JUDGMENT CH. GHULAM SARWAR, J.-- This judgment shall dispose of Settlement Revisions No. 103/71, 104/71, 12/72 and Writ Petition No. III-R/72 arising out of the order dated 4.5.1971 passed by the Deputy Settlement Commissioner with powers of the Chief Settlement Commissioner and Collector, Jhang.
2. Briefly the facts are that the Assistant Commissioner, Jhang, recommended review of Mutation No. 1780 of Village Ashaba on the ground that Khasra No. 4877/1 measuring 4 kanals and 9 marlas involved in the said mutation initially allotted to one Fazal Muhammad against Khata No. 254 and subsequently to Sufi Zaheer Ahmad (petitioner in Settlement Revision No. 103 of . 1971) against Khata No. 475 of the Register R.L.II. It is alleged that the entire allotment of Khata No. 475 was alienated by Sufi Zaheer Ahmad through Mutation No. 1780 in favour of Langha and others (petitioners in Writ Petition No. III-R/72) measuring 174 kanals 17 marlas for a sum of Rs. 30,000/-. It, however, came to the knowledge of the Settlement Commissioner that Khasra No. 4877/1 had been allotted twice at Khasra Nos. 254 and 475. Consequently, the Collector, Jhang, sought permission for reviewing Mutation No. 1780 which permission was duly accorded by the competent authority.
However, by way of abandoned caution and before cancelling the mutation No. 1780, the Collector, Jhang, referred the matter to the Central Record Room seeking therein the verification of the claims involved, whereupon it transpired that U.R.V. Nos. 2794/129 issued in favour of Sufi Zaheer Ahmad, allottee, (petitioner in Settlement Revision No. 103/71) was a bogus document.
Consequently, the Officer on Special Duty cancelled the U.R.V. Resultantly, the delegatee of the Chief Settlement Commissioner issued notices to allottee as well as Langa etc. (petitioners in Writ Petition No. 111/72). Sufi Zaheer Ahmad, petitioner, did not context the proceedings, but Langah etc. Contested the same and were duly heard as is apparent from a bare perusal of the impugned order, whereupon inter alia the following order dated 4.5.1971 was passed by the Deputy Settlement Commissioner with powers of Chief Settlement Commissioner and Collector Jhang, which reads thus:- "The result is that the entire allotment secured by Sufi Zaheer Ahmad is against a bogus claim which is hereby cancelled. The alienation made in favour of Langa etc. Through mutations noted above cannot likewise stand, and the mutations as well be reviewed, for which permission as Collector is granted. Likewise allotments secured in other villages, against his claim are cancelled".
3. Syed H.M. Naqvi, learned counsel for Sufi Zaheer Ahmad (petitioner in Settlement Revision No. 103 of 1971), submitted that the petitioner therein was a displaced person from District Bulandshahr, India. His claim regarding his abandoned land in India was verified and U.R.V. No. 2794/129 was issued from the Central Record Room. He was allotted land in Chak Janubi, Tehsil and District, Jhang, in the year 1950 against his total 1417 verified units land measuring 21 kanals and 14 marlas against Khata No. 91 in Village Chak Noor Shah, land measuring 174 kanals against Khata No. 475 in Village Ashaba and land measuring 51 kanals against Khata No. 144 in Village Chak Janubi was confirmed in the name of Sufi Zaheer Ahmad, petitioner, on 16.12.1968, 18.12.^968 and 9.8.1969, respectively, with a total area of 246 kanals and 14 marlas. It was argued that on 6.5.1971 Sufi Zaheer Ahmad, petitioner, learnt from the Patwari Halqa that his confirmed allotment in all the three villages had been cancelled and that the Deputy Settlement Commissioner with powers of the Chief Settlement Commissioner, as a result of the reference sent to the O.S.D, found that the claim of the petitioner was bogus and, consequently, cancelled his U.R.V. As well as the allotment of land in all the three villages vide order dated 4.5.1971 which has been impugned in these proceedings.
Mr. S.H.M.Naqvi, learned counsel for the petitioner, argued that U.R.V. Of Sufi Zaheer Ahmad, petitioner, was cancelled by respondent No. 2 in his absence and without providing him an opportunity of being heard. same was the fate of the allotment obtained by him and, therefore, the entire proceedings being violative of the principles of natural justice, are coram non judice and of no legal effect.
5. The case of the petitioners in Settlement Revision No. 12/72 is that the land in Chak Noor Shah measuring 19 kanals 14 marlas was sold in their favour by three registered documents in consideration of Rs. 31,500/- on 1.11.1969, They were put in possession of the land and relevant mutation was also sanctioned in their favour and, therefore, the same was not open to review without holding a proper inquiry and providing an opportunity of being heard to the allottee and the bona Tide purchaser for value which was never done in this case.
