of Rs.18,000; that the said bid was accepted by J.D. Malik the then Chairman of auction committee. The petitioner No.4 made the payment of Rs.17,288 through deposit of compensation book and AA.O. The provisional transfer order was issued to the said transferee on 22-12-1962. It was on 18-3-1964 the said Muhammad Mohsin surrendered his rights in favour of S.K. Masud and Mirza Ashiq Hussain. The balance amount of Rs.712 was paid by them on 29-6-1974. The association deed was accepted by the Deputy Settlement Commissioner vide order dated 28-4-1964 and Mirza Ashiq Hussain received amended P.T.O. On 28-3-1964.
3. Mst. Ruqqaya Begum instituted a complaint that she was the transferee of adjacent Bungalow No.90-G, Model Town, Lahore; that she was in possession of this plot and made a complaint that documents in favour of Mirza Ashiq Hussain and S.K. Masud were forged documents as the plot was never put to auction. The Deputy Settlement Commissioner undertook the enquiry and on 10- 7-1975 recorded the finding that the plot was never put to auction, that bid sheet in favour of Muhammad Mohsin existing on the record was forged document; it carried the forged signatures of the Settlement authorities and the auction was not incorporated into relevant record. The special committee appointed by the Government of the Punjab came to the same conclusion and held on 23-6-1975 that auction proceedings in favour of Muhammad Mohsin was a forged and fabricated proceedings. The Deputy Settlement Commissioner accordingly held that the plot is available for the disposal under the law.
4. The narrative of the facts will not be complete without noting that on 18-6-1974 the Deputy Settlement Commissioner passed an order to the effect that the disputed plot was lying vacant; that there was no construction in the plot and so the R.S.S. Form VIII riled by Murad Ibrahim and Harz Abdul Ghani were rejected. It was ordered that the plot may be disposed of through auction.
5. Feeling dissatisfied with the finding of the Deputy Settlement Commissioner and Special Committee Punjab the petitioner instituted the present Constitution petition.
6. On 23-8-1978, Mst. Shagufta Begum herein respondent No.3 applied for being impleaded as a party on the ground that she occupied 4 kanals out of the said plot, had raised the permanent construction over the 21/22 marlas of the plot in dispute and that she was entitled to its transfer under Scheme No.9. Her application was accepted. She was impleaded as a party and submitted her written statement. Similarly, Harz Abdul Ghani was impleaded as a party in consequence with application under Orer 1 Rules 8 and 10 read with section 151 of C.P.C. It was claimed in application that he was entitled to transfer of the plot in dispute on account of their actual physical possession.
7.Learned counsel for the petitioners raised following points: (1)It was submitted that the plot was auctioned by the auction committee on 28-4-1960.
Muhammad Mohsin was the highest bidder who deposited Rs.17,288 through compensation book with the A.A.O. The bid was accepted by the Add]. Settlement Commissioner; that the said transferee was issued P.T.O. Through deed of association he surrendered his rights in favour of S.K.
Masud and Ashiq Hussain. This deed was accepted by the Deputy Settlement Commissioner vide order dated 28-3-1964. Mirza Ashiq Hussain received the amended P.T.O. On 20-3-1964 and deposited the remaining price i.e. Rs. 712 on 29-6-1974. On the basis of the aforesaid narrative it was contended that the petitioners were the lawful transferees of the said plot and after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), the Settlement Authorities had no authority to re-open enquiry relating to P.T.O. Issued on 20-3- 1964. The reliance was placed on Muhammad Younus and 2 others v. Muhammad Younus Khan etc. (1981 SCMR 899), Raja Hassan Akhtar and others v. Akbar Khan and another (1981 SCMR 503), Ghulab Din v. Collector D.C. Kasur, etc. 1984 CLC 1636 and Fateh Muhammad and others v.
Deputy Commissioner (PLD 1989 Lah. 473)
(2)In the second instance it was contended that the transfer order was issued by the Deputy Settlement Commissioner, on 20-3-1964 and after the said date the Settlement Authorities had no business to deal with the property in dispute as it ceased to be evacuee property. On the strength of this argument, it was canvassed that neither the Deputy Settlement Commissioner nor the special committee had the authority to re--examine the genuineness of P.T.O. The reliance was placed on Muhammad Siddiq v. Chief Settlement & Rehabilitation Commissioner (PLD 1965 SC 123), Crescent Jute Products Ltd. v. Muhammad Yaqub etc. (PLD 1978 SC 270), Amir Din etc. v. Addl.
