' This case has a chequered history. Haji Feroze Din, deceased father of the petitioner, was in possession of plot of land measuring about 12 marlas bearing Property No,SE-9-R-69, Brandreth Road, Lahore, as a tenant under L.Bolaki Mal and Son, Lahore, who became evacuee at the time of partition of the country. On this plot aforesaid Haji Feroze Din had raised Pakka construction comprising of shops abutting on Brandreth Road, sheds and a residential portion. Some construction was made in 1920 while the rest was added in the year 1931 according to the sanctioned plans of the municipal authorities.
2. Haji Feroie Din obtained a. Declaration from the then Custodian of the Evacuee Propertied as to the non-evacuee nature of the said property in the year 1960. It was held that the building constructed by Haji Feroze Din was non evacuee property while the site underneath was evacuee property and that Haji Feroze Din was an old tenant of the said site. This plot alongwith some adjoining properties was then acquired under the Land Acquisition Act on representation of Messrs Muhammad Bux and Brothers statedly tenants in the adjoining property No,SE-9-R-71. This acquisition was challenged by Haji Feroze Din by filing a Constitution Petition (W.P.141-60) in this Court which was accepted and the entire acquisition proceedings were quashed holding that the application submitted by the firm Muhammad Bux and Brothers for starting acquisition proceedings did contain misrepresentation of facts with regard to the area in their possession and also with regard to persons who had built the major part of the superstructure standing on the land and as such it was a case where the acquisition proceedings were vitiated by perjury and fraud and liable to be quashed on that ground. (See Haji Feroze Din v. Government of Pakistan PLD 1961 (W.P.) Lah.304.
3. The dispute in this petition pertains to one of the three shops which had been rented out by Haji Feroze Din deceased father of the petitioner, to Messrs Abdur Rashid and Brothers before partition.
An eviction petition was filed and a decree of ejectment under the West Pakistan Urban Rent Restriction Ordinance, 1959, on account of default in payment of rent was also obtained against the tenant in the year 1962. This decree was resisted by Muhammad Saddique Butt, respondent No,4, alongwith his brother-in-law Muhammad Din Butt, who, according to the petitioner, had been inducted into possession of the disputed shop as sub-tenants by the said Messrs Abdur Rashid and Brothers. Muhammad Siddique Butt respondent and Muhammad Din Butt filed a declaratory suit to the effect that the order of ejectment was inoperative against them and for perpetual injunction that Haji Feroze Din be restrained from ejecting the plaintiffs from the building in question in execution of the said decree. This suit was decreed by the learned Civil Judge vide judgment and decree dated 24-6-78 and appeal against the said decree is statedly still pending.
4. Haji Feroze Din, predecessor-in-interest of the petitioner, in the year 1959 filed a BS form under Settlement Scheme No,VI framed under the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, seeking transfer of Property No,SE-9-R-69 on the basis of the construction raised thereon.
The matter of transfer of the plot in question was taken up by the Deputy Settlement Commissioner who found that another form of Muhammad Siddique Butt had also been smuggled into the record as the said form had neither been filed in time nor had been registered. With these observations the form of Muhammad Siddique Butt respondent was rejected and the plot was ordered to be transferred to Haji Feroze Din on the basis of the construction raised thereon by him, vide order dated 30th September, 1963. Muhammad Siddique Butt respondent alongwith Muhammad Din Butt, his relative, filed an appeal against the above-said order of the Deputy Settlement Commissioner but the same was rejected by the Additional Settlement Commissioner vide order dated 18th April, 1964. The revision filed by the respondent was rejected by the Settlement Commissioner vide order dated 18th October, 1964. These orders were then challenged by them by filing a Constitution petition (W.P.112-R-67) but the same was dismissed in limine by a Division Bench of this Court vide order dated 10-10-1967 observing as under:- "The case of the petitioner that the superstructure on the building site in dispute was raised by him was rejected by the Settlement Commissioner in view of the decision of the Custodian of Evacuee Property in 1961 who held that the superstructure belonged to respondent No,4. The impugned order further shows that the petitioner was holding the property under Abdur Rahman, who, according to his affidavit, was himself a tenant under the respondent. Thus, even if the petitioner had added something to the property in dispute in 1958-59, that was as a sub-tenant of the respondent and would enure for the benefit of respondent No,4, rather than create any right in favour of the petitioner. In the circumstances the Settlement authorities were fully justified in not transferring the building site in dispute to the petitioners."
