By this petition, the petitioner Dewana has assailed the orders of the respondents Nos. 2, 3 and 4 and prayed that the said orders be declared to have been passed without lawful authority.
2. The brief facts emanating this petition are that there is a shop bearing No.887/888 situated on Trench Road in Chaman. The upper portion of this shop was owned by an evacuee, namely Shirimati Mukhi Bai and the plot belonged to the Government, which was to he renewed from time to time. The shop being evacuee was transferred to Shah Muhammad the respondent No. 1, by the Deputy Commissioner, Quetta-Pishin, by order dated let June, 1966. The transfer was assailed in a writ petition in the High Court of West Pakistan for the reason, that the Deputy Commissioner bad no authority to make such transfer. Ultimately, the writ petition was allowed and the transfer was declared to have been made without lawful authority. However, on 29th April, 1972 the Naib Tehsildar/Assistant Rehabilitation Commissioner, transferred the premises to the petitioner under Scheme No. VII. Being aggrieved against this transfer order, the respondent No. 2 approached the Tehsildar/Assistant Rehabilitation Commissioner, Chaman and requested that the above-said transfer be cancelled and the shop be given to him. The Tehsildar/Assistant Commissioner having no review powers, referred the application to the Assistant Commissioner/ Deputy Settlement Commissioner, Chaman, the appellate authority for passing appropriate orders. On 1st September, 1972, the Assistant Commissioner/ Deputy Settlement Commissioner, Chaman cancelled tae order of the Tehsildar/Assistant Rehabilitation Commissioner and further ordered that the shop in dispute be transferred to the respondent No. 1. The petitioner challenged this order before the Deputy Commissioner/Additional Settlement Commissioner, Quetta-Pishin. However, his petition did not find favour with the Commissioner, Quetta and it was dismissed on 31st December 1973. The petitioner agitated the matter before the Chief Settlement Commissioner, Baluchistan, but it also bore no fruit and was dismissed on 8th May 1976.
3. The petitioner finding no other adequate remedy, available to him! In any other law has approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan of 1972.
4. Mr. Yaqoob Khan Yousufzai, the learned counsel for the petitioner has challenged the orders of the respondents Nos. 2 and 3 on the grounds ;-
(i) That the petitioner was and continues to be in occupation of the shop, and the occupation entitled him to transfer of the shop under the provisions of Scheme No. VII.
(ii) The transfer of the shop to the respondent No. 1 was in clear violation of the provisions of Scheme No. VII.
5. The petitioner in support of his claim in regard to occupation of the shop in dispute has relied on Annexure No. 1 wherein it has been shown that he had paid the lease money and other charges in respect of the plot in dispute to the local authorities. Even, the occupation of the shop has not been disputed by the respondent No. 1. He admits that the petitioner was and is in occupation of the disputed shop, but as a licensee allowed by the respondent No. 1, to have it after he had entered into a partnership deed, which was executed by them on 7th May 1960. The agreement has been exhibited as Exh. P. K. In view of such circumstances, the position that the petitioner was at the time of the transfer of the property in occupa--petition of shop, stands proved. The learned counsel for the petitioner stressed that the petitioner being undisputedly in possession of the shop was legally entitled to the transfer of the shop.
6. The Land Reforms and Rehabilitation Department's Notification dated 26th March 1976 lays down the Scheme for disposal of the premises, the subject-matter of the petition. There is no dispute that the property is situated in Chaman, which bas been declared as a rural area. Section 3 subsection
(G) of the Scheme No. VII provides the manner by which such property is to be disposed of. It lays down that "a Kacha rural building, together with the courtyard, shall he transferred to the occupants free of A charge." The petitioner being in occupation of the property the shop to be transferred to him. The departure from the Scheme clearly indicates that the transfer order was made in excess of the jurisdiction thus was ab initio void. In case, Yousaf A.I v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104), it has been held that ;---- "Where the Legislature clothes an order with finality It always assumes that the order which it declared 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. On this view the orders made by the Rehabilitation Board and the Central Government refusing to eject the respondents which were based on that part of the Deputy Custodian's order which we have held to be in excess of his jurisdic--petition we-re void and not final within the meaning of section 13-B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law." Thus the transfer order being ab initio void could not give legal right to the respondent Shah Muhammad.
7. Repudiating the contention of the appellant, Mr. Muhammad Muqim Ansari contended on behalf of the respondeu2 No. 1 that albiet the respondent was not in actual occupation of the shop, but tine petitioner was his licensee and the constructive possession of the shop remained with him. In view of the circumstances, he was entitled to the transfer of the shop. The shop having been transferred to him under Scheme No. VII was not in any way violation of its spirit. The learned counsel relied on the construction of word "possession" as defined in subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. He submitted that the authorities having taken into consideration the meaning of the word 'possession' under the aforesaid Act, could not be said to have passed the order in access of the jurisdiction. The learned counsel in support of his contention regarding possession referred to Annexures R/A, R/B, R/C, R/D, RJE, R/F, R/G, R/H, R/I, R/J, R/K, R/L, R/M, R/N and R/O.
8. The crucial point involved in this petition is, whether the o0cupa--petition or the constructive possession should have been made the basis for the transfer of the shop to the petitioner or to the respondent No. 1.
