' The present Constitutional petition has been filed for declaration that the order dated 30-9-1990 passed by the Secretary (E.P.) and Notified Officer under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (here in after referred to as the Repeal Act) be declared as without lawful authority and of no legal effect and restrainting the Addition Commissioner-II, Commissioner Office, Karachi, from issuing any transfer documents to respondents Nos. 1 to 8 pursuant to the aforesaid order.
2. Briefly the facts are that evacuee property, bearing No, SR-3/14, known as Paparbia Lakshmichand building, situated at Niccol Road, Karachi was auctioned as big mansion on 10-9- 1959 by the Settlement Authorities to petitioner Nos.3 and 41 other claimants for a sum of Rs,2,90,000 through their attorney Mr. M.M. K.A. Zai. However, the Chief Settlement Commissioner approved the aforesaid bid at thirty years gross annual rent of the building which increased the price by Rs, 160 only. Before the bid could be accepted, most of the 42 claimants withdrew their compensation books from the said attorney and only 8 claimants were left in the field.
Consequently, the PTO was issued in the name of the aforesaid claimants including petitioner No,3.
Six out of the aforesaid 8 claimants also withdrew their compensation books and thus petitioner No, 3 and another claimant remained in the field. Because of the above facts the Settlement Commissioner cancelled the auction by his order dated 10-4-1964. Mr. Zai challenged the above order in Constitutional Petition No, 294 of 1964 which was dismissed on 30-1-1969 with directions to the Settlement Authorities to dispose of the property according to law.
' On 20-2-1969, petitioner No,3 filed an application before the Chief Settlement Commissioner for transfer of the property to him on payment of the entire bid money which was accepted but before any order could be passed, Mr. Zai filed LPA No, 44 of 1969 against the said order dated 30-1-1969. In the said appeal, the ad interim order was passed and the disposal of the application of petitioner No,3 was stayed. The above appeal was dismissed on 18-8-1977. After dismissal of the appeal, application of petitioner No,3 was taken up under the provisions of the Repeal Act by order dated 19-12-1977, passed by the Additional Settlement Commissioner (Industries), the property was transferred in his name after recovery of the transfer price.
3. Petitioner No,3 by sale deed dated 29-12-1977, sold the property to petitioners Nos.1 and 2 who by notice demanded rent from the tenants. On receiving the above notice Noor Muhammad son of Ismail, respondent No,1, Noor Muhammad son of Ibrahim (hereinafter referred to as N.M. Ibrahim) and Abdul Quddoos Behari submitted a joint application before the Chief Settlement Commissioner, Sindh, praying that the property be transferred to them at double the price paid by petitioner No,3. The Additional Settlement Commissioner (Central), Board of Revenue, Sindh by his letter dated 15-6-1978 informed them that the property had already stood transferred to petitioner No, 3 and Transfer Order was also issued and, therefore, their request could not be accepted. The Transfer Order passed in favour of petitioner No,3 was thereafter challenged by respondent No,1, Ch. Muhammad Aslam, N.M. Ibrahim, Hashamt Ali, Omar Qasim, Haji Amin and Afaq Ahmed in Constitutional Petition No, S-67 of 1978 in this Court. During pendency of Constitutional Petition No, S-67 of 1978, N.M. Ibrahim expired, whereas Ch. Muhammad Aslam and Hashmat Ali withdrew themselves from the petition. Consequently an amended petition was filed by the remaining petitioners and the legal representative of N.M. Ibrahim. The above petition was accepted by judgment dated 1-6-1983 and the transfer in favour of petitioner No,3 was cancelled with the result that the property became available for transfer. The above order was challenged by the petitioners before the Hon'ble Supreme Court in Civil Appeals Nos. 35-K of 1984 and 36-K of 1984.
' However, before filing of the aforesaid appeals, (1) Rehmatullah s/o Noor Muhammad Ismail, (2)
Haji Amin (3) Afaq Ahsan, and (4) Mst. Fatima submitted applications before the Settlement Commissioner, Karachi, who, by his order dated 29-3-1984, found the aforesaid persons entitled to transfer of the respective tenements in their possession under Settlement Scheme No,VIII. He, however, refused to issue Transfer Orders because of pendency of the aforesaid Civil Appeals.
