1. ' These two petitions arise out of the same order and, therefore, they were beard together and are being disposed of by this order.
2. ' There are two shops known as Jem Jewellers and Hurmuz Wine Stores situated at Zaibun Nisa Street, formerly known as Elphinstone Street, Karachi. At the time of survey of the evacuee property carried out by the Custodian these two shops were surveyed as separate units and were respectively assigned custodian No, V-A/165 and V-A/166. However, there was a note in the remarks column of Hurmuz Wine Stores that this tenement was a part of tenement No, V-A/165/1/1.
3. As these two shops formed part of a bigger plot, having other tenements, two on the ground floor and one on the first floor, therefore Jern Jewellers was given No, C-1/2 Hurmuz Wine Stores was given the No, C.-1. The City survey numbers, upon which this property, having the disputed premises, was situated were SB-6/15 and 6/15-A. The question whether Hurmuz Wine Stores was situated partly upon 6/15 and 6/15-A is disputed between the parties. But it has lost relevance, as it would be seen presently, in view of the findings of fact arrived at by the Settlement. Authorities.
4. ' Hapi Abubakar, petitioner No. 1 in Constitution Petition No, 109/71 is the original transferee of the property. P. T. D. Issued in his favour dated 8-6-63, describes the property as follows:- "S 5, /5-A, V-A-165, premises Nos. C-1 and C-2 Hurmuz Wine Stores and Jem Jewellers, Sadder, Karachi."
5. ' Subsequently, he transferred this property in favour of his brother Usruan Haji Ghani; predecessor- in-interest of petitioners 2 to 7. It is the case of the petitioners in. Petition No, 100/71 that they came in possession of the property, now known as km Jewellers and Hurmuz Wine Stores, in 1947, after coming from Bombay. Their claim is that at the time they came in possession of this property it was one single shop. Nousserwanji Naneckji, sole owner of Hirjina & Co. And of Hurmuz Wine Stores, was known to the two brothers from Bombay and on his request they partitioned their original shop and gave the smaller portion, now in occupation of Hurmuz Wine Stores, on a monthly rent of Rs,
100. But subsequently when the Evacuee Laws came into operation, Haji Abubakar and Nausserwanji agreed that the payment of rent should be stopped because the latter may have to pay the rent to the Custodian as well. After the transfer of the property in favour of Abubakar and its alienation in favour of his brother notice dated 6-3-1965 was served upon Naneckji calling upon him to pay rent ostensibly for the entire period. Certain correspondence followed in between the parties to which it would not be necessary to refer at this stage. Usman Haji Ghani ultimately filed an ejectment case before the Rent Controller being Case No, 542/68 on the ground of default and subletting. At the same time respondent No, 4 in Petition No, 109/71 filed an application in the Rent Controller's Court offering to deposit monthly rent of the disputed premises to be paid to the rightful owner of the shop.
6. ' In the meantime, on 16th February 1968 Messrs Hirjina & Co., owners of Hurmuz Wine Stores, moved a Miscellanous application before the Deputy Settlement Commissioner, Karachi claiming that they were in occupation of the shop bearing No, VA-165/G-1 on Plot No, SB-6/15-A/G-1, and on this basis transfer of the shop on reserved price was prayed. On this application the learned Deputy Settlement Commissioner vide his order dated 21-3-68 transferred the same to Messrs Hirjina & Co.
7. This transfer was challenged by Haji Abubakar and Usman Haji Ghani before the Additional Settlement Commissioner, Karachi, who by order dated 15th February 1969 set aside the orders of transfer, and remanded it back to the Deputy Settlement Commissioner for determination of the following points: "(1) Whether the shop in possession of the respondent No, 2 stands on the non-evacuee portion and measuring 3'x 5', or it is on that portion which was evacuee property and stands transferred to the appellant.
(2) Whether correct price has been charged from the appellant and if not, correct price should be calculated and charged from the appellants.
(3) If he finds that the Wine shop is situated on the evacuee portion and was not transferred to the appellant, then he will have to dispose it off according to law."
8. ' It was also observed by the Additional Settlement Commissioner that no application on the prescribed form was filed by Messrs Hirjina & Co. Under Scheme No, VIII and, therefore, the Deputy Settlement Commissioner had no jurisdiction of transferring the property on a plain application, by negotiation, without the approval of the Additional Settlement Commissioner.
