1. AJMAL MIAN, J.--Leave was granted against the judgment of the Lahore High Court dated 20-12- 1974 passed in Writ Petition No, 371-R/1969 setting aside the order dated 10-1-1969 passed by the Settlement Commissioner in exercise of revisional jurisdiction in which, he ordered that two rooms and kitchen etc. In occupation of the appellant be included in his transfer documents, to consider the question, whether the High Court was justified to set aside the above order in exercise of constitutional writ jurisdiction.
2. 2.The facts which may be noted briefly are that the property, bearing No, SW-III-53-S-28, situate at 28-Dayanand Road, Krishan Nagar, Lahore, (hereinafter referred to as the property) comprised of residential and commercial units. The shops were transferred to their respective occupants. The residential portion was divided by the Deputy Settlement Commissioner by his order dated 16-4- 1960 inter alia into two portions marked 'A' and 'B'. The controversy in issue was, whether the portion marked 'A' transferred to respondent No,1 included the two rooms and kitchen etc. Occupied by the present appellant or whether the same were part of the portion marked 'B' transferred to the appellant. The contention of respondent No,1 was that the appellant was not transferred portion marked 'B' but was transferred the portion which consisted of one kitchen, one barsati and a small compound. It may be observed that one Abdul Rehman was in possession of one room on the first floor which according to the appellant was in his unauthorised occupation. Be that as it may, aforesaid Abdul Rehman agitated the question of his entitlement to the portion in his possession inasmuch as he filed an appeal, a revision before the Settlement authorities, Writ Petition bearing No, 420-R/1963, and a Letters Patent Appeal in the High Court but all were dismissed. However, the Settlement Commissioner while dismissing aforesaid Abdul Rehman's revision observed as follows as to the entitlement of respondent No,1:-- "By this order I do not confirm the entitlement of Abdus Saghir Sherwani to the portion of the house occupied by Abdul Rehman. It is open to the lower Courts to take any decision they like."
3. The Deputy Settlement Commissioner had again taken up the matter before whom Abdul Rehman claimed transfer of his portion under the Settlement Scheme No, VIII. The appellant also appeared and contested respondent No,1's claim in respect of his two rooms. But the Deputy Settlement Commissioner by 'his order dated 6-2-1967 declined the appellant's request. The appellant filed an appeal against the aforesaid Deputy Settlement Commissioner's order dated 16-4-1960 and the above order dated 6-2-1967. He also filed an application for condonation of delay on the ground that he was not given any notice prior to the passing of the above order dated 16-4-1960. The said appeal was dismissed by the Additional Settlement Commissioner by his order dated 17-8-1968 on the ground of limitation. Thereupon, the appellant filed a revision against the aforesaid orders dated 16-4-1960 as well as dated 6-2-1967 which were upheld by the Settlement Commissioner in the above terms. Against the above order Writ Petition No, 299-R/69 was filed by Abdul Rehman challenging the transfer of one room in his occupation in favour of respondent No,1 but at some stage of the litigation he filed a statement stating no objection in favour of respondent No, 1 in respect of his aforesaid room. The appellant filed Writ Petition No, 371-R/1969 as he was not transferred the aforesaid room in occupation of Abdul Rehman, and respondent No,1 filed Writ Petition No, 242- R/1969 against the inclusion of two rooms in the appellant's P.T.O. The above petitions were disposed of by the above judgment of High Court, whereby the appellant's petition and Abdul Rehman's petition were dismissed and respondent No,1's petition was allowed. The leave Was granted to consider the above question.
3. Mr. Mahmood A. Qureshi, the learned A.O.R. For respondent No,1, sent a telegram dated 19-12-1989 stating that "respondent No,1 had taken Brief. No instructions." He did not seek adjournment of the case. Even otherwise, the above reason was not sufficient to seek adjournment. We, therefore, proceeded with the matter ex parte against respondent No,1.
4. 4.We have heard Mr. Munir Piracha , learned counsel for the appellant and Mr. Imtiaz Muhammad Khan, learned A.O.R. For the department, and we have also perused the record. The factual position, which emerges from the record is that the appellant was in possession of the two rooms and kitchen etc. On the ground floor of the property since 1948. He was issued P.T.O. No, 7046 dated 16-4-1960, wherein in the schedule of tranferee the following description of the property was given.-- "SCHEDULE OF TRANSFEREE Name Son/daughter wife/widow of s/o Address Share in property Syed Ali Shah S. Inam Ali Shahs/o 53-S-28 Krishan Nagar Lahore. Portion in possession (Marked B)."
5. Whereas respondent No,1 was also issued P.T.O. Bearing No, 707040 dated 16-4-1960, in which the description of the property in the schedule of transferee was given as follows:-- Name Son/daughter wife/widow ofAddress Share in property Abdul Saghir Sherwani Abdul Aziz Khans/o House No, 28 Street No, 53, Krishan Nagar Lahore.Portion in possession "A" including the (Latafat Ali and Syed Ali Shah Abdul Rehman possessee)."
6. 5.It may be observed that paras 5 and 11 of the Settlement Inspector's report dated 11-4-1960 at pages 70-72 of the paper book refer to the above portions 'A' and 'B' as under:-- "5. Abdul Saghir Khan Sherwani s/o Abdul Aziz Khan, being claimant and allottee since 30-12-1947 applied through Form CH/1231. He wants the tranfer of the whole house in his name. Marked portion "A" shown in the attached sketch, including the portions occupied by self, Latafat Ali Khan and two rooms of Syed Ali Shah on the ground floor and the portion occupied by Abdul Rehman s/o Allah Bux on the first floor, be transferred to him.
