MUHAWAR AHMAD MIRZA, J.---The judgment dated 12-9-1994 passed by learned Judge in Chambers of Lahore High Court in Writ Petition No. 1060 of 1993 was challenged in the first round by claimant Syed Wajih-ul-Hassan Zaidi in Civil Appeal No. 141 of 1995 and the Government of Punjab, aggrieved from portion of said decision, filed Civil Appeal No. 1029 of 1995. Both the appeals were, however, dismissed by a learned Full Bench of this Court on 10-12-1995 (See Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and 2 others (1996 SCM R 558). The appellants sought review of judgment aforesaid in Civil Revision No. 21 of 1996 which was allowed by this Court on 10-12-1996 in the following terms:- "It seems that while disposing of the writ petition by the High Court and the appeal by this Court, the Order of the Deputy Settlement Commissioner, Jhelum, dated 21-3-1994, passed pursuant to the remand order of the Settlement Commissioner dated 8-11-1973, was not noticed. The contention raised by the learned counsel for the petitioner is that in view of the above order of the Deputy Settlement Commissioner (against which no further proceedings were filed), no proceedings were pending on 1-7-1994, when the repealing Act (Act XIV of 1975) came into force. The above contention has some force and needs further examination. We accept the review petition and recall the judgment dated 23-1-1996 passed in Civil Appeal No. 141 of 1995).
2. Brief facts giving rise to the filing of the titled appeal are a bit complicated. 'However, brief resume of circumstances on the basis of available material which is relevant for deciding the controversy are, that an immovable property bearing No. B-XII-12-S-26 known and styled as S. P. House situated in Civil Lines Jhelum was evacuee property. Syed Wajih-ul-Hassan Zaidi appellant (hereinafter referred to as Claimant took over possession of aforementioned S.P. House from Muhammad Azam Qazi towards 12th October, 1959, when posted in the capacity of Superintendent of Police, Jhelum.
Record reveals that being Claimant and Displaced person, he submitted C. H. Form as envisaged by Settlement Scheme No. 1 framed under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as "Rehabilitation Act."). It would be appropriate to mention here that target date concerning physical occupation of evacuee building for securing its transfer under Settlement Scheme No. 1 was specified under law to be 20th December, 1958. C. H.
Form was submitted by the claimant before Settlement Authorities on 17th November, 1959.
Contents being relevant are reproduced hereunder by way of photo copy-print:- Form CH-House Compensation Book No. 162761 JMR-761 (To be filled by office)
(Rule 8)
APPLICATION FORM FOR TRANSFER ON EVALUATION BASIS OF A HOUSE IN THE POSSESSION OF A CLAIMANT OR HIS PARENT, SON, DAUGHTER OR SPOUSE UNDER PARA. OF THE SCHEDULE TO THE DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1958.
Instructions for applicants
1. To be filled in duplicate and submitted to the Deputy Settlement Commissioner of the area in which the property is situated.
2. Please also submit application in Form A for the issue of a Compensation Book if not already done.
3. Replies should be given against all items. If any information is not available with the applicant please state "Not known".
To The Deputy Settlement Commissioner, .....Jhelum.....
Dear Sir, I hereby apply for the transfer to me on evaluation basis of the house in my possession/----------- -------------------------------------------.. Under paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation, Act, 1959. Necessary particulars are given below.
Yours faithfully, (Sd.)
Station. Jhelum. (Wajihul Hassan ---Zaidi)
Superintendent of Police, Jhelum.
Date. 17-11-1959 (Signature or left hand thumb impression of the applicant.
PARTICULARS (To be filled in English)
1. Name of applicant Wajihul Hassan Zaidi 2.Son of Mr. Syed Altaf Hassan Zaidi,
3. Present address in Pakistan. Superintendent of Police, Jhelum,
4. Particulars of the house which the applicant desires to be transferred to him on evaluation basis.Bungalow No.26 (known as S.P's House).
No. A/26.
Ward. Civil Lines.
Street. Civil Lines.
Town, Jhelum.
Name of Evacuee owner Dhan Raj Shah and Tulsi Dass Shah
5. If the house is in the possession of the applicant's parent, son, daughter or spouse, state the name of the person in possession and his, relationship with the applicant.Self as P Jhelum
6. Has the applicant ascertained that his relation referred to at 5 above does not desire to claim the house?NA
7. Date of possession of the house applied for. It is in the possession of S.P. Since Partition.
8. Whether the house is situated within the limits of a cantonment?No.
9. Number and date of allotment order issued by a competent authority under which house stands allotted (An attested copy of the allotment order to be attached).Not necessary in view of the present orders.
10. Whether the house or part thereof is in the occupation of any person other than the applicant and his family? If so, state the name of such person.No,
11. Is the house applied for No,
(i) a trust property
(ii) in the possession of a displaced person from the Indian occupied territory of the State of Jammu and Kashmir?
12. Gross annual rent of house prevailing in 1946 (if known to applicant).Not known {{FOOTNOTE}} * Attested copy means a copy certified to be true copy by Gazetted Officer or a Commissioned Officer under his signature and Seal Stamp. {{FOOTNOTE}}
13. Present gross monthly rent. Rs.100 per month.
14. Amount, if any, Sanctioning accepted as authority. "charge" competent authority in respect of the house applied for and not yet adjusted against rent.No. And Name of Amount. Date of the person letter of in whose sanction. Favour charge created. _______________________________Nil___________________________________
15. Whether he is in possession of any other evacuee house(s) anywhere the West Pakistan or Karachi? If so, the date s of occupation and full addresses of all such houses should be given.None.
16. Whether he has already, obtained any other evacuee property? If so, order so f competent authority relating to the transfer of such property should be quoted.Nil.
I hereby declare:-- (a)that I have not submitted an application in this form to any other authority, (b)that I have acquainted myself with the provisions of section 18 and section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (c)that the information supplied by me is correct to the best of my knowledge and belief and I have neither concealed nor misrepresented facts, and (d)that I am not a displaced person from the Indian occupied territory of the State of Jammu and Kashmir.