9. ' On remand the Deputy Settlement Commissioner came to the conclusion that reference to the area 3'x 5' had created confusion; that Hurmuz Wine Stores measures 12'x 14' standing on an evacuee property SB-6/15-A and that it is not part and parcel of the Jem Jewellers. It was also observed that Haji Abubakar was transferred only SB-6/15 and that second shop SB-6/15-A was subsequently added, to which he was not entitled. He also came to the conclusion that Abubakar had paid the price only with respect to Jem Jewellers and had not paid the price for the shop of Hurmuz Wine Stores. He further came to the conclusion that the transfer of Hurmuz Wine Stores to the owners of Jem Jewellers was a nullity in the eye of law and, therefore, deletion of the same was ordered from the P. T. D. Issued to them. At the same time, while taking a claimant view of the application of Messrs Hirjina & Co. Being in improper form the learned Deputy Settlement Commissioner transferred the same to him under Settlement Scheme No, VIII.
10. ' Haji Abubakar and his brother again agitated against this order before the Additional Settlement Commissioner, who while confirming the findings of the Deputy Settlement Commissioner that Hurmuz Wine Stores was separate shop to whose transfer Haji Abubakar was not entitled, came to the conclusion that the shop could not be transferred to Messrs Hirjina & Co. By negotiation as no application in the form and manner prescribed by Settlement Scheme No, VIII was filed. He, therefore, set aside this transfer in their favour and ordered that the shop in question should be disposed of by public auction.
11. ' Both the parties challenged this finding of the Additional Settlement Commissioner before the Settlement Commissioner but the learned Settlement Commissioner confirmed these findings of the Additional Settlement Commissioner. Feeling aggrieved by this order both the parties have filed the present petitions.
12. ' Mr. Villiani the learned counsel for Jein Jewellers, contends that after the issuance of P. T. D. Dated 8-8-63 in favour of Messrs Jem Jewellers the Settlement authorities had become functus officio and, therefore, could not go behind the P. T. To hold an inquiry and cancel the same. His contention is that this action of the Settlement authorities starting from the first order of the Deputy Settlement Commissioner dated 21-3-68 is entirely without jurisdiction. On the other hand Mr. Iqbal Kazi the learned counsel for Humaz Wine Stores contends that the P. T. D. Issued in favour of Messrs Jem Jewellers did not correctly reflect the orders of Mr. A. H. M. Kehar the then Deputy Settlement Commissioner and Mr. Abdul Matin Siddiqui, the then Additional Settlement Commissioner before whom Haji Abubakar had agitated against the non-transfer of the shop housing Hurmuz Wine Stores. Dr. Iqbal Kazi contends that in view of the specific findings to the contrary by these two officers the mention in the P. T. D. Of transfer of Hurmuz Wine Stores to Haji Abubakar was purely based on fraud and misrepresentation and, therefore, the order of Mr. Masood Alam the then Deputy Settlement Commissioner, issuing P. T. D. On 8.8-63 was not sustainable in law and that the Settlement authorities had always jurisdiction to cancel such P. T. D.
13. ' In order to appreciate the arguments of Mr. Villiani we have to go back to the order of Mr. Kehar and Mr. Malin Siddiqui. Mr. Kehar in a short order dated 22-1.62 disallowed the request of Haji Abubakar to include the shop of Hurmuz Wine Stores in his transfer documents. His -order is to the following effect: 'Heard parties and site inspected in presence of the parties. From the perusal of case papers it is clear that Haji Abubakar has got P. T.
0. Only for property No, VA-165 SB. 6115 and charged for the same hence the disputed premises Hurmuz Wine Stores as alleged by the applicant which comprises separate No, V-A-165 is not transferred to the respondent hence question of applicant's objection does not arise. No doubt there is afterthought entries in CS form of the respondent word 66 written which the respondent wanted to get it as one unit but he never succeeded in his efforts. It is no doubt separate unit and cannot be transferred as one unit being separate unit and situated in main street known Elphinsto. e Street which put in open auction will fetch quite big amount as the property adlacent to these premises have fetched quite big amounts. Hence since there is no form pending as the same is in possession of locals it is ordered to be put in open auction after giving wide publicity. P. T.
0. Already issued to respondent for his premises Jem Jewellers stands valid and Wine Stores has to be put for open auction."
