MIAN ALLAH NAWAZ, J. Mst. Allah Rakhi/petitioner No. 1, Sheikh Ghulam Muhammad/petitioner No. 2 and Ch. Muhammad Latif/petitioner No. 3, through this Constitutional petition seek to call in question the validity of order passed by Deputy Settlement Commissioner/Notified Officer/Deputy Administrator Residual Properties, Jhelum dated 4,7.1981.
2. Facts, briefly stated, giving rise to this application are that petitioner No. I purchased urban evacuee vacant plot falling in Khasra No. 241-242 measuring one kanal, 10 marlas for a sum of Rs.
22,613/-including settlement fee. Petitioner No. 2 similarly purchased another open plot in auction falling in Khasra No. 243-244 measuring 16 marlas, 48 sq.Ft. For a sum of Rs. 12,202/- including- settlement fee. Ch. Muhammad Latif/petitioner No. 3 also purchased an open plot hearing No. B- V1-3-S-I measuring 8 marlas for a sum of Rs. 6,030/- including settlement fee. Original transfer orders were issued to the petitioners on 15.9.1960. Permanent transfer deeds were issued to them on 18.3.1964, 7.6.1964 and '18.3.1964 respectively. Statedly, the petitioners were already in possession of the aforesaid properties; that petitioner No. I had installed a band-saw machine on the disputed plot; that petitioner No. 2 had constructed some sheds on his plot while petitioner No. 2 installed a hand-saw machine on his plot transferred to him. This was, however, not the end of the matter. Ch. Muhammad Zaheer and 6 others/respondents Nos. 3 to 8 moved an application before Settlement Commissioner, Rawalpindi claiming that they were auction-purchasers of plot No. B-VI-3-S-5; that the transfer documents in favour of the petitioners were sham and bogus. This application was sent to Deputy Settlement Commissioner, Jhelum.
3. Resultantly, notices were issued to the petitioners to explain as to how they have come into possession of the plots mentioned above. Not liking the notices, the petitioners instituted two suits before the Court of plenary jurisdiction/contending that the Deputy Settlement Commissioner had no jurisdiction to probe into the allegations of P.T.Ds. The learned Trial Court was pleased to stay the proceedings before the Deputy Settlement Commissioner.
Ultimately their suits were dismissed by the learned Trial Court and their appeals to met the same fate. In this scenario, proceedings before the Deputy Settlement Commissioner, restarted and parties were asked to adduce evidence in support of their respective claims. The petitioners did not do so. Consequently, the Deputy Settlement Commissioner found that the documents of transfer relied upon by the petitioners were forged, bogus and were simple fraud. He came to these conclusions in the following terms:- "After going through the file carefully I have consulted the other record of the Department concerning the said P.T.Ds. It is surprising to note that there is no paper worth the name regarding the proceeding of Reservation of the plot in dispute. If one sees the documents with naked eyes, one can easily grasp that the documents are self-explanatory regarding their ingenuity. There is no proper order for the transfer of the properties, the documents notice for transfer is silent about its despatch No. The P.T.Ds. Are shown to be signed on one date, and the height of matter is that the three P.T.Os. Set forms were issued to the Jhelum Office by the Headquarters in 1968 as it is verified by the Lahore Office vide its letter No. 2221-AX-XOF/77, dated 25th August, 1977, whereas the said P.T.O. Forms have been shown to be signed on 15.9.1960. It is strange enough to note when the P.T.Os. Form were not printed even, in year 1960 how they could have been signed in the year 1960.
The P.T.D. Forms are of not even of the Government Printing Press these are seems to be printed by some private Printing Press as these are not tallying with P.T.D. Registers printed by the Government the entries made in the P.T.O., and P.T.D. Are also fake and not initialled by any of the Settlement Department. The P.T.Ds. Are also not getting any support from the CSC-IV and CSC-V Registers.
Mirza Atta-ur-Rehman in number of cases before the Martial Law Authorities and before Settlement Authorities has categorically admitted that he had been signing Anti-dated documents after his retirement from the service. There is a gang of rackteerers who had been preparing such documents outside the Settlement Department than within the conveyance of some officials of the Settlement Department they had been smuggling the forged documents into the Department.
The other most important factor is that in all the cases there is no payment at all. In nutshall, the result of my discussion is that the said documents are the result of fraud, forgery, fabrication, there is no competent order by any of the Settlement Department Officer all the orders are Anti-dated.
The signatures have been signing the papers after their retirement from the service and as such are of no value. By doing this the respondents have tried to grab the valuable property of the Department, though already sold to."
4. Learned counsel for the petitioners in support of this petition raised two fold grounds: Firstly, that after the promulgation of Evacuee Property and Displaced Persons (Repeal Act XIV), 1975; that Deputy Settlement Commissioner had no jurisdiction whatsoever to allow respondents' application.