9. Mr. Mohammad Muqim Ansari, the learned counsel for the respon--dent bas referred to Zofar Niazi v. Qazi Syed Shujaatullah and others (PLD 1965 Kar. 52), wherein it has been held :--- "That a person occupying portions as mere licensee of allottee, cannot be considered to be person in possession."
I fear that this authority is helpful to the respondent, in view of the provisions of independent Sections of the Scheme No. VII.
10. Likewise, the authority Imam Din and another v. Mir Hameed Hussain, Deputy Settlement Commissioner, Montgomery and others (PLD 1967 Lab. 419) the definition of the word 'Possession', that "the possession includes the constructive possession", is not of any avail to respondent. The law makers were fully aware of the definition of word 'possession', in subsection (6) of section 2 of the Displaced Persons Act of 1958 while promulgating Scheme No. VII. The word possession having been defined there, there was no need for the law makers to have incorporated the word "occupation" in sub--section (G) of section 3 of Scheme No. VII. The word "possession" has been intentionally avoided to be used in the Scheme. Therefore, the Scheme makers had in view the practical complications arising in disposal of the properties under the Scheme VII. They, therefore intentionally have used the word "occupation" to avoid the complication, which they boded may arise. I am, therefore, of the view that the person who was in occupation of the property was entitled to the transfer of the property, irrespective of the fact that how, be entered into the possession, whether legally, illegally or otherwise.
11. Such being the position, I am clear in my mind to say that the constructive possession did not entitle the respondent No. 1 to the transfer of the property. Feeling this legal difficulty, Mr. Mohammad Muqim Ansari, tenously argued that it was beyond the constitutional jurisdiction of this Court to enter into the disputed questions of facts and sit as appellate Court over the decisions of the tribunal, which had the jurisdiction to decide the lis. He relied on cases reported in Chowdhury Tanbir Ahmed Siddiky v. The Province of East Pakistan and Id others (PLD 1968 SC 185) and Pip Buz v. Member Board of Revenue, West Pakistan and 2 others (PLD 1962 Kar. 71,2). In the first authority, wherein it was held; "It appears to me that disputed questions of fact and law requiring investigation, arise for consideration in this case which would therefore, not be a suitable subject for adjudication under Article 98 of the Constitution. The appellant must, therefore, be relegated to the remedy open to him by a regular civil suit, if so advised"
PLD 1962 Kar. 71.2, where it was held ;- "Nor are we, in the exercise of our extraordinary writ jurisdiction, going to sit in appeal as it were on the facts as found by the Divisional Commissioner, Hyderabad. This very senior official of the Revenue Department had the parties before him when hearing this appeal so that seeing them he was in a position to make his own observations and to reach his own conclusion."
These two authorities, in my view do not help the respondent. In such case the constitutional jurisdiction of this Court would be only a 'chicken run'.
12. In Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another (PLD 1975 Kar. 342), it has been held that ;- "In Pakistan the power to issue writs sericto sensu does not exist after 1958, and such writs have been replaced by well-defined jurisdiction to declare an order to have been made without lawful authority and as being of no legal effect. Still, the principles governing issue of writs are in substantial pattern adhered to. The doctrine of audi alteram partem though not finding a place in Article 201 of the 1972 Constitution or corresponding documents is time honoured in Pakistan.
Similarly the doctrine of examination of jurisdictional faces or collateral facts which provides power to a Tribunal of limited jurisdiction, is besides being capable of being read in constitutional provisions, even otherwise jealously graded. The words "without lawful authority" clearly postulate an enquiry into the question of assumption of jurisdiction and exercise of powers. It would otherwise be impossible for a Court to determine the jurisdictional and collateral facts unless the facts are examined, at least broadly and determination of such facts is a necessary exercise for coming to the conclusion whether an act has been done with or without lawful authority. Such examination has as of necessity to be on the basis of existence of requisite powers before the same are exercised. The Courts have to guard against the usurpation of jurisdiction and such functions are incapable of fulfilment except upon the assumption that powers of judicial scrutiny, even of disputed facts in so far as the same relate to assumption of jurisdiction and exercise of power, inhere. The latest pronouncement in such regard is in the judgment of my Lord the Chief Justice Hamoodur Rahman in the case of Raunaq A.I andothers v. Officer on Special Duty PLD 1973 SC 236 in which judgment the point is stated as follows ; -- ---It is now weal-established that, where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action 'beyond the sphere allotted to the tribunal by law and, therefore, outside the area without which the law recognises a privilege to err', then such action amounts to 'usurpation of power unwarranted by law' and an act is nullity ; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well established that a superior Court is not round to give effect to it; particularly where the appeal is to the latter---s discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
13. In the instant case, undoubtedly, the Settlement Authorities have erred in not taking into consideration the provisions of law as provided in section 3 subsection (G) of Scheme No. VII and thereby have flagrantly accessed in its jurisdiction as such, the orders are amenable to the writ jurisdiction of this Court. I would not hesitate to say that there is no other provision of law except the Settlement Scheme No. VII, by which the disputed property should have been disposed of. Failing to do so, the Settlement Authorities have acted unlawfully. In view of the circumstances as discussed above, the petitioner has made out a strong case in which interference is called for by this Court and the impugned orders are to be set aside.
14. Under these circumstances, the orders of the respondents Nos. 2, 3 and 4 made on 18th September 1972, 31A December 1973 and 8th May 1976 respectively, are declared to have been passed without lawful authority. In result, the petition is allowed with costs.