14. ' This order was challenged by Haji Abubakar before the Additional Settlement Commissioner, who vide his order dated 31-12-1962 disallowed the appeal. This order again being short is reproduced for faciity sake : "This is an appeal against the order of Mr. H. I. M. Kehar, Deputy Settlement Commissioner (Disposal), Karachi dated 22-1-1962, directing the disposal of the said property by public auction.
15. ' The appeal has been preferred on the following grounds: (1)That Hurmuz Wine Stores, which is being run in the disputed premises is a part and parcel of Ghani Jewellers to whom G.1 and G.2 of V-A/165, have been transferred. It has been contended that the Municipal Assessm ent for the years 1944-45 and 1947-48, clearly established this position.
16. (2)That the said wine store is not a separate and independent building except a very small portion of 3'x 5' which is situated on a separate plot No, 166.
17. ' I have inspected site in the presence of the learned counsel for the appellant and found that the disputed tenement has been raised on a very small piece of land, which does not appear to be a part of the plot on which the main building stands. In fact the disputed tenement appears to have been constructed on a portion of the street which must be Municipal land. I doubt very much if it is a regular and authorised construction, raised after securing a valid lease from K. M. C. Evidently it does not form part of the tenement already transferred to the appellant however small and tiny it may be. I do not see any reasons to differ from the findings of the learned lower Court. The appeal is, therefore, disallowed. However, before disposing of the tenement in dispute the Deputy Settlement Commissioner concerned should ascertain its correct position viz., whether or not it is a regular evacuee construction transferable under Settlement Scheme No, I "
18. ' The difficulties of English language apart, Mr. Kehar's order is very clear on the point that the premises housing Hurmuz Wire Stores does not form part of the shop known as Jem Jewellers and that it has been rightly excluded from the transferred documents issued to Abubakar I e. The P. T.
0. Mr. Matin Siddiqui has also, in very clear terms, confirmed these findings of Mr. Kehar. After these two concurrent findings on the point, which were not challenged before Settlement Commissioner, it is not understood as to how Mr. Masood Alam the Deputy Settlement Commissioner included these premises in the P. T. D. Issued by him. Directions of Mr. Matin Siddiqui the Additional Settlement Commissioner to Mr. Masood Alam, as regards the disputed premises were to find out if they were located on evacuee property, or were on a municipal property. Instead of proceeding to make the inquiry as directed, Mr. Masood Alam included the same in the P. T. D. Issued to Abubakar.
19. This act on the part of the Deputy Settlement Commissioner was not only patently beyond his jurisdiction but also can be rightly claimed, as has been so claimed by Mr. Kazi, that it was as a result of misrepresentation on the part of Haji Abubakar. As a result, Mr. Kazi contends, the order could be set aside by the Settlement authorities themselves and their such order would not suffer from any jurisdictional error. As against that Mr. Villiani's contention is that in the first place the ground of fraud or misrepresentation was never taken at any stage by Messrs Hirjina & Co. Ever siace they are agitating for the transfer of the disputed premises in their favour ; and secondly, even on a ground of fraud or misrepresentation the settlement authorities, having become functus officio, could not interfere in the P. T. D. In support of his second contention he relies upon a number of rulings. The first of these authorities is contained in Anwar Hussain's case (1). This authority related to the period when rules 6 and 7 of the Permanent Transfer (Housing and Shops) Rules, 1961 had not been deleted. These rules empowered the Settlement Authorities to hold inquiry and in case of fraud and misrepresentation to cancel the P. T. D. It was observed that the merit of these provisions is that the Central Government or the Settlement authorities were saved from making recourse to a civil Court for the cancellation of transfer documents on the grounds listed therein.