On the strength of the above contention, it was submitted that questioned order was wholly without jurisdiction. Secondly, that the applicants had not been afforded opportunity of hearing in this case and so the impugned order passed in violation of principle of natural justice and no body should he condemned unheard. Learned counsel for the respondents, however, supported the impugned order by relying on Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 SC 691) and S. K. Masood and 3 others v. Special Committee through Member, Board of Revenue and others (1990 CLC 1174).
5. I have heard the learned counsel at length, perused the record and attended to their rival submissions very carefully. Now I will proceed to deal with them in succession. As regards, the first point, suffice it to say, the same is clinched by rule enunciated in PLD 1991 SC 691. The point as raised over here, was raised there and dealt with by His Lordship M.A. Zullah (the then Chief Justice of Supreme Court) in the following terms:- "Where, therefore the High Court in its extraordinary jurisdiction under Article 98 of the Constitution had come to the conclusion, that the orders of the Deputy Settlement Commissioner verifying the claims of certain persons were illegal and without jurisdiction, it was held that "it -could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction". Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own ,order, the High Court would not in exercise of its discretionary
(Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq All the latter was clearly without jurisdiction."
His Lordship went on to say:- "For all the above reasons, this Court is not hound to set aside the order of the High Court, even if it suffers from an infirmity, which otherwise not only advances justice between the main parties but also is fair and.. Proper, vis-a-vis the interest of innocent purchasers. The effect of this restraint on the part of this Court would be that if the order of the High Court is upheld, it would means that the remand order would be operative by virtue of the second part of Section 2 (2) and the functioneries concerned would give effect to it notwithstanding any jurisdictional or other defect in the order of Board of Revenue."
I had opportunity to examine the aforesaid question from different angle in S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others (1990 CLC 1174). Relying upon Shamrooz Khan v.
Muhabat Khan (1989 SCM R 819), it was held that the Deputy Settlement Commissioner/person who was custodian of the settlement record was competent to examine record in his custody and decide whether any document was forged.
6. Applying the above rules to facts of the case in hand, it was not difficult to agree with conclusions of Deputy Settlement Commissioner that the documents of transfer in favour of the petitioners were forged and spurious documents. It was not denied that these were scribed on unofficial papers, were not part of settlement record and carried forged signatures; that no price of the land had ever been paid by the petitioners. For the afore stated reasons, it is clear that impugned order was eminently correct, just and was fully commensurate with the ground-realities of the case.
Insofar second contention is concerned, it is well known proposition of law contained in Wade and Phillips Constitutional Law, 5th Edition at page 313 in the following words:- "An equally elementary principle of justice is that no party ought to have his case decided without being afforded an opportunity of hearing the case which he has to meet as well as stating his own case. "Even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam', says God, 'where art thou? Hast thou not eaten of the tree that thou should not eat". In Cooper v. Wandsworth Board of Works (1963), 14.C.B. (N.S. K&L. 366), the Court held invalid a demolition order justifiable in itself, which was made by the Board without giving notice to the owner of the property or affording him an opportunity of being heard. There is, however, no obligation, unless a statute so provides, that a hearing should be oral', Locao Government Board v.
Arlidge ante. Even in a Court of law evidence may in proper circumstances he given by affidavit."
The same principle was reiterated in Dawood Cotton Mills Ltd. v. Guftar Shah and another (PLD 1981 SC 225) and The Chairman Employees Old Age Benefit Institution and others v. M. Ismail Munawar (1984 SCM R 143).
7. Applying this rule to the facts of the case in hand, it is quite clear that Deputy Settlement Commissioner had issued notices to petitioners; that they had not tiled any reply and instead approached the Court of plenary jurisdiction to frustrate the said notices; that their challenge before the first Court as well as Appellate Court failed, that when the Deputy Settlement Commissioner restarted the proceedings and opportunity was afforded to them to adduce evidence in support of their documents they did not avail that opportunity. Even before me, learned counsel for the petitioners was not able to pin-point any material showing that the petitioners had not paid a single penny as a price of the plot transferred to them. This clearly lends unshakable support the conclusions of learned Deputy Settlement Commissioner. The contention that the impugned order of the Deputy Settlement Commissioner is in violation of principle of natural justice, has no merit whatsoever. For the aforesaid reasons this petition is hound to fail and is hereby dismissed without any order as to costs.
8. While parting with this order, I am inclined to observe that this order shall not preclude the rights of petitioners from moving application under Scheme Management of Disposal-of Available Properties, 1977, if they are so, advised. Learned counsel for the respondents even conceded that the genuineness of the documents relied upon by respondents were not decided by the Deputy Settlement Commissioner. In this scenario, if the petitioners move the competent authority for transfer of the properties to them, the learned competent authority will be well within its powers to examine the question of entitlement of the petitioners and genuineness of documents of transfer issued to the respondents.