4. When the above Civil Appeals came up for hearing on 14-1-1988, the parties entered into compromise and submitted an application before the Hon'ble Supreme Court which reads as under:- "It is respectfully submitted that this Honourable Court be pleased to set aside the order of the High Court of Sindh and dispose of the appeal on the basis of the following settlement:--
(1) That the portions of the buildings in possesion of each of the 5 respondents (shops, offices, godowns or flats) be transferred to them, to which the appellants consent. The remaining portion may remain transferred to the appellants.
(2) That there may be no order as to costs."
' The Hon'ble Supreme Court disposed of both the Civil Appeals by following order:-- "These appeals are against a common judgment of the High Court. The parties therein have compromised their dispute and have filed separate applications praying therein that the appeals be disposed of in terms thereof. We order accordingly."
' After the disposal of the appeals, respondents Nos.1 to 8 filed miscellaneous application before respondent No,10, the Additional Commissioner-II, Karachi, who was the then Notified Officer under section 2(2) of the Repeal Act, who, after reproducing the compromise application and the order of the Supreme Court, observed that the property had already stood transferred to petitioner No,3 and he was not competent to issue the transfer documents in respect of the tenements occupied by respondents Nos.1 to 8 and he further observed that "nor I can alter/rectify the Transfer Order previously issued in the name of Mr. Ali Khan...." He accordingly dismissed the said application directing the said respondents to approach competent legal forum to seek the remedy in the light of the compromise reached.
' The said respondents repeated similar application before the Secretary (E.P.), Board of Revenue, Sindh through their Advocate Mr. Akhtar Mahmood. The said Secretary by his impugned order dated 30-9-1990, allowed the said application and specifically ordered that the said respondents would be communicated the transfer price and rental dues for payment to the Additional Commissioner-II, Karachi, who will issue Transfer Orders to the applicants for their respective portions after payment of dues and that the Transfer Order issued to petitioner No,3 would stand modified/rectified to the extent of remaining portion of the building. The said order has been challegned in this petition.
5. I have heard the learned Advocates Mr. Iqbal Kazi for petitioners Nos.1 and 2 and Mr. Maroof Ali Khan for petitioner No,3 and Mr. Akhtar Mahmood for respondents Nos.1 to 8. None appeared for the official respondents
6. Learned A.A.-G. Has made the following submissions.
' Respondent No, 9, Secretary, Evacuee Property, Sindh under section 2(2) of the Repeal Act, is empowered to hear only those appeals and revisions which were either pending before the Settlement Authorities prior to the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 or those that were remanded from the High Court or the Supreme Court of Pakistan for re-decision and he had no jurisdiction either to hear the appeal against the order passed by respondent No,18, Additional Commissioner-II, Karachi or to entertain original application filed by respondents. Nos. 1 to 8.
' The compromise arrived at between the parties and the order passed thereon by no stretch of imagination can be treated to have envisaged remand of the case to respondents Nos. 9 and 10. It was an agreement between the parties whereby petitioner had agreed to transfer the portions in respective possession of respondents Nos.1 to 5 and their remedy lay by approaching the Civil Court in case of refusal of the petitioners to honour the compromise. He referred to section 2(2) of the Repeal Act and relied on the following authorities:--
(i) Muhammad Younus and 2 others v. Muhammad Younus Khan (1981 SCM R 899).
(ii) Sher Afzal Khan and others v. Razi Abdullah and others (1984 SCM R 228).
(iii) Headmaster, Muslim High School No,1 and another v. Asghari Begum and 2 others (1984 SCM R 332).
(iv) Sungreen & Company Ltd. v. Nauman Bai and 4 others (PLD 1973 Kar. 100).
' And further relying on the case of Habib & Company and another v. Haji Muhammad and 3 others (PLD 1970 Kar. 495), submitted that consent decree is just an agreement between the parties and is to be treated as such under the circumstances of the case.
' It was further contended by him that the petitioners had agreed to convey the respective tenements in possession of the first five respondents and not that of all the respondents.