Settlement Commissioner etc. 1983 CLC 2836 and Abdul Jamil Asghar v. Settlement Commissioner
(Land) etc. (NLR 1981 UC 455)
(3) Thirdly it was suggested that Mst. Raqqaya Begum got initiated the proceedings by application given in the month of June, 1975; that Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), became effective from Ist July 1974 from which date all the Settlemnt Authorities functioning under repealed Laws were denuded of their authority. Therefore, the proceedings commencing from application to declaration of transfer orders were void ab initio and lacked the legal efficacy. The reliance was placed on Raja Hassan Akhtar and others v. Akbar Khan and others (1981 SCMR 503), Fateh Muhammad and others v. Deputy Commissioner T.T.
Singh and others (PLD 1989 Lah. 473) and (4)It was submitted that the finding of forgery is completely misconceived and without any material basis: It was urged that the plot was sold 1178 through public auction held on 18-4-1960 by an auction committee which comprised of Deputy Settlement Commissioner, the representative of the D.C. And Addl. Settlement Commissioner who headed the Committee. The auction was signed by SA. Qayyum, Deputy Settlement Commissioner. Lt.-Col. J.D. Malik, Addl. Settlement Commissioner approved the auction. The learned counsel for the petitioners invited the attention of the Court to bid sheet in the record of Settlement Authorities which was summoned by the Court on the application of petitioners. On the basis of these arguments it was submitted with emphasis that the petition merited to be accepted.
8. Learned counsel for Mst. Shagufta Begum, Sardar Muhammad Akram, Advocate, supported the impugned proceedings. So was the stand of Mian Saeed--ur-Rehman's Farrukh, learned counsel for Hafiz Abdul Ghani. Learned counsel for the respondents while replying the arguments of petitioners submitted that Constitutional jurisdiction was not available in favour of a petitioner who wanted aid in perpetuation of ill-gotten claim; it was submitted that this jurisdiction was extraordinary jurisdiction and had to be exercised in favour of persons whose rights were usurped; against whom the state functionaries used their powers in arbitrary, capricious and illegal manner.
It was contended that the plot was not put to auction at all. The auction bid is a totally forged document inserted into settlement record with the unholy help of the Settlement clerks. Neither the plot was put to auction nor Muhammad Mohsin gave the highest bid nor he paid the amount through compensation book. It was contended that agreement of association unveiled the whole truth. According to him, this memorandum of association was attested on 23-3-1964 while there was an order of the Deputy Settlement Commissioner on record that it was submitted on 16-3- 1964. The Deputy Settlement Commissioner appears to have signed it on 28-3-1964. Mirza Ashiq Hussain appears to have received the amended P.T.O. On 20-3-1964. These entries themselves reveal the concocted nature of the documents. It was further, argued that the corresponding entries of auction in C.S.S. Registers were missing. The stress was laid on the fact that had this document been executed on 16-3--1964 how it could be attested on 26-3-1964 and how Mirza Ashiq Hussain could receive the amended P.T.O. On 20-3-1964. It was finally contended that there is no explanation whatsoever on the record that partly amount of Rs.712 was paid on 18-6-1974 after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). On the basis of these submissions it was urged that the petitioners were not entitled to discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The reliance was placed on Yar Muhammad and 3 others v. Settlement Commissioner (L) Lahore 1985 SCMR 1346), Noor Muhammad and others v. Assistant Commissioner, (1988 SCMR 292) and Ghulab Din v. Collector D.C. Kasur etc. 1984 CLC 1636.
9.Continuing with their arguments learned counsel proposed that the Deputy Settlement Commissioner vide order dated 18-6-1974 recorded a finding that Plot No.89/G was lying vacant and was available for auction under Settlement Scheme No.9. The petitioners had not disputed this order before this Court and so this order had become final between parties.
10. Learned counsel for the Settlement Department vehemently supported the impugned finding and submitted that the petitioners have come to seek the aid of this Court in support of forgeries and manipulations. According to him .The, petition had no substance and merited to be dismissed on account of unclean conduct of the petitioners. He pointed out that according to the case of petitioners Mohammad Moshin had deposited Rs.17,288 out of Rs.18,000 how such a person can surrender his rights for a petty amount of Rs.712. This aspect demonstrated that the auction proceedings and the bid list was a deceptive document.
