' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question an order passed by the Administrator (Residual Properties), Lahore Division, Lahore, respondent No,1, herein, on 5th June, 1982, whereby he declared that property No,SE-31-R-59 was separate and distinct from Property No,53-McLeod Road, Lahore; was evacuee in nature and was available for transfer and proceeded to direct that respondents Nos.2 to 4 be transferred shops in their possession out of the aforesaid property, while the remaining portion be disposed of in accordance with law.
2. According to the case of the petitioners, property bearing No,SE-31- R-59, also commonly known as 53-McLeod Road, Lahore, was owned by a Hindu by the name of Ram Kishan Mahindar, who sold it to Shrimati Sushila Devi wife of Bava Harsaran Singh. She in turn alienated the said property to Lala Thana Ram, who further sold it to Dr. Tek Chand Dewan vide registered sale-deed dated 15th April, 1944. Verandra Kumar Verma son of late Lala Bhagwan Das purchased this property from Lala Tek Chand Dewan through deed of sale dated 26th February, 1947.
3. On 7th July, 1948, Verandra Kumar Verma through his general attorney O.P. Gupta alienated this property to Major Mushtaq Hussain Mirza, the predecessor of the petitioners by executing a deed of sale. Major Mushtaq Hussain applied to the Deputy Custodian of Evacuee Property for registration of the transfer in his favour under section 9 of the West Punjab Protection of Evacuee Property Act, 1948. This application was accepted by the Deputy Custodian Evacuee Properties on 6th of July, 1948, which order was affirmed by the Custodian on 7th July, 1948.
4. It appears and is not disputed by the contesting respondents that the predecessor of the petitioners leased out various portions of the property to different persons as tenants. Respondent No,2, Muhammad Mukhtar Malik, obtained a shop on rent from him by executing a rent note on 25th July, 1968. Similarly, respondent No,3, Muhammad Zubair Qureshi, also came in possession as a tenant of another shop under petitioner No,1 in whose favoure executed a rent note on 10th July, 1977. Same is the position with regard to Muhammad Taqi Khan, respondent No,4, who is in occupation of a shop out of the same property under rent note dated 10th October, 1977 executed by him in favour of the petitioners,
5. In the year 1978-79, the petitioners filed applications for eviction against the respondents. A suit for permanent injunction was also instituted by respondent No,4 against petitioner No,1. In these proceedings, it was admitted by the respondents that they were in possession of Property No,53, McLeod Road, Lahore, as tenants under Mirza Mushtaq Hussain, the deceased-predecessor of the petitioners, However, notwithstanding this position, in 1980, respondents Nos.2 to 4 applied to the Administrator (Residual Properties) for condonation of delay in submission of forms for transfer of the Property bearing No,SE-31-R-59, McLeod Road, Lahore, under Settlement Scheme No,9, alleging that the same was evacuee in nature and was available for transfer. The Deputy Administrator (Residual Properties) accepted these applications on 28th July, 1980. The petitioner took the matter to the Administrator (Residual Properties), who vide his order dated 8th February, 1981, remanded the case to the Deputy Administrator for decision afresh. The Deputy Administrator after holding some proceedings, once again reported on 20th of December, 1981 that the property was evacuee in nature and was available for transfer. Finally, the Administrator (Residual Properties), by his order, dated 5th of June, 1982 accepted the applications filed by respondents Nos.2 to 4, condoned the delay and directed that the shops in their possession be transferred to them, while the - remaining property be disposed of in accordance with law. This order has been impugned in this petition.
6. Mr. A.R. Shaukat, learned counsel for the petitioners has vehemently contended that the order passed by the Administrator (Residual Properties) is not only based upon ignorance of correct legal position but also suffers from misreading of record and failure to consider material evidence which conclusively prove that property bearing No,SE-31-R-59, is the same and is also known as 53-McLeod Road, Lahore, of which the predecessor of the petitioners was the absolute owner. It was emphasized that the transfer in favour of the predecessor of the petitioners was duly registered by the Custodian and the Deputy Custodian of Evacuee Properties and respondent No,1 had no jurisdiction to sit in judgment over orders passed by them.
7. The learned counsel appearing for the contesting respondents has, on the other hand, defended the impugned order by contending that the two properties are separate and distinct and the Administrator (Residual Properties) was justified in taking the view that the predecessor of petitioners had purchased property No,53-McLeod Road, Lahore, and not Property No,SE-31-R-59 McLeod Road, Lahore, which was evacuee in nature. The learned counsel also objected to the maintainability of this petition, on the ground that this Court, in the exercise of its Constitutional jurisdiction, cannot enter into factual controversies.