7. 11.Syed Ali Shah s/o Inam Ali Shah being non-claimant applied through Form NCH/554 for the transfer of his occupied portion. He occupies two rooms, one kitchen, one barsati and one store since 16-7-1948. Marked portion "B" in the attached sketch consists of one room one kitchen and one barsati including small compound be transferred to him after the payment of all dues."
8. 6.It may be pointed out that the P.T.O. Issued to the appellant does not indicate that the two rooms, which were in his occupation since 1948 were not transferred to him. Though the P.T.O. Issued to respondent No,1 shows that the above portion in occupation of the appellant has been transferred to him (i.e, respondent No,1) but there is nothing on record to indicate that the appellant was heard before he was deprived of his above two rooms by the Deputy Settlement Commissioner by his order dated 16-4-1960 nor there appears to be any legally sustainable ground to deprive the appellant of his two rooms, which he was admittedly in possession since 1948 and to transfer the same to respondent No,1, particularly because of the existence of a lane between the two portions.
9. It is true that the appellant filed appeal against the above order dated 16-4-1960 of the Deputy Settlement Commissioner after several years but the Settlement Commissioner addressed himself to the above question of limitation and for cogent reasons condoned the delay. Even otherwise being a revisional authority he could take cognizance of the matter of his own at the relevant time and, therefore, the question of limitation was of no consequence. In any case the High Court was not justified to interfere with the Settlement Commissioner's discretionary order to condone the delay as the same was done on good reasons.
10. 7.Mr. Piracha, learned counsel for the appellant has submitted that revisional power under section 20 of the Displaced Persons (Compensation & Rehabilitation) Act is akin to that of an appellate power and, therefore, the Settlement Commissioner was competent to have passed the order which was just and proper. Reliance has been placed by him on the case of Sheikh Rashid Ahmad v. Settlement Commissioner, Lahore and others 1970 SCM R 278, the case of Ch. Nazir Ahmad Bhatti v. Ch. Noor Muhammad and 3 others 1970 SCM R 716 and the case of Kala v. Board of Revenue and another PLD 1985 SC 208. In the above first two cases this Court while dismissing petitions for leave inter alia observed that the power of revisional authority under section 20(3) of the Displaced Persons (Compenation and Rehabilitation) Act is very wide and that revisional authority under the above provision is entitled to consider the propriety and legality of the order of the subordinate authority. It has also been observed that this power is very wide and the revisional authority is competent to pass any order which it finds fit in the circumstances of the case. Whereas in the third case this Court while construing inter alia section 13 of the West Pakistan Consolidation of Holdings Ordinance (VI of 1960) held that the revisional power vested in the Board of Revenue appears to be vast and unbridled in its scope and amplitude and the question of limitation cannot be a clog on exercise of such powers. We are inclined to hold that the Settlement Commissioner was justified in exercising the revisional power in the instant case in order to undo injustice which would have been perpetuated, if he would not have done so. He had addressed himself to the question of limitation and concluded that there was no occasion for the appellant to have challenged the order dated 16-4-1960 earlier as the P.T.O. Issued in his favour transferred the portion marked 'B' which was in his occupation. He also concluded that no reason had been shown by the learned Deputy Settlement Commissioner for not transferring to the appellant the two rooms in his possession and to tranfer the same to respondent No,1. He also pointed out that respondent No,1 in column No,10 of his CH form had not mentioned the name of the appellant as the occupant of the two rooms in question. He also highlighted the factum that there is a lane between the portions marked 'A' and '13' and, therefore, the portion marked 'B' in occupation of the appellant could not have been treated as a part of portion 'A' in occupation of respondent Not. The High Court, therefore, was not justified to press into service its constitutional discretionary jurisdiction to undo the above just order of the Settlement Commissioner.
11. 8.Even if we were to assume that the order of the Settlement Commissioner suffers from some legal infirmity, the facts of the case were such which warranted that the High Court should have declined to press into service its constitutional discretionary jurisdiction as it is designed and intended to foster the cause of justice and not to perpetuate an injustice. This Court has repeatedly held that it is not every illegal order which is liable to be set aside in exercise of the Constitutional jurisdiction.
12. The paramount consideration should be, whether setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice. In the latter case, the High Court should decline to press in aid its constitutional jurisdiction. It may be pertinent to refer to the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 in which Hamoodur Rahman, C.J. Made following weighty observation:-- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside has occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
13. The above principle has been reiterated by this Court repeatedly. Suffice to refer to the case of Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L, D 1975 SC 331, the case of Syed Nazim Ali etc. v. Syed Mustafa Ali etc. 1981 SCM R 231, the case of Muhammad Umar v.
14. Member, Board of Revenue and 9 others 1985 SCM R 1591, the case of Messrs Norwhich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCM R 1071 and the case of Zameer Ahmad and another v. Bashir Ahmad and others 1988 SCM R 516.
15. 9.The above principle of law is very aptly applicable to the instant case. The High Court judgment, therefore, cannot be sustained. The appeal is allowed and the judgment of the High Court is set aside. However, there will be no order as to costs.