(Sd.)
(Wajihul Hassan Zaidi)
Station. Jhelum. Superintendent of Police, Jhelum.
Date. 17-11-1959, (Signature or left hand thumb impression of claimant) ------------------------------------------------------------------------------------------ ------------------------------ Alongwith C.H. Form Declaration of Eligibility was also submitted, photo copy-print whereof is also given below:--- ANNEXURE TO FORM CHICS/KCHIKCS. ---------- DECLARATION OF ELIGIBILITY (To be filled by a claimant who does not hold an allotment order for the house/shop in his occupation).
I, Wajihul Hassan Zaidi, son/daughter/wife/widow of Mr. Syed Altaf Hassan Zaidi.______________________ resident of (postal address) Superintendent of Police._________________________ Jhelum_______________________________________________________________ do hereby declare:---
(a) that I am in undisputed occupation of the house/shop situated at (full address)A/26 known as S.P's. House. As Superintendent of police. since partition i.e., before 21st December, 1958:
(b) that to the best of my knowledge no other person is otherwise entitled to the transfer of the house/shop in pursuance of a final order passed in his favour by a competent authority on or before the 20th December, 1958; and
(c) that I agree to the rent and other public dues in respect of the house/shop being adjusted against my claim from the date of occupation up to 31st December, 1958.
2. I enclose three copies of Appendix" X in which entries marked with an asterisk have been filed in by me.
(Wajihul Hasan Zaidi)
Superintendent of Police, Jhelum.
Signature or thumb-impression of applicant.
Station Jhelum.
Date 17-11-1959, In addition to the above claimant also separately addressed a letter on the same day viz. 17th November, 1959 to Deputy Settlement Commissioner, Jhelum, indicating that CH Form had been submitted provisionally, subject to condition that 'S.P. House' is not requisitioned for official residence. Later, after necessary formalities Notice No. JMR.985/X/629 dated 1-12-1959 of Transfer pertaining to 'S.P. House', Jhelum was sent to claimant on 1-12-1959, which is also reproduced below in the shape of photo copy-print, so that exact details are ascertainable:-- APPENDIX X (Settlement Scheme No.1)
OFFICE OF THE DEPUTY SETTLEMENT COMMISSIONER, JHELUM NOTICE OF TRANSFER.
(For claimants)
No. JMR. 985/X/629 Dated 1-12-1959 To, Wajihul Hassan Zaidi, Superintendent of Police, Jhelum.
Refrence---Your application in For CH______ (Receipt No. JMR 761/C.H.) for the transfer of______ ____BXII 12-5-26.
House No.A/26, SP's House. Jhelum.
1. It has been decided to transfer to you the property described below:--- House No.A/26 SP's House, Jhelum. 13XII 12-5-26
2. The following transfer price is payable by you in connection with the transfer of the above- mentioned property to you under the Displaced Persons (Compensation and Rehabilitation) Act, 1958:---
(i) Evaluation price 1128/x40 Rs,45120/- (ii)Amounts payable in addition to the value of the property---Name of Prop. No. B-XII 12-5-26 reduced Key 50.
(a)Cost of additions to the property.
(b)Cost of special repairs to the property. Rs,22,560.00 (iii)Amount to be deducted from Deputy Settlement the value of the property Commissioner, Jhelum. Total Transfer Price Rs,45120
3. The transfer price may be paid by you in cash in thirty-six equal monthly instalments or it may be got adjusted against the amount of deferred payment shown in your Compensation Book and in that Compensation Book of any other claimant whom you may like to associate with you as a shareholder in the property to be transferred. You should, therefore, furnish the following information---
(1) Do you want to make payment in cash or utilise the amount of delerred payment in your Compensation Book? Please state the amount in each case.
(2) Do you want to associate other claimants with you? If so, give the particulars required below:---
(i) Names and addresses of associated claimants.
(ii) Nos. Of their Compensation Books.
(i.e) Amounts of deferred payment to be utilised or cash to be paid in each case.
You should also furnish the following documents:---
(i) An attested copy of the agreement of association indicating the share of each transferee.
(ii) The Compensation Book of each claimant,
4. Please furnish a reply to this Memorandum and produce the above--mentioned documents in my office on 7-12-1959 (date) at 9-a.m. (the), failing which it will be presumed that you agree to the transfer of the aforesaid property to you on payment of the above-mentioned amount in cash which will be recoverable from you in thirty-six equal monthly instalments. Please note that failure to pay to consecutive instalments will make you liable to ejectment from the property and the outstanding amount will be recoverable as arrears of land revenue.
Dy. Settlement & Rehab. Commissioner/ Deputy Settlement Commissioner, Jhelum.
(Seal)
Station Jhelum Date:1-12-1959.
A copy is forwarded to the Settlement Accounts and Record Office, .11, Egerton Road, Lahore.
Dy. Settlement & Rehab. Commissioner/ Deputy Settlement Commissioner, Jhelum.
3. It may, be seen, that on 11-1-1960 Deputy Settlement Commissioner, Jhelum, issued Provisional Transfer Order concerning House No. B-XII-12-S--26, Civil Lines, belonging in equal shares to evacuee owners Dhan Raj Shah and Tulsi Das Shah subject to payment of evaluation price to be communicated subsequently, after proper assessment by competent Authority. Initially Provisional Transfer Order did not contain measurement or details concerning Khasra Nos. Of land granted to claimant Syed Wajih-ul-Hassan Zaidi. However, subsequently on 18-10-1968 in pursuance of order dated 1-5-1968 passed by Additional Settlement and Rehabilitation Commissioner following addition was made :--- "Included Khasras Nos. 168 171 to 191 379 to 381 Nalah included and some land behind Nalah transferred vide Add. S. R. C. Order dated 1-5-1968."