20. The ruling contained in Fatima Bai v. Ibrahim (2), flows from the dictum of the Supreme Court laid down in Anwar Hussain's case. In Murid Hussain Shah v. Muhammad Yousuf All (3) the Supreme Court held that after the issuance of P. T. D. The property goes out of the compensation pool, with the result that suo motu revisional jurisdiction of the Settlement Commissioner or that of the Chief Settlement Commissioner no longer exists. Same is the view taken in Girdhari Lal v. Settlement Commissioner (4). Thus the authorities relied upon by Mr. Villiani deal with the scope of powers of the Settlement Authorities to interfere in a P. T. D. As regards the competence of such authorities to interfere in transfer documents after the issuance of P. T. D. On an allegation of fraud and misrepresentation, the view was that it could be done before the deletion of rules 6 and 7 of the Permanent Transfer (Houses and Shops) Rules, 1961. As regards the position obtaining after the deletion of these Rules there is a pronouncement of a Division Bench of this Court reported in Ali Muhammad v. Haji Hussain (5), wherein it was held that: "After issue of the Permanent Transfer Deed to the appellant for tenement of II-A-452-A, no power was available to the Additional Settlement Commissioner to cancel transfer of the said tenement to the appellant, or to resume this tenement and after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, this power could not be exercised by the Settlement Authorities on grounds of misrepresentation, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
21. ' As regards the fraud being played upon a Court the law is very clear. Fraud being most abhorent to law, it is a general principle that the Courts have always the inheret jurisdiction to afford a remedy to a person injured through such fraud. This principle has been judicially recognised and for that I may refer only to the case of Kartik Mondal v. Pagali Dasi (6). Extension of this principle of inherent jurisdiction to correct the effects of a fraud, to administrative tribunals and to tribunals of quasi-judicial nature was B 'first made in the case of Latifan v. Muhammad Ishaq (7). And now recently {{FOOT NOTE}}
(1) PLD 1971 SC 669 (2) PLD 1972 Kar. 601
(3) 1974 SCMR 8 (4) 1974 SCMR 474 45) PLD 1975 Kar. 971 (6) PLD 1969 Dacca 456
(7) PLD 1974 Lah. 65 {{FOOT NOTE}} ' the Supreme Court has in Muhammad Anwar v. M. A. Wasti (1), observed as follows: "The second limb of the argument, namely, that after the issuance of the P. T. D. In the petitioner's favour, the matter could not have been re-opened, conveniently overlooks the further well-settled proposition that in the circumstances of the case, the question whether P. T. D. In favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, is open to judicial scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of 1961 Rules, does not foreclose the jurisdiction of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even after the issue of P. T. Ds. See for instance the Court's judgment in Civil Petition for Special Leave to Appeal No, K-104 of 1965 (Muhammad Ismail v. Mst. Shamsunnisa) and in Anwar Hussain v. Sarfraz Ahmad (PLD 1971 SC 669)."
22. ' Other authorities referred to by Mr. Kazi to show the scope of interrefence by the Settlement Authorities in matters of transfer of evacuee property, even after the issuance of P. T. D. Are with respect to cases where a P. T. D. Is issued pendente lite (Khuda Bux v. Khushi Muhammad (2); proceedings ending in the issuance of P. T. D. On the basis of an act done beyond jurisdiction- Shandin v. Ferozedin (3), and cases where the property could not be transferred in law as in Ahmad Shah v. Fazal Rahim (4). These authorities and the ones cited earlier clearly bring out the principle that a P. T. D. Can still be cancelled if conditions identical to those listed above exist in each case.
23. Blether such conditions exist or not would always be a question to be determined on the facts of each case.
24. ' The question whether an allegation of fraud and misrepresentation gives jurisdiction, to the Settlement Authorities to interfere with a P. T. D. Stands settled with a view taken by their Lordships of the Supreme Court in the case of Muhammad Anwar v. M. A. Wasti which would prevail as against any other view of law on the point. This is so because of Article 189 of the Constitu tion. But in order that a Court or tribunal should assume jurisdiction, where non-existed otherwise, on the basis of fraud or misrepresentation having been played upon such Court or tribunal, it is always necessary that specific plea of such fraud having been played should be taken. This is a condition precedent for conferring jurisdiction on such Court. This is also the view taken in Azirunnessa v.
25. United Bank of India (5) and Muhammad Azim v. Pakistan Employees' Co-operative Housing Society (6). This is necessary because the next proposition of law in this context is that, each element of such fraud should not only be pleaded but proved as well. This facilitates the other party to meet the allegations brought against him. In the present case not only that there was no such plea taken at any stage, none of the Settlement Authorities have proceeded to assume jurisdiction, subsequent to the issuance of P. T. D: in favour of Abubakar, on this ground. They have tried to determine the question afresh, if Hurmuz Wine Stores forms a part and parcel of the Jem Jewellers. Not only that while doing so they seem to be completely unaware of the earlier findings of the Deputy Settlement Commissioner and the Additional Settlement Commissioner, on this point, but {{FOOT NOTE}}
(1) 1975 SCMR 372 (2) PLD 1976 SC 208
(3) PLD 1974 Lah. 481 (4) 1975 SCMR 268
(5) PLD 1963 Dacca 13 (6) PLD 1973 Note 84 at p. 119' {{FOOT NOTE}} ' determination of this question, by itself, could not provide a ground to the Settlement Authorities to assume jurisdiction in the matter.