' On the other hand, the learned Advocate for respondents Nos.1 to 8 submitted that after cancellation of the transfer order in favour of petitioner No,3 in Constitutional Petition No, S-67 of 1978, the entire property had become available for disposal. The said respondents, therefore, applied for transfer and the portions in their respective possession were ordered to be transferred in their favour by order dated 31-7-1983 but the issuance of the Transfer Orders was postponed in view of the pendency of the dispute before the Supreme Court and after disposal of the appeal, the Transfer Orders were issued to the said respondents by respondent No,9, who had the jurisdiction in the matter.
' He alternatively submitted that even if it be assumed that respondent No, 9 had no jurisdiction, he having issued the orders doing complete justice between the parties on the basis of the compromise entered into between them before the Hon'ble Supreme Court, the same cannot be interfered with in exercise of discretionary Constitutional jurisdiction and more so when the original transfer in favour of petitioner No,3 was absolutely illegal. He relied on the case of Raunaq Ali etc. v.
Chief Settlement Commissioner and others PLD 1973 SC 236. Mr. Iqbal Kazi, in reply put reliance on Utility Stores Corporation of Pakistan Ltd. v. Punjab Appellate Tribunal PLD 1987 SC 447.
6. In short, the dispute revolves on the effect of the compromise decree entered into between the parties before the Supreme Court and this Court is required to determine whether the said settlement read with the order passed by the Hon'ble Supreme Court can be treated as an order of remand of the case before the Notified Officer for transfer of the portions in respective possession of the respondents and if so, whether the said compromise contemplated transfer of only such tenements which were in possession of respondents Nos.1 to 5 alone and that compromise did not contemplate transfer of the tenements in possession of respondents Nos. 6, 7 and 8 or whether it was an arrangement between the parties whereby petitioners were allowed to retain the property and transfer the respective tenements in possession of the respondents.
' If it be assumed that the above settlement envisaged remand of the case to the Notified Officer, whether respondent No, 9 had the jurisdiction to pass the impugned order.
' Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974) was replaced by Act XIV of 1975, under the same nomenclature. Section 1(2) of the Repeal Act provides that it shall come into force at once and shall be deemed to have taken effect on the first day of July, 1974.
' Under section 2(1), the laws repealed have been detailed and section 2(2) provides that upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, that may be pending before the authorities appointed thereunder, shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court which would have been remanded to any such auhority in the absence of such repeal, shall be remanded to the officers notified as aforesaid.
' Subsection (3) provides that any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation thereby repealed to which the proceedings relate and subsection (4) provides that the final- orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the repealed Act or Regulation to which the proceedings related.
' Section 3 lays down that the properties which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Governments for disposal under schemes to be prepared by the Provincial Government in case of urban properties and by the Board of Revenue in case of rural properties. The said section also provides guidelines for disposal of agricultural lands, wherein the factors like possession, temporary allotment, etc. Are to be considered but no such guidelines have been prescribed for disposal of urban properties. Section 4 provides for dispoasal of residual work regarding documentation, recovery of outstanding transfer price, rent or mortgage money and transfer of miscellaneous liabilities for their discharge by the Board of Revenue.
' The above provisions have been considered in several authorities, relied upon by the learned counsel for the petitioners. In the first case relied upon by them, it is observed that where it is not shown that the proceedings before the Settlement Authorities, regarding the transfer of the disputed land, were pending before the target date, i,e, 1-7-1974 and the order impugned before the High Court having emanated from the reference made after the repeal of the evacuee laws, the revision petition before the Settlement Commissioner was rightly held to be not maintainable, on account of repeal of the Evacuee Laws.
' In the second case, it was observed as under:-- " We do not see how after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulageted in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent?
7. For disposal of the contentions raised in this petition, it is to be noted that the dispute remained pending before this Court from 1964, when Constitutional Petition No, 294 of 1964 was filed, till 18-8- 1977 when LPA No,44 of 1969 was dismissed and the property became available for disposal. It was after the enactment of Act XIV of 1975 that the property in dispute was transferred to petitioner No,3 by order dated 19-12-1977. Therefore, on the bare reading of the provisions of section 2(2), the present case does not fall within the category of pending cases as the said subsection refers only to such cases which were pending before the officers authorised to deal with those cases and such other cases, dispute with regard to which was pending before the High Court or the Supreme Court and the case was remanded by such Courts.