It may be seen that abovementioned area of land subsequently included in the P. T. 0., factually belonged to evacuee Sardar Mohan Singh: Thus, without mentioning true position, above-referred changes were introduced.
4. It appears that when claimant perused the matter for issuance of Permanent Transfer-Deed, with regard to S. P. House ; it revealed that no valid order for transfer of open land in excess of three times the plinth area of S. P. House had been passed in his favour. Deputy Settlement Commissioner while processing case for issuance of P.T.D., submitted report to Additional Settlement and Rehabilitation Commissioner, Rawalpindi, on 6-1-1968 asserting that file relating to transfer of said bungalow was not traceable. The record produced by the claimant discloses transfer of S. P. House, Jhelum to the claimant vide P.T.O. No. 693 against evaluation price of Rs.45, 120 which, however, contained that "assessm ent of uncovered area will be communicated later on." The above report of Deputy Settlement Commissioner was based upon earlier report of his predecessor dated 1-2-1961 wherein it was mentioned that an area of 131 Kanals, 6 Marlas was shown as attached with the S. P.
House, out of which 48 Kanals and 1 Marla was suggested to be transferred to the claimant free of cost while extra price was chargeable for remaining 83 Kanals, 5 Marlas. Anyhow, market value of extra land showing Rs.200 per Kanal was considered as very low. Similarly genuineness in the manner of recovering amount towards evaluation price of excess land by the office was also suspected.
5. It is most important to notice that record is conspicuously silent about disposal of lands belonging to evacuee owner ' Sardar Mohan Singh ; The department appears to be labouring under the impression and total tract of land belonged to ' Dhan Raj Shah and Tulsi Ram - Somehow on 1- 5-1968 the details showing Khasra Numbers of land without mentioning name of any other evacuee owners was incorporated in the P.T.O. Initially issued to the claimant appellant on 11-1-1960, whereas obviously evacuee owners of S. P. House and area of land subsequently incorporated in P. T. 0. Were quite distinct and different persons,
6. According to claimant subsequently P.T.D, bearing page No. 202/11; page No. Of CSC-4-93/5; Page No. Of CSC-5-54/17 was issued in his favour on 30-11-1968. Following details were given while providing essential particulars of property in said document.
"House and open land No. B-XII-12-S-26, Khasra Nos. 168, 171 to 191, 379 to 381 measuring 131 Kanals and 17 Martas permanently transferred to Syed Wajihul Hassan Zaidi."
7. For placing the record straight it would be necessary to point out that Deputy Settlement Commissioner in his note dated 6-1-1968 made a categoric observation that without valid order regarding approval of transfer price, some amount was shown to have been adjusted to cover the value of excess land procured by claimant. It is indeed astonishing that price for said excess area of land is alleged to have been deposited towards 6th April, 1960 when same was not even factually transferred to him. This apparent anomaly is unresolved.
Muhammad Ramzan on 14-10-1972 challenged proprietary right of appellant over an area of land comprising of Khasra No. 178, but eventually his claim was turned down. Besides, claimant had himself relinquished his right over said land, therefore, same would not have material effect for deciding present dispute.
8. Record indicates that matter with regard to transfer of excess land in favour of appellant came up for consideration before Settlement and Rehabilitation Commissioner, Rawalpindi, in Civil Revision No. 26 of 1972, which was ultimately decided vide order, dated 8th November, 1973 and case was partly remanded to Deputy Settlement Commissioner. This order was not challenged by appellant/claimant, and proceedings remained pending till promulgation of repealing Act 1975.
Operative portion of said order is reproduced below :--- "After hearing the parties and perusal of the relevant record whatever the merits of the case of the petitioner may be, I have not been able to lay my. Hands upon any orders whereby the suit Khasra number alongwith most of other Khasras has been transferred to the respondent. As rightly pointed out by the learned counsel for the petitioner, the order to which a reference has been made pertains to the determination of the market value of the excess land allowed to the respondent but it does not say any where that certain Khasra numbers have been transferred to- the respondent. In such circumstances when the very order transferring the disputed Khasra number alongwith other Khasra numbers is lacking it would have been proper for the learned lower Court to have either inquired into the matter himself or ordered inquiry in this regard to find out as to what precisely has been transferred to the respondent and whether the Khasra number in question was included in the transfer order. If not, he should have given a finding as to whether the said Khasra number also stood transferred to the respondent if it constituted evacuee trust property in which case the matter should have been referred to the Chairman Evacuee Property Trust Board, Pakistan who is possessed of the requisite powers in such matters.
In view of the discussion made above the revision petition is accepted partially and the case remitted to the learned Deputy Settlement Commissioner for holding an inquiry as indicated above and in case he comes to a conclusion that the suit Khasra number has not been ga'transferred to the respondent then it shall be excluded from the transfer documents of the respondent and in case his finding is otherwise then the case shall need a reference to the Chairman, Evacuee Trust Board, Pakistan, as indicated above. "
9. It may be seen that Deputy Settlement Commissioner, Jhelum, vide Memo No. 73/DSC/JMR, dated 13th March; 1978 issued show-cause notice for explaining why illegal transfer of S. P. House and land in vicinity procured by him, be not cancelled. Appellant challenged the said notice through Writ Petition No. 451/R of 1978 before Lahore High Court Which was subsequently withdrawn on 2nd April, 1978.