' The matter of transfer of the plot in dispute as such attained finality as the same was not agitated further and Permanent Transfer Deed was also issued to Haji Feroze Din in the year 1972 who then surrendered his rights in favour of his sons Saifuddin hughtai and Lal Din Chughtai.
5. In the year 1974 Muhammad Siddique Butt, respondent No,4, submitted an application under reconstituted Settlement Scheme No,VIII seeking transfer of one of the three shops in his occupation by submitting an affidavit dated 23rd March, 1974, to the effect that the shop in his occupation was an 'available property'. The Deputy Settlement Commissioner vide order dated 1- 4-1974 transferred the said shop to him without going through the record of transfer of the plot in dispute and without notice and hearing the petitioner though he observed that he had visited the spot and found respondent No,4 in possession of one of the shops. A Transfer Order was also obtained by the respondent pursuant to the aforesaid order dated 1-4-1974. The shop was then demolished and a new construction was commenced on which the petitioner lodged a complaint with the municipal authorities and in those proceedings Muhammad Siddique Butt respondent came out with the plea that he is owner of the shop in question on the basis of the Transfer Order issued by the Deputy Settlement Commissioner. The petitioner then submitted an application dated 12-4-1975 to the Settlement Commissioner for, recalling the order dated 1-4-1974 and for correcting the injustice done to him by passing the order dated 1-4-1974 in the presence of the earlier orders passed upto the level of the Settlement Commissioner and affirmed by the High Court. This application was dismissed by the Deputy Settlement Commissioner, to whom the application was ultimately marked, vide order dated 28-6-1975, observing that he had no jurisdiction in the matter on account of repeal of the settlement laws. Thus the present Constitution petition was filed by the petitioner.
6. Learned counsel for the petitioner argued that in the presence of the order rejecting the form of the D.S.C. Dated 30th September, 1963, which was upheld firstly by the Additional Settlement Commissioner vide order dated 18-4-64 and then in revision by the Settlement Commissioner vide order dated 18-10-1964 the plot in dispute or any part thereof could not be transferred. It was added that the said transfer was upheld by the High Court as the Constitution petition filed by Muhammad Siddique Butt respondent and his associate was dismissed in limine by a Division Bench of this Court. In view of these facts it was urged that the property in question by no stretch of imagination could be treated as 'available property' transferable under reconstituted Settlement Scheme No,VIII. Learned counsel added that Muhammad Siddique Butt filed a false affidavit saying that the property in dispute was available property and the Deputy Settlement Commissioner without examining the record and without notice to the petitioner transferred the shop in dispute out of the said property to Muhammad Siddique Butt acting illegally and arbitrarily and as such on the basis of such an illegal order no rights came to vest in the respondent.
7. In reply Ch. Hamid-ud-Din, Advocate, learned counsel for Muhammad Siddique Butt, respondent, argued that the property in dispute was not a 'building site' as defined in, the schedule to the Displaced Persons (Compensation and Rehabilitation) Act read with Settlement Scheme No,VI and that Haji Feroze Din was also not in possession of the shop in dispute and as such the transfer made in favour of Haji Feroze Din is null and void and thus the Deputy Settlement Commissioner has corrected the manifest injustice done to the respondent by transferring the same in his favour.