11. I have heard the learned counsel for the parties and perused the record annexed with the petition and perused the record of proceedings made available by the Settlement authorities.
Before determining the legal question it would be advantageous to note a few facts about this auction bid sheet (alleged pro forma); against the column relating to signatures of Settlement Authorities there are three signatures. One signature is in the column relating to Deputy Settlement Commissioner, second signature is before the column of representative of the Deputy Commissioner and the third signature is beneath the two signatures. Learned counsel for the petitioners represented, that the first signature was of SA. Qayyum while the second signature related to the representative of the Deputy Commissioner and third signature was the signature of Addl. Settlement Commissioner who signed as a token of granting approval.
12. There is no dispute that the disputed property was urban building site which was to be disposed of through unrestricted public auction. In order to regulate the auctions, elaborate procedure for holding auction was provided by the Settlement Department vide a Circular No. 1042-F & M- Reh/59, dated 12th November, 1959 (on page 397) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by M.A. Latif. (Edition 1969).
13.Relevant paras 4, 5, 6 of Circular are as follows: (4)The Auction Committee shall, for the purpose of disposal of building sites by an unrestricted public auction, be formed by the Additional Settlement Commissioner of the area, consisting of the following: (1)Deputy Settlement Commissioner of the area (Chairman).
(2)Assistant Settlement Commissioner nominated by the Additional Commissioner (Member).
(3)A representative of the Deputy Commissioner of the District or the Sub Divisional Magistrate of the Sub-Division concerned (Member).
(5)Two members of the auction committee including the Chairman shall form a quorum of the committee.
(6)Auction proceeding shall be submitted to the Additional Settlement Commissioner concerned who may or may not accept the highest bid without assigning any reason and may order fresh auction.
It is clear from the bare reading of paras. No.4, 5 and 6 and Circular that auction was to be conducted by auction commmittee constituted under para No.4 while approval had to be granted by the Additional Settlement Commissioner under para No.6 ibid. The circular therefore, provided an auction committee and an approving authority. These two were separate legal entities. The auction committee had to perform the role of auctioning the property inviting their offers and transmit to approving authority. It had to act like conduit. The approving authority was vested with the powers to accept and reject the auction after carefully considering the statements or offers. By no stretch of imagination these two entities can be amalgamated into one entity. Therefore, I have no difficulty in discerning true character of this document.
14. This bid sheet is remarkable piece of forgery. The signature of approving authority appears to be on the bottom without any seal of the authority. There is no conscious order passed by the approving authority in respect of approval. It indicates that this bid sheet is a manipulated document inserted into Settlement record to manufacture a footing for the claim of petitioners. The contention of the petitioners that the signatures of J.D. Malik tantamount to approval under para No.6 of ibid cannot be accepted. This argument is totaly fallacious and completely untenable.
15. Even otherwise the document of deed of association presents a most dismal picture. To begin with, this deed of association recites that second party shall make the payment of balance amount i.e. Rs.712; that the first party has surrendered his total rights in favour of second party in equal share; that the first party shall not be liable for any payment if the compensation book deposited by him is found to be bogus. This deed of association bears the seal of Oath Commissioner dated 26-3-1964. The Deputy Settlement Commissioner appears to have accepted this deed of association on 28-3-1964 while the entry relating to submissions of this deed of association is 16-3-1964. There is entry to the effect that Ashiq Hussain received amended P.T.O. On 20-3-19(4 without depositing the balance of price which was paid on 20-6-1974. As indicated above the entries of this document exclusively demonstrate that at the time of executing the deed of association Muhammad Mohsin had paid the Rs.17,288 out of alleged Rs.18,000; that for Rs.712 he transferred his total rights with an observation that if the compensation book was bogus he was not liable for further payment. That the amended P.T.O. Was given to Ashiq Hussain without the payment of balance price; that it was accepted on 28-3-1964 but the amended P.T.O. Was given on 20-3-1964 even the balance of price was deposited on 20-6-1974.