10. Thereafter case was taken up by Additional Settlement Commissioner (General), Jhelum (The Notified Officer) directed resettlement of property from appellant by means of judgment dated 8-7- 1990. This order was challenged by appellant through Writ Petition No. 181/R of 1990 before Lahore High Court which was partly accepted and case remanded force-adjudication to the Member, Board of Revenue/Chief Settlement Commissioner. Record discloses that 'Notified Officer' vide order, dated 12th July, 1993, validated transfer of S. P. House and land in favour of claimant. Feeling aggrieved from said order Government of Punjab filed Writ Petition No. 1060 of 1993 before Lahore High Court, which was partly accepted on 12th September, 1994, and transfer of surplus land to claimant was declared illegal, whereas transfer of S. P. House alongwith 35 Kanals 8 Marlas of attached land and area of 12 Kanals 8 Marla previously constituting Barsatinala was validated Operative portion of judgment is reproduced below:- '
"13. In the light of the findings recorded above the position which emerges is that transfer of main bungalow having total area measuring 35 Kanals 8 Marlas plus land measuring 12 Kanals, 18 Marlas previously covered by Barsati Nallah in favour of respondent No. 3 is not available property having been transferred to respondent No. 3 by the Settlement Authorities competent to pass such an order and the remaining land having not been transferred to respondent No. 3 is available far disposal under the repealing settlement laws.
14.Reverting to the objection that after issuance of P.T.D. No power was vested with any functionary of the department to re-open the case it may be pointed out that the said rule is not applicable in the present case for variety of reasons. P.T.D. Is a document which has no independent existence as the same is prepared and issued on the basis of an order regarding transfer of property passed by the Settlement Authorities. If no transfer order is found to have at all been passed in a given case by any authority but the P.T.D. Was issued, the same would be of no legal effect and in such a case the jurisdiction was not ousted in order to determine whether any order of transfer was in fact passed or not. Apart from this here is not, a question of validity of P.T.D as a whole but the additional entries made in the P.T.O. Based on order dated 1-5-1968 on the basis of which entries were also made in the P.T.D. The question of legality of these additional entries was raised and since it has been found that the said entries are not in accordance with order dated1-5-1968 and with in its scope, therefore the same are not only unauthorized but illegal and have no existence in law and can be struck down.
15. For the foregoing reasons the writ petition is partly accepted. The impugned order dated 12-7- 1993 passed by respondent No. 1 is maintained so far as it relates to transfer of main bungalow having total area of 35 Kanals, 8 Marlas plus land measuring 12 Kanals, 18 Marlas which was previously covered by Barsati Nallah and as regards the rest of the land/property the same is hereby declared to be without lawful authority and of no legal effect and quashed. The concerned authorities in the Settlement Department are directed to suitably amend the P.T.O. And P.T.D. Issued in favour of respondent No.3 omitting the additional entries as regards transfer of land comprising Khasra Nos. 168, 171 to 191 and 379 to 381 and instead entries shall be made regarding transfer of land measuring 12 Kanals, 18 Marlas which was previously covered by Barsati Nallah. There will be no order as to costs."
11. Claimant challenged said decision through Intra-Court Appeal No. 545 of 1994 which was dismissed on 30th October, 1994. Petitioner being dissatisfied from above-referred order of Lahore High Court filed Civil Petition No. 503 of 1994. Leave was granted on 15th February, 1995, covering the same into Civil Appeal No. 141 of 1995. This appeal was eventually dismissed by this Court on 10th December, 1995 (1996 SCM R 558 Syed Wajih-ul-Hassan Zaidi v. Government of Punjab through D.C.
Jhelum and 2 others).
12. Mr. Sharif-ud-Din Prizada, learned counsel appearing for petitioner has raised following contentions:- (i)P.T.D. Was issued in favour of appellant after enquiry and verification and payment of assessed value of the property. Settlement Authorities had no jurisdiction to re-open the matter. In this context reliance was placed on:
(1) Sher Muhammad v. Nizam Din and another (1974 SCM R 368), (2) Ainuddin v. Settlement Commissioner and others (1973 SCM R 624), (3) Sahebzada Syed Muhammad Matin Mirza v.
Jahangir R. Rustomji and another (PLD 1980 SC 64) (4) Muhammad Bashir v. Settlement and Rehabilitation Commissioner, Faisalabad (PLD 1983 SC 143) (5) Ghulam Ali and 2 others v, Mst.
Ghulam Sarwar Naqvi (PLD 1990 SC 1).
(ii) After repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1975, Settlement Authorities had no jurisdiction for drawing fresh proceeding to examine propriety of any decision rendered prior to promulgation of said enactment.
(i.e) Enquiry was conducted by Anti-Corruption Judge for ascertaining transparency and genuineness of P.T.O. Issued in favour of appellant. Admittedly he was exonerated from illegally procuring transfer of S.P. House or land subject-matter of dispute. Therefore, subsequent direction by settlement authority concerning re-examination of controversy was unlawful and totally unjustified. Accordingly suo motu action of Chief Settlement Commissioner directing at reopening the matter was beyond the scope of his jurisdiction.
(iv)High Court had illegally assumed jurisdiction 'and transgressed its authority by interfering with final order of settlement authority which was based on sound reasonings. Besides, scope of Article 199 of the Constitution while deciding the case has been completely misconstrued, affecting propriety of impugned judgment.
(v) Since property has been transferred in favour of appellant prior to repealing Act, 1975, therefore, Government of Punjab had neither any concern nor locus standi to institute Constitution Petition before the High Court.
14. Mr. Gul Zarin Kiani, learned counsel for respondents vehemently opposing the appeal argued that:-
(i) Claim of appellant at best related to constructed evacuee property "S.P. House, Jhelum", therefore, under the law and relevant scheme he was merely entitled to a portion of land which may not exceed three times plinth area. Therefore, transfer of surplus land to the petitioner/claimant was not covered by any law, therefore, same was void and without unlawful authority. Case-law relating to entitlement of land only to the extent of. Three times plinth area referred was (1) Prof. Bahsir Nasir v. Ch. Muhammad Hussain A.C. (S) (1983 SCM R 1258), (2)
Muhammad Aslam Khan and 3 others v. The Chief Settlement Commissioner, Lahore and 4 others (1972 SCM R 545), (3) Sahebzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji and others (PLD 1980 SC 64), (4) Muhammad Bashir v. Settlement and Rehabilitation Commissioner, Lyallpur and others (PLD 1983 SC 143), (5) Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1).