8. In Constitutional Petition No, S-67 of 1978, the above sale or transfer in favour of petitioner No,3 was under the new dispensation which was cancelled. Consequently the sale of the said property by petitioner No,3 in favour of petitioners Nos. 1 and 2 became ineffective and the property again became available for disposal. In the compromise, the parties agreed that the order passed by the High Court be set aside. The effect of setting aside the order of High Court was that the transfer order in favour of petitioner No,3 revived and so also the sale deed executed in favour of petitioners Nos. 1 and 2. Under the said document the entire property in dispute was sold to the said petitioners and under the compromise, whereby the order of the High Court was set aside, the said petitioners continued to be the owners of the property conveyed to them under the sale-deed and the property ceased to be available for disposal under the Repeal Act. This being the effect of the aforesaid covenants in the agreement between the parties, the Board of Revenue, who had the powers only with regard to only such properties, in respect whereof the cases were pending or which were available for disposal, had no jurisdiction whatsoever to deal with the property in dispute which was not available for disposal and title whereof stood perfected in favour of petitioners Nos. 1 and 2.
' The parties cannot be said to be unware of the aforesaid consequences of the above-stated specific agreement whereby the transfer in favour of petitioner No,3 and sale-deed executed in favour of petitioner No,1 was revived.
' Before proceeding further, it may be pointed out that at the time of arguments, the learned Advocates for the petitioners put great stress on the fact that the words "set aside the order of the High Court of Sindh" were inserted in the handwriting of the learned Advocate for respondents Nos.
1 to 8 before the Hon'ble Supreme Court, in the typed compromise application, after the words "it is respectfully submitted that this Hon'ble Court be pleased to". If the compromise is read as originally typed, the meaning would have been quite different and perhaps interpretation could have been put on part one of the compromise deed to the effect that the parties intended that the respective shops, offices, godowns or flats are to be transferred by the concerned authorities, under the Repeal Act, to the respondents but after addition of the said words, the order of this Court was set aside and the property was allowed to remain in the ownership of petitioners Nos.1 and 2. It is, therefore, not possible to hold that the effect of the aforesaid compromise was that the transfer in favour of respondents (whoever they be) was to be affected by the authorities and the only possible construction that can be placed is that such transfer in favour of the concerned respondents was to be made by petitioners Nos.1 and 2 who were holding the title and were allowed to continue to hold the title by the said settlement.
Under such circumstances respondent No, 9 had no jurisdiction I c whatsoever to pass the impugned order.
9. Assuming for the sake of argument that the aforesaid compromise had the effect of rendering the property in dispute to be available for disposal, the question arises whether respondent No,9 had the jurisdiction in the matter after the order dated 25-2-1989 was passed by respondent No,10.
' No notification was brought to my notice whereby respondent No,9 or 10 have been delegated any powers to be exercised by them uneder the new dispensation or any notification conferring any authority on respondent No,9 to upset or nullify the orders passed by respondent No,10 as appellate authority or otherwise. The impugned order dated 30-9-1990, therefore, was passed by respondent No,9 without any lawful authority.
' In view of the above, it would not be proper to decide in this petition about the intention of the parties whether petitioners Nos.1 and 2 had agreed to transfer and convey only such tenements as were in possession of respondents Nos.1 to 5 and they are not under any obligation to convey the tenements in possession of respondents Nos.3 to 8, as it would be for the appropriate forum to decide the same.
10. Coming to the last contention of the learned counsel for the contesting respondents, reference may be made to the case of Utility Stores Corporation of Pakistan Ltd. (supra) where it was observed that it is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it, because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes D an error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination by the Tribunal which is shown to be erroneous on a point of law, can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction.
' It was further observed as follows:-- "It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the right of every individual to be dealt with in accordance with law. Where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitution) jurisdiction is made out."
' The petition is, accordingly, allowed with cost.