8. As is obvious from the above, the dispute between the parties, which fell for consideration before the Administrator (Residual Properties), respondent No,1 herein, was as to whether the property in dispute bearing No,SE-31-R-59 was also commonly known as 53-McLeod Road, Lahore, which had been purchased by the predecessor of the petitioners or was a separate or distinct property.
9. From the perusal of the impugned order of respondent No,1, it is to be seen that the reasons which prevailed upon him for taking the view that the petitioners were not owners of property bearing No,SE-31-R-59, were, firstly, that the sale-deed in favour of the predecessor of the petitioners, Major Mushtaq Hussain Mirza by Verandra Kumar Verma, though approved by the Custodian was not registered with the Registrar of Documents under the Registration Act; secondly, that the order for registration of the sale-deed was procured by the predecessor of the petitioners through misrepresentation and lastly that property bearing No,SE-31-R-59 was distinct from Property No,53- McLeod Road, Lahore.
10. After hearing the learned counsel for the parties and persuing the record, I am of the view that none of the grounds which form basis of the impugned order have any substance. As regards the non-registration of the sale-deed under the Registration Act, 1908, suffice it to say that according to section 9(4) of the West Punjab Protection of Evacuee Property Act, 1948, if a transfer is registered by the Custodian, such registration has to be deemed to be registration under the provisions of Registration Act, 1908. Unfortunately, respondent No,1 completely omitted to notice this provision which has rendered his order to be without any lawful authority.
11. So far as the orders of the Custodian of Evacuee Property and the Deputy Custodian dated 7th July, 1948 and 6th July, 1948 are concerned, it needs to be observed that these two orders were never challenged by any person before any competent forum and had attained fmality since long.
Unfortunately, the Administrator (Residual Properties) chose to enter into criticism of these orders as if he was sitting in appeal over the same. He was of the view that as the consideration paid for the property by the predecessor of petitioners to Verandra Kumar Verma was inadequate and the power of attorney in favour of O.P. Gupta was not available on record, the orders of learned Custodian and Deputy Custodian were not valid. However, it is apparent from these orders that the learned Custodian and the Deputy Custodian, after applying their mind to the facts of the case and the relevant law, directed the registration of the sale-deed. It did not lie with the Administrator (Residual Properties) to hold that the sale in favour of the predecessor of the petitioners by Verandra Kumar Verma should not have been approved or registered by the Custodian.
12. Be that as it may, even if the order was obtained from the Custodian through fraud and misrepresentation, it could not be collaterally attacked and its validity could not be examined by the Administrator of Residual Properties. In The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was ruled at page 345 of the report that:--- "However, in the matter of collateral impeachment of such an order, the position appears to be different. Whereas, a superior Court or a Court of general jurisdiction has the power to disregard, as a nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or Authority making it, such a power is not available to a tribunal which either acts in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere."
13. It is unfortunate that the real question in controversy as to whether the property bearing No,SE- 31-R-59 was separate and distinct from property bearing No,53 did not get the consideration which it deserved from respondent No,1. While holding that both the properties were separate, no reason whatsoever has been given by the Administrator nor the evidence on the record has been referred to. This aspect of the matter was disposed of by making a laconic observation that the "evidence available on the record establishes beyond doubt that property No,SE-31-R-59 is distinct from Property No,53, McLeod Road, Lahore, and is evacuee property".
14. This finding suffers from gross misreading of the record and is also vitiated on account of failure of respondent No,1 to apply his mind to the facts evident on the face of the record. Admittedly, respondents Nos.2 to 4 at whose behest the matter was reopened by respondent No,1 have all along been admitting their tenancy under the predecessor of the petitioners, In the rent note executed by them and the application for ejectment filed by the petitioners against them, the property in their occupation was described as 53-McLeod Road, Lahore. At no stage was it disputed that property in their possession did not bear No,53, McLeod Road, Lahore, but was a different and separate property. Similarly in the civil suit filed by respondent No,4, it was admitted rather asserted that Murtaza Khan, who is respondent No,4 herein, was in possession of Property No,53 which he had obtained on rent from the grandfather of Mirza Shahid Hussain, petitioner No,1.
In these circumstances, it is ironical, that when same respondents, applied for trahsfer of the property in their occupation, it was alleged that property in their possession was not 53- McLeod Road, Lahore, but was a separate property bearing No,SE-31-R-59, and at their representation it was held that property in their possession was property No,SE-31-R-59 and not No,53-McLeod Road, Lahore.