(ii) This Court in its previous Order dated 10-12-1995, Syed Wajih-ul-Nassan Zaidi v. Government of Punjab (1996 SCM R 558) while discussing facts had observed that no conscious order was passed by competent settlement authority for the transfer of open laud beyond three times of plinth area and recovery of amount without assessment of the price could not be deemed valid for granting right in favour of appellant. Therefore, it was obligatory for the appellant to specifically produce actual order of the Settlement Authority regarding surplus land which may have been expressly passed in favour of the petitioner. Since appellant despite notice has failed to produce any such document or order, therefore, on factual aspect conclusions drawn against the appellant in said judgment are binding.
(i.e)P.T.O. And other documents available on record explicitly disclose that evacuee property belonging to Dhan Raj and Tulsi Ram was transferred to appellant. Therefore, purported transfer of evacuee land belonging to Sardar Mohan Singh measuring 96 Kanals which otherwise was situated in different revenue estates was completely devoid of lawful authority and all action showing acquisition of right by the appellant over said land are of no legal effect. Therefore, property having not been validly transferred would be deemed "Available" within purview of section 3 of repealing Act, 1975. Case-law referred qua the void order and its effects is (1) Yousaf Ali v. Muhammad Aslam (PLD 1958 SC 104), (2) Mansab Ali v. Amir and 3 others (PLD 1971 SC 124), (3) Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197), (4) Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) (5) Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) (If order invalid property shall be deemed available):
(1) Laeeq Ahmad v. Maqsood Ahmad (1991 SCM R 465, (2) Hanan v. Khalilur Rehman Khan (1991 SCM R 1239), and (3) Mst. Bashiran and 7 others v. Abdul Ghani and 4 others (1995 SCM R 1833).
(iv)The High Court while exercising Constitutional jurisdiction under Article 199 had planery authority to rectify glaring wrong, void perpatuation of patent illegality, reverse or cancel order or decision which tend to frustrate existing law and cause instruction in the realm of justice. Reference was made to:-
(1) Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), (2) Municipal Board, Pratabgarh v. Mahendra Singh (AIR 1982 SC 1493) and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351).
(v) The property which had not been disposed of in conformity with law or validly transferred under settlement scheme on promulgation of repealing Act, 1975, vested in Provincial Government of Punjab. Therefore, respondent being aggrieved party had locus standi to challenge patent illegal and unjust orders allegedly passed by settlement authorities.
(vi) With prejudice to the above; tentative market price proposed by the Revenue Officers had not been expressly approved by competent Settlement Authority. Therefore, alleged payment in connivance with certain officials of the department cannot lawfully create right to the appellant.
15. Thorough scruitinising the record, examining the effect of case law relied upon by the parties and considering arguments addressed before us we feel that questions requiring determination relate to:-
(i) finality or otherwise of P.T.D. And its effects: (ii)position of pending cases; and (i.e)real concept of 'available property' under the repealing Act, 1975.
These points are apparently inter-dependent, therefore, it would be appropriate to dilate upon them conjointly. .
16. Mr. Sharif-ud-Din Pirzada, learned counsel for appellant referring to precedent case-law, attempted to show that initially Bashir Ahmed had passed an order on 2-4-1962, indicating realization of evaluated price regarding land and building from claimant on 6-4-1960 by specifically observing that no hitch existed in. The issuance of P.T.D.; but expressed desirability to postpone final action till completion of inquiry initiated against the appellant about genuineness of claim and transfer order. Referring to documents it was emphatically argued that subsequently Deputy Settlement Commissioner approved above report on 1-5-1968 and directed issuance of P.T.D. In favour of claimant with further observation that details of land be also incorporated in the Provincial Transfer Order. Main thrust of argument revolved around the fact that above order concerning issuance of P.T.D. Was not challenged till promulgation of Act XIV of 1975, therefore, same had attained finality as such was not questionable subsequently.
17. There is no cavil to the proposition that after issuance of P.T.D. Settlement authorities become functus officio and property on the basis, of transfer documents exclusively vests in the claimant.
The dictum laid down in (i) 1973 SCM R 143, (ii) 1974 SCM R 368, (i.e) PLD 1980 SC 64, (iv) P.D. 1983 SC 143 and (v) PLD 1991 SC 1; (supra) supports the contentions in that behalf. Section 2 of the repealing Act XIV of 1975 merely authorizes 'Notified Officer' to deal with such cases which are pending adjustment before different forums of competent jurisdiction where claim had not been finally adjusted. But this proposition has to be assessed in juxtaposition, in the context whether finality could be attached to inherently defective order passed by authority having absolutely no jurisdiction completely misconstruing the legal and factual aspects by violently contravening law or rules applicable at the relevant time.
(Underlining is for providing emphasis).
18. Here to important aspects requiring consideration, would be, firstly, whether settlement authorities had jurisdiction to grant land alongwith building exceeding three times of plinth area, and, secondly, whether mere unauthorized deposit of compensation book against price of land without tacit order in writing regarding fixation of its value could be sufficient for conferring proprietary right, or effecting transfer of huge area of surplus land in favour of claimant, which factually was not even demanded in original C.H. Form. These pivotal points can adequately clinch real controversy between the parties. There is no gainsaying the fact that finality could be legitimately attached to order/action or proceedings clothed with jurisdiction presupposing its conformity to law. Whereas in the instant case, even according to the stand of petitioner he came in occupation of official residence known as "S.P. House" towards 12-10-1959. Therefore, admittedly appellant was not in physical possession of land or House on the crucial date i.e. December, 1958.
Therefore, grant of building or transfer of adjoining land was contrary to essential requirement contained in relevant settlement schemes. Besides, surplus area of land could not be claimed without proper determination of price by competent authority which is conspicuously missing. This Court while dismissing the appeal on 10th December, 1995, had categorically mentioned about non- availability of such order by any competent authority. Therefore, failure to produce valid order regarding assessm ent of value for excess land clearly tends to draw adverse inference against the appellant/claimant.