6.The case of Amir Hussain and others (petitioners in Settlement Revision No. 104/71) is that Sufi Zaheer Ahmad, allottee, alienated his land in Village Chak Janubi, Jhang, measuring 51 kanals in Khasra Nos. 870/2, 859/881/2453/885, 882, 883, 884, 886 and 866/1 in favour of Amir Hussain and others in their favour by a registered sale deed dated 26.4.1970 and they being bona fide purchasers for value, their title was liable to be protected.
7. The case of Langa etc. (petitioners in Writ Petition No. III-R/72) is that on 9.1.1969 Sufi Zaheer Ahmad allottee had alienated the land in village Ashaba measuring 174 kanals 17 marlas for a sum of Rs. 30,000/- vide registered sale deed and, therefore, they had acquired a vested right in the land as bona fide purchasers for value from ostensible owner without notice of defect of title. It was argued on their behalf that the Settlement Authority being a party to the fraud, if any, the bona fide purchasers are innocent party and could not be penalized.
8. Syed Jamshed Ali, Mr.S.H.M. Naqvi and Mr. Muhammad Nawaz Kasuri, learned counsel for the petitioners, placed reliance on Nawab Syed Raunaq Ali etc, v. Chief Settlement Commissioner and others (PLD 1973 S.C.236) and The Chief Settlement Commissioner. Lahore, v. Raia Muhammad Fazil Khan and others (PLD 1975 S.C. 331) to contend that the Officer on Special Duty had no jurisdiction for the re-verification of claims with the disappearance of the promulgation of Martial Law Regulation, 1959.
9. It is true that in the precedent cases, it was held that the Officer on Special Duty, Central Record Office, had no jurisdiction to cancel the verification orders issued by the Claims Authority before the 2nd of October, 1959, the date of publication in the Gazette of the Notification No. SRO-466, dated the 25th September, 1959; nor could there being an authority with limited jurisdiction during such verification order as nullity. The learned counsel for the petitioner have, however, failed to notice that although in the case of Raunaq Ali (supra) the Honourable Judges of the Supreme Court came to the conclusion that orders of the Deputy Claims Commissioner verifying the claims of certain persons were illegal and without jurisdiction. Nevertheless, it was held that the High Court could legitimately refuse to set aside, the order of the Officer on Special Duty (Central Record Office), in the discretionary exercise of its constitutional jurisdiction, depending upon the facts and circumstances of a particular case.
10. In the instant case, however, it has been found that the claim as well as the allotment obtained by the petitioner was secured through fraud and, therefore, the title derived by the allottee- petitioners as well as their predecessor- in-interests on the basis of sale transaction is of no legal effect. The petitioners are, therefore, precluded to obtain any unjust order from this Court. In the case of Nawab Raunaq Ali (supra), strongly relied upon by the learned counsel for the petitioners, it was held:- "an order in the nature 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 had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extra-ordinary jurisdiction ought not to be allowed to be invoked".
11. Reference may also be made to Begum Shams-un-Nisa v. Said Akbar Abbasi (PLD 1982 S.C. 413).
In the precedent case, where the allotment relied upon by the 'Settlement Authorities was found to be illegal and without jurisdiction and was also based on fraud and forgery, it was held by the Supreme Court, "if what is stated in the impugned order of the High Court, or for that matter in the order of the Board of Revenue, which was impugned before the High Court, is taken on its face value the petitioners could not be granted any relief in exercise of constitutional (writ) jurisdiction".
It was further held that the High Court in exercise of its discretionary jurisdiction, is not bound to interfere in all circumstances and it would have been proper exercise if it had been interfered by the Chief Settlement Commissioner in a given case even if it is felt that the order impugned before it was null and void and was not strictly legal. The principle enunciated in the precedent case was also reiterated, in Muhammad Baran v. Member (Settlement & Rehabilitation! Board of Revenue.
Punjab (PLD 1991 S.C. 691). Also refer the earlier decision on the subject in Tufail Muhammad v. Raia Muhammad Zia Ullah Khan and another (PLD 1965 S.C. 269), wherein the general principle was explained that the discretionary constitutional jurisdiction cannot be exercised in aid of injustice.