15. The most important document which was conclusive of the controversies namely, a certificate from the Lahore Municipal Corporation, Annex. Z/18, was wholly ignored from consideration by respondent No,1. This certificate explains as to why there are two numbers of this property. It is stated in this certificate that prior to 1939-40 the property was known as 53-McLeod Road, Lahore, but when the assessm ent for house tax started, the property was allotted No,SE-31-R-59, for assessm ent purposes. It is also to be noticed that although there exists a separate property bearing No,SE-31-R-53 McLeod Road, Lahore, but that is admittedly not evacuee in nature and is not in dispute.
16. From the other documents of undoubted authenticity also it stood established on the record that the property No,SE-31-R-59 is the same as No,53-McLeod Road, Lahore. In the register of assessm ent of the Lahore Municipal Corporation for the year 1940, property bearing No,SE-31-R-59 was shown in the ownership of Ram Kishan Mahindar. This fact is also borne out from the notice issued to Ram Kishan Mahindar, by the Lahore Municipal Corporation, who later sold it to Shrimati Sushila Devi wife of Bawa Harnam Singh, who informed the Secretary, Corporation of City of Lahore, that she had purchased property bearing No,SE-31-R-59 on 1st April, 1941 from Lala Ram Kishan Mahindar. She further alienated that property through a deed of sale registered by the Sub- Registrar, on 20th August, 1943 to Lala Thana Ram. An intimation to this effect was sent by her to the Secretary, Lahore Corporation. The purchaser Lala Thana Ram also applied for the change of ownership to the Lahore Municipal Corporation. The Secretary, Municipal Corporation on 5th of July, 1943 asked Shrimati Sushila Devi to enter the number of property as in the house tax bill. In the reply dated 9th December, 1943, she reiterated that property bearing No,53 had been sold by her to Lala Thana Ram. It is of importance to notice that while referring to the notice received from the Municipal Corporation, number of the property was given as SE-31-R-59. Lala Thana Ram, the purchaser from Shrimati Sushila Devi further sold the same property through registered deed dated 10th August, 1944 to Dr. Tek Chand Dewan son of Dewan Khanna Ram. Although in the sale- deed, the property was mentioned as 53-McLeod Road, but in the application addressed by Lala Thana Ram, to the Secretary, Corporation City, of Lahore, he clearly mentioned that property as bearing No,SE-31-R-59. The correspondence between The Lahore Municipal Corporation and Dr. T.C. Dewan also reflects the same position. Dr. Tek Chand Dewan further sold this property to Verandrah Kumar Verma son of Late Bhagwan Das, through registered deed of sale dated 26th February, 1947. The description of the boundaries of the property are the same which have been given in the sale-deed in favour of Dr. Tek Chand Dewan. Verandra Kumar Verma had executed a sale-deed in favour of the predecessor of the petitioners, which, as already stated, was registered by the Deputy Custodian and Custodian, whereafter the ownership of the property bearing No,SE- 31-R-59, McLeod Road, was changed in the record of the Lahore Municipal Corporation in the name of the petitioners,
17. While passing the impugned order, no effort was made by the respondent No,1 to ascertain as to who was the evacuee owner of property No,53, McLeod Road, Lahore, if it was indeed a separate and distinct property. However, in the written statement filed by the contesting respondents, it has been asserted that that property belonged to Dr. Tek Chand Dewan. If that be so, it is not understandable as to how in the presence of the registered sale-deed executed by Dr. Tek Chand Dewan, on 26th February, 1947, in favour of Verandra Kumar Verma from whom the predecessor of the petitioners had purchased the property, it could be held that the property which Verandra Kumar Verma sold to the predecessor of the petitioners was different and the orders of the Custodian and Deputy. Custodian related to some other property. There is nothing on the record to show that Dr. Tek Chand Dewan was the owner of two separate properties. Another fact which needs to be noticed is that in all the sale-deeds the Khasra Nos. of the land underneath the property are the same.
18. The contention of the learned counsel for the respondents as to the maintainability of this petition has hardly any force. Although, it is correct that this Court does not normally interfere with the findings recorded by the Tribunal below, on question of fact, but it is since long well settled that where the findings are not based upon any evidence or some material evidence has been ignored, the order is liable to be struck down in the exercise of the Constitutional jurisdiction of this Court. In the present case, it has already been noted that the order suffers from serious legal errors and is based upon misreading and non-reading of material evidence.
' For the reasons aforesaid, this petition is allowed and the impugned order of respondent No,1 is declared to have been passed without any lawful authority and of no legal effect. The contesting respondents shall bear the costs of the petitioners,