19. Additionally, 95 Kanals of land comprising of Khasra Nos. 168, 171, 172 and 173 belonged to evacuee 'Sardar Mohan Singh'. This land was neither claimed by appellant nor was ever consciously transferred by competent settlement authority in favour of appellant/claimant. It appears that all the settlement forums had been erroneously labouring under impression that said land belonged to evacuee Dhan Raj Shah and Tulsi Ram. Therefore, original transfer of said land being on account of total misconception, and by authority otherwise having no jurisdiction, same was ab initio void. Thus on the anvil of principle laid down in PLD 1958 SC 1, PLD 1976 SC 208, PLD 1997 SC 351 and plathora of case-law on the subject, whole structure constructed on such void order or action; completely falls through and concept of finality ceases to be operative. This legal position in the light of uncontroverted facts cannot be challenged merely on technicalities Extract from judgment in PLD 1958 SC 104 is reproduced hereunder:- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such :~ orders have as little legal foundation as the void order on which they are founded."
Therefore; we have no hesitation in concluding that property on the date of repealing Act, within the purview of section 3(1) was available for disposal and shad not been validly transferred to claimant, or any one else. However, assuming certain infirmities are technical defects in subsequent proceeding drawn by settlement authorities, this Court had earlier observed in the judgment, dated 10th December, 1995, that large chunk of land was added apparently through manipulation and purportedly got transferred in his favour by claimant (Syed Wajih-ul-Hassan Zaidi). This decision was recalled vide order, dated 24 June, 1996, merely to examine legal objections raised by learned counsel for claimant. There is nothing to contradict the said observation, additionally on re-- evaluation of entire material on record and thorough reappraisal we feel persuaded to reaffirm the said conclusions.th
20. Learned counsel for appellant/claimant was critical about assumption of jurisdiction by Lahore High Court on the purported exercise of authority under Article 199 of the Constitution. It was argued that discretionary relief under Article 199 could be rightly refused where impugned order was found to be void provided same had rectified illegality, but according to him such jurisdiction could not be availed for interfering with order of administrative or quasi judicial authority. Mr. Gul Zarin Kiani, learned counsel for respondents in Civil Appeal 141 of 1995 vehemently opposing this contention argued that inherently illegal order based on ill-gotten gain could also be reversed while exercising discretionary jurisdiction.
21. On thorough appraisal of precedent case law, we feel that undisputedly purpose of Constitutional provisions is to foster justice and eliminate possibility of perpetuating illegality.
Principal object underlying judicial review of order passed or actions taken by administrative or quasi judicial forums is to respect law and enforce supremacy of Constitution. There is no doubt that writ jurisdiction is completely discretionary in nature and can be invoked to combat blatant illegalities; total lack of jurisdiction, unwarranted exercise of authority otherwise not vested by law or preventing retention of ill-gotten gains. Evidently purpose of exercising such authority is corrective and directory, which has to be tempered with equity. However, the discretionary powers vested in the Supreme Court under Articles 185 and 187 of the Constitution are wider and on higher padestal.
It is obligatory for this Court to ensure that apart from legal requirement, the equitable aspects are not violated, so that complete justice can be carried out, as observed in AIR 1982 SC 1493 "if equitbale situation demands after legal formulations not to take controversy to its logical end, the Supreme Court would be failing in duty, if it omits equitbale consideration and moulds the final order merely to the exercise of its extraordinary jurisdiction".
22. From above discussions we are inclined to hold that claimant had obtained surplus land and others areas illegally and by manipulation from forum which under law at relevant the had no jurisdiction. Learned Judge of Lahore High Court in chamber while passing impugned judgment has also protected the interest of claimant and sizeable property has been left for him. Therefore, to keep the balance, we find no substance in this appeal which is consequently dismissed.
Parties are, however, left to bear their own costs.
I agree with the conclusion subject to my note separate recorded.
(Sd.)
Saiduzzaman Siddiqui, J.
(Sd.)
Muhammad Bashir Khan Jehangiri, J.
(Sd.)
Munawar Ahmed Mirza, J SAIDUZZAMAN SIDDIQUI, J.---I agree with the conclusions of my learned brothers that .The appeals be dismissed. However, I would like to record my reasons separately in support of the above conclusion.
2. The facts of the cases need not be repeated here as they are set out in detail in the judgment of my learned brothers. The main thrust of the arguments of Mr. S.S. Pirzada, the learned Senior Advocate Supreme Court for the appellant is, that after the repeal of Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter to be referred as 'the Act' only) by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter to be referred as 'Act XIV of 1975), the entitlement of the appellant could not be re-examined by the notified officer as on the date of repeal of the Act neither any proceedings were pending under the Act which could be transferred to notified officer for adjudication nor the case was remanded to the notified officer by the High Court or Supreme Court so as to confer jurisdiction on it to re-examine the case of the appellant. The next contention of the learned counsel is that after issuance of P.T.D. The settlement authorities ceased to have any jurisdiction in the matter and, therefore, notified officer who was conferred only limited jurisdiction under section 2(2) of Act XIV of 1975 to deal with the pending cases, had no authority to reopen a past and closed transaction. It is further contended by Mr. S.S. Pirzada that on merits, the appellant having paid the transfer price of the land in excess of three times the plinth area on 5-4-1960 before issuance of memorandum dated 11-3-1961, the validity of the transfer of area in excesses of three times the plinth area of the house to the appellant was a past and closed transaction which could not be re-opened in terms of memo dated 11-3-1961.