It was urged that such an order merits to be upheld as writ cannot be issued to perpetuate injustice. It was next contended that the petition suffers from lathes as it was filed on 27-12-1975 to assail the order of the Deputy Settlement Commissioner dated 1-4-1974 especially when the petitioner has been negligently pursuing misconceived and incompetent proceedings before the authorities who were dead in the eye of law. This argument is based on the premises that on account of the repeal of the evacuee laws the application submitted to the Settlement Commissioner on 12-4-1975 was incompetent and was rightly so dismissed. Finally it was contended that the respondent was bona fide purchaser of single storey building with installed machinery from occupant thereof namoly Abdur Rehman on 21-6-1958 and in December, 1959 second storey was constructed thereon while new construction comprising three-storeyed building was raised after obtaining transfer order from the D.S.C. It was added that under the garb of building site the petitioner in reality wants undue enrichment at the cost of the respondent and that too by invoking equitable constitutional jurisdiction of this Court which in the circumstances of the case should be refused.
8. I have considered the respective submissions of the parties. This petition, as is apparent from the last submission of the learned counsel for the respondent, is sought to be defended by placing reliance on the principles of equity. The principle applicable is that he who seeks equity must do equity. The respondent cannot invoke the principle of equity as the transfer obtained by him is based on an affidavit which was false to his knowledge. He submitted the affidavit dated 23-3- 1974, alongwith his application under Settlement Scheme No,VIII claiming that the property Was an available property. This position was taken despite the fact that in the earlier round of litigation his form submitted under Settlement Scheme No,VI had been rejected by returning the finding that the same had been smuggled into the record unauthorisedly. This finding was upheld up to the level of the High Court when Constitution petition filed by him was dismissed in limine. Even with , regard to the claim of raising construction of the shop in dispute it was observed by the Division Bench of this Court that even if the petitioner (Muhammad Siddique Butt) and his co-petitioner had added something to the property in dispute in 1958-59 that was as a sub-tenant of the respondent (Haji Feroze Din) and would enure for his benefit rather than creating any right in favour of the petitioner (Muhammad Siddique Butt). This order of the Division Bench dismissing the writ petition was not agitated further which thus attained finality as against Muhammad Siddique Butt and Muhammad Din Butt. The respondent as such now stands estopped to urge that the transfer order in favour of Haji Feroze Din in null and void and without jurisdiction. It is also to be seen that any new construction even if raised after obtaining the Transfer Order from the D.S.C. Cannot be put up as a defence to the present petition. The respondent cannot take benefit of the excesses and illegality committed by him what to say of seeking refuge under equitable principle. It is also idle to urge khat the D.S.C. While passing the order dated 1-4-1974 has corrected any injustice. In fact by passing that order he manifestly acted arbitrarily and illegally. In the presence of the orders passed earlier by the Settlement authorities and the order of this Court dated 10-10-1967 passed in W.P.112- R-67, no Settlement Officer was left with any power or jurisdiction to treat the property as available property and to transfer it under Settlement Scheme No,VIII. Moreover the manner in which the D.S.C. Dealt with the property and ordered its transfer is highly objectionable and calls for disciplinary action against him on account of wanton and most arbitrary exercise of his office.
9. It is true that after the repeal of the evacuee laws effective relief on the application dated 12-4- 75 could not be granted to the petitioner but that would not equip the respondent with the argument that the Constitutional jurisdiction of this Court in the circumstances of the present case be refused on the so-called ground of laches. Refusal to exercise jurisdiction in the case would amount to perpetuating the manifest illegality and the excess committed by the D.S.C. In doling out the shop in dispute to the respondent. In any case the order dated 1-4-1974 passed by the Deputy Settlement Commissioner and the Transfer Order issued to the respondent cannot be sustained.
10. For the reasons given above the order dated 1-4-1974 of the D.S.C. And the Transfer Order issued to the respondent are hereby declared to be without lawful authority and of no legal effect. In the result the P.T.D. Issued to the petitioner is declared to be legal and effective in law. This petition thus succeeds and is accepted with cost.
11. A copy of this order be forwarded to the Member (Settlement) Board of Revenue, for initiating appropriate action against Mahmood Ahmad Qureshi, Deputy Settlement Commissioner. If the officer has been transferred to any other department this order will be forwarded to the head of that department for initiating appropriate disciplinary action.