26. ' Another contention of Mr. Kazi is that in accordance with para. II of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a person can be entitled to the transfer of only one shop. He, therefore, contends that Hurmuz Wine Stores, being a distinct shop, and Abuhakar, having been transferred Jem Jewellers, was not entitled to the transfer of Hurmuz Wine Stores, Mr. Villiani contends on the other hand that the Settlement Authorities had always the jurisdiction to treat a particular premises, even if comprising of two tenements, as one shop and as such to transfer the same to one transferee. The contention of Mr. Villiani would have been tenable if the Settlement Authorities had, as a matter of fact, treated Jem Jewellers as well as Hurmuz Wine Stores as one premises, The orders of Mr. Kthar and Mr. Matin Siddiqui, as far back as 1962, declare that these two premises were two independent units. On this ground at least the P. T. D. Dated 8- 8.63 is not sustainable in view of the principles of law laid down in Ahmed Shah's case referred to above. Following this dictum there can be no manner of doubt that as the second shop was not transferable to Messrs Jem Jewellers, such transfer, being against the provisions of the C Schedule, was without any legal effect. For this reason the Settlement Authorities could always assume jurisdiction to interfere in the P. T. D.
27. ' Mr. Kazi also relies upon Rounaq Ali's case (1) and Wall Muhammad's case (2), in support of the contention that an order in writ is a discretionary order and its object is to foster justice and in case where an order, sought to be set aside, had corrected an illegality, even if such order was passed beyond jurisdiction, the extraordinary jurisdiction of the High Court should not be allowed to be invoked. The view in Wall Muhammad's case is that if b the exercise of discretion under this jurisdiction the result would be to perpetuat the retention of ill-gotten gains then relief under this provision should not be provided. Mr. Kazi contends that Messrs Jem Jewellers are not entitled in law to the transfer of the premises known as Hurmuz Wine Stores and, therefore, the writ prayed for on their behalf should be refused. These submissions have substance in them.
28. ' Mr. Kazi however, in support of his own case contends that delayed submission of application on behalf of Hurmuz Wine Stores should not disentitie them to the transfer of the property if they are otherwise entitled under Settlement Scheme No, VIII. In this connection he relies upon Lahif Hussain's case (3), subsequently followed in Alibux v. Nizamdin (4). The view taken in Lail Hussain's case was that the provisions in para. 2 of Settlement Scheme No, I were enabling provisions and as there was a standing practice of the department to accept applications beyond its prescribed period under this para. Through various press-notes, this para. Could not be deemed to authorise the Chief Settlement Commissioner to lay down limiting date for this purpose. But there are two distinguishing features in the present case. Firstly the Scheme No, VIII, unlike Scheme No, I, itself lays down the date by which the forms were to be submitted ; and secondly the applications had to be submitted in the form prescribed for the purpose. In the present case not only that Messrs Hirjina & Co. Did not {{FOOT NOTE}}
(1) PLD 1973 SC 236 (2) PLD 1974 SC 106
(3) PLD 1965 SC 68 (4) 1975 SCMR 182 {{FOOT NOTE}} ' submit the application within the time limit prescribed therefor, but the one submitted by them was on a plain paper which did not give any details required to be given on the form prescribed for the purpose. This application, therefore, was no application in the eyes of the law. The SettlementB Authorities were, therefore, perfectly correct to hold that Messrs Hirjina & Co. Had not submitted any proper application, and the one submitted by them was also beyond time. In these circumstances it was correct to declare, as they did, that the property could not be disposed in terms of Settlement Scheme No, VIII.
29. ' In view of the above discussion I have come to the conclusion that the Settlement Authorities were right when they held that Hurmuz Wine Stores was not transferable to Messrs Jem Jewellers and that the only way of its disposal is through public auction. In this view of the matter the orders of the Settlement Authorities to this effect do not call for any interference. I would, therefore, dismiss both the petitions. Costs to be borne by the parties.