3. Learned counsel for the respondents on the other hand contended that the appellant was never transferred any open land alongwith the house as would appear froth the appendix X dated 1-12- 1959 and the P.T.O.-dated 11-1-1960 issued to him, much less the open land in excess of three times the plinth area of the house. It is contended by the learned counsel that endorsement dated 18-10- 1968 on the P.T.O. Issued to the appellant showing transfer of open land comprising Khasra Nos. 168, 171 to 191 and 379 to 381 was not supported by any valid order of transfer of open land to the appellant. The learned counsel contended that the open land allegedly transferred to appellant belonged to a different evacuee and, therefore, the question of its transfer to' the appellant as part of the house which belonged to another evacuee did not arise at all. The learned counsel for the respondents argued that by merely entering the Khasra Numbers of the land in the transfer documents issued to the appellant, in an unauthorised manner, no title in the property could pass to the 'appellant. The learned counsel for the respondents also pointed out that the question of payment of transfer price of the open land by the appellant on 5-4-1960 did not arise as according to appellants own showing neither the excess area of the land proposed to be transferred to him was communicated nor the same was entered in the P.T.O. Issued to the appellant by the authorities by that date nor the value of this land was assessed and intimated to him as required by the relevant instructions then applicable. The learned counsel for the respondents further argued that it was never the case of respondents. That any proceedings were pending on the date of repeal of the Act and, therefore, notified officer had jurisdiction to re-examine the case of appellant.
According to learned counsel; the respondents' contention throughout the proceedings was that the open land belonging to evacuee 'Sardar Mohan singh' which was situated in a different Revenue Estate was neither transferred to the appellant as part of the house, nor it could be transferred to him under the Act and, therefore, it was an available land under Act XIV of 1975. The contentions of the learned counsel for the respondents are not without force.
4. The C.H. Form dated 17-11-1959 filed by the appellant for transfer of house in his possession shows that he applied for transfer of Bungalow No.A/26 (known as S.P. House, Civil Lines, Jhelum), belonging to evacuee Dhan Raj Shah and Tulsi Das Shah. The area of the house or the open land attached to it was not mentioned in the C.H. Form. The appellant was issued Appendix X dated 1-12- 1959 for Rs.45,120 proposing to transfer House No.A/26, S.P. House, Jhelum, B-XII-12S.26. The above appendix issued to appellant contained no details regarding proposed transfer of any open area as part of the house (details whereof were given in the Appendix) to the appellant. The appellant paid the transfer price of the house through adjustment in the compensation book belonging to him and that of her mother Mst. Badar Jehan Begum on or after 1-6-1960. The appellant was issued P.T.O.
No.693 dated 11-1-1960 in which the Schedule of Property transferred to him was shown as follows:- "Schedule of Property House No.B.XII. 12.S-26 Civil Lines Jhelum (Assessment of ...... Will be communicated later on.
Assessm ent by the Excise & Taxation Department in the year 1958 Rs.1,200 of Evacuee owner Dhan Raj Shah 1/2 Tulsi Das Shah 1/2 evaluation price Rs.45,120"
On 18-10-1968, the following further endorsent was made on the P.T.O. Dated 11-1-1960 issued to appellant:- "included Khasra Nos. 168, 171 to 191, 379 to 381, (Nallah included and some land behind Nallah transferred vide Add SRC orders dated 1--5-1968). "
From the above referred undisputed documentary evidence, it is quite clear that the appellant applied for transfer of House No.A/26 known as S.P. House, Jhelum, belonging to evacuee Dhan Raj Shah and Tulsi Das Shah which was transferred to him against evaluation price of Rs.45,120 and he paid its transfer price through adjustment of Compensation Book belonging to him and his mother.
The appellant while applying for transfer of House No.A/26, on C.H. Form, made no mention of any open land/area attached to or forming part of the house. In these circumstances, the question of transfer of excess land bearing Khasra Numbers 168, 171, 172 and 173 measuring 95 Kanals belonging to a different evacuee Sardar Mohan Singh, did not arise at all, as it was neither applied for transfer nor it could be transferred to the appellant under Settlement I Scheme No.I. The learned counsel for the respondents very pertinently pointed out that evacuee house belonging to evacuee Dhan Raj Shah and Tulsi Das Shah which the appellant applied for transfer on C.H. Form situated in Danpur Revenue Estate while the open land measuring 95 Kanals belonging to evacuee Sardar Mohan Singh was in the Revenue Estate known as 'Civil Station'. There appears to be no nexus between the to evacuee and their properties. The evacuee owners of house No.A/26 (transferred to the appellant) Dhan Raj Shah and Tulsi Dash Shah sons of Fakrichand, were owners in equal shares, and were resident of Jhelum, while evacuee Sardar Mohan Singh son of Sardar Hardat Singh was the sole owner of Khasra Nos. 168, 171, 172 and 173 measuring 95 Kanals was resident of Rawalpindi, according to the entries in Register "Haqdaran Zamin" for the year 1947-48. I am, therefore, in no doubt that neither the evacuee land measuring 95 Kanals bearing Khasra Nos. 168, 171, 172 and 173 belonging to Sardar Mohan singh was transferred to appellant as part of House No.A/26 by the settlement authorities by any conscious application of mind nor it could possibly be transferred as part of House No.A/26 to the appellant against his C.H. Form under Settlement Scheme No.1. The endorsement of Khasra Nos.168, 171, 172 and 173 on P.T.O. And P.T.D. Issued to the appellant, therefore, was wholly without jurisdiction and of no legal effect.
5. Mr. Pirzada, very vehemently argued that on the date of repeal of the Act no proceedings were pending and, therefore, the notified officer could not re-open the case. I have already reached the conclusion that neither the open land measuring 95 Kanals belonging to evacuee Sardar Mohan Singh was transferred to appellant by any conscious application of mind by the settlement authorities nor this land could be transferred to appellant against his C.H. Application under Settlement Scheme No.I. In these circumstances, pendency of any proceedings under the Act on the date of its repeal was not the sina qua non to confer jurisdiction on the notified officer to deal with this land. The land bearing Khasra Nos.168, 171, 172 and 173 measuring 95 Kanals belonging to evacuee Sardar Mohan Singh was an available property in terms of section 3 of the Act XIV of 1975 and, therefore, the Provincial Government and the notified officer were fully competent to deal with it in accordance with provisions of Act XIV of 1975.