16. There is a circular by the Chief Settlement Commissioner wherein the payments through agreement of association were totally stopped after 30-6-1965 and a new system of payment by partnership was introduced vide a Press note dated 28-8-1965. This circular is at page 484 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1985) by MA. Latif 1969 edition.
No doubt is left in my mind that like auction bid, this deed of association was a forged document.
15. Having come to an agreement with the findings of the Deputy Settlement Commissioner that the auction proceedings as well as the transfer orders are forged documents, the question remains as to whether the Deputy Settlement Commissioner was competent to record the impugned finding in view of the enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), with effect from 1st July, 1975.
16. The authorities cited by the petitioners are of no help in this case; they proceed on distinguishable facts and the principles laid down in them are not applicable to the facts of this case. Therefore, it will be no use to comment upon these authorities.
17. Suffice it to say that the Deputy Settlement Commissioner- or the authorities who are the custodian of record have the authority to scrutinize the correctness and the genuineness of their own record. The Deputy Settlement Commissioner after the examination of the record came to the conclusion that neither the disputed plot was auctioned nor any authority passed an order in this respect. Auction Pro forma and transfer document were a forged instruments.
18. The petitioners have brought no material on the record to controvert the finding of the Deputy Settlement Commissioner on record. Uncertified copy of the bid was produced and, therefore, I am quite clear in my mind that the finding of the Deputy Settlement Commissioner does not suffer from any legal infirmity. On the basis of it the learned Deputy Settlement Commissioner was completely competent to examine the genuineness and forgery in his record.
19. The same question came up for consideration before the Supreme Court in Shamrooz Khan v.
Muhabbat Khan (1989 SCMR 819), in this case the land measuring. 3 marlas out of Plot No.1760, Ward-G, Rawalpindi was in dispute between the two brothers. The respondent claimed that it was transferred in his favour along with other portion of the plot measuring 10 marlas in the year 1964.
The disputed portion was treated to be available property in 1971 and was transferred to Shamrooz Khan, appellant. The Deputy Settlement Commissioner in pursuance of order of remand upheld its transfer in favour of Muhabbat respondent. The appellant gave an application to the effect that the Settlement tile relating to this case was fabricated one. The Deputy Settlement Commissioner gave a notice. Muhabbat Khan filed a constitution petition in the High Court which was accepted. The Supreme Court accepted the appeal and enunciated the following rule: "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate any matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The custodian of the record is the best Judge in the first. Place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court."
20. There is yet another aspect of the case. The petitioners have come to Court with unclean conduct. The petitioners neither placed on record certified copies of the original P.T.O. And the amended P.T.O. Dated 28-3-1964. They got deposited alleged balance price on 29-6-1974. After the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), the Settlement Authorities have ceased to exist. Therefore, the Settlement Authorities were not competent to receive the alleged balance price as this was not a pending case under sub-clause
(2) of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). According to my humble view this deposit was totally illegal.
21. The Constitutional jurisdiction cannot be exercised in favour of retention of ill-gotten gains.
Reference may be made to Nawab Syed R4unaq Ali etc. v. D Chief Settlement Commissioner and others (PLD 1973 S.C. 236) and Muhammad Ismail v. Abdul Rashid and 2 others (1983 SCMR 168).
22. 1n the light of foregoing analysis 1 have no difficulty in reaching the conclusion that the petitioners are not entitled to grant of relief in the extraordinary jurisdiction of this Court. The only question remains as to whether Mst. Shagufta Begum and Hafiz Abdul Ghani are entitled to any relief. It is a common ground between the parties, that the Deputy Settlement Commissioenr passed order dated 18-6-1974 by which the application of Murad Ibrahim and Hafiz Abdul Ghani was rejected and the plot was ordered to be disposed of through public auction. Learned counsel for Mst. Shagufta Begum and Abdul Ghani reiterated the same stand over here that in view of the stand of the respondents the order dated 18-6-1974 has become final.
23. In result, I find no substance in this petition. Accordingly this petition fails and is dismissed. The petitioners shall bear the costs of proceedings.
24. While parting with this case I feel it necessary to observe that the office shall despatch the record of this case which was summoned from the Deputy Settlement Commissioner (Plots)
Faridkot, House, Lahore without any loss of time. The Deputy Settlement Commissioner is further directed to keep this record under seal in order to save it from any further forgeries.