12. Reference may also be made to Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 S.C. 1039), wherein it was observed that the provisions of section 2(1)(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, have not taken away jurisdiction of the High Court under Article 199 of the Constitution or any jurisdiction of the Supreme Court, which is conferred on it by the Constitution and that no presumption should be raised that section 2(2) has directly or even indirectly taken away the said jurisdiction. Reliance on Kanwal Nain and others v. Fateh Khan and others (PLD 1983 S.C. 53) to contend that they are entitled to the benefit of the principle enshrined in section 41 of the Transfer of Property Act in respect of transfer by ostensible owner, in that, the petitioners acted in good faith and have entered into transaction after taking reasonable care to ascertain title of Sufi Zaheer Ahmad from whom they obtained the transfer is misplaced. It is well settled that the provisions of section 41 are not attracted to the properties forming part of compensation pool and the vendees have no vested right to be heard before cancellation of allotment, if the same are found to have been obtained through fraud or misrepresentation as in the instant case. Refer Manzoor Hussain v. Fazal Hussain and others (1984' SCMR 1027). Reliance on Officer On Special Duty. Central Record Office and others v. Bashir Ahmad and others (1977 SCMR 208) was misplaced, in that, the decision rendered in that case has been distinguished in the case of Manzoor Hussain (supra) wherein it is clearly stated that protection available under section 41 of the Transfer of Property Act is not available in respect of evacuee properties. Reliance by Mr. Muhammad Nawaz kasuri, learned counsel for one of the petitioners on Ejaz Ahmad Khan v. Chahat and others (1987 SCM R 192) and Sardar Noor Hussain v. Chief Settlement Commissioner etc (PLD 1983 S.C. 62) has no relevance to the facts of the present case, in that, the subject matter of the property in dispute therein did not form part of compensation pool. Syed Jamshed Ali also placed reliance on Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491).
13. Syed H.M. Naqvi, learned counsel for the petitioner, respectfully argued that no notice was issued by the respondent to Sufi Zaheer Ahmad, petitioner and the alleged beat of drum was not made in the Ilaqa. The case of Sh. Barkat Hussain v. Additional Settlement Commissioner (1985 SCM R 446) relied upon by the petitioner is distinguishable. In the precedent case it was found that a party against whom and in whose name notice was issued in the newspaper was dead before the publication. In this background it was held that such a service could not have been proper service nor could it injure to the benefit of anyone. Here Sufi Zaheer Ahmad, has stated in Ground 4(f) of the writ petition that no notice was issued by the respondents to the petitioner and "The alleged beat of drum was not made in the Ilaqa". The question whether or not any notice was served and whether the beat of drum was or was not made in the Ilaqa is essentially a question of fact. The petitioner has not placed any material on record to substantiate this allegation. It is not even supported through an affidavit. Sufi Zaheer Ahmad, petitioner, has sworn an affidavit in general terms in support of his stay application, that "as submitted in the grounds of revision the impugned order is illegal and if the operation of the same is not suspended the petitioner shall suffer irreparable loss". He has himself placed on record the affidavit of Langa in support of his contention that the land in question purported to be allotted to him was sold to various persons, that is to say, Amir Hussain etc. And Langa, but Langa has nowhere stated that no notice was served upon him or the vendees.
14. The official acts are presumed to have been performed with regularity. We are, therefore, inclined to presume that Sufi Zaheer Ahmad petitioner failed to turn up despite service and, therefore, his service through proclamation by beat of drum in the Ilaqa was validly made, inasmuch as, in the exercise of the constitutional jurisdiction, we cannot probe further into this matter by investigating into facts. Clearly, this plea is concluded by a finding of fact which is not open to scrutiny. As earlier pointed out the case of Sh. Barkat Hussain (supra) is misplaced and distinguishable. Here the impugned Judgment is based on proper appreciation of facts established on record and the findings of facts recorded by the delegatee of the Chief Settlement Commissioner do not warrant interference in these proceedings.
15. Syed Aftab Sherazi, learned counsel for legal heirs of respondent No. 2, adopted the arguments advanced by Syed Jamshed Ali, Advocate. Rana Muhammad Hanif, Advocate, appearing on behalf of the Chief Settlement Commissioner, submitted that the allotment of Sufi Zaheer Ahmad, allottee, has since been established to be bogus document, therefore, the vendees have no right to claim the same.
16. As to the proposition canvassed on behalf of the petitioners that they are allegedly in cultivating possession before Kharif 1973 and are, therefore, entitled to purchase the same in terms of section 3(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, suffice it to say that this question cannot be examined for the first time in these proceedings. The petitioners may, if so advised, approach the Notified Officer concerned for redress of their grievance on this limited issue on merits and in accordance with law. Resultantly, we find no force in Settlement Revisions No. 103/71, 104/71, 12/72 and Writ Petition No. III-R/72, which are hereby dismissed with no order as to costs. -