Mr. Pirzada also argued that with the issuance of P.T.D. The settlement authorities or the notified officer under Act XIV of 1975 were left with no jurisdiction to deal with the case. To clothe an order with finality, it must be one which the authority is competent to pass under the law. Therefore, an order passed by an authority which is in excess of jurisdiction or which the authority had no jurisdiction to pass under the law, cannot be defended as a final order (See Yousaf Ali v.
Muhammad Aslam Zia and others (PLD 1958 SC (Pak) 104). Orders falling under these categories confer no title and do not require to be set aside and can be simply ignored when pressed into service (See Khuda Bakhsh v. Khushi Muhammad (PLD 1976 SC 208) and Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236). I have already reached the conclusion that neither any valid order transferring 95 Kanals of land belonging to evacuee Sardar Mohan singh, to the appellant was passed by the settlement authorities after conscious application of mind nor such an order could be passed in favour of appellant under Settlement Scheme No.I. In these circumstances, mere mention of Khasra Numbers 168, 171, 172 and 173, on the transfer documents issued to appellant was of no avail and it did not confer any title on the appellant.
Mr. Pirzada also argued that the appellant had paid the transfer price of land in excess of three times to plinth area on 5-4-1960 before issuance of memo dated 11-3-1961, therefore, the transfer of excess land in favour of appellant was a past and closed transfer which could not be re-opened again. The contention has no merit. Firstly, the question of payment of any transfer price for the excess land on 5-4-1960 did not arise as on that date neither the extent of excess area nor its market value was determined in terms of memo dated 9-1-1960. From the original record which was summoned in the case, it transpired that the evaluation price of the house transferred to appellant was determined on the basis of its annual letting value of 1948 amounting to Rs.1,200. The appellant paid to transfer price through adjustment in his compensation book as well as through the compensation book of Mst. Barar Jehan Begum (mother of the appellant). At page 39 of the original file number 2 of Property No.B.XII-12-S--26 there is a document, dated 1-6-1960, written on a stamp paper of Rs.4, which reads as follows:- "Whereas I Wajih-ul-Hasan Zaidi, S/o Syed Altaf Hussain Zaidi, Superintendent of Police, Jhelum is father and guardian of Syed Masood-ul-Hasan Zaidi, minor and have been accepted as such by the claims organization in their decision on Claim Reg. No. 10408/T, dated 13-7-1959 and a sum of Rs.2,760 only was still available in the Compensation Book of my said son No.162764 JMR-764.
And whereas I hold the general power of attorney registered a: No.370, Behi No.4, Book 190 pages 225/228 dated 29-6-1959 by Sub--Registrar, Lahore in respect of Compensation Book No.8859 SLK- 56 on behalf of Mst. Badar Jehan Begam whose deferred payment is Rs.1,23,000 (subject to addition under revised orders and subject to any alterations in scrutiny).
I request that the following amounts may kindly be adjusted against the payment due on me in respect of House No.B-XII 12-S-26 9 Known as S.P'.S house transferred to me in full share:-
(1) From Compensation Book No. 1627-JMR-764. R s. ,760.
(2) From Compensation Book No.8859-SLT-56.Rs.23,610 (3)-do- Rs.21,000.
(Sd.)
(Syed Wajih-ul-Hasan Zaidi), Superintendent of Police Jhelum 1-6-1960. "
Subsequently, on the representation of the appellant, the transfer price of the house was reduced to Rs.22,560. As a result of this reduction in the transfer price of the house an entry crediting an amount of Rs.22,560 was made in the Compensation Book of appellant. In these circumstances. The question of demand of transfer price of area in excess of three times the plinth area of the house on 5-4-1960 hardly arises. The stand of the plaintiff that he paid the transfer price of the area in excess three times the plinth area on 5-4-1960 is also belied by the Memo No.728/AQN/LHR/104/259/EACR, dated 23-8-1960 addressed by Secretary to the chief Settlement Commissioner. Pakistan, to Deputy Settlement Commissioner, Jhelum, at page 99 of the original file No.2, which reads as follows:- "Office of the Chief Settlement and Rehabilitation Commissioner Pakistan 11-Egerton Road, Lahore.
No:728/AQN/LHR/104/259/EACR, dated Lahore the, 23rd August, 1960.
From Abdul Majid Khan, B.A.LL.B., Secretary (Urban) to the Chief Settlement and Rehabilitation Commissioner, Pakistan.
To , The Deputy Settlement and Rehabilitation Commissioner, Jhelum.
Subject: Sale of Evacuee Properties in the Occupation of the' Provincial Government.
Memorandum Reference your Memo No. 1087/RK, dated 22-3-1960 on this subject.
(1) Property No.B-V-10-S-2 Please intimate the grossannual rent of this building and the portion in possession of the E.A.D.A.
Separately together with the date on which it was drawn in lots.
(2) Property No. B-IV-16-S-27 The gross annual rent of this building should pleased be intimated.
(3) Property No.B-XII-12-S-26.
Please intimate if the transferee is willing to retain the surplus area based on the payment of market value to be determined on the auction price of the locality. In case the transferee does not agree to retain this area the mode of disposal may be suggested.
(Sd.)
Extra Assistant Commissioner (R) for Secretary (Urban to the Chief Settlement & Rehabilitation Commissioner, Pakistan, Lahore."
It appears than some official of Settlement Department had unauthorisedly shown adjustment of the amount which was reversed/credited in the Compensation Book of appellant as a result of reduction in the transfer price of the S.P. House, transferred to him, towards the alleged price of excess land, without any supporting order from the competent Authority. Therefore, such an entry was of no consequence. Even otherwise, as pointed out by me earlier, the land belonging to evacuee Sardar Mohan Singh was neither transferred nor it could be transferred to appellant, therefore--- in these circumstances, even if the appellant allegedly paid the transfer price of this land it- was of no legal consequences.
In view of the above discussion, no case for interference with the order of the High Court is made out. The appeal is, accordingly, dismissed but there will be no order as to costs.